EVEREST REINSURANCE HOLDINGS, INC.
EXHIBIT 10.5
SUBLEASE, EFFECTIVE AS OF FEBRUARY 1, 1997 BETWEEN THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA AND EVEREST REINSURANCE COMPANY
AGREEMENT OF SUBLEASE
BETWEEN
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, SUBLESSOR
AND
EVEREST REINSURANCE COMPANY, SUBLESSEE
Building Address: Westgate Corporate Center
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
SUBLEASE
--------
AGREEMENT OF SUBLEASE made as of this 3rd day of December, 1996, by and between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation with
offices at Two Gatewav Center - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
("Sublessor") and EVEREST REINSURANCE COMPANY, a Delaware corporation with
offices at Three Gateway Center, Newark, New Jersey 07102 ("Sublessee").
WITNESSETH:
WHEREAS, pursuant to a lease dated December 17, 1992 between Jared Associates,
L.P., as Landlord ("Landlord"), and Sublessor, as Tenant ("Prime Lease"),
Landlord leased to Sublessor a portion of the 2nd Floor containing approximately
31,337 rentable square feet, in the building known as Westgate Corporate Center
and located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ("Building").
WHEREAS, the Prime Lease has been amended pursuant to:
(i) First Amendment of Lease, dated as of April 1, 1993, which
added 12,108 rentable square feet and 5,876 rentable square
feet on the I st Floor, 30,599 rentable square feet on the 3rd
Floor and 26,641 rentable square feet on the 4th Floor, and
extended the expiration date of the Prime Lease to October 31,
2003;
(ii) Second Amendment of Lease, dated as of July 8,1993, which
added 2 spaces of 3,402 rentable square feet and 1,959
rentable square feet on the 1st Floor to the Premises; and
(iii) Letter agreement dated March 10, 1994 between Bellemead
Management Co., Inc., as Managing Agent, and Sublessor,
which confirmed January 3, 1994 as the commencement date for
the 3,520 (instead of 3,402) square foot space and January
14, 1994 as the commencement date for the 1,959 rentable
square foot space covered under the Second Amendment of
Lease, and November 30, 2003 as the expiration date of the
Lease.
WHEREAS, Sublessor desires to sublease to Sublessee and Sublessee desires to
sublease from Sublessor the entire Premises, containing approximately 112,040
rentable square feet ("Subleased Prernises"), on the terms, covenants and
conditions hereinafter provided.
NOW, THEREFORE, Sublessor and Sublessee covenant and agree as follows:
- 1 -
1 Sublease
Sublessor hereby subleases to Sublessee, and Sublessee hereby hires and
subleases from Sublessor, the Subleased Premises which the parties acknowledge
and agree contain approximately 112,040 rentable square feet for all purposes
under the Sublease.
2. Term
The term ("Term") of this Sublease shall be for six (6) years and ten (10)
months and shall commence on February 1, 1997 ("Commencement Date") and shall
expire on November 29, 2003 ("Expiration Date"), unless sooner terminated by
reason of or pursuant to any provision set forth herein or in the Prime Lease.
3. Base Rent
Commencing on the Rent Commencement Date (as hereinafter defined) and for the
entire Term, Sublessee shall pay Sublessor, as rent for the Subleased Premises,
the following annual sums ("Base Rent"), in equal monthly installments in
advance on the first day of each month, without setoff or deduction whatsoever:
Annual Monthly Annual Base Rent
Period Base Rent Base Rent Rate Per Rt. Sq. Ft.
Rent
Commencement Date-06/30/00 $2,548,910.00 $212,409.17 $22.75
07/01/00-11/29/03 $2,829,010.00 $235,750.83 $25.25
Sublessor and Sublessee agree that they have a mutual interest in having the
Rent Commencement Date be April 1, 1997 or as soon thereafter as is reasonably
practicable. On or before February 14, 1997, Sublessee shall select a Rent
Commencement Date and notify Sublessor of that date. The Rent Commencement Date
selected by Sublessee shall not be later than May 1, 1997, provided, however,
that if the fully executed Consent to Sublease is not received by Sublessee (by
Telefax or otherwise) on or before December 13, 1996, the latest possible Rent
Commencement Date available to Sublessee shall be extended beyond May 1, 1997 by
one calendar week for each whole or partial calendar week which expires between
December 13, 1996 and the receipt by Sublessee of the fully executed Consent to
Sublease.
4. Additional Rent
In addition to the Base Rent under paragraph 3 above, Sublessee shall pay
Sublessor, as additional rent,
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(a) "Taxes" escalation under Article 36 of the Prime Lease, using
(i) a "First Tax Year" of the Taxes payable for the calendar
year 1997, (ii) a "Tax Year" of calendar year 1998 and each
succeeding calendar year thereafter throughout the Term of the
Sublease, and (iii) a "Tenant's Occupancy Percentage" of
48.55% (i.e. 112,040 rentable square feet for the Subleased
Premises divided by 230,519 rentable square feet contained in
the Building);
(b) Building Operating Costs escalation under Article 36 of the
Prime Lease, based upon (i) a First Operating Year of calendar
Year 1997, (ii) an Operating Year of calendar year 1998 and
each calendar year thereafter throughout the Term of the
Sublease, (iii) a "Tenant's Occupancy Percentage" of 48.55%
(i.e. 112,040 rentable square feet for the Subleased Premises
divided by 230,519 rentable square feet contained in the
Building); and
(c) Electric current for all of Sublessee's electric current
requirements for light and power used in connection with
Sublessee's operations within the Subleased Premises, in
accordance with Article 40, ELECTRIC CURRENT of the Prime
Lease.
5. Late Charges
In the event that Sublessee shall fail to pay Base Rent or any additional rent
within five (5) days after its due date, Sublessee shall pay an automatic late
charge to Sublessor of $.05 for each dollar overdue. In addition, in the event
that Sublessee shall fail to pay Base Rent or any additional rent within thirty
(30) days after its due date, then from and after the thirty-first (31st) day
until the date Sublessee finally pays the Base Rent or additional rent,
Sublessee shall pay Sublessor an additional late charge at the rate of fifteen
(I5%) percent per annum with respect to the delinquent amount. Such late charges
shall be deemed additional rent for all purposes under this Lease.
6. Use
Sublessee shall use and occupy the Subleased Premises for the purposes permitted
under, and in a manner consistent with, the provisions of the Prime Lease.
7. Condition of Subleased Premises
Sublessee acknowledges that Sublessee is hiring the Subleased Premises in "as
is" condition. In making and executing this Sublease, Sublessee has not relied
upon or been induced by any statements or representations of any person with
respect to the physical condition of the Subleased Premises, except as set
forth in the Certificate of Tenant attached hereto as Exhibit A
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and made a part hereof. Sublessee has relied solely on such investigations,
examinations and inspections as Sublessee has chosen to make. Sublessee
acknowledges that Sublessor has afforded Sublessee the opportunity for full and
complete investigation, examination and inspection of the Subleased Premises.
8. Subordination
Sublessor and Sublessee agree that this Sublease is, and shall be, subject and
subordinate to all of the terms, covenants and conditions of the Prime Lease,
and to the matters to which the Prime Lease shall be subordinate.
9. Incorporation of Prime Lease Terms
The terms, covenants and conditions contained in the Prime Lease are hereby
incorporated herein and shall, as between Sublessor and Sublessee, constitute
the terms, covenants and conditions of this Sublease, except to the extent set
forth below. As between the parties hereto, Sublessor agrees to observe and
perform the terms, covenants and conditions on its part to be observed and
performed hereunder and Sublessee agrees to be bound by the provisions of the
Prime Lease and to keep, observe and perform the terms, covenants and conditions
on its part to be kept, observed and performed hereunder as well as those
applicable terms, covenants and conditions to be observed and performed by
Sublessor as Tenant under the Prime Lease with respect to the Subleased
Premises. The remedies of the parties, as Sublessor and Sublessee hereunder,
shall be the same as the respective remedies of the Landlord and the Tenant
under the Prime Lease with respect to the Subleased Premises. Sublessee shall in
no case have any rights with respect to the Subleased Premises greater than
Sublessor's rights as Tenant under the Prime Lease, and Sublessor shall have no
liability to Sublessee for any matter or thing for which Sublessor does not have
co-extensive rights as Tenant under the Prime Lease.
The following terms, covenants, provisions and conditions of the Prime Lease,
and the rights and obligations of Sublessor thereunder, do not apply to, and
shall not be a part of, this Sublease:
ARTICLE PAGE
Original Lease
Minimum Rent
Schedule...................................................1
24. Failure To Give
Possession.................................................4
28. Bills and
Notices....................................................4
34. Security...............................................5
4
Rider To Original Lease:
Article Page
36. Definitions; Demised Premises; Adjusted
Minimum Rent (3 6.1 (2), (3), (4), and
(7)............................................................................1
64. Landlord's Work; Landlord's Work
Letter........................................................................20
65. Renewal
Option........................................................................22
67. Relocation
Allowance.....................................................................24
69. Additional Lease
Inducement....................................................................24
70. Satellite
Antenna.......................................................................25
71. Restriction on Certain Prospective
Tenants.......................................................................25
73. Right of First or Second
Offer.........................................................................26
First Amendment of Lease:
Article Page
5.....................................................................3 & 4
7.........................................................................5
9.....................................................................5 & 6
10........................................................................6
11........................................................................6
12....................................................................6 & 7
14........................................................................7
15........................................................................7
16....................................................................7 & 8
17........................................................................8
Second Amendment of Lease:
Article Page
5..........................................................................3
7..........................................................................3
9..........................................................................4
10.........................................................................4
11.........................................................................4
12.....................................................................4 & 5
13.........................................................................5
14.........................................................................5
15.........................................................................5
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10. Mutual Indemnification
(a) Sublessee shall not do or permit to be done any act or thing in or with
respect to the Subleased Premises which will constitute a breach or violation of
any of the terms, covenants or conditions of the Prime Lease which pertain to
the Subleased Premises. Sublessee shall indemnify, defend and hold harmless
Sublessor from and against all claims, losses, costs, expenses (including
reasonable attomey's fees), damages and liability, which Sublessor may pay or
incur by reason of (i) any breach or default by Sublessee under this Sublease or
the Prime Lease, (ii) any work done in or to the Subleased Premises by Sublessee
or its servants, employees or contractors or subcontractors, (iii) any act,
omission, negligence or other fault on the part of Sublessee or its servants,
employees, agents, contractors, subcontractors, invitees or licensees, or (iv)
any accident, injury or damage whatsoever to any person, firm or corporation
occurring during the Term in the Subleased Premises.
(b) Sublessor shall indemnify, defend and hold harmless Sublessee from and
against all claims, losses, costs, expenses (including reasonable attomey's
fees), damages and liability, which Sublessee may pay or incur by reason of (1)
any breach or default by Sublessor under this Sublease or Prime Lease, or (2)
any act, omission, negligence or other fault on the part of Sublessor or its
servants, employees, agents, contractors, subcontractors, invitees or licensees
during the term of this Sublease.
11. Liability Insurance
At all times during the Term, Sublessee shall, at its own cost and expense,
provide and keep in force for the benefit of Sublessee and Sublessor,
comprehensive general liability insurance against claims for bodily injury,
death or property damage occurring in, on or at the Subleased Premises, with
limits as specified in the Prime Lease. 'The insurance to be provided and kept
in force hereunder by Sublessee shall include Sublessee, as insured and
Sublessor and Landlord, as additional insureds. Said policy shall be obtained by
Sublessee and certificates thereof delivered to Sublessor at least ten (IO) days
prior to Sublessee (including its agents, employees and contractors) entering
the Subleased Premises prior to the Commencement Date. Said policy shall be for
a period of not less than one year and shall contain a provision whereby the
same cannot be materially changed or cancelled unless Sublessor is given at
least thirty (30) days' written notice of such material change or cancellation.
Sublessee shall obtain and pay for renewals of such insurance from time to time
at least thirty (30) days before the expiration thereof, and Sublessee shall
promptly deliver certificates thereof to Sublessor. Any insurance required to be
provided by Sublessee pursuant to this Sublease may be provided by blanket
insurance covering the Subleased Premises and other properties of Sublessee upon
condition that (i) the amount of the insurance allocated to the Subleased
Premises shall be such as to furnish in protection the equivalent of separate
insurance inthe amounts herein provided,(ii)such blanket insurance complies with
all of the other requirements of this Sublease and isacceptable to the Sublessor
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and the Landlord, and (iii) certificates of such insurance are delivered to
Sublessor and Landlord. Sublessee shall obtain and pay for insurance on its
personal property.
12. Assignment and Subletting
Sublessee shall not, by operation of law or otherwise, assign, mortgage, pledge
or encumber this Sublease, or sub-sublease all or any part of the Subleased
Premises, without the prior written consent of Landlord under Article 48.
Assignment and Subletting of the Prime Lease and Sublessor in each instance.
In the event Landlord and Sublessor consent to an assignment of this Sublease or
a sub-sublease of all or a portion of the Subleased Premises, Sublessee shall
pay Sublessor fifty (50%) percent of the amount, if any, by which the rent,
additional rent and other amounts received by Sublessee under the assigrunent or
sub-sublease exceed the Base Rent and additional rent payable by Sublessee under
this Sublease.
13. Alterations
Sublessor shall not perform any additions, alterations and improvements to the
Subleased Premises, or any part thereof, without the prior written consent of
Landlord and Sublessor and otherwise in full compliance with all of the
applicable terms, covenants and conditions of the Prime Lease.
14. Approvals
In any instance where the approval or consent of Sublessor is required
hereunder, such consent or approval shall not be unreasonably withheld or
delayed, However, any refusal by Sublessor to consent or approve any matter or
thing requested by Sublessee shall be deemed reasonable if, inter alia, Landlord
has refused to give consent or approval thereto whenever such consent or
approval is necessary under the Prime Lease.
15. Notices
Any notice, demand, ▇▇▇▇, invoice, statement or communication which either party
may desire or be required to give to the other in connection with this Sublease
shall be in writing and shall be deemed to have been sufficiently given if sent
by (i) Certified or Registered Mail, Return Receipt Requested, or (ii) a
nationally recognized overnight courier, such as Airborne Express, Federal
Express or United Parcel, to such other party at its address set forth below:
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Sublessor: The Prudential Insurance Company of America
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Real Estate
With a copy to: Enterprise Legal Services
The Prudential Insurance Company of America
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant General Counsel
Sublessee:
Prior to Rent Commencement Date:
Everest Reinsurance Company
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
From and after Rent Commencement Date:
Everest Reinsurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
Each such ▇▇▇▇, invoice, statement, notice or communication shall be deemed to
have been delivered on the date when the original of same is received.
16. Time Limits
The time limits, if any, set forth in the Prime Lease for the performance of any
act or the making of any payment are, for the purposes of this
Sublease, changed so that the time of Sublessee in a
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particular case hereunder to do or perform any act or make any payment shall be
three days less than the time of Sublessor as tenant under the Prime Lease, to
do so in such case.
17. Services
Sublessee shall be entitled to receive all of the services pertaining to the
Subleased Premises which Sublessor is entitled to receive under the Prime Lease.
Sublessee recognizes that such services are to be supplied by Landlord and not
by Sublessor. In the event that Landlord shall fail to supply such services or
shall refuse to comply with any of the provisions of the Prime Lease insofar as
they affect Sublessee's occupancy of the Subleased Premises, Sublessor shall, at
the written request of Sublessee, request Landlord to so comply and if Landlord
shall fail or refuse to do so then, to the extent permitted by the terms of the
Prime Lease, Sublessee shall have the right to exercise, in its own name and in
the name of Sublessor, all of the rights to enforce performance on the part of
Landlord as are available to Sublessor, provided that the same shall be without
cost, expense or liability to Sublessor. Sublessor shall be under no liability
to Sublessee in the event of the failure by Landlord to supply any services,
unless the same is due to the fault of Sublessor.
18. Landiord's Consent and Other Contingencies
This Sublease is contingent on the execution of (a) a Consent to Sublease by
Landlord, (b) a Certificate by Tenant in the form attached hereto and (c) a
sublease, in a form acceptable to Tenant and Sublessee, and the lessor's consent
thereto, with respect to the furniture referred to in Article 26 ("Furniture
Sublease"). The Certificate by Tenant and Furniture Sublease shall be executed
simultaneously with this Sublease. At Sublessee's option, this Sublease shall be
null and void if an acceptable Consent to Sublease is not executed within 60
days after the date of the execution of this Sublease. At Sublessee's option,
this Sublease shall be null and void if the Lessor under the Master Furniture
Lease does not execute a consent to the Furniture Sublease within 30 days after
the date of the execution of this Sublease. If this Sublease is voided as a
result of the failure to obtain the Lessor's consent to the Furniture Sublease
within 30 days after the execution of this Sublease, Sublessor shall pay to
Sublessee as liquidated damages the sum of any and all costs specifically
allocable to Sublessee's preparations for taking possession of the Subleased
Premises, including but not limited to the cost of design and/or construction
services related to Sublessee's anticipated improvements and any cancellation
penalties which may apply to equipment or service contracts entered into by
Sublessee with other vendors. Such liquidated damages shall be documented by
Sublessee within 30 days after the voiding of this Sublease and payable by
Sublessor within 20 days thereafter.
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19. Brokerage
Sublessee warrants and represents to Sublessor that in connection with this
Sublease, Sublessee has dealt with no brokers other than Commonwealth Advisors
(represented by ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇) and Sublessee shall
indemnify, defend and hold Sublessor harmless (including the payment of
attomey's fees) from any claim of any other broker that Sublessee had, or is
alleged to have had, dealings with concerning this Sublease. Sublessor will pay
Commonwealth Advisors a fee in accordance with the terms of a separate
agreement. Sublessee shall not have any obligation to Commonwealth Advisors with
respect to this Sublease.
20. Termination of Prime Lease
If for any reason whatsoever the term of the Prime Lease shall be terminated
prior to the expiration date of this Sublease, this Sublease shall thereupon be
ipso facto terminated and Sublessor shall not be liable to Sublessee by reason
thereof, unless said termination shall have been effected because of a default
on the part of Sublessor as Tenant under the Prime Lease which was not the
result of a default by Sublessee.
21. Captions
The captions in this Sublease are used for convenience and reference only and
are not to be taken as part of this Sublease or to be used in determining the
intent of the parties or otherwise interpreting this Sublease.
22. Successors and Assigns
This Sublease shall be binding upon and inure to the benefit of Sublessor and
Sublessee and their respective successors and permitted assigns.
23. Miscellaneous
(a) Sublessor represents that the copy of the Prime Lease attached hereto as
Exhibit B is a true, full and complete copy of the Prime Lease.
(b) Sublessor represents that: (i) Sublessor has not received a notice of
termination of the Prime Lease; and (ii) Sublessor shall not enter into any
agreement that will modify or amend the Prime Lease so as to increase or
materially affect the obligations of Sublessee pursuant to this Sublease, or
adversely affect Sublessee's right to use and occupy the Subleased Premises or
any other rights of Sublessee pursuant to this Sublease.
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(c) This Sublease is subject to all of the terms and conditions of the Prime
Lease and in the event of termination of the Prime Lease for any reason
whatsoever or of the surrender of the Prime Lease whether voluntary, involuntary
or by operation of law, prior to the expiration date of this Sublease, including
extensions and renewals of the term thereof, Sublessee agrees to make full and
complete attornment to Landlord for the balance of the term of this Sublease, at
the option of Landlord at any time during Sublessee's occupancy of any portion
of the Subleased Premises, which attomment shall be evidenced by an agreement in
form and substance satisfactory to Landlord, which Sublessee agrees to execute
and deliver at any time within ten (10) days after request of Landlord, its
successors and assigns. Sublessee waives the provisions of any law now or
hereafter in effect which may give Sublessee any right of election to terminate
this Sublease or to surrender possession of the Subleased Premises in the event
any proceeding is brought by Landlord under the Prime Lease to terminate the
Prime Lease.
24. Security Deposit (Intentionally Omitted)
25. Sublessor's Contribution
Sublessor agrees to contribute One Million One Hundred Twenty Thousand Four
Hundred and 00/100 ($1,120,400.00) Dollars toward Sublessee's costs in
connection with the Sublease. Sublessor agrees to pay Sublessee the
$1,120,400.00 contribution in lump sum, within twenty (20) days after the
occurrence of the Rent Commencement Date under Article 3 above.
26. Furniture Sublease
a) This Sublease is being executed and delivered simultaneously with the
execution and delivery of the Furniture Sublease between Sublessor and Sublessee
covering the furniture leased to Sublessor by Tokai Financial Services, Inc.
under the Master Lease Agreement dated July 19, 1993. Sublessee shall not be
obligated to pay Sublessor any sublease rent for the use of the furniture under
the Furniture Sublease but otherwise, Sublessee shall comply with all of the
terms, covenants and conditions contained in the Master Lease Agreement.
b) Provided that Sublessee is not in default under this Sublease at the time,
Sublessee shall be entitled to exercise Sublessor's option to purchase the
furniture under the Master Lease Agreement from the lessor thereof at the end of
the term of the Master Lease Agreement. At anytime prior to the expiration of
this Sublease, if requested by and subject to the direction of Sublessee,
Sublessor shall use its best efforts in assisting Sublessee to negotiate a
purchase price for the furniture covered under the Furniture Lease with the
lessor thereof.
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27. Non-Disturbance Agreements
Sublessor hereby agrees to use its best efforts to obtain a Non-Disturbance
Agreement from Landlord, in substantially the form of paragraph 1 of the Consent
To Sublease annexed hereto as Exhibit C and made a part hereof. Also, Sublessor
hereby agrees to use its best efforts to obtain a Non-Disturbance Agreement from
the existing mortgagee of the Building, in a form reasonably acceptable to
Sublessee. Sublessee agrees to pay any legal or other standard charge imposed by
Landlord and the mortgagee in connection with the Non-Disturbance Agreements.
28. Early Access
Sublessor hereby grants Sublessee access to the Subleased Premises prior to the
Commencement Date in order to perform its tenant improvement work and install
Sublessee's telephone equipment, furniture, office equipment and other personal
property in the Subleased Premises. Such early access to the Subleased Premises
shall be upon and subject to all the terms and conditions contained in the Prime
Lease and this Sublease, except that Sublessee shall not be obligated to pay any
Base Rent or additional rent during said period prior to the Commencement Date.
The schedule of access to the Subleased Premises is annexed hereto as Exhibit D
and made a part hereof. Sublessor agrees to deliver possession of each area of
the Subleased Premises on the scheduled access date, free of occupants and
office furnishings except for the furniture covered by the Furniture Sublease.
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IN WITNESS WHEREOF, this Sublease has been executed as of the day and year first
above written.
ATTEST: SUBLESSOR:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:____________________________ By:___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Assistant Secretary Vice President, Strategic Procurement
ATTEST: SUBLESSEE:
EVEREST REINSURANCE COMPANY
By:______________________________ By: __________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Assistant Secretary Senior Vice President and
Chief Financial Officer
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EXHIBIT A
CERTIFICATE BY TENANT
TO: Everest Reinsurance Company
THIS IS TO CERTIFY THAT:
1 . Under that certain lease dated December 17, 1992 (the "Prime
Lease")covering premises located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, said premises being more particularly described in the Prime Lease and
attachments thereto, which are incorporated herein (the "Premises"), New Valley
Corporation, as successor in interest to Jared Associates, L. P., is Landlord
("Landlord") and The Prudential Insurance Company of America ("Prudential') is
Tenant.
2. The Prime Lease has been modified by First, Second, Third and Fourth
Amendments. The Prime Lease has not otherwise been modified, changed, altered,
or amended in any respect, is the only lease between the Landlord and Prudential
affecting said Premises, and represents the entire agreement between the parties
as to the Premises. Prudential shall not consent to any further modifications of
the Prime Lease without the prior written consent of Everest Reinsurance Company
("Everest").
3. Prudential has accepted and now occupies the Premises; the Lease
term began in 1993; the rent for the Premises (including Adjusted Minimum Rent
and any other charges due from Prudential to the Landlord under the Prime Lease)
has been paid from the Rent Commencement Date set forth in the Prime Lease to
and including the date of the execution of this Certificate; and there has been
no prepayment of rent or other monies due or to become due under the Prime Lease
more than one month in advance. The term of the Prime Lease expires on November
30, 2003, subject to Prudential's option to renew the term for period of five
years.
4. To the best of Prudential's knowledge: (i) neither Landlord nor
Prudential is in default under the Prime Lease and neither Landlord nor
Prudential has received any
notice of default by the other party; (ii) there are no circumstances existing
which with notice and/or the passage of time would constitute a default by
either the Landlord or Prudential thereunder; (iii) the Prime Lease is in full
force and effect; (iv) the representations contained in Article 66 of the Prime
Lease remain accurate; (v) Prudential is entitled to no offset or deduction or
reduction in rent; and (vi) there are no defenses, setoffs or counter-claims by
Prudential against the Landlord under the Prime Lease. To the best of
Prudential's knowledge, the Landlord has fully inspected the improvements on the
Premises and found same to be as required by the Prime Lease, in good order and
repair.
5. Prudential has no knowledge of any assignment, hypothecation
or pledge of the Prime Lease.
6. This Certificate is made by Prudential to induce Everest to accept a
sublease of the Premises from Prudential, knowing that Everest is relying upon
the truth of this Certificate as to same. This Certificate shall inure to the
benefit of Everest and Rs successors and assigns and shall be binding upon
Prudential and Rs successors and assigns.
Executed this 3rd day of December, 1996
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Tenant
By:____________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
2
STANDARD FORM OF OFFICE LEASE
AGREEMENT OF LEASE, made as of this 17th day of December, 1992, between
JARED ASSOCIATES, L.P., a New Jersey limited partnership, having an office c/o
Bellemead Management Co., Inc., 280 Corporate Center, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Owner" or "Landlord"), and THE PRUDENTIAI.
INSURANCE COMPANY OF AMERICA, a New Jersey corporation, having an address at
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Tenant").
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord a portion of the second (2nd) floor of a certain office building
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (the "Premises" or
"Demised Premises" or "demised premises") , more particularly shown upon the
Rental Plan annexed hereto and made a part hereof as Exhibit "A", for a term
commencing and terminating as set forth in Article 37 of the Rider to Lease.
The annual rental rate ("Minimum Rent") for the
Premises shall be as follows:
Lease Months Rent P/s/f Annual Monthly
1-12 $18.50 $579,734.50 $48,311.21
13-24 19.50 611,071.50 50,922.63
25-36 20.50 642,408.50 53,534.04
37-48 21.50 673,745.50 56,145.46
49-60 23.50 736,419.50 61,368.29
61-120 24.50 767,756.50 63,979.71
All payments of Minimum Rent due hereunder shall be payable on the first
day of each calendar month in equal monthly installments during the term of this
Lease. Installments of Minimum Rent payable hereunder shall be paid at the
office of Landlord or at such other, place as Landlord may designate from time
to time by written notice to Tenant hereunder, without setoff or deduction
whatsoever except as expressly stated herein to the contrary.
THE PARTIES HERETO, FOR THEMSELVES, THEIR HEIRS, DISTRIBUTEES, EXECUTORS,
ADMINISTRATORS, LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, HEREBY COVENANT
AS FOLLOWS:
Rent l.-j ".@ *QttL 43 aoouve &nu an neresnatter,l Occupancy
2. Tenant shall use and occupy detw&ed premises forg*4 services and for
no other purpose.
Tenant 3. Tenant d" make no changes in or to the
Alterations demised promises of any nature which cost in excess of
$5,000 without Owner's prior written consent, which consent, in the came of
non-ottuctumi alterations only, shall not be unreasonably withhold or delayed.
Subject to the prior written consent of Owner, and to the p@isions of this
article, Tenant at Tenant's expense, may make 'alterations, installations,
additions or improvements which are non-amctumi and which do not affect
utility services or plumbing and electrical lines, in or to the interior of
the d@sed premises by using contractors or mechanics first approved by Owner.
Tenant shall, before making any alterations, additions, installations or
improvements, at its expense, obtain all permits, approvals and c@ficates
required by any govemmonmi or quasi-govemnicaw bodies and (upon completion)
certificates of final approval thereof and ahall deliver proupdy duplicates of
all such permits, approvals and certificates to Owner and Tenant agrees to
carry and will cause Tenam's contractors and sub-contncton to carry such
▇▇▇▇▇▇▇'▇ compensation, general liability, personal and property damage
insurance as Owner may reasonably require. Tenant sWI be obligated to provide
Owner with '@uilt' drawings for any alterations made to the de@ed premises. If
any mechanic's lien is filed against the domised premises, or the building of
which the ▇▇▇▇ forms a part, for work claimed to have been done for, or
materials fijmishad to, Tenant, whether or not done pursuant to this article,
the same shall be discharged by Tenant within sixty days thereafter, at
Tenant's expense, by filing a bond or by any other binding method in
accordance with applicable laws. Owner shall advise Tenant at the time of
approval for any improvement whether said iniprovenwnt must be removed at the
expiration of the lease term. All fimras and all paneling, cables, telephones
wires, partitions, raffins and l@ installations, @ed in the premises at any
fim either by Tenant or by Owner in Te=nt's behalf, iW, upon installation,
beconw the property of Owner " &W remain upon and be surrendered with the
demised premises unless Owner, by the above-mforenced notice to Tenant has
elected to relinquish Owner'* tight dntvto and to have them removed by Tenan4
in which event the same shall be removed from the premises by Tenant prior to
the expiration of the lease, at Tenant's expense. Nothing in this Article dmff
be commed to give Owner tide to or to prevent Tonant's removal of trade f@res,
moveable office furniture and equipment, but upon removal of any such from the
prenises or upon removal of other Dilations as may be required by Owner,
Tenant ▇▇▇▇▇ immediately and at its expense, repair and restore the premises
to die condition existing prior to installation and repair any damage to the
dendsed premises or the building due to such removal. All property permitted
or required to be removed, by Tenant at the end of the term remaining in the
premises after Tenant's removal dW be deemed abandoned and may, at die
election of Owner, either be retained as Owner's property or nay be mnwved
from the pressure by Owner, at Tonant's
expense.
Maintenance 4. Tenant shall, @ghout the. term of this lease,
and take good cam of the d@sed promises and the
Re@ f'u=ms and appurtenances therein. Tenant shall be
responsible for all damage or injury to the d@sed pretenses or any other
part of the building and the systems and equipnwnt thereof, whether
requiring structural or nonmctumi repairs caused by or resulting from the
negligence or intentional act of Tenant, Tenant's gubtenants.
agents, "loyces, inviwes or licensees, or which &rise out of any work, labor,
service or equipment done for or supplied to Tenam or any subtenant or arising
out of the installation, use or operation of the property or equipment of Tenant
or any subtenant other than the actions of Owner or Owner's contractors. Tenant
shall also repair all danuge to the building and the devised premises caused by
@ moving of Tenant's fixtures, furniture and equipment. Tenant shall promptly
nuke, at Tenam's expense, all repairs in and to the demised premises for which
Tenant is responsible, using only a contractor for the trade or trades in
question, reasonably acceptable to both Owner and TenaM. Any other repairs in or
to the building or the facilities and systems thereof for which Tenant is
responsible shall be performed by Owner at the Tenant's expense; provided,
however that for any non-emergent repair in ex-Wess of $5,000, Tenant may upon
notice to Owner require for Owner to have that particular item competitively
bid. Owner shall maintain in good working order and repair the exterior and the
structural portions of the building, including the structural portions of its
de@sed premises, and the public portions of the building interior and the
building plumbing, electrical, heating and ventilating systenn (to the extent
such systems presently exixt) serving the de@sed premises. Tenant agrees to give
prompt notice of any defective condition in the promises for which Owner may be
responsible hereunder. When entering the derniwa premises for the purposes of
undertaking repairs Owner shall use reasonable efforts to iwnimize interference
with Tenant's business. 7bere &hall be no allowance to Tenant for diminution of
rental value and no liability on the ▇▇▇% of Owner by ▇▇▇▇▇ of inconvenience,
umymwe or Wury to business arising
from Owner or others making repairs, alterations, additions or improvements in
or to any portion of @ building or the d@nd premises or in and to the fixwres,
appurtenances or equipment thereof. h Is specifically agreed that Tenant shall
not be entitled to any setoff or reduction of rera by reason of any failure of
Owner to comply with the covenants of thin or any other article of this Uaso.
Tenant agrees that Tenant's sole remedy at law in such instance will be by way
of an action for danuges for breach of contract. The provisions of this Axdcie 4
shall not apply in the case of fire or other casualty which are dealt with in
Article 9 hereof.
Window 5. Tenant will not clean nor require, permit, Clegn'no suffer or allow
any window in the dcrwsed premises to
be clearwd from the outside.
R eats of 6. Prior to the conunencentent of the lease term,
Law, Fln iftenant is then in possession, and at all times
thereafter,
o Tenant, at Tenant's sole cost and expense, shall promptly
Floor Loads convly with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
conunissions and boards and any direction of any public oflrtcer pursuant to
law, and all orders, rules and regulations of any body which shall impose any
violation, order or duty upon Owner or Tenant with respect to the de@sed
premises, whether or not &rising out of Tenant's use or manner of use thereof,
(including Tenant's permitted use) or, with respect to the building if arising
out of Tenant's use or manner of use of the premises or the building (tmluding
the use permitted under the lease). Owner represents that the building and
de@sed promises oW comply with all legal requimnwnts as of the conunencement
date of this lease. In addition, Owner covenants that the building sW continue
to comply with all legal mquimmenu during the tem of this Lean, including the.
Americans with Disabilities Act. Nothing herein shall require Tenant to make
structural repaim or alterations unless Tenant has, by its manner of use of the
d@sed premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant u%ay, after securing Owner to Owneir's satisfaction against all ▇▇▇-Ages,
interest, penalties and expenses, contest and appeal any such laws, ordinances,
orders, rules, regulations or requirements provided same is done with all
mmnable promptness and provided such appeal sW not subject Owner to prosecution
for a criminal offense or constitute a defauk under any lease or w,agiga,ge
under which Owner may be obligated, or cause the dentised premises or any part
thereof to be condemned or vacated. Tenant shall mg do or permit any act or
thing to be done in or to the deraind premises which is contrary to law, or
which will invalidate or be in conflict with public liability, rim or other
policies of insurance at any time carried by or for the benefit of Owner with
respect to the doniised premises or @ building of which the d@sed premises form
a part, or which shall or n-dght subject owner to any liability or mwonsibility
to any person or for property danuge. Tenant shall not keep anything in the
deniised premises except as now or hereafter permitted by the Fire Department,
Board of Fire Underwriters, Fire @rance Rating 0 tion or other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance
applicable to the building, nor use the premises in a r which will increase the
insurance rate for the building or any property located therein over that in
effect prior to the conunenceniont of Tenant's occupancy. Tenant WWI pay all
costs, expenses, fines, penalties, or damages, which may be imposed upon Owner
by ▇▇▇▇▇ of Tenent's failure to comply with the provisions of this article and
if by reason of such failure the fire insurance rate shall, at @ beginning of
this lease or at any time thereafter, be higher than it otherwise would be, then
Tenant shall reimburse Owner, as additional rent hereunder, for that portion of
all fire insurance premiums thereafter paid by Owner which @ have been charged
because of such failure by Tenant. In any action or proceeding wherein Owner and
Tenant are parties, a schedule or 'make-up' of rate for the building or dciwsed
premises issued by any body making fire insurance rates applicable to said
p.--rnis--s shall be cc=lusive evidence of tile facts therein stated and of the
several items and charges in the fire insurance rates then applicable to said
premises. Tenant shall not place a load upon any floor of the den-tised premises
exceeding @ floor load per square foot area which it was designed to carry and
which is allowed by law. The Owner represents that the floor load is 100 pounds
per square foot with live load reduction and with other BOCA permitted
reductions. Owner reserves the right to prescribe the weight and position of all
safes, business machines and mechanical equipment. Such installations shall be
placed and maintained by Tenant, at Tenant's expense, in settings sufficient, in
Owner's reasonable judgement, to absorb and prevent vibration, noise and
annoyance.
▇▇▇▇@tion 7. (a) This lease is subject and subordinate to all
ground or underlying leases and to all mortgages which may now or hereafter
affect such leases or die real property of which demised pmadses am a part and
to all renewals, modifications, consolidations, replacements and extensions of
any such underlying leases and mortgages. This clause shall be self-opcmtive and
no further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the de@sed premises are a part. In confirmation Of such subordination,
Tenant shall execute promptly any cettificat* that Owner nuy reasonably request.
(b) Owner shall deliver the building mortgagee,'s
executed subordination and atto ot agmnwnt to the Tenant wi@ thirty (30) days
from the date hereof. If Owner fails to deliver the executed subordination and
attornment agreement within the above mated thirty (30) day period, Tenant shall
have the single option of terminating this lease within ten (10) days after the
expiration of the thirty (30) day period, time being of the essence. Tenant
agrees to Co) execute and deliver to such mortgagee a nondisturbance and
attomment agreement in form and substance reasonably satisfactory to and
customarily adopted by such mortgagee and (ii) reimburse Owner for all
reasonable expenses incurred by Owner from nonaffiliated third parties in
connectionthemwith, including legal expenses. Owner mpmsents that it is the fee
owner of the building of which the deniised preniiscat forms a part.
Property- 8. Owner or its agents @U not be liable for any
Loss, Damage, damage to property of Tenant or of others c
Reimbursement, to ensployces of the building, nor for Ion of or
IndemWty damage to any property of Tenant by theft or otherwise,
nor for any injury or damage to persons or property resulting from any cause of
whatsoever nature, unless caused by or due to the negligence or intentional acts
of Owner, its agents, servants or *nvioyets. Owner or its agents will not be
liable for any such damage caused by other tenants or persons in, upon or about
said building or caused by operations in construction of any private, public or
quasi public work. Tenant shaft indemnify and save harmless Owner against and
from all liabilities, obligations, damages, parmities, ciaims, costs @ expenses
for which Owner shall not be reimbursed by insurance, including reasonable
attorneys fees, paid, suffered or incurred as a result of any breach by Tenant,
Tenant's agents, contractors, enwioyces, invitfts, or licensees, of any covenant
or condition of this lease, or the negligence or intentional acts of the Tenant,
Tenant'@ agents, contractors, employees, invi@ or licensees. Tenant's liability
under this lu" extends to the acts and omissions of any sub-wnant, and any
agent, contractor, employee, invite* or licenum of any @-tenant. In case any
action or proceeding is brought against Owner by reason of any such claim,
Tenant, upon written notice from Owner, will, at Tenant's expense, resist or
defend such action or proceeding by counsel approved by Owner in writing, such
approval not to be u nobly wi@id.
D on, Fim 9. (a) if the d@sed promises or any pain thereof shall
and Other be damaged by fire or other casualty, Tenant
C@ty sW give immediate notice thereof to Owner and t h i 9
lease shall continue in full fome and effect except as hereinafter set forth.
(b) If the d@sed premises am partially damaged or rendered partially unusable by
fire or other casualty, the damages thereto d" be repaired by and at the expense
of Owner and the rent, until such repair @ be substantially completed, shall be
apportioned fiom the day following the casualty according to the part of the
premises which is usable. (c) If the d@wd premises am totally damaged or rendemd
wholly unusable by fire or other casualty, then the rent shall be
proportionately paid up to the time of the casualty and thenceforth shall cease
until the date when the promises shall have been repaired and restored by Owner,
subject to Owner's right to elect not to restore the same as hereinafter
provided. (d) If fifty percent (50 %) or mom of the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in any of such
events, owner may elect to terminate this lease by written notice to Tenant,
given within 30 days after such fire or casualty, specifying a date for the
expiration of the lease, which date shall not be mom than 60 days after the
giving of such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date were the date
net forth above for the termination of this least and Tenant @li forthwith quit,
surrender and vacate the premises without prejudice however, to Landlord's
rights and mmedies against Tenant umkr tht. lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent rtiade by Tenant which were on account of any period subsequent
to such date sW be mturtwd to Tenant. In addition, if Owner determines that the
time required to rebuild the building will exceed six (6) months, Owner shall
notify Tenant of said determination @ Tenant @ll have the right to te@nate, this
Lease within thirty (30) days after receipt of Owner'$ notice, time being of the
essence. Failure of Tenant to timely deliver a thirty (30) days notice of
termination shall be conclusively deemed to be an express election by Tenant to
waive Tenant's right to terminate the Lease as provided in this Article 9.
Unless Owner or Tenant shall serve a termination notice as provided for herein,
Owner shall make the mpairs and restorations under @ conditions of (b) and (c)
hemf, with all reasonable expedition, subject to delays due to adjustment of
insurance clainn, labor troubles and causes beyond Owner's reasonable control.
After any such casualty, Tenant shall cooperate with Owner's restoration by
removing from the premises as promptly as reasonably possible, all of Tenant's
salvageable inventory and movable equipment, furniture, and other property.
Tenant's liability for rent shall resume five (5) days after written notice from
Owner that @ premises am substantially ready for Tenant's occupancy. In the
event Ci) the d@sed
prenises &Ml[ be damaged by fire or other casualty during the term and Tenant
&WI be unable to use the deewsed preniises as a result of such damage, and (ii)
Owner shall not exercise the right to terminate this Uase and shall,
accordingly, be obligated to repair any such damage pursuant to the provisions
hemof, and (iii) Owner shall have failed to repair such damage within six (6)
months after the date of such fire or other casualty, as such period shall be
extended by @ number of days that Owner is delayed in completing such
restoration by any cause or factor beyond Owner's reasonable control. including,
but not limited to, Tenant's failure to cooperate with Owner, strikes or other
labor disputes, accidents, orders or regulations of any Federal, State, County
or Municipal Authority, delays due to adjustnwnt of insurance claims, lack of
availability of nuterials, parts or utility services, acts of @, rire,
earthquake, floods, explosion, action of the elements, war, hostilities,
invasion, insurrection. riot, mob violence, sabotage, cr by ▇▇▇▇▇ of any other
cause. whether si@ar or not to the foregoing, that is beyond the reasonable
control of Owner, (such six (6) month period as so extended is mfeffed to as the
*Rextomtion Period'), then, in such event, Tenant shall have a one time option
to give the Owner, within thirty (30) days next following the expiration of the
Restoration Period, time being of the essence, a ten (10) day notice of
termination of this Lease and upon the expiration of said ten (10) days, this
Lease and the term thereunder shall end and expire as fully and completely as if
the expiration of such ten (10) day period were the day herein definitely Fixed
for the and and expiration of this Lease and the term thereof and Tenant sh&U
then quit and surmnder the d@sed promises to Owner but Tenant shall remain
liable through and including the date of such damage as provided in this ▇▇▇▇▇.
Failure of Tenant to timely deliver a ten (10) day notice of termination @U be
conclusively deemed to be an express election by Tenant to waive Tenant's right
to terminate the Lease as provided in this Article 9. Notwithstanding anything
to the contrary contained herein, in @ event rifty percent (50%) or mom of the
deniised premises are destroyed during the last two (2) years of the initial
lease term, Tenant shall have the absolute right to terminate this lease upon
thirty (30) days notice to Owner. (a) Nothing contained heminabove shall relieve
Tenant from liability that may exist as a result of damage from fire or other
casmlty. Notwithstanding the foregoing, each ▇▇▇▇▇ shall look First to any
insurance in its favor before making any claim against the other party for
recovery for loss or danuge resulting from tire or other casualty, and to the
extent that such insurance is in force and collectible and to the extent
permitted by law, Owner and Tenant each hereby releases and waives all right of
recovery against the other or any one claiming through or under each of them by
way of irubrogation or otherwise. Tenant acknowledges that Owner will not carry
insurance on Tomm's furniture and/or furnishings or any fixtures or equipment,
improvements, or appurtenances removable by Tenant and agrees that @r will not
be obligated to repair any damage thereto or replace the same.
@2'nent 10. If the whole or any part of the dernised
Domain premises dWi be acquired or condemned by Eminent Domain for any public or
quasi public use or purpose, then and in that event, the term of this lease
shall cease and terminate from the date of tide vesting in such proceeding and
Tenant shall have no claim for the value of any unexpired term of said lease and
assigns to Owner, Tenant's entire interest in any such award. Notwithsmnding the
foregoing, Tenant shall have the right to prosecute its own claim for moving
expenses, fixtures and equipment so long as such claim does not diminish Owner's
award in any respect.
Aedgainent, Mortgage, ll.Tenant, for itself, it heirs, distributees Etc.
executors, adniini@tors, legal representatives, successors and assigns,expressly
covenants that it shall not assign, mortgage or encumber this agreement,
nor underact, or suffer or permit the d@sed premises or any part thereof to be
used by others, without the prior written consent of Owner in each instance.
Transfer of the majority of the O"k of a corporate Tenant shall be deemed an
assignment. If this lease be assigned, or if the d@sed premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, coll@ rent from the assignee, under4tnant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underietting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further perfomunce by Tenant of
covenants on the part of Tenant herein contained. 'Me consent by Owner to an
assignment or underietting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting. See Article 48 Rider to Lease.
Elec@ 12. Tenant covenants and agrees that at all times
Current its use of electric current shall not exceed @ @kyof
existing feeders to the building or the risers or wiring installation and Tenant
may not use any electrical equipment which, in Owner'ii opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the building. Ile change at any time of the character of
electric service shall in no wise make owner liable or responsible to Tenant,
for any loss, damages or expenses which Tenant my sustain. Owner represents to
Tenant that the electric current in the building as of the commencement date of
this lease &hall be (a) 2.5 ▇▇▇▇▇ per square foot of net useable area connected
load at I I 0- 1 20 volts for general use and (b) 3.5 ▇▇▇▇▇ per square foot of
net usable area connected load at 265 volts or 277 volts for fluorescent
lighting. Owner further represents that said electrical capacity shall not
materially
diminish during the term hereof.
Access to 13. Owner or Owner's agents shall have the
p right (but shall not be obligated) to enter the damiaed
premises in any emergency at any time, and, at other reasonable times upon
reasonable notice, to examine @ same and to make such mpairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to the demiwd
premises or to any other portion of the building or which Owner may elect to
perform. When entering the dentised premises in rion-emorgency situations, Owner
shall use reasonable efforts to interference with Tenant'si business. Tenant
&hall permit Owner to use and maintain and replace pipes and conduits in and
through the d@sed premises and to emct now pipes and conduits therein provided
they are concealed within the walls, floor, or ceiling. Owner may, during the
progress of any work in the demised promises, take all necessary materials and
equipnwnt into said premises without the &&nine constituting an eviction nor dWI
the Tenant be entitled to any abatement of rent while such work is in progress
nor to any damages by ▇▇▇▇▇ of loss or interruption of business or otherwise.
Throughout the term hereof Owner shar have the right to enter the d@sed premises
at reasonable hours for the purpose of showing the same to prospective
purchasers or mortgagees of the building, and during the last six months of the
term for the purpose of showing the same to prospective te@. If Tenant is not
present to open and permit an entry into the premises, Owner or Owner's &Seam
may enter the unm whenever such entry nmy be necessary or lpenwosib le by asset
key or forcibly (only in an emergency) and provided reasonable care is exercised
to safevard Tenant's property, such entry ahmi not render Owner or its agents
liable therefor, nor in any event shall the obligations of Tenant hereunder be
affected.
Smokkg 14. Landlord reserves the tight to establish
Polky a no smoking policy in some or all comnwn areas of the
building including but not limited to elevators, lobbies, atriunu, stairwells,
corridors and restrooms.
Ocmpancy 15. Tenant will not at any time use or occupy the d@sed premises in
violation of the certificate of occupancy issued for the building of which the
deniised premises am a part. Tenant has inspected the prendses and accepts them
as is, subject to the tider atmxtd hereto with respect to Owneir's work, if any.
In any event, Owwr makes no representation as to the condition of the premises @
TemM agrees to accept the same subject to violations, whether or not of record
which violations, if any, shall remain the responsibility of Owner as long as
Tenant did not contribute to their existence.
B=kniptcy 16. (a) Anything elsewhere in this lease to @ contrary
notwithstanding, this lease nmy be cancelled by Owner by the sending of a
written notice to Tenant within a reasonable time &fter the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any auto naming Tenant as the debtor, or (2) the making by
Tenant of an @gment or any other arrangement for the benefit of creditors under
any state statute. Neither Tenant nor any person cla'mu'ng through or under
Tenant, or by man of any._ astute or order of court, &hall thereafter be
entitled to p on of the pretwses dernised but shall forthwith quit " surrender
the pmtwses. If this loan a" be assigned in accordance with its ten=, the
provisions of ibis Article 16 shall be applicable only to the ▇▇▇▇▇ then owning
Tenant's interest in this lease; provided, however, that a ba@ptey of an
assignee shall not comdtute a default hereunder if the Tenant continues to
perform all of the obligations of this lease, including the payment of Adjumed
Minimum Rent.
(b) it is stipulated and agreed that in @ event of the, te@nation
of this lease pursuant to (a)
hereof, Owner shall forthwith, notwithstanding any other provisions of this
lease to the contrary, be entitled to recover from Tenant as and for liquidated
damages an anwunt equal to the difference between the rent reserved hereunder
for the unexpired portion of the term deniised and the fair and reasonable
rental value of the de@wd preniiwa for @ sanm period. In the computation of such
damages the difference between any installment of rent becoming due hereunder
after the date of termination and the fair and reasonable rental value of the
d@wd pm1wses for the period for which such installment was payable shall be
discounted to the date of termination at the rate of four percent (4%) per
annum. If such pmtwses or any part thereof be relet by @ Owner for the unexpired
term of said lease, or any part thereof, before presentation of proof of such
liquidated damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall be deemed to be the fair and masorable rental
value for the part or the whole of the promises so re-ict during the term of the
re4etting. Nothing herein contained shall limit or pmjudice the right of the
Owner to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
le-as than the amount of the difference mfen--d to above.
Default 17. (1) If Tenant defaults in fulfilling any of the covenants of
this lease other than the covenants
for the Payment of rent or additional rent; or if any execution or attachment
shall be issued against Tenant or any of Tenant'& property whereupon the demised
premises &"II be taken or occupied by someone other than Tenant; or if this
lease be rejected under Section 235 of Title I 1 of the U.S. Code (bankmptcy
code); then, in any one or mom of such events, upon Owner serving a written
thirty (30) days notice upon Tenant specifying the nature of said default and
upon the expiration of said thirty (30) days, if Tenant shall have failed to
comply with or remedy such default, or if the said default or ontis3ion
complained of sWI be of a nature that the same cannot be completely cured or
remedied within said thirty (30) day period, and if Tenant shall not have
diligently commenced curing much default within such thirty (30) day period, and
shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written five (5) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said rive (5) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such five (5) day period were the
day herein definitely fixed for the end and expiration of this lease and the
torrn thereof and Tenant shall then quit and surmnder the d@sed premises to
Owner but Tenant shall main liable as hereinafter provided.
(2) If the notice provided for in (1) hemof shall have
been given, and the term shall expire as efomsaid; or if Tenant shall make
default in the payment of the rent reserved herein after tan (10) days written
notice for the First two (2) occurrences during any calendar year (and no notice
thereafter) or any item of additional rent herein mentioned or any part of
either or in making any other payment herein required in each case for a period
in excess of five (5) days; then and in any of such events Owner my without
further notice, re-enter the demised premises and dispossess Tenant by summary
proceedings or otherwin, @ the legal representative of Tenant or other occupant
of d@sed premises and renwve their effects and hold the pmswses as if this lease
had not been nude, and Tenant hereby waives the service of notice of intention
to m-enw or to institute legal proceedings to that end. If Tenant shall make
default hereunder prior to the date fixed as the conumacoment of any renewal or
extension of this lease, Owner may cancel end terminate such renewal or Pxwnsion
agreement by written notice.
Remedia of 18. In case of any such default, re-enuy, expiration Owner and and/or
dispossess by sunumry of proceedings or Waiver of otherwise, (a) the rent shall
beconm due thereupon Redempfim and be paid up to the time of such re-entry,
dispossess =&or expiration, (b) Owner may feet the pm@s or any ▇▇▇% et parts
thereof, either in the name of Owner or otherwise, for a term or ten=, which
thereof, either in the nano of Owner or otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this lease, and/or (e)
Tenant or the legal representatives of Tenant shall also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's covenants
herein contained, any deficiency between the rent hereby reserved @or
covenantp-d to be paid and the net anwunt, if any, of the rents collected on
account of the lease or leases of the dctwsed premises for each nwnth of the
period which would Wwtwise have constituted @ balance of the term of this lease.
Owner shall use reasonable efforts to mitigate Tenant's danages hereunder,
provided, however that the failure of Owner to m-let the ptvmises or any part or
parts thereof shall not release or affect Tenant's liability for damages. In
computing such liquidated damages them &Mli be added to the said deficiency such
expenses as Owner my incur in connection with re-letting, such as legal
expenses, attorneys' feet, brokerage, advertising and for keeping the de@sed
premises in good order or for preparing the same for m-letling. Any such
liquidated damages shall be paid in monthly imuilmnts by Tenant on the rent day
specified in this lease @ any suit brought to collect the anwunt of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by a similar proceeding. Owner,
in putting the d@sed premises in good order or preparing the same for re-mntal
may, at Owner's option, nuke such alterations, repairs, replacements, &twor
decorations in the d@sed premises as Owner, in Owner's solejudgment, considers
advisable and necessary for the purpose of re-letting the domiwd premises, and
the making of such *iterations, repairs, replacements, and/or decorations shall
not operate or be co@ed to release Tenant from liability hereunder as aforenid.
Owner d" in no event be rtable in any way whaumver for failure to re-let the
demised premises, or in the event that the d@sed pre@ses are re-let, for failure
to collect @ rent thereof under such m-letting, and in no event &hall Tenant be
entitled to receive any excess, if any, of such net rents collected over the
sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if m-entry, su ry proceedings and other m@ies were not
herein provided for. Mention in this lease of any particular rcnwdy, shall not
pmclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Owner obtaining possession of dcniised premises,
by reason of the violation by Tenant of any of the covenants and conditions of
this lease, or otherwise.
Few and 19. If Tenant shall default in the observance or Ex performnce of any
term or covenant on Tenant's pad k)
be observed or perfoffned under or by virtue of any of the terms or provisions
ill any article of this lease, then, unless otherwise provided elsewhere in this
loan, Owner may immediately or at any time thereafter upon notice (except for
emergencies where no notice shall be required) perform, the obligation of Tenant
thereunder. If Owner, in connection with the foregoing or in connection with any
default by Tenant in the covenant to pay rent hereunder, makes any expenditures
or incurs any obligations for the payment of money, including but not limited to
reasonable attorney's fees, in instituting, prosecuting or defending any action
or @eeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid b Tenant to Owner w in five (5)
days of mndition of any ▇▇▇▇ or statement to Tenant therefor. If Tenant's lease
term shall have expired at the time of making of such expenditures or incurring
of such obligations, such sums shall be recoverable by Owner as danuges.
20. Owner shall have @ tight at any time without the urne constituting an
eviction and without incurring liability to Tenant therefor to change @
arrangement and/or location of public entrances, doorways, corridors, elevators,
stairs, toilets or other public parts of the building and to change the name,
number or designation by which the building may be known; provided, however that
no such alteration shall be permitted which would nutetially and adversely
affect Tenant's use and enjoyment of the d@wd preniises or Tenant's access
thereto. There shall be no allowance to Tenant for diminution of rental value,
and no liability on the part of Owner by ▇▇▇▇▇ of inconvenience, annoyance or
injury to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthemore, Tenant
&WI not have any claim against Owner by ▇▇▇▇▇ of Owner's inwosition of such
reasonable controls of the aunner of access to the building by Tenant's social
or business visitors as the Owner my deem reasombly necessary for security of
the building and its occupants.
No Repre- 21. Neither Owner nor Owners's agents have nude
senta@ by any representations or promises with respect
Owner to the physical condition of @ building, the land upon
which it is emcted or the deniiaed premises, the mnts, leans, expenses of
operation or any other matter or thing affecting or related to the promises
except as herein expressly set forth and no rights, casements or licenses are
acquired by Tenant by invlication or otherwise except an expressly set forth in
the provisions of this lease. Tenant has inspected the building and @ d@sed pro
mises and is thoroughly acquainted with their condition and agrees to take the
same 'as is', subject to Owner's Work Letter and any warranties applicable
themto @ acknowledges that the taking of possession of the d@ud pre@ses
by Tenant *hall be conclusive evidence that the mid pmofists @ the building of
which the same form a part were in good and satisfactory condition at the time
such possession was so taken, except an to latent defects. All understandings
and agmcmnts heretofore nude between the parties hereto am merged in this
contract, which alone fully and completely expmms the agreement between Owner
and Tenant and any executory agreement hereafter made &hall be ineffective to
change, modify, discharge or effect an abandonment of it in whole or in part,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or ebmwonnwnt is sought.
End of 22. Upon the expiration or @er termination of
Term @ term of @ lease, Tenant &all quit and m@r to
Owner the deniised pm@acs, broom clean, in good order and condition, ordinary
wear and damages which Tenant is rxa required to repair as provided e@hem in
this lease excepted, and Tenant &WI remove all its property. Tenant's obligation
to observe or perform this covenant shall survive the expiration or other
termination of this lease. If the last day of the term of this L4&w or any
mnewal thereof, falls on Sunday, @ lease shall expire at noon on the preceding
Saturday unless it be a legal holiday in which cast it shall expire at noon on
the pmc"ag b@u day.
Quiet 23. Owner covenants and agrees with Tenant that
F.qjoyment upon Tenant paying the rent and additional rent and
observing and perfo@ng all the ternn, covenants and conditions, on Tenant's part
to be observed and performed, Tenant may peaceably and quietly enjoy @ pmn,iises
hereby demised, subject, nevertheless, to the, terms and conditions of this
lease (including Article 7 hemot) and to the ground leaws, underlying I and
mortgages heminbefom mentioned.
F@ 24. If Owner is unable to give possession of the
To Give d@sed pmraises on the date of the commencement
Ponession of the term hereof, because of the holding-over or
retention of possession of any tenant, undertenant or occupants or if the
derw#ed premises am located in a building being constructed, because such
building has not been sufficiently convieted to make the pmniises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or for any other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder WWI be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises am substantially ready for Tenam's occupancy. If perntission is given
to Tenant to enter into @ possession of the de@ud prendses or to occupy premises
other than the domised pm@ses prior to the date specified as the
commencement of the teffn of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the term, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. Notwithstanding
anything-'to the contrary contained herein, in the event Owner is unable to
deliver possession of the denied premises to Tenant withitt ninety (90) days
from the Estimated ConunancementDate (as bertinafkarderin") for any reason
within Owner's control, Tenant shall receive one (1) day of free rent for each
day of delay to be credited to Tenant as of the Conunencement Date. In addition,
if for any reason outside the scope of Tenant's control the Owner is unable to
deliver possession of the demised premises to Tenant within one hundred eighty
(180) days from the Estimated Commencement Date, Tenant shall have the single
option of giving to Owner, within ten (10) days following the expiration of the
one hundred eighty (I 80) day period, a ten (10) day notice of termination of
this @se, tinw being of the ewnce. Failure of Tenant to t'tnwiy deliver a ten
(10) notice of to@nation shall be conclusively deemed to be an express election
by Tenant to waive Tonant's right to terminate the Lease as provided in this
Article 24.
No Waiver 25. The failure of Owner to seek redress for violation
of, or to insist upon the @ct perfomance of any covenant or condition of this
lean or of any of the Rules or Regulations, set forth or hereafter adopted by
Owner, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. Ile receipt by Owner of rent with knowledge of the breach of any
covenant of this least shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or mccipt by Owner of
a lesser amount than the monthly rent herein stipulated shall be deenwd to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any che4k or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lean provided. No act or thing done by Owner
or Owner's agents during the term hereby deniised shall be deemed an acceptance
of a surrender of said premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and @ delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
Waiver of Trial 26. It is mutually agreed by and between Owner and
by Jury Tenant that the respective parties hereto shall and they
hereby do waive trial byjury in any action, prwecdingot counterclaim brought
by either of the parties hereto against the other (except for personal injury or
property damage) on any matters whatsoever atizing out of or in any way
connected with this lease, the relationship of Owner and Tenant, Tenant's use of
or occupancy of said premises, and any emergency statutory or any other
statutory remedy.
LMlkb2ity to 27. This L4&se and the obligation of Tenant to pay
Perform rent hereunder and perform all of the other aW
agreements hereunder on part of Tenant to be perfomed shall in no wise be
affected, impaired or excused because Owner is unable to fulrill any of its
obligations under this lease or to supply or is delayed in supplying any service
expressly of inipliedly to be supplied or is unable to make, or is delayed in
any repair, additions, -alterations or decorations or is unable to supply or in
delayed in supplying any equipment or fixwrcs if Owner is prevented or delayed
from w doing by reason of strike or labor troubles or any cause beyond its
reasonable control including, but not limited to, government preemption in
connection with a National Emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any government agency or
by ▇▇▇▇▇ of the conditions of supply and demand which have been or am affected
by war or other enwrgency.
BMs and 28. Except as otherwise in this lease provided, a
Notices ▇▇▇▇, statement, notice or conununication which Owner may desire or be
required to give to Tenant, shall be deemed sufficiently given or re@red if, in
writing, delivered to Tenant personally or sent by registered or certified mail
addressed to Tenant at the budding of which @ deaised premises form a part or at
the last known residence address or business address of Tenant or left at any of
die aforesaid pmntiwa addressed to Tenant, and the time of the rendition of such
▇▇▇▇ or statement and of the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant, nmiled, or left at
the prc@ses as herein provided. Any notice by Tenant to Owner must be served by
registered or ceniried mail addressed to Owner at the address first heminabove
given or at such other address as Owner shall designate by written notice.
Service.s 29. Owner shall provide: (a) heat to the den-iised
Provi ded by promises when and as required by law, on business days
Owner from 8 a.m. to 6 p.m.; (b) water for ordinary lavatory
purposes, but if Tenant uses or consumes water for any other purposes or in
unusual Quantities, Owner may install a water meter at Tenant's expense which
Tenant shall thereafter maintain at Tenant's expense in good working order and
repair to register such water consunvtion and Tenant shall pay for water
consumed as shown on said meter as additional rent as and when bills are
rendered; (c) cleaning service for the deniised prernises on business da ys at
Owner's expense provided that the same are kept in order by Tenant. If, however,
said premises am to be kept clean by Tenant, it shall be done at Tenant's sole
expense, in a nianner satisfactory to Owner and no one other than persons
approved by Owner shall be permitted to enter said premises or the building of
which they are a part for such purpose. Tenant-dWi pay Owner the cost of removal
of any of Tenant's extraordinary refuse and rubbish from the building; (d) If
the deniised premises am serviced by Owner's air conditioningicooling and
ventilating system, air conditioning/cooling will be furnished to Tenant in
accordance with Owner's specifications (Mondays through Fridays, holidays
excepted) from 8:00 a.m. to 6:00 p.m., and ventilation will be furnished on
business days during the afomsaid hours except when air conditioning/cooling is
being furw&hed as aforesaid. If Tenant requires air conditioning/cooling or
ventilation for more extended hours or on Saturday@, Sundays or on holidays,
Owner will fumiah the mum at Tenam's expense; (e) property management services
(including maintenance of the exterior grounds) of a nature similar to that of
other first class office buildings in the Somerset County am&; (i) as of the
Commencement Date of this U&SC, the building shall have a keypad access security
system with video canmrs monitoring devices; (g) Owner reserves the right to
stop services of the heating, elevators, plumbing, air-conditioning, power
systems or cleaning or other services, if any, when necessary (with a minimum
interference to Tenant) by reason of accident or for repairs, alterations,
replacenwnts or improvements necessary or desirable in @ judgment of Owner for
as long as may be reasonably required by ▇▇▇▇▇ thereof. If the building of which
the deniiwd premises am a part suppfies manually operated elevator service,
Owner at any time may substitute auton&atic control elevator service and upon
tan days' written notice to Tenant, proceed with alterations necessary therefor
without in any wise affecting this LAsse or the obligation of Tonatt hemu@r. The
same shall be done with minimum of inconvenience to Tenant @ Owner shall pursue
the alteration with due diligence. W'ith respect to the services enumerated in
subparagmphs (a), (b), (c), (d) and (g) of this Article 29, if any of the
foregoing become unavailable for thirty (30) consecutive days, Tenant shafl have
the right to give Owner written notice that it intends to cure.such unavailable
services. If Owner does not respond to Tenam's notice within five (5) days after
receipt thereof, Tenant shall have the right to expend its own money in
replacing said services and will be reimbursed by Owner for such amounts within
thirty (30) days of demand provided same were reasonable, necessary and fwly
documented. 'Me initial thirty (30) day period mferred to above shall be
extended so long as Owner is diligent in commencing the necessary mpairs and
shall be fumer extended by Tenant delays and Foma Majeum (as hereinafter deemed
in Article 64). In the event Tenant improperly conunences any such work or
comniences any such work without giving Owner the required notice, Tenant shall
be liable for any damages resulting therefrom and dwH inde@fy Owner for all such
action.
30. Ile Captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this lean nor the intent of
any provisions thereof.
D@tioims 31. The term 'ofrice', or "officesm, whemver used in
this lease, shall not be conauued to mean premises used as a store or stores,
for the sale or display, at any time, of goods, wares or merchandise, of any
kind, or as a restaurant, shop, booth, bootblack or other stand, b&6er shop, or
for other similar purposes or for manufacturing. The term 'Owner' means a
landlord or lessor, and as used in this lease only the owner, or the mortgagee
in possession, for the time being of the land @ building (or the owner of a
lease of the building or of the land and building) of which the deniised
premises form a part, so that in the. event of any sale or sales of said land
and building or of said lease, or in the event of a lease of said building, or
of the land and building, the said Owner &hall be and hereby is entirely fmcd
and relieved of all covenants and obligations of Owner hereunder, and it shall
be deemed and construed without further agreement between the parties or their
successor@ in interest, or between the parties end the purchaser, at any such
sale, or the said lessee of the building, or of the land and building, that the
purchaser or the lessee of the building has assumed and agreed to carry out any
and all covenants and obligations of Owner, hereunder. The words 're-enter' and
. rc-entry' as used in this lease am not restricted to their technical legal
meaning. The term "business days' as used in this lease shall exclude Saturdays
(except such portion thereof as in covered by specific hours in Article 29
hemof), Sundays and all days set fonh on Exhibit E.
32. @tionaby Prior to Execution.
Rules and 33. Tenant and Tenant's servants, employees,
Regulations agents, visitors, and licensees shall observe faithfwlv, and
comply strictly with, the Rules and Regulations and such other and fumer
reasonable Rules and Regulations as Owner or Owner's agents ffiay from time to
time adopt. Owner agrees to apply the rules and regulations in a uniform and
nondiscrin-Linatory manner. Notice of any additional rules or regulations shall
be given in such manner as Owner may elect. In case Tenant disputes the
reasonableness of any additional Rule or Regulation hereafter made or adopted by
Owner or Owner's agents, the parties hcmto agree to submit the question of the
reasonableness of such Rule or Regulation for decision to the Newark office of
the American Arbitration Association, whose determination shall be final and
conclusive upon the parties hereto. The right to dispute the reasonableness of
any additional Rule or Regulation upon Tenant's part shall be deemed waived
unless the same shall be asserted by service of a notice, in
writing upon Owner within thirty (30) days after the giving of notice thereof.
Nothing in this lease contained gull be'cdnstrued to impose upon Owner any duty
or obligation to enforce the Rules and Regulations or terms. covenants or
conditions in any other lean, as against any other tenant and Owner shall not be
liable to Tenant for violation of the unic by any other tenant, its servants,
employees, agents, visitors or licensees.
34. TenantshalldepositwithOwneronthedatchereof the sum of
$0.00 as security for the faithful
perfomiance and observance by Tenant of the terms, provisions and conditions of
this lease-, it is agreed that In the event Tenant default& in respect of any of
the terms, provisions atw conditions of this lease, including, but not limited
to, @ payment of rent and additional rent, owner may use, apply or retain the
whole or any part of the security so deposited to the extent required for the
payment of any rent and additional rent or any other sum as to which Tenant is
in default or for any sum which Owner may expend or may be required to expend by
reason of Tenant's default in respect of any of the terms, covenants and
conditions of this lease, including but not limited to, any damages or
deficiency in the re-letting of the premises, whether such damages or deficiency
accrued before or after sununary proceedings or other re-entry by Owner. In the
event that Tenant shall fully and faithfully comply with all of @ terms,
provisions, covenants and conditions of this lease, the security shall be
returned to Tenant after the date fixed an the end of the Lease and after
delivery of entire possession of @ d@▇▇▇ premises to Owner. In the event of a
sale of the land and building or leasing of the building, of which the dernised
premises form a part, Owner shall have the right to transfer the security to the
vendee or lessee and Owner shau thereupon be released by Tenant from all
liability for the return of such security; and Tenant agrees to look to the new
Owner solely for @ return of said security, and it is agreed that the provisions
hereof shall apply to every trawfeir or assignment n-Ade of the security to a
new Owner. Tenant further covenants that it will not assign or encumber or
attenvt to assign or encumber the ▇▇▇▇▇▇ deposited herein as security and that
neither Owner nor its successor@ or assigns ahau be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
EsWppei 35. Tenant, at any tinw, and from time to time,
c upon at least 10 days' prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or corporation specified by
Owner, a statement rectifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the unn in in fidl force
and effect as modified uW outing the nwdirications), owng the dates to which the
rent and additional mnt have been paid, and outing whether or not them exists to
the best of renant's knowledge any default by Owner under this ▇▇▇, and, if so,
qmifying each such default.
Siwcessors and 35A. Tbc covenants, conditions and agreements
contained in this least shall bind and inure to the b=&
of Owner and Tenant and their respective heirs, di@butees, executors.
stmtom, successors, and except as otherwise provided in this lease, their
"give.
F-vk;bib 35B. 'Mis lease consists of this Printed Portion containing
Articles 1-35C. and each of the following, anached hereto and nude a part
hereof- (a) Rider to Lease and (b) the following exhibits: Exhibit A ('Rental
Plan), Exhibit 8 (General Conditions), Exhibit C (Legal Description), Exhibit D
(Cleaning Service Rider), @ibit E (Ugal Holidays),. Exhibit F (Designated
Parking), Exhibit G (KVAC Wwifications) txhibit H (Base Building ltenn) and
Exhibit I (Option Space)
RWw 35C. In the event of any inconsistency between the
provisions of the Rider to Lease and those contained in
Printed Portion to which the Rider to Le4se is annexed, the provisions of
Rider to Lease shall govem @ be binding.
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
1. 'Me sidewalks. en@es, driveways, pasuggs, courts, elcvaton,,
vestibules, stairways, corridors or halls @U not be obstructed or encumbered by
any Tenant or used for any purpose other than for ingress or egress from the
de@sed pren-d3es and for delivery of rmrchandise and c4uiPmcnt in a prompt and
otticient manner using elevators and passageways designated for such delivery by
Owner. 'Mere shall na be used in any space, or in the public -hall of the
building, either by any Tenant or by jobbers or others in the Delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards.
2. The water and wash closets and plumbing fixtures shall not be used ror
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from @ violation
of this rule &"II be bome by the Tenant who, or whose clerks, agents, employees
or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and no Tenant &"II sweep or throw or permit to be swept
or thrown' from the d@sed preiwacs any dist or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the denised premises, or permit or suffer
the deniised prerwses to be occupied or used in a runner offensive or
objectionable to Owner or other occupants of the building by reason of noise,
odors, @or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any aninials or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other feurwg shall be exhibited,
inscribed, painted or affixed by any Tenant on any pail of the outside of the
demised premises or the building or on the inside of the derwwd promises if @
sanw is visible from the outside of the promises without the prior written
consent of Owner. In the event of the violation of the foregoing by any Tenant,
C)wncr may remove same without any liability, and Buy charge the expense
incurred by such removal to Tenant or Tenants violating this rule. Werior signs
on doors and directory tablet shall be inscribed, painted or affixed for :ach
Tenant by Owner at the expense of such Tenant, and aW be of a .olor and style
acceptable to Owner, provided, however. that Tenant's initial @uilding directory
signagc shall be provided by Owner at Owner's expense.
6. No Tenant shall ▇▇▇▇, paint, drill into, or in any way deface any part
)f the d@sed premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct; provided, however, that Tenant &II be
permitted to drill into non-amctund walls and ceilings in connection with
decorations or wiring within the d@sed promises. No Tenant dW] lay ,inoicum, or
other similar floor covering, so that the same shall co= in direct 10
I ntact with the floor of the demised pre@nes, and, if linoleum or other sinw&r
▇▇▇▇ covering is desired to be used an interlining of builder's deadening felt
imil be first affixed to the floor, by a pasm or other material, soluble in
water, he use of cement or other similar adhesive material being expressly
prohibited.
7. No additional locks or bolts of any kind &WI be placed upon any of the door*
or windows-by any Te@ nor shall any changes be made in existing locks or
mechaidam.themof. Each Tenant must, upon the termination of his Tenancy, restore
to Owner all keys of stores, offices and toilet room$, either furnished to. or
otherwise procured by, such Tenant, and in the event of the loss of any keys, so
fumished, such Tenant shall pay to Owner the cost thereof.
8. Freight,fumitum,businessequipment,mefchandiscandbulkymatter of any
description sthail be delivered to and removed from the promises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner 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 arW Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the hours
of 6 P.M. and 6 A.M. and at all hours on Sundays, and legal holidays all persons
who do not pmwm a pass to the building signed by Owner. Owner will fumish passes
to persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and &hail be liable
to Owner for all acts of such persons.
11. Owner shall have the right to prohibit any advertising by any
Tenant which in Owner's opinion, tends to impair the reputation of the building
or its desirability as a building for offices, and upon written notice from
Owner, Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
d@sed preniises, any inflanumable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emnate
from the d@sed pmniiwa.
13. Ifthebuildingcontainscentralairconditioningandventilation,Tenant agrees
to keep all windows closed at all times and to abide by all rules and
regulations issued by the Owner with respect to such services. If Tenant
requires air conditioning or ventilation after the usual hours, Tenant shall
give notice in writing to the building superintendent prior to 3:00 P.M. in the
case of services required on week days, and prior to 3:00 P.M. on the day prior
in the case of after hours service required on weekends or on holidays.
14. Tenant dW] not move any safe, heavy machinery, heavy equipment, bulky
▇▇▇▇▇▇, or fixtures into or out of the building without LAndiord's prior written
consent. If such safe, machinery, equipment, bulky matter or mixtures requires
special handling, all work in connection therewith shall comply with all laws @
regulations applicable thereto and shall be done during such hours as Owner nay
designate.
15. Tenant shall report all peddlers, solicitors and beggars to the office
of the Building or as Landlord otherwise requests. EAndiorJ shall exercise nable
steps to keep such persons outside of the Building.
16. Tenant shall take reasonable action to assum that its employees,
invitees and guests do not (a) utifim any parking spaces designated for the use
of others, nor (b) park in any driveways, fire lanes or other areas not striped
for vehicular parking.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this
Lease on the day and year fiz-st written above.
WITNESSED BY: LANDLORD:
JARED ASSOCIATES, L.P.
By: Chubb Real't
Inc., General Partner
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Robe3et
-V-ice President
Assistant Secretary
ATTESTED BY: AGENT FOR LANDLORD:
BELLEM AGE CO INC.
By
▇▇▇▇▇▇ ▇. Lap3:dus ▇▇▇▇▇▇ ▇. Ma3ctle@V@ce President
Assistant Secretary
ATTESTED BY: TENANT:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By:
.z
Nc-im--: Mclky Sbozd' ial) Name: ▇▇▇ ▇. a r-ba ro
(Vleioe Pvlrit;)
Title: Secretary Title: fPrle-scllrenl='-n@)
(Please Prlnt) (Please Prlnt)
TABLE OF CONTENTS
FOR RIDER TO LEASE
ARTICLE PAGE
36. DEFINITIONS; DEMISED PREMISES;
ADJUSTED MINIMUM RENT 1
37. COMMENCEMENT OF TERM; COMMENCEMENT DATE;
AND T INATION DATE 5
38. TENANTIS POSSESSION 6
39. HF-ATING, AIR-CONDITIONING AND VENTILATION;
LEGAL HOIIDAYS; "AFTER HOURS" 6
40. ELECTRIC CURRENT 7
41. LIABILITY INSURANCE 7
42. ALL RISK INSURANCE 8
43. PARKING FACILITIES 8
44. ACCESS AND COMMON AREAS 9
45. Intentionally Deleted Prior to Execution 9
46. BROKER 9
47. CLEANING SERVICES 9
48. ASSIGNMENT AND SUBLETTING 10
49. ▇▇▇▇-NTIS COOPERATION; REASONABLE
MODIFICATIONS; ESTOPPEL CERTIFICATE 14
50. LIMITATION OF LIABILITY;
DEFINITION OF "LANDLORD 15
51. STATUTORY WAIVER; NOTICE BY TENANT 16
52. CORPORATE AUTHORITW 16
53. PERSONAL TAXES 16
54. BUILDING CH"GES 16
55. HOLDING OVER 16
56. RESTRICTIVE COVENANT - FOOD SERVICE 17
57. NOTICES 17
58. INTERPRETATION 18
59. NO OFFER OR AGREEMENT 19
60. DAMAGES 19
61. BANKRUPTCY 19
62. Intentionally Deleted Prior to Execution 20
63. Intentionally Deleted Prior to Execution 20
64. LANDLORDIS WORK; LANDLORDIS WORK LETTER 20
65. RENEWAL OPTION 21
66. ECRA COMPLIANCE 23
67. RELOCATION ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. FOOD SERVICE FACILITY 24
69. ADDITIONAL LEASE INDUCEMENT 24
70. SATELLITE ANTENNA 25
71. RESTRICTION ON CERTAIN PROSPECTIVE TENANTS 25
72. SIGNAGE 25
73. RIGHT OF FIRST OR SECOND OFFER 26
SIGNATURE PAGE 28
RIDER TO LEASE
DATED: December @ , 1992
LANDLORD: Jared Associates, L.P.
TENANT: The Prudential Insurance Company of America
PREMISES: Portion of the 4th floor ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
36. DEFINITIONS; DEMISED PREMISES;
ADJUSTED MINIMUM RENT-
36.1 Definitions. For purposes of -this Article, the
following terms shall have the meanings set forth below:
(1) Assessed Valuation shall mean the assessed valuation of the Real Estate
for the year
in which the Building is fully assessed as a completed Building;
(2) Base Tax Rate shall mean the real estate -tax rate in effect for
calendar year 1993;
(3) Elrst oioera-t@g__Y@ar shall mean -the calendar year
ending December- 31, 1993. 0 shall mean any calendar year
thereafter;
(4) First Tax Year shall mean the calendar year ending
December 31, 993.-- ta-@ -@ar shall mean any calendar year thereafter;
(5) Land shall mean the land described in Exhibit C to this Lease;
(6)Occupancy Percentage shall be as defined in Section
36.2;
(7) Real Estate Tax Base shall mean the amount determined by multiplying
-the Assessed Valuation by the Base Tax Rate;
(8) Taxes shall mean all real estate taxes, charges and
assessments imposed upon the Land, Building and other improvements thereon or
-the occupancy or leasing thereof (collectively, the "Real Estate") . If any
other tax or charge shall be imposed upon all or any part of the Real Estate,
such other tax or charge shall be deemed included in the term "Taxes" for the
purposes of this Article. Landlord shall have the exclusive right, but not the
obligation, to contest or appeal any Tax assessment levied on the Real Estate by
any governmental or quasi-▇▇▇▇@nmental authority;
36.2 The Demised Premises shall be deemed to contain a floor
area of 31,337 square feet and -the building of which -the Demised Premises form
a part ("Building" or "building") shall be deemed to contain a total floor area
of 230,519 scrua@e feet, Tenan't's Occupancy Percentage shall be deeme ti3 be
@.6 percent. In the event 'the Building's square footage is modified as a result
of additions or reductions to the Building, Tenant's occupancy Percentage shall
be equitably adjusted.
36.3 Adjusted Minimum Rent shall mean -the Minimum Rent as
increased in accordance with this Article 'to reflect any increase in Taxes and
Building operating Costs. Tenant shall pay such increases as additional rent as
hereinafter provided.
36.4 Taxes. (1) If the Taxes for any Tax Year during the term
of this Lease shall be greater than the Real Estate Tax Base, then Tenant shall
pay to Landlord, as additional rent, an amount equal to the occupancy Percentage
of such excess.
(2) Upon 'the issuance by 'the respective taxing authorities having jurisdiction
over the Real Estate of a ▇▇▇▇ or bills for the Taxes imposed upon the Real
Estate for -the First: Tax Year, Landlord shall submit a copy of such ▇▇▇▇ or
bills 'to Tenant. Thereafter, on or about each anniversary of said date,
Landlord shall submit to Tenant a copy of the latest -tax ▇▇▇▇ or bills for the
Taxes for each subsequent Tax Year indicating each change in the Taxes and the
effective date of such change -together with a statement (-the "Tax Statement")
which shall indicate the amount, if any, required to be paid by Tenant as
additional rent. Within 30 days after the issuance of the Tax Statement, Tenant
shall pay the additional rent as set forth therein. Any payments due pursuant to
this Article for a period of less than a full Tax Year, either at the
commencement or at the end of the term of this Lease, shall be :ratably
apportioned.
(3) If at any time the taxing jurisdiction in which -the Real
Estate is located should change its method of valuating the Real Estate then,
Landlord and Tenant shall equitably adjust- -the Taxes payable by Tenant
hereunder in accordance with the revised method of taxation.
36.5 Building operating Costs. (1) Tenant hereby agrees that
for each Operating Year during the term of this Lease for which the total
Building Operating Costs (as hereinafter defined) shall exceed the Building
operating Costs for the First- Operating Year, Tenant- shall pay to Landlord, as
additional rent, an amount equal to the occupancy Percentage of such excess
within 30 days after presentation of Landlord-s statement (the "Operating
Statement") therefor. The operating Statement shall indicate (i) the initial
additional amount required to be paid by Tenant as additional rent as in this
Article provided; (ii) the Tenantfs new Adjusted Minimum Rent; and (iii) the
manner in which such adjustment is computed. Landlord shall present its
Operating Statement within 90 days after the commencement- of each such
Operating Year ("Billing Date"). Tenant shall thereafter, for the balance of
that Operating Year and for that portion of the next Operating Year- until -the
Billing Date during such year, make monthly payments of 1/12th of such increase
'to reflect the change as of the Billing Date, which amounts shall be credited
for the account of Tenant against the annual payment due on the succeeding
Billing Date. Landlord shall be prohibited from amending its Operating Statement
for any operating Year after- the expiration of six (6) months from Tenant-s
receipt of the relevant operating Statement.
(2) The "Building operating Costs" shall include each and
every customary and reasonable expense incurred in connection with the
ownership, administration, management, operation, repair, replacement and
maintenance of the Real Estate, including but not limited 'to, wages, salaries
and fees paid to persons either employed by Landlord or engaged as independent
contractors in the operation of -the Real Estate, and such othe7c typical items
of expense as indicated below. All such costs and the values allocated to
services rendered and supplies delivered shall be reflected on the comparative
statement which shall be exhibited to the Tenant upon request.
(3) The expenses referred to in this Article shall be
determined in accordance with sound accounting principles. So long as Tenant is
not in default under any provisions of this Lease, Tenant or- its
representatives shall have the right, at its own expense, upon reasonable notice
and during reasonable hours, to inspect the books of Landlord for the purpose of
verifying the information contained in any operating Statement, provided prior
written request for such inspection shall be made by Tenant and further provided
that such request is made within one hundred eighty (180) days of receipt of the
Operating Statement to be verified. Any operating Statement not objected to by
the Tenant: within said one hundred eighty (180) day period shall be deemed to
2
be correct.
(4) Some of the typical items of expense which comprise or may
comprise the Building Operating Costs and to be included in the statement are or
may be: (a) general repairs and maintenance; (b) utility costs, including but
not limited to, cost of electricity -to power HVAC units serving the en-tire
Building, cost of oil or other fuel required to heat the entire Building, cost
of electricity to light the common areas; (c) cleaning costs, including but not
limited -to, window cleaning, general interior office cleaning, cleaning of
common areas; (d) service contracts, including but not limited to, contracts for
elevator service, HVAC service, rubbish removal, carting, janitorial and
watchman services and snow removal; (e) costs of landscaping; (f) costs of
insurance; (g) fees and/or salaries of superintendents, engineers, mechanics and
custodians below the grade of property manager; (h) towel service for- common
lavatories; and (i) sales and use taxes.
(5) The following items shall be- -1@dect from Building
Operating Costs: (a) depreciation of the Building or equipment; (b) interest;
income or excess profits taxes; costs of maintaining Landlo.rd's corporate or
partnership existence; (c) franchise taxes; (d) any expenditures required to be
capitalized for federal income tax purposes, (unless said expenditures [1] are
for 'the purpose of reducing Building operating Costs but then only to the
extent of actual reduction in Building operating Costs, or [2] are required
under any governmental law, ordinance or regulation, in which event or events
the costs thereof shall be included, which capital expenditures shall, in either
case, be amortized over the life of the improvement) ; (e) items provided for in
Subsection 36.4 hereof; (f) costs incurred in leasing to or procuring 'tenants;
(g) advertising expenses; (h) tenant: improvements; (i) space planning costs;
(j) architectural fees or other expenses incurred for renovating space for new
tenants; (k) ground rent; (1) depreciation (except the amortization of capital
expenditures allowed he3reinabove); (m) debt service, financing, or principal
and interest payments on any mortgage; (n) warranty recoveries; (a) casualty
repairs; (p) legal fees or other expenses paid by Landlord for collections or
evictions; (q) salaries for executives except to the extent permitted above; (r)
bad debt loss, rent loss, or reserves for bad debts or rent- loss; (s) -the
expense of any extraordinary service rendered to another occupant of the
Building; (t) costs associated with the operation of the business entity of
Landlord (as distinguished from -the cost of operating the Building) including
partnership audit, business entity accounting and business entity legal matters;
(u) costs of defending lawsuits with any mortgagee (except if the actions of
Tenant or other tenants may be an issue); (v) costs of selling, financing,
syndicating, or hypothecating the interest of Landlord in the Building; (w)
costs of defending disputes with Landlord's employees, or contract building
management agents; (x) fines, penalties, and interest assessed theireon, in
connection with the failure or omission of Landlord in connection with its
responsibilities under the Lease; (y) and costs incurred by Landlord in bringing
the Building into compliance with all existing applicable codes, to the extent
the Building or the Premises is not in compliance as of the date of this Lease;
(z) the payment of personal injury ox- property damage Claims; (a&) payments to
affiliates of Landlord to -the extent such services exceed that charged by an
unaffiliated third party of similar stature; (bb) costs associated with the
removal of hazardous materials from the Real Estate; and (cc) any amounts for
which Landlord is reimbursed by third part-!es.
(6) Anything to the contrary contained in -this Article 36 notwithstanding,
if the average occupancy of the Building is less than ninety-five (95%) percent
during 'the First Operating Year, then Landlord shall make a reasonable
determination (1@Landlord's Detex-mination") of what the Building Operating
Costs for such year would have been if during the entire year the average tenant
occupancy of the Building were ninety-flve (95%) percent. Provided
3
it is reasonable, iandlo@d's Determination shall be binding and conclusive upon
Tenant and shall fair all purposes of this Lease be deemed to be -the Building
operating Costs for the First Operating Year. Landlord shall notify Tenant of
Landlord-Is Determination within ninety (90) days following the last day of the
First Operating Year. Thereafter, if for any subsequent Lease year the average
tenant occupancy of the Building is below ninety-five (95%), the Building
operating Costs for any such year shall be adjusted by Landlord to the amount
that such Building operating Costs would have been if the average -tenant
occupancy during that year had been nine-ty-flve (95%) percent.
36.6 If, pursuant to any Tax Statement or Operating Statement
showing Taxes or Building Operating Costs for any year subsequent to the First
Tax Year or First operating Year, respectively, there shall be an additional
amount payable or a refund due with :respect to Taxes and/or Building operating
Costs for the period covered by such statements), such amount shall be
calculated, and any amount. payable by the Tenant to 'the Landlord as additional
rent shall be promptly paid, or the amount due to the Tenant shall be credited
against amounts owing Landlord or refunded to Tenant. However, it is agreed by
the parties that any refund shall not in any way operate to reduce the Minimum
Rent. If such calculation takes place and/or any payment in connection herewith
becomes payable after -the expiration of the term of this Lease, this provision
shall be deemed to have survived such expiration.
36.7 Any increase in additional rent- under this Article shall
be prorated f air the f Inal operating Year if such operating Year covers a
period of less than 'twelve (12) full -months. Tenan-tls obligation to pay
additional rent under this Article for -the final Operating Year shall survive
the expiration of the term of this Lease.
3 6. 8 In the event that the payment of any sum required to be
paid by Tenant to Landlord under this Lease (including, without limiting the
generality of the foregoing, Minimum Rent, Adjusted Minimum Rent, or payment
-made by Landlord under- any provision of this Lease for which Landlord is
entitled to reimbursement by Tenant) shall become overdue for la days beyond
-the date on which they are due and payable as provided in 'this Lease for two
(2) consecutive months, then a delinquency service charge equal to four percent
of the amount overdue shall become immediately due and payable to Landlord as
liquidated damages foz7 Tanantfs failure to make prompt payment. Further, such
delinquency service charge shall be payable on the first day of the month next
succeeding the month during which such late charges become payable as additional
rent-, together with interest at two (2) percentage points above by the prime
rate of Citibank, N.A. on the amounts overdue from the date on which they became
due and payable. In the event of nonpayment of any delinquency service charges
and interest provided f or above, Landlord shall have, in addition to all other
rights and remedies, all the rights and remedies provided for herein and by law
in the case of nonpayment of x7ent. No failure by Landlord to insist upon the
strict performance by Tenant of Tenant's obligations to pay late charges shall
constitute a waiver by Landlord of its rights to enforce the provisions of this
Sect:-ion 36.8 in any instance thereafter occurring. The provisions of this
Section 36.8 shall not be construed in any way to extend any time period
provided for in this Lease.
36.9 If Tenant fails to remit within twenty (20) days of the
date when due any sum required to be paid by Tenant to Landlord under 'this
Lease (including, without limiting the generality of the foregoing, Minimum
Rent, Adjusted Minimum Rent, or payment made by Landlord under any provision of
this Lease for which Landlord is entitled to reimbursement by Tenant), Landlord
may, in addition to all other rights and remedies provided herein and by law,
serve a written ten (10) day notice of cancellation of this Lease upon Tenant
and upon the expiration of said ten (10) day period, this
4
Tenant shall acknowledge receipt of the commencement Date Notice by signing a
copy of same and re-turning it -to Landlord within five (5) days of the receipt
thereof.
37.3 The date upon which Tenant's obligation to pay Minimum
Rent due hereunder commences ("Rent Commencement Date") shall be deemed to be
the Commencement Date.
37.4 If, prior to the Commencement Date, Tenant shall enter
the Demised Premises to make any installations of its equipment, fixtures and
furnishings, Landlord shall have no liability for any personal injury or
property damage suffered by Tenant.
38. TENANTIS POSSESSION
38.1 Subject to 'the 'terms of Articles 37 and 64 hereof,
when Tenant takes possession of the Demised Premises, Tenant shall be deemed to
have accepted -the Demised Premises as substantially completed as of -the date
of such possession. Tenant shall have the right to enter- into the Demised
Premises for the purposes of installing furniture and equipment and completing
Tenant installations, such as phone systems and such entry shall not constitute
occupancy of the Demised Prem+/-ses; provided, however, that any such entry into
the Demised Premises shall be coordinated with 'the Landlord and its general
contractor and subcontractors and shall not. interfere with -the build-out
schedule of -the Work Letter items. In addition, Tenant shall be permitted to
use 'the Building's electrical power for any such pre-Commencemen't Date
installations, at no cost or expense to Tenant.
39. HEATING, AIR-CONDITIONING AND VENTILATION;
LEGAL HOLIDAYS., "AFTER HOURS"
39.1 Notwithstanding the provisions of subsections (b) and
(e) of Article 29 of this Lease, but subject to all of --he other terms,
covenants and conditions of said Article 29, Landlord shall provide and furnish
appropriate heat, air-conditioning or ventilation to the Demised Premises (in
accordance with Landlord's specifications which are attached hereto as Exhibit
G) between the hours of 8:00 a.m. to 6:00 p.m., Monday through Friday, other
than Legal Holidays (which are listed on Exhibit "El'), attached to this Lease.
39.2 At all other times not otherwise provided for in Section
39.1 above, Landlord agrees that it shall, upon prior written request from
Tenant, provide after-hours air-conditioning, ventilation or heating, as the
case may be, for which Tenant shall pay to Landlord as additional rent
hereunder, a sum equal to $100.00 per hour for providing heat, air-conditioning
or ventilation (irrespective of whether any other tenants in 'the Building are
furnished with heat, air-conditioning or ventilation at -the same time) that
being intended to cover ]Landlord's cost for the power or fuel required to
provide the same. In 'the event- that during the term of this Lease, or any
renewal hereof, the .Landlox-d's cost for providing after-hours heating,
air,-conditioning or ventilation shall increase by virtue of utility irate
increases or unit fuel cost increases, the above-specified hourly charges shall
be adjusted from time -to time to reflect said increases. In addition to the
foregoing, should there be any charges incurred by Landlord for additional
attendant engineers or similar additional requirements as may be imposed from
'time to time by the State Labor Department, local author!-ties, union
requirements, or the like, Tenant agrees to reimburse Landlord for its
out-of-pocket expenses incurred in connection therewith, related to -the
after-hours use by Tenant.
6
40. ELECTRIC CURRENT
40.1 Landlo@d's obligation to supply current shall be limited
to the current required to power the Building standard heating and
air-conditioning systems and -the lighting of common areas.
40.2 Tenant shall arrange to purchase and pay for all of the
electric current requirements for light and power used in connection with
Tenan-tls operations within the Demised Premises. Landlord shall furnish and
install an electric meter for the measurement of the consumption of Tenan-tls
electric current as herein provided-
40.3 At the request of Landlord, prior to the occupancy of the
Demised Premises, Tenant shall execute any and all applications for service, or
forms required by the local utility company supplying electric current to the
Building for the metering of all electric current and power required for the
operation of the electrical equipment of any nature whatsoever and lights within
or serving 'the Demised Premises.
40.4 As an alternative -to 'the obligations of Landlord and
Tenant as set forth in sections 40.1 and 40.2 above, Landlord may elect, at its
option, to meter and furnish -the electric current to the entire floor of which
the Premises forms a part, in which case Tenant shall pay as additional rent
Tenantfs shave of Landlard's cost therefor. Tenant"s share of costs under this
section 40.4 shall be based upon a percentage which the area of the Premises
bears 'to the total floor area on which the Premises are located. Tenant, at its
option, may in the alternative, install a separate electric meter and, in such
event, Tenant shall pay its own electric costs directly to the utility company
sevving the Demised Premises and the provisions of Sections 40.1 and 40.2 shall
thereupon apply hereunder. If Tenant is provided with a separate meter for the
measurement of its electric consumption, Landlord shall be prohibited from
changing this arrangement without Tenan't's consent.
41. LIABILITY INSURANCE
41.1 Tenant, at its sole cast and expense, shall procure,
pvovide and maintain-- in force during the term of -this Lease the following
policies to be written by good and solvent insurance companies satisfactory to
Landlord having a policyholders, rating of no less than A+ XV as determined by
the AM Best Company, ov any successor thereto: (1) comprehensive general
liability insuvance, which shall include coverage for personal liability,
contractual liability, Tenan-tls legal liability, bodily injury, death and
property damage, all on an occurrence basis with respect -to the business
carried on, in or fvom the Demised Premises and Tenant's use and occupancy of
the Demised Premises, with cover-age for any one occurrence or claim of not less
than $2,000,000 or such other amount as Landlord may reasonably require upon not
less than six (6) months' prior written notice. Such insurance shall include
Landlord and -the managing agent of -the Building as additional insureds and
shall protect Landlord in respect; of claims by Tenant as if Landlord were
separately insured; and (2) insurance against such other perils and in such
amounts as Landlovd may from time to time reasonably require upon not less than
thirty (30) days' prior written notice.
41.2 Each of the aforesaid policies shall contain an
under-taking by the insurer -that no material change adverse to Landlord or
Tenant will be made and such policy will not lapse or be cancelled, except after
not less than ninety (90) days, prior written notice to Landlord of the intended
change, lapse or cancellation. On or before the Commencement Date and
thereafter, at least -thirty (30) days prior to the effective date of any
7
policy, Tenant: agrees to deliver 'to Landlord a duplicate original of the
aforesaid policies or a certificate of insurance evidencing such coverage.
42. ALI. RISK INSURANCE
42.1 Tenant, at its sole cost and expense, shall procure,
provide and maintain in force during -the term of 'this Lease the following
policy to be written by a good and solvent insurance company satisfactory to
Landlord having a policyholders' rating of no less than A@ XV as determined by
-the AM Best Company, ox- any successor thereto: ItAll Riskvl -insurance, which
shall cover Tenant's personal property, equipment and improvements against loss
or damage by fire and any other hazards or casualties in an amount to provide
for the actual replacement: cost of Tenant:ls personal property, equipment and
improvements. Such insurance shall include Landlord and the managing agent- of
the Building as additional insureds and shall protect Landlord in respect of
claims by Tenant as if Landlord were separately insured. The aforesaid "All
Risk"' policy shall contain an undertaking by- -the insurer that no material
change adverse to Landlord or Tenant will be made and such policy will not lapse
or be cancelled, except after not. less than ninety (90) days' prior written
notice to Landlord of the intended change, lapse, or cancellation. On or before
the Commencement Date and thereafter, at least thirty (30) days prior -to the
effective date of the "All Risk" policy, Tenant agrees to deliver to Landlord a
duplicate original of said policy or a certificate of insurance evidencing such
coverage.
43. PARKING FACILITIF-S
43.1 Landlord hereby grants to Tenant the revocable license
(the "License") to park up to one hundred twenty two (122) cars ("Allotted
Parkinglt) , for use solely by Tenant and Tenant's employees, licensees, guests
and invit:ees in the parking area or areas serving the Building (the "Parking
Axeall) . Landlord shall designate as part of Tenant's Allotted Parking, sixteen
(16) of said spaces to be located in the parking gar-age located beneath the
Building (the "Designated Spaces9l) in accordance with Exhibit F. The Designated
Spaces shall in no way Increase Tenan't's Allotted Parking described above. The
use of any more than the Allotted Parking by Tenant, its employees, licensees,
guests or invitees, after notice from Landlord, shall be deemed a material event
of default under -this Lease, and Landlord may immediately suspend or revoke
'the License and/or exercise such remedies as are provided in this Leaso.
Landlord shall not be :responsible to Tenant for enforcing the License or for
violation of the License by other tenants of -the Building, by third parties, or
guests or visitors to the Building. Although the parties recognize and agree
that Landlord shall have no enforcement obligations with respect 'to 'this
License or any other- parking facilities for 'the Building, in the event of a
problem regarding Tenant's License, Landlord shall, upon Tenant's request, use
reasonable efforts -to assist In a resolution of any such dispute.
43.2 In the event the number of pax-king spaces in 'the
Parking Area is reduced by circumstances beyond the control of Landlord, the
Allotted Parking shall be reduced proportionately; provided, however, that in
the event. a condemnation results in a reduction of parking spaces by one third
(1/3) or more and Landlord cannot provide alternate spaces within a reasonable
proximity to the Building, Tenant shall have the right to terminate this Lease
upon 'ten (10) days notice to Landlord.
43.3 Nothing contained in 'this Lease shall be deemed to
create liability upon Landlord for7 any damage to motor vehicles of visitors or
employees, for any loss of property from within those motor vehicles, or for any
injury to Tenant, its employees, licensees, guests and invitees unless
ultimately determined 'to be caused by the sole negligence or willful misconduct
of Landlord,
8
its agents, servants and employees. Tenant agrees to acquaint its employees with
any parking rules and regulations promulgated by Landlord and assumes
responsibility for compliance by its employees with such parking provisions, and
Tenant shall be liable to Landlord for- all unpaid parking charges, if any,
incurred by its employees. Any amount due from Tenant- pursuant to this Article
43 shall be deemed additional rent and failure 'to pay same shall constitute a
default, under 'the Lease. if Tenant or its employees, licensees, guests and
invitees park illegally or in areas designated for, use by others, or in
driveways, fire lanes or areas not striped for general parking, then Landlord
may charge Tenant, as additional rent., FIFTY and 00/100 DOLLARS ($50.00) per
day for each day or partial day each motor vehicle is so parked. In addition,
Tenant authorizes Landlord to (i) tow away from the Parking Area, at Tenant's
sole cost and expense, any motor vehicle belonging to Tenant or Tenant's
employees, licensees, guests and invitees parked illegally or in violation of
this Article 43 or any parking rules and regulations promulgated by Landlord and
(ii.) attach tickets to any motor vehicles belonging to Tenant or Tenant's
employees, licensees, guests and invitees parked illegally or in violation of
this Article 43 or any parking rules and regulations promulgated by Landlord.
44. ACCESS AND COMMON AREAS
44.1 Tenant shall have the right of nonexclusive use, in
common with others of (a) automobile parking areas not designated for use by
others and driveways and (b) footways.
45. intentionally Deleted Prior 'to Execution
46. BROKER
46.1 Tenant and Landlord each represents to the other that no
real estate broker is responsible for bringing about, or negotiating, this Lease
and Tenant and Landlord have not dealt with any broker in connection with the
Domised Premises.
46.2 In accordance with the foregoing representation, Tenant
and Landlord each agrees to defend, indemnify and hold harmless the other, its
affiliates and/or subsidiaries, partners and officers from any expense or
liability (including attorney's fees) arising out of any claim for commission by
any broker claiming or alleging .-to have acted on behalf of or -to have dealt
with Tenant or Landlord, as applicable.
47. CLEANING SERVICES
47.1 Landlord shall provide services for maintenance of the
grounds, common areas and parking areas and such other cleaning services within
the Demised Premises as are set forth on "Cleaning Service Rideir" annexed
hereto and made a part hereof as Exhibit @tD'I, as same may be reasonably
amended from -time -to time by Landlord. in -the event. of an amendment to the
Cleaning Service Rider, Landlord covenants that any such modification shall be
reasonably comparable to the services currently contained therein and shall not
adversely affect Tenant's use and enjoyment of -the Demised Premises.
47.2 Tenant shall pay to Landlord the cost of removal from the
Demised Premises of any of TenantIs refuse or rubbish other than ordinary office
waste, and Tenant, at Tenantfs expense, shall cause all portions of the Demised
Premises not used as office areas to be cleaned daily in a manner satisfactory
to Landlord. Tenant also shall cause all portions of the Demised Premises used
for the storage, preparation, service or consumption of food or beverages to be
exterminated against infestation by vermin, roaches or rodents regularly and, in
addition, whenever there shall be evidence of any infestation. Tenant shall
contract directly with Landlord or, at Landlo@dfs option, directly with
Landlord's
9
contractors, for the removal of such other refuse and rubbish and for cleaning
services in addition to those furnished by Landlord and for extermination
services required hereunder.
48. ASSIGNMENT A-ND SUBLETTING
48.1 For purposes of this Article and Article 11, any
occupancy arrangement (including without limitation management agreements,
concessions and licenses) affecting all or any part of the Demised Premises,
other than a direct lease with Landlord, not deemed an assignment shall be
referr-ed to as a sublease and any occupant of all or part of the Demised
Premises, other than a tenant under a direct lease with Landlord, not deemed an
assignee shall be referred to as a sublessee. Supplementing 'the provisions of
Article 11, and except as provided in Section 48.8 if the Tenant shall desire to
assign this Lease, sublet or underlet all or any portion of the Demised
Premises, it shall first submit in writing to the Landlord a notice setting
forth in reasonable detalli
(a) 'the identity and address of the proposed assignee or sublessee;
(b) in 'the case of a subletting, the terms and conditions thereof;
(c) the nature and character of the business of the proposed assignee and
sublessee and its proposed use for the Demised Premises;
(d) banking, financial and other credit information relating -to the proposed
assignee or sublessee reasonably
sufficient to enable Landlord to determine the proposed assigneels or
sublessee's financial :responsibility; and
(e) in the case of a subletting of only a portion of the
Demised Premises, plans and specifications for Tenant's layout,
partitioning, and electrical installations for the portion of the
Demised Premises to be sublet.
48.2 If the nature and character of the business of the
proposed assignee or sublessee, and the proposed use and occupancy of the
De-mised Premises, or any portion thereof, by the proposed assignee or
sublessee, is in keeping and compatible with the dignity and character- of the
Building, then, subject to compliance
e u!27em@n@s_ @@Ar-t, Artipl@_4;3_,_, a ytha.@g
to the contrary in Article 11 notwithstanding, Landlord agrees not ?I ri
assignment o@@ all, by
notice in writing as described in Section 48. 1, advise Landlord of its
intention -to assign this Lease or -to sublease all or any part of 'the Demised
Premises, @@m,_@@-and- @@e a _stated --date -(which gha@@- @@e- -thaq 3 d4@
after the d --Tenant: I-s-.-notice) in which event Landlord shall right, to be
exercise bygiving written notice, to recapture the space described in Tenant's
notice. Such recapture notice shall, if given, cancel and 'terminate this Lease
with respect to the space -therein described as of a date which shall be -the
later of 30 days following the date set forth in Tenant's notice, or 30 days
after Tenant shall have surrendered possession of the Demised Premises. In the
event- less than all of the Demised Premises are recaptured, Landlord shall
construct and erect such partitioning and modify building systems as may be
required 'to separate the space retained by Tenant from 'the space recaptured.
The cost- of such alterations shall be borne fully and exclusively by Tenant,
shall constitute additional rent hereunder and shall be payable to Landlord
within 20 days following a statement from Landlord for the amount thereof;
provided, however, that if such costs exceed $5,000 Tenant shall have -the right
to approve said costs or to have such construction costs subject to a
competitive bid.
10
48.3 If this Lease be cancelled pursuant to the foregoing with respect to less
than the entire Demised Premises, the Minimum Rent and/or the Adjusted Minimum
Rent and Tenan-tls occupancy Percentage shall be adjusted on the basis of the
number of square feet retained by Tenant in proportion to the number of square
feet originally demised under this Lease, and this Lease, as so amended, shall
continue thereafter in full force and effect.
48.4 In addition to the foregoing requirements: (a) no
sublease shall violate any law or result in an occupancy of the Delmised
Premises by more 'than two tenants, including the Tenant hereunder, (b) no
sublease shall be f or a term of less than two years, unless the unexpired term
of 'this Lease shall be less than two years at the commencement of the sublease,
(c) no assignee or sublessee shall be an existing tenant of or any party than
negotiating f or space in the Building, or any other building in the office park
of which the Building is a part (1) owned by Landlord, Bellemead Development
Corporation ("Bellemead") or any partnership in which Bellemead or an af filiate
of Bellemead is a partner or (11) managed by Bellemead or an af f iliate of
Bellemead ("Af f Illated Building"), (d) no sublease shall result in the
occupancy of less than 1000 square feet of space, (e) Tenant shall not be in
default under any of the terms and conditions of this Lease beyond any
applicable grace period at the time of any notice or request- for consent. under
the 'terms of this Article or at the effective date of such assignment or
subletting. Furthermore, anything to 'the contrary in Section 48.2
notwithstanding, Landlord shall not: consent to any sublease or assignment
unless Tenant agrees at the time of the proposed sublease or assignment and in
'the Tenant's notice required in Section 48.2 to pay over 'to Landlord fifty
(50%) percent of all consideration (of whatever nature received from the
assignee or sublessee) net of reasonable cos@ (including brokerage expenses and
fit-up expenses) of subletting or assignment that would be payable by the
prospective sublessee or assignee -to Tenant over the term of the sublease or
assignment pursuant to such sublease or assignment which exceeds the lororata
share of the Adjusted Minimum Rent allocable to the Demised Premises, or any
part thereof, as the case may be, payable by Tenant hereunder and (f) Tenant
shall pay when due all brokerage or similar commissions arising from any
assignment or sublease.
48.5 Any sublease must provide (a) that it shall be subject-
and subordinate to all of the terms and conditions of -this Lease, (b) -that
notwithstanding Article 2 hereof, -the use of the Dernised Premises thex:a!under
@h&2 tricted exclusava-Ly-@ execut3-ve and administrative office use, ( ereof
shall n cL beyond a date whi-c@-----i-s one day prior to the expiration date of
the Term hereof, (d) no sublessee or its heirs, distributees, executors,
administrators, legal representatives, successors or assigns, without the prior
consent of Landlord in each instance, which consent Landlord may withhold for
any reason or no reason, shall (1) assign, whether by merger, consolidation or
otherwise, mortgage or encumber its interest in any sublease, in whole or in
part, or (ii) sublet, or- permit 'the subletting of, that part of the Demised
Premises affected by such subletting or any part -thereof, or (it!) permit such
part of the Demised Premises affected by such subletting or any part 'thereof to
be occupied or used for desk space, mailing privileges or otherwise, by any
person other than such sublessee. The sale, pledge, transfer or other alienation
of (y) fifty percent (50%) or more of the issued and outstanding capital stock
of any corporate sublessee (unless such stock is publicly traded on any
recognized security exchange or over-the-counter market) or (z) any t-zansfer of
interest in fifty percent (50%) or more of any partnership or joint venture
sublessoe, however accomplished, and whether in a single transaction or in a
series of related or unrelated transactions, shall be deemed, for the purposes
of this Section, an assignment of such sublease which shall require the prior,
consent of Landlord in each instance, and (e) in the event of cancellation or
termination of the Lease for any reason whatsoever or of the surrender of this
11
Lease whether voluntary, involuntary or by operation of law, prior to the
expiration date of such sublease, including ex-tensions and renewals granted
thereunder, that, at Landlord's option, the subtenan't shall vacate the Demised
Premises or shall make full and complete at-tornment to Landlord for 'the
balance of 'the terra of the sublease, which att:ornment shall be evidenced by
an agreement in form and substance satisfactory to Landlord which 'the subtenant
shall execute and deliver at any time within five days after request by
Landlord, its successors and assigns. The subtenant shall waive -the provisions
of any law now or hereafter in effect which may give the subtenant any right of
election to terminate the sublease or -to surrender possession of the Demised
Premises in the event any proceeding is brought by Landlord to terminate this
Lease. No assignee c)v sublessee shall receive any credit from Landlord
whatsoever for security deposits, rent or any other monies paid to Tenant unless
same shall have been actually received by Landlord.
48.6 Each of the following events shall be deemed to
constitute an assignment of this Lease and shall require the prior writ-ten
consent of Landlord in each instance:
(a) Any assignment or transfer of this Lease by
operation of law;
(b) Any hypothecation, pledge or collateral assignment
of this lease;
(c) Any involuntary assignment or transfer7 of this Lease in connection
with bankruptcy, insolvency, receivership or otherwise;
(d) Any assignment, transfer, disposition, sale or acquiring
of a controlling interest in Tenant to or by any person, entity or
group of related persons or affiliated entities, whether in a single
-transaction or in a series of related or unrelated transactions
excluding, however, any such disposition on a publicly recognized stock
exchange; and
(s) Any issuance of an interest or interests in Tenant
(whe'ther stock, partnership interests or otherwise) to any person,
entity or group of related persons or affiliated entities, whether in a
single -transaction or in a series of related or unrelated
transactions, such that following such issuance, such person, entity or
group shall hold a controlling interest in Tenant excluding, however,
any such disposition on a publicly recognized stock exchange.
For purposes of the immediately preceding sentence, a "controlling interest" of
Tenant shall mean fifty (50%) percent or more of the aggregate issued and
outstanding equitable interests (whether stock, partnership interests or
otherwise) thereof.
48.7 Tenant, its sublessees, and their respective successors
and assigns acknowledge and agree that 'the restriction that Landlard's consent
under certain circumstances to a proposed assignment of this Lease or to a
subletting shall not be unreasonably withheld and shall not be intended or
construed as an agreement or covenant on the part of Landlord, but rather as a
qualification on Tenan't's covenant not to assign 'this Lease or sublet, and
they further agree that Landlord shall not be liable in damages or subject to
liability of any other kind or nature whatever by reason of Landlo@d's failure
or refusal to grant its consent to any proposed assignment of this Lease or
subletting of the Demised Premises. Notwithstanding the foregoing, in the event
of a withholding of Landlord's consent pursuant to this Article 48, Tenant shall
retain its rights of specific performance or declaratory judgment against the
Landlord.
12
48.8 It is a condition to the effectiveness of any permitted assignment, or
sublease otherwise complying with Article 11 and this Article 48 that -the
assignee execute, acknowledge and deliver to Landlord an agreement in form and
substance reasonably satisfactory to Landlord whereby the assignee assumes all
obligations of Tenant under this Lease, and agrees that the provisions of
Article 11 and this Article 48 shall continue -to be binding upon it in respect
of all future assignments of this Lease. No assignment of this Lease shall
release the assignor from its continuing obligations to Landlord under -this
Lease or any renewals or, extensions thereof, except as expressly herein
provided, and Tenant and any subsequent assignor shall continue to remain
jointly and severally liable (as primary obligor) for all of Tenant's
obligations hereunder.
48.9 Tenant covenants to obtain all permits and approvals
required by any governmental or quasi-governmental agency for any work or
otherwise required in connection with any assignment of this ]Lease or any
sublease, and Tenant shall deliver copies of the same to Landlord prior to the
commencement of work if work is to be done. Tenant is furthermore responsible
for and is required to reimburse Landlord for all costs including, but not
limited to, reasonable architectural, engineering and legal fees which Landlord
incurs in reviewing any proposed assignment of this Lease or any sublease and
any permits, approvals and applications for the construction within the Demised
Premises. Tenant's failure to obtain any of the above-mentioned permits and
approvals or to submit same and a duplicate original counterpart of the
assignment or sublease to Landlord within five days of the date of issuance or
execution of such item(s) shall constitute a default under this Lease.
48. 10 If Landlord reasonably withholds its consent to any
proposed assignment or sublease, or if Landlord exercises its recapture option
under Section 48.2, Tenant shall indemnify, defend and hold harmless Landlord
against and from all loss, liability, damage, cost and expense (Including
reasonable attorneys fees and disbursements) resulting from any claims that may
be made against Landlord by the proposed assignee or sublessee or by any brokers
or other persons claiming a commission or similar compensation in connection
with the proposed assignment or sublease.
48. 11 If Landlord consents to any proposed assignment or
sublease and Tenant fails to consummate the assignment or sublease to which
Landlord consented within 60 days after the giving of such consent, Tenant shall
be required again to comply with all of the provisions and conditions of this
Article 48 before assigning this Lease or subletting all or part of -the Demised
Premises.
48.12 The joint and several liability of the named Tenant and
any immediate or remote successor in interest of the named Tenant for the due
performance and observance of all covenants and conditions to be performed and
observed by Tenant shall not be impaired by any agreement of Landlord extending
the time for such performance or observance or by Landlord's waiving or failing
to enforce any provisions of 'this Lease.
48.13 The listing of any name other than that of Tenant on any
door of the Demised Premises or on any directory or in any elevator in the
Building or otherwise, shall not operate to vest in the per-son so named any
right or interest in this Lease or in the Demised Premises or the Building,
o@-be deemed to constitute, or serve as a substitute for any prior consent
required under this Article.
48.14 Any provisions of Article 11 and Article 48 to the
contrary notwithstanding, but subject to the other terms, conditions and
Provisions contained in said Articles:
13
(a) Any corporate Tenant shall have the right, without the consent of
Landlord, to assign this Lease or sublet all or any part. of the Demised
Premises to any corporation controlling, controlled by or under common
control with Tenant, provided that no such assignee shall further assign
this Lease and no such -------- sublessee shall assign or encumber its
sublease or further sublet all or any part of the Demised Premises except
in accordance with -this Article 48, and vided, further,, that any event
resulting in ----- such assignee or sublessee ceasing -to be a corporation
controlling, controlled by or under- common control with Tenant shall be
deemed -to be an assignment or- sublease requiring -the prior consent of
Landlord and Tenant shall thereupon be required -to comply with all
provisions of Article 11 and -this Article 48 applicable thereto. For
purposes of the immediately foregoing, "control*', means ownership of at
least eighty percent (80%) of the issued and outstanding voting stock of
such corporation.
(b) Any corporate Tenant shall also have the right, without
the consent of Landlord, to assign this Lease to any corporation
succeeding to Tenant by merger or consolidation in accordance with
applicable statutory provisions for merger or consolidation of
corporations or by purchase of all or substantially all of Tenant's
assets, provided that immediately after such merger, consolidation or
purchase, the shareholders' equity (capital stock, additional paid-in
capital and retained earnings) of the successor corporation or the
purchasing corporation, as the case may be, shall be at least equal to
the shareholder0s equity of Tenant immediately prior to such merger,
consolidation or purchase and this shall be so certified by the chief
financial officer of the assignee.
It is Landlord's intent to permit assignment- of the Lease and
subletting pursuant to this Section 48.14 exclusively as an accommodation to
-the bona f ide and legitimate business needs of Tenant, and notwithstanding the
provisions hereof, no assignment of this Lease or sublease of all or any part of
-the Demised Premises without Landlord's consent- hereunder shall be permitted
where the sole or primary purpose of such assignment or subletting is to permit
occupancy of all or any part of the Demised Premises by a third party in
avoidance of Landlord's consent, or in the case of a corporation's purchasing
all or substantially all of Tenant's assets where this Lease constitutes all or
a substantial portion of such assets.
Tenant shall promptly give Landlord prior written notice of any
assignment of this Lease or subletting permitted under this Section 48.14
accompanied by all documentation required by Landlord to establish compliance
with the requirements of subsections (a) and (b) above and Tenant shall also
promptly provide Landlord with a copy of any executed instrument of merger,
consolidation or assignment or the executed sublease, as the case may be.
49. TENANTIS COOPERATION; REASONABLE
MODIFICATIONS: ESTOPPEL CERTIFICATE
49.1 If, in connection with obtaining financing for the
Building and/ov the Real Estate, or otherwise upon the interest of the Landlord,
as lessee, under any ground or underlying lease, any lending institution shall
request reasonable modif !cations of this Lease as a condition of such
financing, Tenant covenants not unreasonably to withhold or delay its agreement
to such modification, upon Landlord's request-, provided that such modification
does not materially or adversely affect 'the rights or uses of Tenant under this
Lease.
49.2 Tenant agrees at any 'time and from time to time, upon not less
than ten days' prior written request, 'that Tenant
14
shall execute, acknowledge and deliver to Landlord, or its designee, a statement
in writing certifying: that this Lease is unmodified and is in full force and
effect (or if there have been modifications, 'the specifics thereof and that the
Lease is in full force and effect as modified); the dates to wh+/-ch the Minimum
Rent (or Adjusted Minimum Rent) and additional rent have been paid; the amount
of all rents paid in advance, if any; and any other information that Landlord
shall reasonably request. Tenant further agrees to furnish Landlord upon demand
at any time such information and assurances as Landlord may request that Tenant
has not breached the provisions of this Lease. it is intended hereby that. any
such statement delivered pursuant -to 'this Article may be relied upon by a
prospective purchaser of 'the Landlord's interest or a mortgagee of Landlo@d's
interest, or any assignee of any mortgage upon Landlord's interests In -the Real
Estate. The foregoing obligation shall be deemed a substantial obligation of the
tenancy, 'the breach of which shall give Landlord those remedies herein provided
for an event of default. Tenant's failure to timely deliver such statement shall
be conclusive upon Tenant: (a) that this Lease Is in full f oirce and ef f ect,
without madif Ication except as may be represented by Landlord; (b) -that to the
best of Tenant's knowledge there are no uncured defaults in Landlord's
performance and Tenant has no right of offset, counterclaim, defenses or
deduction against the Minimum Rent, Adjusted Minimum Rent, additional rent or
against Landlord; and (c) that no more than one month's installment of Minimum
Rent- has been paid in advance.
49.3 Tenant agrees at any time and from time to time, upon not
less than ten (10) days' prior written request, -that Tenant shall demonstrate
to Landlord Tenant's financial status and that of any occupant of the Demised
Premises by submitting to Landlord all reasonable information as Landlord may
request, including but not limited to Tenan't's latest annual report. The
foregoing obligation shall be deemed a substantial obligation of the tenancy,
the breach of which shall give Landlord those remedies herein provided for an
event of default.
50. LIMITATION OF LIABILITY;
DEFINITION OF "LANDLORD"
50.1 Notwithstanding anything to the contrary herein
provided, each and every term, covenant, condition and provision of this Lease,
is hereby made specifically subject to the provisions of this Article 50. The
term "Owne3c" or "Landlord" as used in this Lease means only the owners or
lessors fo-r the -time being of -the Real Estate, so that in the event of any
conveyance of such interest and the transfer to the transferee of any funds
-then being held under -this Lease by such owner, Landlord shall be and hereby
is entirely freed and relieved of any and all obligations of Landlord hereunder
thereafter accruing, and i t shall be deemed without further agreement between
the parties and such g-rantee(s) that the grantee has assumed and agreed to
observe and perform all obligations of Landlord hereunder. It is specif ically
understood and agreed that notwithstanding anything 'to the contrary herein
provided or otherwise provided at law or in equity, there shall be absolutely no
personal liability in excess of its interest in the Real Estate (including the
rents, issues and prof its -thereof) to the Landlord oic any successor in
interest thereto (whether the same be an individual, joint venture, tenancy in
common, firm or partnership, general, limited or otherwise) or, on -the part of
that members of any f ix-m, partnership or joint venture or other unincorporated
Landlord with respect to any of the terms, covenants and/or conditions of this
Lease; in the event of a breach or default by Landlord, or any successor in
interest thereof, of any of its obligations under this Lease, Tenant shall look
solely to the then Landlord for the satisfaction of each and every remedy of
Tenant, such exculpation of personal and additional liability which is in excess
of such interest in 'the Real Estate to be absolute and without any exception
whatsoever.
15
51. STATLTTORY WAIVER: NOTICE BY TENANT
51.1 Tenant waives the benefit of N.J.S.A. 46:8-6 and 46:8-7,
as same may be amended. Tenant agrees that it will not be relieved of the
obligations to pay the Mini-mum Rent, Adjusted Minimum Rent or any additional
rent in case of damage to or destruction of the Building, except as provided in
Article 9 of the Printed Portion of this Lease.
51.2 Tenant: shall give Landlord immediate notice in case of
fire or accident within the Demised Premises, or, upon 'the Real Estate if
involving Tenant, its servants, agents, guests, employees, invitees or
licensees.
52. CORPORATE AUTHORITY
52.1 Tenant represents that the officer executing and
delivering this Lease has been duly authorized to enter into this Lease and that
-the execution and delivery of this Lease by Tenant do not and shall not violate
any provision of any by-law, agreemen-t, order, judgment, governmental
regulation or any other obligation to which Tenant is a party or is subject.
52.2 Upon execution hereof, Tenant shall deliver an
appropriate certification by its secretary or assistant secretary to the above
effect.
52.3 Landlord represents that 'the representative executing
and delivering this Lease has been duly authorized to enter into this Lease and
that the execution and delivery of this Lease by Tenant do not and shall not
violate any provision of any partnership agreement, order, judgment,
governmental regulation or any other obligation -to which Landlord is a party or
is subject.
53. PERSONAL TAXES
53.1 Tenant agrees to pay all taxes imposed upon Tenant
or on the personal property of Tenant in connection with its use and occupancy
of -the Demised Premises including, but not limited to, personal property,
income, withholding and unemployment compensation, and 'to hold Landlord
harmless from collection thereof out of monies due and owing Landlord.
54. BUILDING CHANGES
54.1 The Lease shall not be affected or impaired by any
change to any lawns, sidewalk, driveways, parking areas or streets adjacent to
or around the Building, except as provided in the provisions of this Lease
dealing with condemnation and in Article 20 hereof.
55. HOILDING OVER
55.1 Tenant shall pay Landlord one and one-half (14,-) times
the fair market rental value of the Demised Premises, as reasonably determined
by Landlord (but- in no event less than one and one half (1h) -times the total
of Adjusted Minimum Rent plus additional rent -then applicable under the Lease)
for each month or partial month during which Tenant retains possession of the
Demised Premises, or any part thereof, after -the expiration or termination of
-the Lease. Tenant understands -that on 'the last day of the 'term of this
Lease, all or a part of the Demised Premises may be subject to certain rights of
occupancy held by other parties and that any retention of possession by Tenant
after the last day of the term of this Lease may cause significant hardship on
Landlord and on par-ties to whom certain rights of occupancy for all or any part
of the Demised Premises have been granted. In connection with the foregoing,
Tenant shall defend, indemnify and hold Landlord harmless against all
liabilities and damages sustained by reason of any such retention of possession.
Nothing contained in -this Lease
16
shall be construed as a consent by Landlord -to the occupancy or possession by
Tenant of the Demised Premises beyond the Termination Date or prior expiration
of the term hereof, and Landlord, upon the Termination Date or prior expiration
of the term hereof, shall also be entitled -to consequential damages and to the
benefit of all legal remedies -that. now may be in force or may be hereafter
enacted for summary possession of the Demised Premises.
56. RESTRICTIVE COVENANT - FOOD SERVICE
56.1 Tenant hereby covenants and agrees (anything to the
contrary contained in this Lease, notwithstanding) that it shall not use 'the
Demised Premises or any portion thereof, for the service of food to anyone other
-than Tenan't's employees, nor shall it. maintain any facilities for the sale or
consumption of food to and by anyone other than Tenant's employees, without, in
each case, obtaining -the prior written consent of the Landlord. The consent of
the Landlord required hereunder may be withheld for any reason or no reason.
56.2 Landlord represents to Tenant, and Tenant acknowledges,
that pursuant to agreements made or -to be made by and between the Landlord and
third parties for the operation of a restaurant, cafeteria, coffee-cart and
similar food services for this Building and/or other buildings in the office
park in which this Building is located, no tenant of this Building, including
Tenant, shall prepare, contract for,, serve or otherwise make available a food
service facility in competition with such third parties other -than as permitted
under Section 56.1 above and Article 68 hereof. Any breach of this restriction
by -the Tenant shall be deemed a material event of default under the terms of
this Lease, and Landlord may, in its discretion, exercise such remedies as it
may deem appropriate to terminate 'this Lease, prevent a violation of this
covenant, and recover any damages to which it may be exposed by virtue of a
breach by 'the Tenant.
56.3 Tenant shall not permit the consumption of food or drink in -the
common areas of 'the Building.
57. NOTICES
57.1 All notices, demands and requests which may or are
required to be given, by either party hereunder -to the other, shall be in
writing. All notices, demands and reques@ by Landlord to Tenant shall be deemed
to have been properly given if sent by Landlord or its managing agent and mailed
by registered or cer,tif ied mail, return receipt requested, postage prepaid,
addressed to Tenant- at the Demised Premises with a copy -to:
Vice President and
Ass+/-stant- General Counsel
Individual Insurance
Law Department
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as Tenant may from time to time designate by written
notice 'to Landlord.
All notices, demands and requests by Tenant 'to Landlord shall be
deemed duly given or served if, and shall not be deemed duly given or served
unless, sent by registered or certified mail, return receipt requested, postage
prepaid, addressed to Landlord at:
17
LANDLORD: Jared Associates, L.P.
c/o Bellemead Management Co., Inc.
280 Corporate Center ▇ ▇▇▇▇▇@ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
or to such other address as Landlord may from time -to time designate by written
notice to Tenant.
All notices referred 'to hereunder shall be deemed given and received
when delivered or when delivery is refused when mailed by United States
registered or certified mail as aforesaid, in any post office or branch post
office regularly maintained by the United State Government, unless said notice
was personally served upon an officer of Landlord or Tenant, in which case such
notice shall be deemed given when delivered.
58. INTERPRETATION
58.1 If any term or provisions of this Lease or the
application thereof to any party or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Lease or the application of such term or
provision to parties or circumstances other -than to those with respect to which
it is held invalid or enforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and enforced -to the fullest e@ent-
permitted by law.
58.2 In any and all cases where Landlord's consent or approval
is required under this Lease, Tenant shall upon Landlord' s demand reimburse
Landlord, as additional i-ent, for all reasonable out of pocket costs and
expenses, including but not limited to architectural, engineering and legal f
ees, which Landlord incurs in determining whether to grant its consent or
approval. In all instances under this Lease where Landloird's consent is
required, (except in the case of assignment, subletting or structural
modifications to the Demised Premises or Building), such consent shall not be
unreasonably withheld or delayed.
58.3 Tenant shall pay all reasonable legal fees and expenses
incurred by Landlord (i) in interpreting, enforcing or modifying the -terms of
the Lease, (ii) in commencing and prosecuting a suit for the recovery of the
Demised Premises, damages or- any amounts owed to Landlord, (ill) in commencing
and prosecuting a declaratory action, (iv) in defending an action or
counterclaim brought by Tenant and (v) in preparing for or appearing in an
arbitration, mediation or other nonjudicial proceeding. Notwithstanding the
foregoing, Landlord shall only be entitled to reimbursement under clauses (i)
through (v) above in the event Landlord ultimately prevails in the underlying
dispute.
58.4 This Lease shall be governed by and construed in
accordance with the laws of and enforced only in the courts of New Jersey.
Tenant hereby irrevocably submits itself 'to the jurisdiction of the courts of
the State of New Jersey and to 'the jurisdiction of the United States Distri@
Court f or -the District of New Jersey for -the purposes of any suit, action or
other proceeding brought by Landlord arising out of or based upon this Lease.
Tenant hereby waives and agrees not to assert, by way of motion, as a defense,
or otherwise, in any such suit, action or proceeding, any claim that it is not
subject personally to the jurisdiction of -the above-named courts, that its
property is exempt or immune from attachment or execution, that -the suit,
action or proceeding is brought in an inconvenient- forum, that the venue of the
suit, action or proceeding is improper or that this Lease may not be enforced in
or by such court.
58.5 This Lease shall be cons-trued without regard to any presumption
or other rule requiring construction against. the party
18
causing this -Lease to be drafted. Text deleted from a prior draft of this Lease
shall not be admissible in an action or proceeding relating to -the Lease for
the purpose of altering or limiting 'the meaning or effect of the Lease.
58.6 Tenant- acknowledges and agrees -that it has had the
assistance of counsel in the review, negotiation and execution of this Lease or
has waived its right 'to counsel.
59. No OFFER OR AGREEMENT
59.1 No broker or agent of any broker has authority to
make or agree to make a lease or any other agreement or undertaking in
connection herewith, including, but not limited to the modification, amendment
of or cancellation of a lease. The mailing or, delivery of this document or any
draft hereof by the Landlord or its agent to Tenant, its agent or attorney shall
not be deemed an offer by the Landlord to lease the Demised Premises on the
terms herein. This Lease shall not be effective, nor shall Tenant have any
rights with respect thereto unless and until Landlord shall accept -this Lease
and execute and deliver the same to Tenant.
60. DAMAGES
60.1 Notwithstanding anything -to the contrary contained in
Article 18 hereof, if Landlord shall re-enter the Demised Premises under the
provisions of Article 18, or in -the event of the termination of -this Lease, or
of re-entry, by or under any summary dispossess or other proceeding or action of
any provision of law by reason of default hereunder on the part of Tenant,
Tenant shall be liable to Landlord for any and all damages as are permitted by
law.
60-2 Suit ox- suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit -until the date when the term of this Lease would have expired if
it had not been so terminated or had Landlord not re-entered the Demised
Premises. Nothing herein contained shall be construed to limit or preclude
recovery by Landlord against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant. Any indemnity of Tenant
shall survive the expiration or earlier termination of this Lease. Nothing
herein contained shall be construed 'to limit or prejudice the right of Landlord
to prove for and obtain as liquidated damages by reason of -the termination of
this Lease or re-entry of 'the Demised Premises for the default of Tenant under
this Lease, an amount equal 'to -the maximum allowed by any statute or :rule of
law governing the proceedings in which such damages are to be proved whet-her or
not such amount be greater, equal to, or less -than any of the sums ref erred to
in Section 60.1.
61. BANKRUPTCY
61.1 Tf, as a matter ot law, Landlord has no right on the
bankruptcy of Tenant to terminate this Lease, then, if Tenant:, as debtor, or
its trustee wishes to assume or assign this Lease, in addition -to curing or
adequately assuring the cure of all defaults existing under this Lease on
Tenant's part on the date of filing of -the proceeding (such assurances being
defined below), Tenant, as debtor, or the -trustee or assignee, must also
furnish adequate assurances of future performance under this Lease (as defined
below) . Adequate assurance of curing defaults means the posting with Landlord
of a sum in cash suf f icient to def ray the cost of such a cure. Adequate
assurance of f uture perf ormance under this Lease means posting a deposit equal
to -three (3) months' rent, including all (either charges payable by Tenant
hereunder, such as the amounts payable pursuant to Article 36 hereof, and, in
the case of an assignee, assuring Landlord that the assignee is financially
19
capable of assuming this Lease, and that its use of the Demised Premises will
not be detrimental to the other 'tenants in -the Building or Landlord. In a
reorganization under Chapter 11 of the Bankruptcy Code, the debtor or trustee
must assume this Lease or assign it within one hundred twenty (120) days from
the filing of the proceeding, or he shall be deemed to have rejected and
terminated this Lease.
61.2 if this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq.
(the "Bankruptcy Code"), any and all monies or other considerations -to be
delivered in connection with the assignment shall be delivered to Landlord,
shall be and remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any person or entity to which -this Lease is assigned pursuant
to the provisions of -the Bankruptcy Code shall be deemed -to have assumed all
of the obligations arising under, this Lease an and after the date of the
assignment, and shall upon demand execute and deliver to Landlord an instrument
confirming that assumption.
62. Intentionally Deleted Prior, to Execution
63. Intentionally Deleted Prior to Execution
64. LANDLORD'S WORK: LANDLORD'S WORK LETTER
64.1 Tenant shall deliver 'to Landlord on or prior, 'to the
Outside Plan Date (as defined in Article 37 hereof) such drawings, layouts and
specifications ("Tenan't's Specifications") in sufficient detail to enable
Landlord 'to (1) prepare construction drawings (IOConstruction Drawings") and
(11) obtain a building permit for -the construction of the Demised Premises.
Landlord shall prepare the Construction Drawings in accordance with Tenan't's
Specifications and shall deliver the completed Construction Drawings to Tenant.
Tenant- shall have seven (7) days after receipt of the Construction Drawings to
approve or modify same (the "Approved construction Drawings"). Any delay beyond
said seven (7) day period shall be deemed a Tenant Delay (as hereinafter defined
in Section 64.2). Landlord shall construct the Demised Premises in accordance
with the Approved Construction Drawings and Tenant shall pay Landlord for such
work, subject to a construction allowance of $783,425.00 (the "Maximum
Allowance") . The Maximum Allowance shall be applied to work that is above and
beyond the work described in Exhibit H (Base Bulldling Items), which Base
Building Items shall be completed at Landlard's expense. In the event -the cost
for the total construction of the Demised Premises is more or less than the
Maximum Allowance, such dif f erential will be paid on the Adjustment Date in
accordance with Section 69.2 hereof. All of Landlord's work shall carry a one
(1) year warranty from 'their respective completion dates.
64.2 Any modification or addition -to -the Approved
Construction Drawings requested by Tenant shall be in writing and shall be
deemed to be an "Extra" or "Change O-cder". Within a reasonable period after
Tenant's -request, Landlord shall advise Tenant of the work required, the cost
thereof and the additional time required, if any, fox, the construction of the
applicable "Extra'$ or "Change Order". Only ▇▇▇▇▇▇ Fos@er or ▇▇▇▇▇ ▇▇▇▇▇▇ (or a
person authorized in writing by either one, provided such writ:-ten
authorization has been received by Landlord) may execute an "Extra" or "Change
orders' on behalf of Tenant and no other signatory has the authority -to bind
Tenant in said regard. only those "Extras" or "Change Orders" executed by both
Landlord and Tenant shall be binding on the par-ties hereto. Tenant shall be
responsible for any delays in completing the Demised Premises by reason of
Tenant's failure to cooperate with Landlord, Tenant's delays in submitting any
drawings or specifications, or in supplying information, or in approving
drawings, specifications or estimates, or in giving
20
authorizations, or by reason of any "Extra" or "Change Order" designated by
Tenant-, or by reason of any changes by Tenant in any designations previously
made by Tenant, or by reason of any similar acts or omissions of Tenant
(individually, a "Tenant Delay" and collectively, "Tenan't's Delays") - Any
other delay in completing the Demised Premises due to any other reason, cause or
factor beyond Landlord's reasonable control, including but not limited -to
strikes or other labor disputes, accidents, orders or regulations of any
federal, state, county or municipal authority, delays due to adjustment of
insurance claims, lack of availability of materials, parts or services, acts of
God, fire, earthquake, floods, explosion, action of the elements, war,
hostilities, invasion, insurrection, riot, mob violence, sabotage or by reason
of any other cause, whether similar or not to 'the foregoing, that is beyond the
reasonable control of Landlord shall be hereinafter referred to as "Force
Majeure". In the event Tenant's Delays cause a delay in the completion of the
Demised Premises, Tenant shall be responsible for any increases in costs
resulting from such Tenant's Delays and any additional 'time required -to
complete the Demised Premises. Any such additional costs shall be paid on the
Adjustment Date in accordance with Section 69.2 hereof. In the event Force
Majeure events cause a delay in the completion of the Demised Premises, neither,
Landlord nor Tenant shall be responsible for any additional time required to
complete the Demised Premises or for any additional costs resulting therefrom.
64.3 The parties hereto acknowledge and agree that Landlord's
construction of the Demised Premises in accordance with Tenant's Specifications
and any authorized "Extras" or "Change Orders" shall be performed an what is
commonly referred to as a "Cos,t-Plus" basis. In this regard, Tenant shall be
obligated to pay for the compounded cost of those items in the Approved
Construction Drawings, any approved Extras ox, Change Orders plus Project
General conditions, Profit and overhead (as such terms are defined below).
Landlord and Tenant agree that (a) the project general conditions, as described
on Exhibit B attached hereto ("Project General Conditions") shall be deemed to
be 6% of the total cost to prepare the Demised Premises for Tenant"s occupancy
and (b) Landlord's prof it ("Pzof it") shall be deemed to be 5% of the total
cost to prepare the Demised Premises f or Tenant I s occupancy and (c)
Landloird's overhead ("Overhead") shall be deemed to be 5% of the total cost to
prepare the Demised Premises for Tenan-tls occupancy. The aggregate sum of
Project: General Conditions, Profit and Overhead shall be compounded for this
project. Any amount (above and beyond the Maximum Allowance) due Landlord for
those items in the Approved Construction Drawings, any approved Extras or Change
orders, Project General Conditions and Landlovdls Profit and Overhead shall be
payable on -the Adjustment Date in accordance with Section 69.2 hereof. Landlord
agrees that fox, each trade to be subcontracted out in connection with
Landlord-s construction of the Demised Premises, Landlord shall request bids
from no fewer than three (3) subcontractors to be mutually agreed upon by
Landlord and Tenant. From said three (3) bids, Landlord may award work 'to the
lowest bidder without Tenant's prior-consent. From said three (3) bids, Landlord
may award work to a subcontractor who was not the lowest bidder, provided Tenant
has given its prior consent. In addition, in those instances where it is
appropriate, Landlord will request that certain subcontractors provide bids with
unit pricing in order to facilitate any additional Extras or Change Orders that
Tenant may request.
64.4 Provided Tenant is not in default hereunder, as of
the f if th @h) ▇▇▇@v nmmt--nn@t-pai-e, Landlord
gx. es t@r a'@t and reca@e@ the Demised Premises with building _;p
,- .--@n @he event Tenant desires an upgrade of any standard @ii i3@
wall or floor covering, Landlord shall grant to Tenant an allowance equal to the
building standard materials and any excess will be paid by Tenant -to Landlord,
on demand. For the purposes hereof, building standard carpet shall be nylon
broadloom carpet with a face weight of at least twenty six (26) ounces.
21
65. RENEWAL OPTION
65.1 Subject -to -the provisions of Section 65.2 below,
Tenant shall have the option -to renew 'this Lease for an additional term of
five (5) years (,the "Renewal Tex-ml'), which Renewal Term shall commence upon
the expiration of -the -term described in Article 37 of this Lease (the "Initial
Term"). The terms, covenants and conditions during the Initial Term, including
but not limited to 'the definitions of the First Tax Year and First Operating
Year as set forth in Article 36 hereof, shall be projected and carried over
in-to the Renewal Term, except- as specifically set forth hereinafter.
(a) The Minimum Rent during the Renewal Term shall be the
greater of (i) Market Rent (as defined in clause (b) below) or (ii) the Adjusted
Minimum Rent as of the last day of the Initial Term.
"Market Rent" shall mean the fair market rent for
the Demised Premises, as of the commencement date of the Renewal Term (the
"De-terminati on Date") , based upon 'the rents generally in
effect for comparable office space in the area in which the Real Estate is
located taking into consideration any lease concessions that are customarily
available in -the market at such time. Market Rent (for the purposes of
determining the Minimum Rent only during the Renewal Term) shall be determined
on the same basis as Adjusted Minimum Rent is calculated in accordance with the
terms of this Lease.
Landlord shall no-tif y Tenant ("Landlord's Determination Notice") of landlord's
determination of the Market Rent within sixty (60) days of the Determination
Date. If Tenant disagrees with Landlord's determination, Tenant shall notify
Landlord ("Tenant's Notice of Disagreement") within fifteen (15) days of receipt
of Landlord's Determination Notice. Time shall be of the essence with respect to
Tenant's Notice of Disagreement, and the failure of Tenant to give such notice
within the time period set forth above shall conclusively be deemed an
acceptance by Tenant of the Market Rent as determined by Landlord and a waiver
by Tenant of any right to dispute such Market: Rent. If Tenant timely gives its
Tenant's Notice of Disagreement, then the Market Rent shall be determined as
follows: Landlord and Tenant shall, within thirty (30) days of -the date on
which Tenant's Notice of Disagreement was given, each appoint an Appraiser
(hereinafter defined) for-the purpose of determining the Market Rent. An
Appraiser shall mean a duly qualified impartial real estate appraiser having at
least ten (10) years' experience in the area in which the Demised Premises are
located. In 'the event that -the two (2) Appraisers so appointed fall to agree
as to the Market Rent within a period of thirty (30) days after the appointment
of the second Appraiser, such two (2) Appraisers shall forthwith appoint a third
Appraiser who shall make a determination within thirty (30) days thereafter. If
such two Appraisers fall to agree upon such third Appraiser within ten (10) days
following the last thirty (30) day period, such third Appraiser shall be
appointed by a presiding Judge of the Superior Court of the State of New Jersey
f or the County in which the Real Estate is located. Such two (2) Appraisers or
three (3) Appraisers, as -the case may be, shall proceed with all reasonable
dispatch to determine the Market Rent. The decision of such Appraisers shall be
final; such decision shall be in writing and a copy shall be delivered
simultaneously to Landlord and 'to Tenant. If such Appraisers fail to deliver
their decision as set forth above prior to the commencement of the Renewal Term,
Tenant shall pay Landlord the Adjusted Minimum Rent at the rate as of the last
day of -the Initial Term, until such decision is so delivered. if the Market
Rent as determined above is in excess of the actual rent paid, then Tenant, upon
demand, shall pay to Landlord the difference between the actual rent paid and
the Market Rent from the commencement of -the Renewal Term.
22
Landlord and Tenant shall each be responsible for and shall pay the fee of the
Appraiser appointed by them respectively, and Landlord and Tenant shall share
equally -the fee of the third Appraiser. Promp,tly upon determination of the
Market Rent, Tenant- shall execute and deliver a Lease amendment prepared by
Landlord setting forth the terms of the Renewal Term.
65.2 Tenant's option to renew, as provided in Section
65.1 above, shall be strictly conditioned upon and subject -to each of the
following:
(a) Tenant shall notify Landlord in writing of Tenant's
exercxse of its option to renew at least nine (9) months, buc not more than
twelve (12) months, prior -to 'the expiration of the Initial Term;
(b) At the time Landlord receives Tenant's notice as provided
in (a) above, and at the expiration of -the Initial Term, Tenant shall not have
been in default under the terms or provisions of this Lease after -the
expiration of any applicable grace period and the Tenant named on the first and
last page of this Lease or a peir -,,e in occupancy of -the entire Demised
▇▇▇▇▇.▇▇▇;
tc) Tenant shall have no further renewal option other than the
option to extend for the one Renewal Term as set- forth in Sec,tion 65.1 above;
(d) This option 'to renew shall be deemed personal to the
Tenant named on the first and last page of this Lease and -to any affiliate of
Tenant and may not otherwise be assigned; and
(e) Landlord shall have no obligation to do any work or
perform any services for the Renewal Term with respect to the Demised Premises
or the Building which Tenant agrees to accept in their then "as is" condition.
66. ECRA COMPLIANCE
66.1 Tenant shall, at Tenant's own expense, comply with
the Environmental Cleanup Responsibility Act, (N.i.S.A. 13:IK-6 et seq.), the
Comprehensive Environmental Response, Compensation & Liability Act (42 U.S.C.
9601 et seq.) and the Spill Compensation and Control Act (N.J.S.A. 58:10-23.11
et seq.) and any and all amendments thereto and the regulations and orders
promulgated thereunder with respect to Tenant's use and occupancy of the
Dem+/-sed Premises. Tenant shall, at Tenant's own expense, make all submissions
to, provide all information to, and comply with all requirements of, the Bureau
of Indus-trial site Evaluation ("the Bureau") of the New Jersey Department of
Environmental Protection (IINJDEPOR) . Should the Bureau or any other division
of NJDEP determine that a cleanup plan be prepared and that a cleanup be
undertaken because of any spills or discharges of hazardous substances or wastes
in or about the Real Estate caused by Tenant which occur during the term of this
Lease, then Tenant shall, at Tenant's own expense, prepare and submit the
required plans and financial assurances, and carry out the approved plans.
Tenan't's obligations under this Article shall arise if there is any closing,
terminating or transferring of operations of an industrial establishment
utilizing the Demised Premises or a transfer of the Real Estate or any port-ion
thereof which falls under the purview of -the statutes hereinbefore referred.
66.2 Tenant shall promptly provide all information reasonably
requested by Landlord for preparation of non-applicability affidavits and shall
promptly sign such affidavits when reasonably requested by Landlord. Tenant
shall indemnify, defend and save harmless Landlord from all fines, suits,
procedures, claims and actions of any kind arising out: of or- in any way
connected with any spills or discharges of hazardous substances
23
or wastes in or about the Real Estate caused by Tenant which occur during the
term of this Lease; and from all f ▇▇▇▇, suits, procedures, claims and actions
of any kind arising out of Tenantfs failure to provide all information, make all
submissions and -take all actions required by the Bureau or any other division
of NJDEP. Tenan't's obligations and liabilities under this Article shall
continue so long as Landlord remains responsible for any spills or discharges of
hazardous substances or wastes in or about the Real Estate caused by Tenant
which occur during the term of this Lease. Tenan't's failure -to abide by the
'terms of this Article shall be restrainable by injunction.
66.3 Landlord represents to the best of its knowledge, without
any independent inquiry or investigation that as of the Commencement Date, the
Real Estate is in compliance with all applicable environmental laws, rules and
regulations. Landlord agrees to defend, indemnify and hold harmless Tenant for
any environmental violation existing in the Building or the Land on the
Commencement Date, the breach of the foregoing representation or from any
environmental contamination of the Real Estate as a result of Landlord's
actions.
67. RELOCATION ALLOWANCE
67.1 As additional consideration fox, Tenant entering into
'this Lease, Landlord hereby gvants 'to Tenant a moving allowance credit in the
amount of ONE HUNDRED FIFTY SIX THOUSAND SIX HUNDRED EIGHTY FIVE AND 00/100
DOLLARS ($156,685-00) (the "Relocation Allowance") - Landlord shall pay -the
Relocation Allowance to Tenant on the Adjustment Date in accordance with Article
69 hereof.
68. FOOD SERVICE FACILITY
68.1 Within ninety (90) days after- the Commencement Date
of this Lease, Landlord shall provide to the tenants of the Building, including
Tenant a food service facility on the first (Ist) floor of the Building (the
"Cafeteria"). The Cafeteria will be managed by an independent food operator. The
initial hours of operation shall be from 7:30 a.m. 'to 3:00 p.m., Monday
-through Friday, excluding Legal Holidays. The Cafeteria will offer a limited
breakfast menu between the hours of 7:30 a.m. and 9:30 a.m. and a luncheon menu
between the hours of 11:30 a.m. to 2:30 p.m. Catering shall also be available to
the -tenants of the Building. The lunch menu is intended to consist of soups,
sandwiches and one or two hot entrees per- day. in addition, the Cafeteria shall
contain various other food items, such as candies, cookies, sodas, salads,
beverages and snacks. The Cafeteria shall also contain a vending area to provide
drinks and snacks during off hours.
68.2 It is Landloird's intention to provide a food service
facility similar to the Cafeteria described above during the term of this Lease.
' Notwithstanding the foregoing, in the event the continued operation of a food
service facility in the Building becomes cost prohibitive, inappropriate or
unreasonable under the circumstances, Landlord may elect to terminate or modify
its existence. Any such modification or termination shall in no way affect
Tenant0s obligations under the terms of this Lease.
69. ADDITIONAL LEASE INDUCEMENT
69.1 As additional consideration for Tenant entering into
'this Lease, Landlord shall pay to Tenant the sum of ONE HUNDRED FIFTY THOUSAND
AND 00/100 DOLLARS ($150,000.00) within thirty (30) days after the Commencement
Date of this Lease, provided Tenant is not in default under any of 'the
provisions of this Lease at such time.
69.2 As of a date not later than thirty (30) days from the
Commencement Date (the "Adjustment Date") , Landlord and Tenant shall settle the
total sums owing to the parties from one another,
24
including any wc3irk letter items less than or exceeding the Maximum Allowance
(as described in Article 64), the Relocation Allowance (described in Article 67)
and -the additional lease inducement described herein. Tenant shall have the
right upon notice to Landlord -to redistribute any of 'the aforementioned
allowances whether or not used for the intended purposes stated herein provided
that -the total sum does not exceed -those amounts described here i n. As of the
Adjustment Date, the monies described herein shall be paid by the appropriate
party to the other. In the event Landlord fails to pay to Tenant any sums that
it is obligated to pay in accordance with this Article 69 within fifteen (15)
days af t:er their due date, Tenant may, upon ten (10) days written notice to
Landlord, of f set any such balance against payments of minimum Ren't due
hereunder, provided Landlord has not previously cured said default-.
70. SATELLITE ANTENNA
70.1 So long as Tenant has not (i) breached any term of
this Lease, (ii) assigned the Lease to any entity other than an affiliate of
Tenant or (iii) sublet all or any part of the Demised Premises, Landlord shall,
at Tenant's expense and upon Tenant's prior written request erect and obtain
municipal approval for one or more satellite antenna transmission/reception
devices in accordance with Tenant's plans and specifications. Landlord shall
have no obligation to erect and obtain municipal approval for said satellite
antenna transmission/reception devices unless Landlord first approves in writing
the plans and specifications -therefor, which approval shall not be unreasonably
withheld or delayed. Tenant shall, at its expense, fully cooperate with Landlord
in obtaining requisite governmental approvals. If Tenant breaches any term of
the Lease, Landlord may, at Tenant's expense, remove all or any of said
satellite antenna transmission/reQeption devices and restore any damage or
injury that said satellite antenna ticansmission/reception or -the removal
thereof may have caused.
70.2 Upon the expiration or earlier termination of the Lease,
Landlord may, at Tenant's expense, remove all of said satellite antenna
transmission/reception devices and restore any damage or injury that said
satellite antenna transmission/reception devices or the removal thereof may have
caused. Tenant agrees to release Landlord from, and to defend, indemnify and
hold Landlord harmless against, any liabilities and expenses that may arise with
regard to said satellite antenna transmission/reception devices. Fuvthermoze, in
connection with said satellite antenna transmission/recep'tion devices, Tenant
shall procure and maintain comprehensive general liability insurance in
compliance with each of the requirements set forth in section 41.1 of 'the
Lease.
71. RESTRICTION ON CERTAIN PROSPECTIVE TENANTS
71. 1 So long as Tenant has not (i) breached any of the
terms of this Lease, (ii) assigned the Lease to any entity other than an
affiliate of Tenant or (Iii) sublet all or any part of the Demised Premises to
any entity other than an affiliate of Tenant, Landlord shall be prohibited from
entering in'to a lease in -the Building with any of the following prospective
tenants: Metropolitan Life Insurance Company, Equitable Life Assurance Company,
Northwestern Mutual Life Insurance Company and New York Life Insurance Company
(the "Prohibited Tenants"). Landlord shall only be prohibited from leasing space
in the Building -to any of the Prohibited Tenants if the space requirements for
such entity is less than the square footage actually occupied in the Building by
Tenant at such time.
72. SIGNAGE
72.1 In the event Landlord provides outside
building signage 'to other -tenants of the Building that
are of a similar size and nature of Tenant, Landlord
shall offer similar rights -to Tenant
25
for any such signage.
72.2 Landlord shall provide in the Building lobby, at
Landlord's expense, a building directory sufficient- 'to list all of Tenant's
senior executives who maintain active offices in the Building. Tenant shall be
permitted -to install appropriate signage on the walls of elevator lobbies and
on entrance doors to all space under lease by Tenant, subject to Landlord's
reasonable approval of same.
73. RIGHT OF FIRST OR SECOND OFFER
73.1 There currently exists two (2) units of space in -the
Building consisting of 26,683 square feet on 'the first (lst.) floor directly
below the Demised Premises (-the "Fii7s't Floor option Space") and 31,337 square
feet on 'the second (2nd) floor on the opposite wing of the Building (the
"Second Floor option space"), both such units are identified on Exhibit I
attached hereto and made a part hereof (collectively, the "Option Space"). After
the Option Space has been initially leased@-, Landlord agrees that if all or any
portion of the Option Space shall thereafter become available during the terra
of this Lease, then in any such case, subject to the rights of existing tenants,
if any, and subject to 'the rights of Federal Insurance Company for- the First
Floor option Space, before offering the available Option Space to any other
party, Landlord will offer 'to Tenant the right 'to include the Option Space
within the Demised Premises on -the Inclusion Date (hereinafter defined) upon
all of the terms and conditions of this ]Lease, as if the option Space had been
part of the Demised Premises on -the Commencement Date, except as specifically
set forth hereinafter. The Inclusion Date shall be 'the date on which the Option
Space is made available for Tenant's occupancy, which shall include a reasonable
period of time for the Option Space to be built out for Tenant's requivements.
(a) The Minimum Rent payable with respect to the Option Space shall
commence on the inclusion Date and shall be (i) the Market Rent (as def ined in
clause (b) below) which shall in no event be less than (ii) the product of (1)
the Adjusted Minimum Rent per square f oot. with respect to the Demised Premises
on the date Landlord's ofrer is made and (2) the rentable square foot area of
the Op-tion Space.
(b) "Market Rent" shall mean the fair market rent for the Option Space
as of- the Inclusion Date based upon the rencs generally in effect for
comparable office space in the area in which 'the Real Estate is located taking
in-to consideration any lease concessions that are customarily available in the
market at such t ime. Market: Rent (f or the purposes of determining the Minimum
Rent f or the Option Space only) shall be determined on the same basis as
Adjusted Minimum Rent is calculated in accordance with the terms of -this Lease.
(c) Landlord shall notify Tenant (IIIandlordIs Determination Notice")
of Landlard's determination of the Market Rent- on or before the Inclusion Date.
if Tenant disagrees with Landlordfs determination, Tenant shall notify Landlord
("Tenant's Notice of Disagreement") within fifteen (15) days after- receipt of
Landlord's Determination Notice. Time shall be of the essence with respect 'to
Tenantts Notice of Dlsagreement, and the failure of Tenant to give such notice
within the time period set forth above shall conclusively be deemed an
acceptance by Tenant- of the Market Rent as determined by Landlord and a waiver
by Tenant of any right to dispute such Market Rent-. if Tenant timely gives its
Tenant's Notice of Disagreement, then the Market Rent shall be determined as
follows: Landlord and Tenant shall, within 'thirty (30) days after the date on
which Tenant's Notice of Disagreement was given, each appoint an Appraiser
(he@e-inaftex- defined) for the purpose of determining the Market Rent. An
Appraiser shall mean a duly qualified impartial real estate appraiser having at
least ten (10)
26
years experience in the area in which the Building is located. In the event
-that the -two (2) Appraisers so appointed fall to agree as to the Market- Rent
within a period of thirty (30) days after the appointment of the second
Appraiser, such two (2) Appraisers shall forthwith appoint a third Appraiser who
shall make a de-termination within thirty (30) days thereafter. If such two (2)
Appraisers so appointed fail to agree upon such third Appraiser within ten (10)
days following the last thirty (30) day period, such third Appraiser shall be
appointed by a presiding Judge of the superior Court of the State of New jersey
for the County in which the Building is located. Such two (2) Appraisers or
three (3) Appraisers, as the case may be, shall proceed with all reasonable
dispatch to determine -the Market Rent. The decision of such Appraisers shall be
final; such decision shall be in writing and a copy shall be delivered
simultaneously to 'Landlord and to Tenant. Tenant shall pay Landlord Adjusted
Minimum Rent on the Option Space at -the rate set forth in Section 73.1(a) (11)
hereof until such decision is so delivered. If -the Market- Rent as determined
above is in excess of actual rent paid, then Tenant-, upon demand, shall pay to
Landlord the dif f erence between the actual rent paid and the Market Rent from
the Inclusion Date. Landlord and Tenant shall each be responsible for and shall
pay the fee of the Appraiser appointed by them respectively, and Landlord and
Tenant shall share equally the f ee of the third Appraiser. Promptly upon
determination of the Market Rent, Tenant shall execute and deliver a Lease
amendment in a f or-m satisfactory to Landlord reflecting the inclusion of the
option Space within -the Demised Premises on the Inclusion Date.
73.2 Landlord shall make the foregoing offer in writing, and Tenant
shall have the right 'to exercise such option with respect to the Option Space
if Tenant shall not have breached any term or provision of the Lease and the
Tenant named on the first and last page of the Lease or an affiliate of Tenant
is in occupancy of the entire Demised Premises. Tenant may only exercise such
op-tion by written notice received by Landlord within ten (10) days af ter
Landlord makes such of f er to Tenant. Tenant shall accept the Option space in
its "as is" physical condition as of the Inclusion Date and agrees that Landlord
will not be required to do any work or perform any services therein. If Tenant
does not accept the offer made by Landlord pursuant to -the provisions of this
Article 73 with respect 'to -the opt-ion Space, Landlord shall be entitled to
lease such space in whole or in part, or in whole or in parts in conjunction
with any other space, to others at such rental and upon such terms and
conditions as Landlord, in its sole discretion may desire whether such rental
terms, provisions and conditions are the same as those offered to Tenant or more
or less favorable. Notwithstanding the foregoing, in the event all or any
portion of the Option Space is leased to a third party (the "Rejected Space") ,
Tenant- shall retain its right of first offer with respect to (i) the remaining
portion of the option space and (ii) any Rejected Space that becomes available
at a later time. Tenant agrees not to acquire the Option Space pursuant to 'this
Article 73 for the primary purpose of subletting or otherwise disposing of the
same or any part thereof to others.
73.3 If the option Space shall not be available for Tenant's occupancy
on the inclusion Date for any reason including the holding over of the prior
tenant, then Landlord and Tenant agree that the failure to have such Option
Space available for occupancy by Tenant shall in no way affect the validi-ty of
-this Lease ox- the inclusion of 'the Option Space within the Demised Premises
as of the Inclusion Date or the obligations of Landlord and Tenant hereunder,
nor shall the same be construed in any way to extend the term of this Lease.
Notwithstanding the foregoing, nothing herein shall obligate Tenant to pay rent
for the option Space until same is made available for Tenant's occupancy.
27
IN WITNESS WHEREOF, Landlord has signed this Lease and this rider, and Tenant by
its proper corporate officers has signed this Lease and this Rider this @- day
of December, 1992.
LANDLORD:
WITNESSED BY: JARED ASSOCIATES, L.P.
By: Chubb Realty, Inc.,
Ge 1 Partner
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Roblbr-t R. Max-t+/-e
Assistant Secretary Vice President
AGENT FOR LANDLORD:
ATTESTED BY: BELTEMEAD MANAGEMENT CO., INC.
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary Vice President
TENANT:
ATTESTED BY: THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By:
Nci O-: Ma@,Y s@zziz I C? I barbarcf
(.Please Print) PleqL e PrLnt)
Title: Secretary Title: 6reslgent
(Please Print) (Please Prlnt)
28
FIRST AMENDMENT OF LEASE
FIRST AMENDMENT OF LEASE dated as of April 1, 1993 between JARED ASSOCIATES,
L.P., a New Jersey limited partnership, having an address c/o Bellemead
Management Co. , Inc. , ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter called "Landlord") and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation having an address at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Tenant").
W I T N E S S E T H
WHEREAS:
A. Landlord and Tenant heretofore entered into a certain lease dated
Deoember 17, 1992 (said lease, as the same may be amended from time to time, is
hereinafter called the "Lease") with respect to premises on the second (2nd)
floor comprising 31,337 rentable square feet (the "Original Demised Premises")
of that certain office building ("Building") known as and located at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇;
B. Tenant is desirous of increasing the size of the Demised Premises by
the addition of some (i) 12,108 rentable square feet ("Additional Space All) on
the first (Ist) floor of the Building and some (ii) 5,876 rentable square feet
on 'the first (1st) floor (the "Ground Floor B Unit"), 30,599 rentable square
feet on the third (3rd) floor and 26,641 rentable square feet on the fourth
(4th) floor of the Building (collectively, "Additional Space B") for a total
Additional Space B of 63,116 rentable square feet, all as illustrated on
Schedule A attached hereto and made a part hereof. Additional Space A and
Additional Space B are hereinafter sometimes collectively referred to as the
"Additional Space"; and
C. The parties hereto desire to further modify the Lease in certain
respects.
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto modify said Lease as follows: 1. All
terms contained in this First Amendment of Lease that are defined in the Lease,
shall, for the purposes hereof, have the
same meaning ascribed to them in the Lease-
2. Notwithstanding anything to 'the contrary contained in the-Lease, the date
set for
the expiration of the term thereof is hereby modified so that the Termination
Date for the Original Demlsed Premises and the Additional Space shall be ten
(10) years after -the Additional Space B Commencement Date, which based upon a
commencement date of November 1, 1993 is October 31, 2003. Landlord shall
deliver to Tenant a notice ("Commencement Date Notice") confirming, among other
things, the revised Termination Date. Tenant shall acknowledge receipt of the
Commencement Date Notice by signing a copy of same and returning it to Landlord
within five (5) days after Tenantfs receipt thereof.
3. The Demised Premises shall be expanded 'to incorporate Additional
Space A on or about July 12, 1993 (the "Estimated Additional space A
Commencement Date") . Notwithstanding the above, -the Additional Space A
commencement date (the."Additional Space A Commencement Date") shall be the
earlier of the date upon which:
A. Landlord has procured a temporary or permanent Certificate of
Occupancy, permitting occupancy of Additional Space A by the Tenant; and (ii)
the Landlord's architects shall have certified that Landlord has substantially
performed the work for Additional Space A (the "Additional Space A Work") .
Substantial completion shall be deemed to have occurred even though minor
details of work remain to be done, provided such details do not materially
interfere with the Tenant's use of Additional Space A, or
B. Tenant shall have taken possession of all or any part of Additional space A.
If Landlord is unable to obtain a permanent Certificate of
Occupancy for Additional space A as of the Additional Space A Commencement Date,
Landlord shall nevertheless be required to obtain a permanent Certificate of
occupancy at a later date and deliver same to Tenant as soon as it is available
from Bernard's Township.
Tenant shall have the right to submit a thirty (30) days
2
"punch-list" of minor items in Additional Space A to be repaired by Landlord.
Landlord agrees to complete said "punch-list" items in an expeditious manner and
if possible, within thirty (30) days of receipt of Tenan-tfs list.
As of the Additional Space A Commencement Date, Exhibit A
(Rental Plan) to the Lease shall be modified and expanded to include the
attached Schedule B.
4. The Demised Premises shall be expanded to incorporate Additional
Space B as of November 1, 1993, provided Landlord completes the Additional Space
B Work (as hereinafter defined in Paragraph 9 hereof) within twenty three (23)
weeks from the date that Tenant has submitted the required drawings, layouts and
specifications for Additional Space B in sufficient detail to enable Landlord to
(i) prepare construction drawings and (ii) obtain a building permit for the
construction of Additional Space B (the "Additional Space B Commencement Date").
Any delay in the Additional Space B Commencement Date that is not a Tenant Delay
(as defined in Article 64.2 of the Lease) shall result in an extension of the
Additional Space B Commencement Date for a period equal to the time frame for
such delay. Furthermore, in the event the Additional Space B Commencement Date
occurs prior to November 1, 1993, Tenant shall be entitled to occupy Additional
Space B on a free rent basis prior to November 1, 1993. In addition to the
foregoing, if Additional Space B is not available for Tenant's occupancy within
ninety (90) days from November 1, 1993 as a result of Landlardfs delays, Tenant
shall receive one (1) day of free rent for Additional Space B f or each day of
delay to be credited to Tenant as of the Additional Space B Commencement Date.
As of the Additional Space B Commencement Date, Exhibit A
(Rental Plan) to -the Lease shall be modified and expanded to include the
attached Schedule C. Accordingly, for all times after the Additional Space B
Commencement Date, Exhibit A (Rental Plan) to the Lease shall consist of the
original Exhibit A, together with the attached Schedules B and C.
The Lease is hereby amended to provide that Tenant shall
3
pay an annual minimum Rent as follows:
A. For the original Demised Premises (31,337 rentable square
feet), annual rent shall continue 'to be payable in accordance with page I of
the Lease; however, the lease months 61-120 described in the first column of the
rent schedule shall be modified to be 61Balance of Term.
B. For Additional Space A (12,108 rentable square feet) annual
rent shall be as follows:
Lease Months Rent olslf Annual Monthlv
1-12 $18.50 $223,998 $18,666.50
13-24 19.50 236,106 19,675.50
25-36 20.50 248,214 20,684.50
37-48 21.50 260,322 21,693.50
49-60 23.50 284,538 23,711.50
61-Balance of 24.50 296,646 24,720.50
Term
C. For Additional Space B (63,116 rentable square feet), annual
rent shall be as follows:
Lease Months Rgnt Dls4f- Annual- Monthly
1-12 $19.50 $1,230,762 $102,563.50
13-24 20.50 1,293,878 107,B23.17
25-36 21.50 1,356,994 113,082.83
37-48 22.50 1,420,110 118,342.50
49-60 24.50 1,546,342 128,861.83
61-120 25.50 1,609-,458 134,121.50
G.A. At all times after the Additional Space A Commencement Date,
Section 36.2 of 'the Lease shall be modified to provide that the original
Demised Premises shall contain 31,337 square feet and Additional Space A shall
contain 12,108 square feet, for a total Demised Premises of 43,445 square feet.
In addition, Tenant's Occupancy Percentage for the original Deynised Premises
shall be 13.59 percent and Tenant's Occupancy Percentage for Additional
Space A shall be 5.25 percent for a total Occupancy Percentage of
18-85 percent.
6B. At all times after 'the Additional Space B Commencement
Date, Section 36.2 OE the Lease shall be modified to provide that
the Original Deraised PreILlises shall contain 31,337 square feet,
Additional Space A shall contain 12,108 square feet and Additional
Space B shall contain 63,116 square feet for a total Demised
Premises of 106,561 square feet. in addition, Tenan-tls Occupancy
Percentage for the original Demised Premises shall be 13.59
4
percent, Tenant's Occupancy Percentage for Additional Space A shal]L be 5.25
percent and Tenan't's Occupancy Percentage for Additional Space B shall be 27.38
percent for a total Occupancy Percentage of 46.23 percent.
7. The First operating Year and First Tax Year for the
Original Demised Premises and Additional Space A shall mean the
calendar year ending December 31, 1993. The First Operating Year
for Additional Space B shall mean the calendar year ending December 31, 1994;
the First Tax Year for Additional Space 8 shall mean the calendar year ending
December 31, 1994. Sections 36.1 (3) and (4) of the Lease shall be revised to
reflect the aforementioned modifications.
B.A. At all times after the Additional Space A Commencement Date,
Section 43.1 of the Lease shall be modified so that Tenantfs License for
Allotted Parking shall be for one hundred sixty one (161) cars, with twenty two
(22) Designated Spaces in the parking garage located beneath the Building (the
"Garage").
S.B. At all times after the Additional Space B Commencement Date,
Section 43.1 of the Lease shall be modified so that Tenant's License for
Allotted Parking shall be for three hundred sixty four (364) cars, with fifty
eight (58) Designated Spaces in the Garage. The Designated Spaces shall in no
way increase Tenantfs Allotted Parking described above. All Designated Spaces
shall be in a location in the Garage that is mutually agreeable to Landlord and
Tenant.
9. Tenant shall be entitled to a construction allowance for Additional
Space A in the amount of $302,700.00 (the "Additional Space A Maximum
Allowance") and a construction allowance for Additional Space B in the amount of
$1,893,480.00 (the "'Additional Space B Maximum Allowance'#). The Additional
Space A Work shall be subject to 'the outside Plan Date described in Articles 37
and 64 of the Lease; however, the Outside Plan Date shall not be applicable to
the Additional Space B work ("Additional Space B Work") . Notwithstanding the
foregoing, the Additional Space B Commencement Date shall be subject to the
conditions enumerated in Paragraph 4
5
hereof. The Maximum Allowance defined in Section 64.1 of the Lease shall be
modif ied to include 'the Additional space A Maximum Allowance and 'the
Additional Space B Maximum Allowance described above. Except as modified herein,
all of the terms and conditions of Article 64 of the Lease, including, but not
limited to Project General Conditions, Prof it and Overhead, shall apply with
equal force and effect to the Additional Space A Work and the Additional Space B
Work.
10. As additional consideration for Tenant entering into this First
Amendment of Lease, Landlord hereby grants to Tenant a moving allowance credit
for Additional Space A in the amount of $60,540.00 (the "'moving Allowance'$).
Landlord-shall pay the Moving Allowance to Tenant on the Additional Space
Adjustment Date (as hereinafter defined).
13.. As additional consideration f or Tenant entering into this First
Amendment of Lease, Landlord shall pay-to Tenant the sum of $57,900 on the
Additional Space Adjustment Date, provided Tenant is not in def ▇▇▇▇ under any
of the provisions of the Lease at such me.
12. An of a date not later than thirty (30) days from the Additional
Space A Commencement Date (the '$Additional Space A Adjustment Date"), Landlord
and Tenant shall settle the total sums owing to the parties from one another
with respect to Additional space A, including any work letter items for
Additional Space A less than or exceeding the Additional Space A Maximum
Allowance (described in Paragraph 9 above), the Moving Allowance (described in
Paragraph 10 above) or 'the additional lease inducement described in Paragraph
11 above. As of a date not- later than thirty (30) days from the Additional
Space B Commencement Date (the "Additional Space B Adjustment Date$'), Landlord
and Tenant shall settle the total sums owing to the parties from one another
with respect to Additional space B, including any work letter items for
Additional Space B ]Less than or exceeding the Additional Space B Maximum
Allowance (described in Paragraph 9 above). Tenant- shall have the right upon
notice to Landlord to redistribute any of the
6
▇▇ ▇▇▇▇▇▇'tioned allowances whether or not used for the intended purposes stated
herein provided that the 'total sum does not exceed 'those amounts described
herein. As of th- Additional Space A Adjustment Date and the Additional Space B
Adjustment Date, the monies described herein shall be paid by 'the appropriate
party -to 'the other.
13. Subsection 48.4 (a) of the Lease is hereby deleted in its
entirety and replaced with the following:
"(a) no sublease shall violate any law ox- result in an occupancy of
the Demised Premises of more than (i) four (4) occupants on the first
(ist) floor of the Building, including the Tenant hereunder, (ii)
five (5) occupants on 'the second (2nd) floor of the Building,
including the Tenant hereunder, (ili) five (5) occupants on -the
third (3rd) floor of the Building, including -the Tenant hereunder,
and (iv) five (5) occupants on the fourth (4'th) floor of the
Building, including -the Tenant hereunder, 01
14. Section 64.4 of the Lease is hereby deleted in
entirety and replace with the following:
"64.4 Provided Tenant is not in default hereunder as of November I,,
1998, Landlord agrees -to repaint and Yecarpet 'the Denised Premises
(inclusive of Additional Space A and Additional space B) with
building standard materials; provided that Landlordo's cost for such
repainting and reca@peting shall not exceed $454,972.50, which
equates 'to five dollars ($5.00) per usable dtquare foot. In the
,event Tenant desires an upgrade of any wall or floor covering,
Landlord shall grant to Tenant an allowance equal to 'the building
standard materials (up to $454,972.50, which equates to $5.00 per
usable square foot) and any excess will be paid by Tenant to
Landlord, on demand. For the purposes hereof, building standard
carpet shall be nylon broadloom carpet with a face weight of twenty
six (26) ounces.11
15. The Renewal Option described in Article 65 of the Lease shall be
expanded to include the entire Demised Premises consisting Of 106,559 rentable
square feet.
16. The heading to Article 73 of the Lease and the first full paragraph
of Section 73.1 of the Lease are hereby deleted in their entirety and replaced
with the following:
1173. RIGHT OF FIRST OFFER
73.1 There currently exists four (4) units of space in the Building
consisting of 26,683 square feet on the first (let) floor, 31,337
square feet an the second (2nd) floor, 30,599 square feet on the
third (3rd) floor and 26,641 square feet on 'the fourth (4th) floor
(Collectively, -the 140ption Spacell), which option Space is more
particularly identified on Schedule D attached hereto and made a part
hereof. After the Option Space has been initially leased, Landlord
agrees that if all or any
7
its portion of the option Space shall 'thereaf ter become available
during the term of this Lease, then in any such case, subject -to the
rights of Federal Insurance Company, before offering the available option
Space to any other party, Landlord will off ez to Tenant- the righ-t 'to
include the Option Space within the Demised Premises on the inclusion Date
(hereinafter defined) upon all of the terms and conditions of this Lease,
as if the option Space had been part of 'the Dem-ised Premises on the
Commencement Date, except as specifically set forth hereinafter. The
Inclusion Date shall be the date on which the option Space is made
available for Tenant's occupancy, which shall include a reasonable period
of time for the option Space to be built out for Tenant0s requirements."
17. Tenant and Landlord each covenants, represents and warrants to the
other that no real estate broker is responsible for bringing about or
negotiating this First- Amendment of Lease and Tenant- and Landlord have not
dealt with any broker In connection with the conallimmation of this First
Amendzmen-t of Lease. In accordance with the foregoing representation, Tenant
and Landlord each covenants and agrees to pay, defend, hold harmless and
indemnify the o-ther and its directors, officers, partners, and 'their
affiliates and/or subsidiaries from and against any and all cost, expenses,
including attorney's fees (In settlement, at trial or on appeal), court costs
and disbursements or liability for any commission or other compensation claimed
by any broker or agent acting through or an behalf of Tenant or Landlord, as
applicable with respect- to this First Amendment of Lease.
la. Except as modified by this First Amendment of Lease, the Lease and
all covenants, agreements, terms and conditions -thereof shall remain in full
force and effect and are hereby in all respects -ratified and confirmed. The
terms and provisions of the Lease, as modified hereby, shall govern the Tonant's
occupancy and use of the Demised Premises as increased by -the Additional Space.
19. Tenant: represents that the undersigned officer of Tenant has been duly
authorized on behalf of Tenant to enter into this First Amendment of Lease in
accordance with 'the terms, covenants and conditions set forth herein, and, upon
Lancilord's request, Tenant shall deliver appropriate evidence of the accuracy
of the foregoing representation. Landlord represents 'that the undersigned
Officer of landlord has been duly authorized on behalf of Landlord
8
to enter- into -this First Amendment of Lease in accordance with the terms,
covenants and conditions set forth herein, and, upon Tanant's request,
Landlord shall deliver appropriate evidence of the accuracy of the foregoing
representation.
20. The parties hereto acknowledge and agree that the rentable square
footage attributable to Additional Space A and the Ground Floor B Unit are
estimates and may change after Tenant's plans for -these units are completed.
Although the square footage allocation may be modified, the total rentable
square feet for these units (17,984 square feet) shall not change.
Accordingly, the par-ties agree to modify the Lease, if necessary, to
accommodate the aforementioned scenario.
IN WITNESS WHEREOF, -the parties hereto have executed this First
Amendment of Lease as of the day and year f irst above written.
Signed, sealed and deli LANDLORD:
IN THE @L; '.E N C, --'-LTARED ASSOCIATES, L. P.
ATTESTE By: Chubb Realty, Inc.,
General Partner
BY:
)Rob rt 6r@
16 @ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Assistant S cr@ary Vice President
TENANT:
THE PRUDENTIAL INS CE
COMPANY OF A14BRICA
By,.
Name: ▇▇▇▇▇▇ Fastez Name:E.MiChald Caulfield
(Please Print) (Please Print)
Director, Office Planning
Title: & Leasi@ _ Title: President, Ordinary Agencie
(Please Print) ipleass Print)
9
SECOND AMENDMENT OF LEASE
SECOND AMENDMENT OF LEASE dated as of July 1993 between JARED
ASSOCIATES, L.P., a New Jersey limited partnership, having an address c/o
Bellemead Management: Ca., Ina., ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter called "Landlord'$) and THE PRUDENTIAL INSURANCE C014PANY OF
AMERICA, a New Jersey corporation having an address at Prudential Plaza, Newark,
Now Jersey 07101 (hersinaf te3c called "'Tenant") .
W I T N E S S E T H
WHEREAS:
A. Landlord and Tenant heretofore entered into a certain lease dated
December 17, 1992, as amended pursuant to a certain first amendment of lease
(the "First Amendment") dated April 1, 1993 (said lease, as the same may be
amended from time to time, is hereinafter called the "Lease") with respect to
premises on the f irst (1st) , second (2nd) , third (3rd) and fourth (4th) f
loors comprising a total of 106,561 rentable square feet (the "Demised
Premises") of that certain office building ("Building") known as and located at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇;
B. Tenant is desirous or increasing the size of the Demised Premises by
the addition of some (i) 3,402 rentable square feet on the first (ist) floor of
the Building and some (ii) 1,959 rentable square feet on the first (1st) floor
of the Building (collectively, the "Additional Space"') for a total Additional
Space of 5,361 rentable square feet, all as illustrated on Schedule A attached
hereto and made a part hereof; and
C. The parties hereto desire to further modify the Lease in certain respects.
NOW THEREFORE, in consideration of the premises and mutual covenants
herinafter contained, the parties hereto modify said Lease as follows:
1. All terms contained in this Second Amendment of Lease that are
defined in the Lease or the First Amendment, shall, for the purposes hereof,
have the same meaning ascribed to them in the Lease or the First Amendment, as
applicable.
2 . The Demised Premises shall be expanded to incorporate the
Additional Space as of November 1, 1993, provided Landlord completes the work
for the Additional Space (the "Additional Space Work) within twenty-three (23)
weeks from the date that: Tenant has submitted the required drawings, layouts
and specifications for the Additional Space in sufficient detail to enable
Landlord to (i) prepare construction drawings and (ii) obtain a building permit
for the construction of the Additional Space (the "Additional Space Commencement
Date"). Any delay in the Additional space Commencement Date that is not a Tenant
Delay (as defined in Article 64.2 of the Lease) shall result in an extension of
the Additional Space Commencement Date for a period equal to the time frame for
such delay. Furthermore, in the event the Additional Space Commencement Date
occurs prior to November, 1, 1993, Tenant shall be entitled to occupy the
Additional Space on a free rent basis prior to November 1, 1993. In addition to
the foregoing, if the Additional space is not available for Tenants occupancy
within ninety (90) days from November 1, 1993 as a result of Landlord's delays,
Tenant shall receive one (1) day of free rent for the Additional Space for each
day of delay to be credited to Tenant as at the Additional Space Commencement
Date.
3. If Landlord is unable -to obtain a permanent Certificate of
occupancy for the Additional Space as of the Additional Space Commencement Date,
Landlord shall nevertheless be required to obtain a permanent Certificate of
Occupancy at a later date and deliver same to Tenant as soon as it is available
from Bernards Township.
Tenant shall have the right to submit a thirty (30) days
"Punch-list" of minor items in the Additional Space to be repaired by Landlord.
Landlord agrees to complete said "punch-list" items in an expeditious-manner and
if possible, within thirty (30) days of receipt of Tenan't's list.
As of the Additional space Commencement Date, Exhibit A
(Rental Plan) to the Lease shall be Modified and expanded to include the
attached Schedule A.
2
4 . On or about the Additional Space Commencement Landlord shall
deliver to Tenant a notice ("Commencement Notice") confirming, among other
things, the revised square feet of the Demised Premises. Tenant shall
acknowledge receipt of the Commencement Date Notice by signing a copy of same
and returning it to Landlord within five (5) days after Tenant's receipt
thereof.
5. The Lease is hereby amended to provide that Tenant shall pay an
annual Minimum Rent: as follows:
A. For the 106,561 rentable square feet portion of the Demised
Premises described in the original Lease and the First Amendment, annual rent
shall continue to be payable in accordance with the terms thereof.
B. For the Additional Space (5,361 rentable square feet), annual
rent shall be as follows:
Lease Months Rent p/s/f Annual Monthlv
1-12 $19.50 $104,539.50 $8,711.63
13-24 20.50 109,900.50 9,158.38
25-36 21.50 115,261.50 9,605.13
37-48 22.50 120,622.50 10,051.88
49-60 24.50 131,344.50 10,945.38
61-Balance of 25.50 136,705.50 11,392.13
Term
6. At all times after the Additional Space Commencement Date, Section
36.2 of the Lease shall be modified to provide that the Demised Premises shall
contain an additional 5,361 square feet representing the Additional Space. In
addition, Tenant's Occupancy Percentage for the Additional Space shall be 2.33
percent. At all times after the Additional Space A Commencement Date (as defined
in the First Amendment), the Additional Space B Commencement Date (as defined in
the First Amendment) and the Additional Space Commencement Date (defined
herein), the total Demised Premises shall consist of 111,922 square feet and
Tenant's total Occupancy Percentage for the entire Demised Premises shall be
48.55 percent.
7. The First operating Year and First Tax Year for the Additional Space
shall mean the calendar year ending December 31, 1994. Sections 36.1 (3) and (4)
of the Lease shall be revised to reflect the aforementioned modifications
3
8 . At all times after the Additional Space Commencement Date, Section
43.1 of the Lease shall be modified so that Tenant's License for Allotted
Parking shall be increased by twenty-two (22) spaces so that for all times after
the Additional Space Conmencement Date, Section 43.1 of the Lease shall be
modified so that Tenant's License for Allotted Parking shall be for a revised
total of three hundred eighty-six (386) cars, with fifty-eight (58) Designated
Spaces in the Garage.
9. Tenant shall be entitled to a construction allowance for the
Additional Space in the amount of $134,025.00 (the "Additional Space Maximum
Allowance"). The Additional Space Work shall not be subject to the Outside Plan
Date described in Articles 37 and 64 of the Lease; however, the Additional Space
Commencement Date shall be subject to the conditions enumerated in Paragraph 2
hereof. The Maximum Allowance defined in Section 64.1 of the Lease shall be
modified to include the Additional Space Maximum Allowance described above.
Except as modified herein, all of the terms and conditions of Article 64 of the
Lease, including, but not limited to Project General Conditions, Profit and
Overhead, shall apply with equal force and effect to the Additional Space Work.
10. As additional consideration for Tenant entering into this Second
Amendment of Lease, Landlord hereby grants to Tenant a moving allowance credit
for the Additional Space in the amount of $26,805.00 (the "Moving Allowance").
Landlord shall pay the Moving Allowance to Tenant an the Additional Space
Adjustment Date (as hereinafter defined).
11. As additional consideration for Tenant entering into this Second
Amendment of Lease, Landlord shall pay to Tenant the sum of $25,000.00 on the
Additional Space Adjustment Date, provided Tenant is not in def ▇▇▇▇ under
any of the provisions of the Lease at such time.
12. As of a date not later than thirty (30) days from theAdditional
space Commencement Date (the "Additional Space Adjustment Date"), Landlord and
Tenant shall settle the total sums owing to the parties from one another with
respect to the
4
additional space, including any work letter items for additional
Space less than or exceeding the Additional Space Maximum Allowance (described
in Paragraph 8 above), the Moving Allowance (described in Paragraph 9 above) or
the additional lease inducement described in Paragraph 10 above. As of the
Additional Space Adjustment Date, ,the monies described herein shall be paid by
the appropriate party to the other.
13. Section 64.4 of the Lease is hereby deleted in its entirety and
replaced with the following: "64.4 Provided Tenant is not in default
hereunder as of November 1, 1998, Landlord agrees to repaint and
recarpet the entire Demlsed Premises (inclusive of the Additional
Space) with building standard materials provided that Landlord's cost
for such repainting and recarpeting shall not exceed $477,862.50, which
equates to five dollars ($5.00) per usable square foot. In the event
Tenant desires an upgrade of any wall or floor covering, Landlord shall
grant to Tenant an allowance equal to the building standard materials
(up to $477,862.50, which equates to $5.00 per usable square foot) and
any excess will be paid by Tenant to Landlord, on demand. For the
purposes hereof, building standard carpet shall be nylon broadloom
carpet with a face weight of twenty six (26) ounces."
14. The Renewal Option described in Article 65 of the Lease shall be
expanded to include the entire Demised Premises consisting of 111,922 rentable
square feet.
15. Tenant and Landlord each covenants, represents and warrants to the
other that no real estate broker is responsible for bringing about or
negotiating this second Amendment of Lease and Tenant and Landlord have not
dealt with any broker in connection with the consummation of this Second
Amendment of Lease. In accordance with the foregoing representation, Tenant and
Landlord each covenants and agrees to pay, defend, hold harmless and indemnify
the other and its directors, officers, partners, and their affiliates and/or
subsidiaries from and against any and all cost, expenses, including attorney's
fees (in settlement, at trial or on appeal), court costs and disbursements or
liability for any commission or other compensation claimed by any broker or
agent acting through or on behalf of Tenant or Landlord, as applicable with
respect to this Second Amendment of Lease.
16. Except as modified by this Second Amendment of Lease, the
5
Lease and all covenants, agreements terms and conditions thereof shall remain in
full force and affect and are hereby in all respects ratified and confirmed. The
terms and provisions of the Lease, asmodified hereby, shall govern the Tenant's
ccupancy and use of the Demised Premises by the Additional Space.
17. Tenant represents that the undersigned officer of Tenant has been
duly authorized an behalf of Tenant to enter into this Second Amendment of Lease
in accordance with the terms, covenants and conditions set forth herein,, and,
upon Landlord's request, Tenant shall deliver appropriate evidence of the
accuracy of the foregoing representation. Landlord represents that the
undersigned officer of Landlord has been duly authorized on behalf of Landlord
to enter into this Second Amendment of Lease in accordance with the terms,
covenants and conditions set forth herein, and, upon Tenant's request, Landlord
shall deliver appropriate evidence of the accuracy of the foregoing
representation.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment of Lease as of the day and year first above written.
Signed, sealed and delivered LANDLORD:
IN THE PRESENCE OF OR JARED ASSOCIATES, L.P.
ATTESTED BY By: Chubb Realty, Inc.,
General Partner
_________________________ By: _______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Assistant: Secretary Vice President
TENANT:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
_________________________ By: _______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ E. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Prudential Preferred Financial President
Services Prudential Preferred Financial Services
6
BELLEMEAD MANAGEMENT CO., INC.
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (201) 7@1110
March 10, 1994 ▇▇ ▇▇▇▇▇▇▇▇▇
CERTIPNM MAIL
RECEIPT REQUESTED
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
7ne Prudential insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
Re: Conmencoment Date Notice Second Amendment to Lease ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
A
5Lere-ey I- 112,040 total scruare feet
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
In accordance with the terms of the second Amendment of Lease dated July 8, 1993
and by mutual consent, the Lease e@sion period commenced an follows:
3,520 square feet January 3, 1994 1,959 @are feet January 14, 1994
The termination date for each of the above-referenced premises shall be Nove@r
30, 2003, which is caterminous with the balance of the leaned premises. Landlord
hereby demands possession of the Demised Premises as of November 30, 2003,
subject to Tenant's exercise of its renewal rights contained in Article 65 of
the Lease.
Please advise your Accounts Payable Department that the Minimum
Annual Rent will be increased as follows%
99- ET, PERIP-D RENT Y
SENT
3,520 01/03/94-01/31/94 $68,640.00 $ 5,453.59
1 9 01/14/94-01/31/94 $38,200.50 $ @)., 083-86
io6: V61 01/01/94-01/31/94 $2,034,494.52 $16.9,541..21
.112, 040 02/01/94-06/30/94 $2, 141,-335.02 $178,44 -
07/01/94-07/31/94 $2,172,672.06 $181, @6. 00-
08/01/94-11/30/94 $2,184,780.06 $182,065.00
12/01/94-01/31/95 $2,247,896.10 $187,324.68
02/01/95-06/30/95 $2,253,375.10 $187,781.26
07/01/95-07/31/9S $2,284,712.02 $190,392.67
08/01/95-11/30/95 $2,296,820.02 $191,401.67
12/01/95-01/31/96 $2,359,935.94 $196,661.33
02101196-06130196 $2,365,414.94 $197,117.91
The Prudential Insurance Company
March io, i994
Page - 2 -
07/01/96-07/31/96 $2,396,751.98 $199,729.33
OS/01/96-12/30/96 $2,408,859.98 $200,738.33
12/01/96-01/31/97 $2,471,976.02 $205,998.00
02/01/97-06/30/97 $2,477,4SB.02 $206,454.59
07/01/97-07/31/97 $2,540,128.98 $211,677.52
00/01/97-11/30/97 $2,564,344.98 $213',695.42
12/01/97-01/31/98 $2,690,576.94 $224,214.95
02/01/98-06/30/98 $2,701,534.94 $225,127.91
07/01/98-07/31/98 $2,732,871.98 $227,739.33
08/01/98-11/30/98 $2,744,979.98 $228,748.33
12/01/98-01/31/99 $2,808,096-02 $234,008.00
02/02/99-11/30/2003 $2,813,575.02 $234,464.5P
Except for the terms set f ▇▇▇▇ in the Second Amendment of Lease, all other tema
and conditions of the Lease will remain in full force and effect.
if you are in agreement with the above, please sign and return co me the
enclosed copy of this letter @hin-five (5) da of your receipt. The original
should be attached-to and made part of the Lease.
Very truly yours,
BE CO., INC.
Aa X@agi
Ball
Assistant
AGREED TO AND ACCEPTED: @-PRUD
F,Vrl
DATE: BY: EA
EXHIBIT C
CONSENT TO SUBLEASE
New Valley Corporation, as successor in interest to Jared Associates, L. P.
('Landlord), as Landlord under that lease dated December 17, 1992 (the 'Prime
Lease") by and between Landlord and The Prudential Insurance Company of America
("Prudential' or 'Tenanf'), hereby grants and consents to the Sublease dated
December 3,1996 made by and betweeen Tenant and Everest Reinsurance Company
("Everest' or "Subiessee') as Sublessee, a copy of which is attached hereto (the
"Sublease"), covering certain premises (the "Subleased Premises") as more
particularly described in the Sublease, in the building kown as Westgate
Corporate Center at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
The capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Prime Lease. This Consent to Sublease and the
acknowledgment and acceptance of the terms hereof may be executed in
counterparts, each of which shall be considered an original but constituting one
and the same document.
As conditions to this Consent, it is understood and agreed as follows:
I . Sublessee's rights in the event of Tenant default Landlord shall:
(a) Concurrently with the giving to Tenant of any notice of Tenant's
default pursuant to the provisions of the Prime Lease, give a duplicate of any
such default notice by certified or registered mail, return receipt requested,
to the Sublessee.
(b) Permft the Sublessee, at its sole option and without any obligation
on its part so to do, to cure or remedy or cause to cure or remedy any such
Tenant's default within the time prescribed therefor in the Prime Lease, but in
no event shall Sublessee be given less than thirty (30) days' notice and an
opportunity to cure within such (30) day period. Landlord hereby agrees, in
advance, that the curing or remedying thereof by the Sublessee within such time
shall be deemed a curing or remedy thereof by Tenant. Landlord will accept
performance by Sublessee of any covenant, obligation or agreement on Tenant's
part to be performed thereunder with the same force and effect as though
performed by Tenant.
(c) Notwithstanding any provision in Article 48 of the Prime Lease or
Articles 20 and 23(c) of the Sublease to the contrary, in the event Landlord
shall terminate the Prime Lease with Tenant for any reason provided for under
the terms of the Prime Lease or as provided by law, then the Sublessee shall
have the option, to be exercised within fortyfive (45) days after receipt of
notice to it from Landlord of such termination, for itself or its
terms and conditions, including rentals and renewals, as the Prime Lease, the
commencement date of such new lease to be the termination date of the Prime
Lease, subject only to the same conditions of title as the Prime Lease is
subject to on the date of the execution thereof and any liens or encumbrances or
other matters caused or created by Tenant, provided that:
(1) Sublessee shall make written request upon Landlord for such
new lease within ten (IO) days after service upon it of a copy
of the notice of terminabon;
(2) Sublessee shall agree to cure with reasonable diligence all
non-monetary defaults remaining uncured under the Prime Lease
as of the date of execution and delivery of the new lease;
(3) The tenant under such new lease shall have the same right,
title and interest in and to the Building as Tenant had
therein and thereto under the Prime Lease.
2. Landlord Approvals
(a) Sublessee may operate a reception/secudty desk in the lobby of the
Building, at no cost to Landlord or Tenant.
(b) Sublessee shall have the right to install security cameras and equipment in
and around the Subleased Premises and, subject to Landlord's approval, around
common areas of the Building, which cameras and equipment shall remain the
property of Sublessee.
(c) The signage provisions of Article 72 in the Prime Lease shall apply to
Sublessee. In addition, Sublessee shall be entitled to install, at its sole
cost,
(1) exterior signage, not attached to the Building, containing its name
and/or corporate logo, subject to the reasonable approval of Landlord. With
respect to any signage for which governmental approval is required, Landlord
shall cooperate with Sublessee in seeking such approvals.
(2) appropriate signage containing its name and corporate logo in the
Building lobby, on the walls of elevator lobbies and on entrance doors to all
space under sublease by Sublessee, subject to Landlord's reasonable approval of
same.
2
3. Specific Provisions of Prime Lease and Sublease
This Consent to Sublease does not constitute the assumption by Landlord of any
of the provisions of the Sublease document or agreement thereto or therewith;
nor shall the same be construed to amend the Prime Lease in any respect, any
purported modifications being solely for the purpose of setting forth the rights
and obligations as between Tenant and Sublessee, but not binding Landlord.
4. Tonant's Continuing Liability
Tenant shall be liable to Landlord for any default under the Prime Lease,
whether such default is caused by Tenant or Sublessee, but the foregoing shall
not be deemed to restrict or diminish any right which Landlord may have against
Sublessee pursuant to the Prime Lease , in law or in equity for violation of the
Prime Lease or otherwise, including, without limitation, the right to enjoin or
otherwise restrain any violations of the Prime Lease by Sublessee.
S. Acceptance by Tenant and Sublessee
Tenant and Sublessee understand and acknowledge that Landlord has agreed to
execute this Consent to Sublease based upon Tenant's and Sublessee's
acknowledgment and acceptance of the terms and conditions hereof.
6. Subordination
Subject to the terms of this Consent, the Sublease is, in all respects, subject
and subordinate to the Prime Lease, as the same may be amended. Furthermore, in
the case of any conflict between the provisions of this Consent to Sublease or
the Prime Lease and the provisions of the Sublease, the provisions of this
Consent to Sublease or the Prime Lease, as the case may be, shall prevail
unaffected by the Sublease.
7. Additional Charges
Notwithstanding anything to the contrary herein, Tenant acknowledges and agrees
that Tenant will promptly pay to Landlord throughout the Term of the Prime Lease
any Minimum Rent or Adjusted Minimum Rent owed to Landlord under the Prime
Lease, and otherwise comply with the provisions of the Prime Lease which may
apply to the Subleased Premises.
8. Services
Tenant hereby agrees that Landlord may furnish to the Subleased Premises
services requested by Sublessee other than or in addition to those to be
provided under the
3
Prime Lease, and ▇▇▇▇ the Sublessee directly for such services without notice to
Tenant. Sublessee hereby agrees to pay Landlord all amounts which may become due
for such services on the due dates.
S. Notices
Landlord shall provide copies of all notices regarding the Premises to both
Tenant and Sublessee, to:
Sublessor:
The Prudential Insurance Company of America
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Real Estate
With a copy to:
Enterprise Legal Services
The Prudential Insurance Company of America
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Assistant General Counsel
For the Sublessee:
to the Subleased Premises
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President and Chief Financial Officer
Notices to Landlord shall be sent to:
4
10. Reservation of Rights
This Consent to Sublease shall be deemed limited solely to the Sublease, and
Landlord reserves the right to consent or to withhold consent and all other
rights under the Prime Lease with respect to any other matters including,
without limitation, any proposed alterations and with respect to any further or
additional subleases, assignments or transfers of the Prime Lease or any
interest therein or thereto including, without limitation, a sublease or any
assignment of this Sublease. Landlord shall not consent to any further
modification of the Prime Lease without the prior written consent of Everest.
Executed as of , 1996.
NEW VALLEY CORPORATION THE PRUDENTIAL INSURANCE
Landlord: COMPANY OF AMERICA
Tenant:
By: By:
its duly authorized agent
Its:
EVEREST REINSURANCE COMPANY Sublessee:
By:
Its:
5
EXHIBIT D
EARLY ACCESS AND CONSTRUCTION ACTIVITIES
This Exhibit sets out the permitted access to the Subleased Premises by the
Sublessee and its contractors, together with the activities permitted as of the
specified dates, the required condition of the premises and the cooperation
required of the Sublessor. As used herein, the term "freight elevatoe' refers to
the elevator within the Subleased Premises and "atrium elevators" refers to the
two elevators which can be used to access the Subleased Premises from the atrium
of the Building.
Commencing January 6,1997-.
Access
- access to all of the Third Floor
- access to the portion of the First Floor behind the mail room and to
the left of marketing lobby (as marked on the attached floor plan)
Activities
-movement of contractors' employees and equipment -disassembly of
furniture movement of furniture to and in elevator
Condition/Cooperation
-areas should be broom clean, with all drawers and files empty; phones,
computers, copiers and any furniture owned by Sublesssor removed -one
internal elevator should be padded and available exclusively to
Sublessee and its contractors
[Except as noted herein, the internal elevator will remain
padded and available for use by Sublessee and its contractors
from January 6 through January 31, 1997]
-basement storage room should be empty and available for Sublessee to
use for storage -seminar room on First Floor should be empty and
available for Sublessee to use for storage -Sublessor will not
interrupt access to the designated space -Sublessor will not interrupt
or complain about the work on the basis of noise or inconvenience
January 9, 1997:
Activities (after 4:30 p.m.)
-movement of contractors' employees and equipment (an agreed-upon path
shall be established and used for the uninterrupted access to the
designated areas) -construction of demising wall separating new
construction from the remainder of the First Floor
Condition/Cooperaticn
-Sublessor will not interrupt access to the designated space -Sublessor
will not interrupt or complain about the work on the basis of noise or
inconvenience
January 10, 1997:
Activities
-movement of contractors' employees and equipment -disassembly of
furniture
-Sublessor movement of people and contents out of Subleased Premises
[During the time required for this move, Sublessor shall
have designated access to the freight elevator and one of
the atrium elevators]
Condition/Cooperation
-Sublessor will not interrupt access to the designated space -Sublessor
will not interrupt or complain about the work on the basis of noise or
inconvenience
Commencing January 13,1997:
Activities
-full demolition on the Third Floor -full demolition, if necessary, on
the first phase on the First Floor -movement of materials in the
freight elevator
Condition/Cooperation
-the freight elevator padded and available for movement of materials
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-1 2 contiguous garage spaces adjacent to the Bellemead work room
available for materials storage -Sublessor will not interrupt access to
the designated space -Sublessor will not interrupt or complain about
the work on the basis of noise or inconvenience
January 24, 1997:
Access
-access by electricians in the evening to remainder of First Floor and
all of Second and Fourth Floors
Activities
-movement of materials
-disconnect all workstations requiring disassembly
Condition/Cooperation
-all employees of Sublessor out of Subleased Premises -deactivate all
card access to Subleased premises by employees of Sublessor, Chubb and
Fedders -Sublessor will not interrupt access to the designated space
-Sublessor will not interrupt or complain about the work on the basis
of noise or inconvenience -Sublessor shall require dedicated access to
freight elevator and one atrium elevator for duration of move
Commencing January 25,1997:
Activities
-furniture installer will be on site
Condition/Cooperation
-all floors broom swept, files cleared out, drawers emptied, phones out,
computers out
As of January 27, 1997:
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Condition/Cooperation
-all remaining copiers, faxes, miscellaneous equipment belonging to
Sublessor must be out of the Subleased Premises by 4:30 p.m.
-Sublessor's PBX phone equipment must be out
It is agreed that Sublessor may not stop work by the Sublessee or its
contractors on the grounds of noise or inconvenience. The only bases upon which
Sublessor can force a suspension of work by Sublessee or its contractors are (1)
that activities other than those specified above are being conducted, (2) that
the activities specified above are being conducted in a location or on a date
other than as specified above or (3) if the activities cause a manifest safety
hazard. If the schedule of dates and activities set out above changes, Sublessee
shall give Sublessor reasonable advance notice of such changes and will provide
to Sublessor a revised schedule.
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