EXHIBIT 10.15
FIRST AMENDMENT TO LEASE
BETWEEN
METRO FOUR ASSOCIATES LIMITED PARTNERSHIP,
AS LANDLORD, AND
PAMEX CAPITAL PARTNERS, L.L.C.,
AS TENANT
THIS FIRST AMENDMENT TO LEASE made this _____________day of May, 2000
between METRO FOUR ASSOCIATES LIMITED PARTNERSHIP, a New Jersey Limited
Partnership, ("Landlord"), c/o Alfieri Property Management, having an office at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and PAMEX
CAPITAL PARTNERS, L.L.C., a New Jersey Limited Liability Company, having an
office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a Lease dated September 3,
1997, (the "Lease") wherein Landlord let unto Tenant and Tenant hired from
Landlord, 5,200 rentable square feet on a portion of the 2nd floor of a certain
office building commonly known and designated as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ (the "Building") as set forth on Schedule A attached, for a term
which commenced on May 1,1997 and expires on April 30,2000; and
WHEREAS, Landlord and Tenant have agreed to extend the term of the
Lease and to modify certain provisions of the Lease.
NOW THEREFORE, in consideration of the mutual covenants and
undertakings hereinafter set forth by and between the parties hereto, it is
agreed as follows:
1. The term of the Lease is hereby extended for sixty (60)
months. The Commencement Date of this First Amendment to Lease shall be May
1, 2000 and the Expiration Date shall be April 30, 2005 ("Renewal Period").
2. As of the Commencement Date, Tenant's annual fixed rent shall
be $137,800.00 (calculated on the basis of $26.50 per square foot for 5,200
rentable square feet) which shall be payable in advance on the first day of each
and every month during the term of the Renewal Period in the amount of
$11,483.33.
3. As of the Commencement Date, the Base Year for the calculation
of Taxes and Operating Expenses shall be calendar year 2000.
4. Tenant's charge for electricity shall remain at the current
rate presently being charged, subject to Article 15 of the Lease.
5. After the execution hereof, Landlord will perform work to the
Demised Premises as set forth in Schedule B and Schedule B-1 attached hereto and
made a part hereof ("Landlord's Work"). Any cost and expense incurred by
Landlord for such improvements as a result of change orders or revisions
requested by Tenant shall be the responsibility of Tenant. Landlord's Work shall
be done during normal business hours. Tenant shall be responsible for moving all
of Tenant's Property in order for Landlord to perform Landlord's Work. Tenant
recognizes and agrees that there may be some inconvenience to Tenant during
Landlord's Work and agrees that performance of Landlord's Work shall not
constitute a actual or constructive eviction in whole or in part, or entitle
Tenant to any abatement of rent, or relieve Tenant from any of its obligations
under this Lease or impose any liability upon Landlord or its agents.
6. At or before the Expiration Date of the Lease, along with any
other restoration required by Landlord pursuant to the Lease or any Tenant
Changes, Tenant shall remove from the Demised Premises all equipment comprising
Tenant's Voice, Data and Security Systems, including associated outlets, wires,
wiring trays and other equipment, materials and facilities, whether located in
the ceiling, floor and/or walls which in any way relates, pertains to,
constitutes or is connected with Tenant's Voice, Data and/or Security Systems
and regardless of whether Landlord or Tenant installed and/or paid for the
installation of such systems.
7. Tenant covenants, warrants, and represents that there was no
broker except ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ COMPANY, L.L.C. ("Broker")
instrumental in consummating this First Amendment to Lease and that no
conversations or negotiations were had with any broker except Broker concerning
the renewal of the Demised Premises. Tenant agrees to hold Landlord harmless
against any claims for a brokerage commission arising out of any conversations
or negotiations had by Tenant with any broker except Broker. Landlord agrees to
pay Broker pursuant to a separate existing agreement.
2
8. Except as modified herein, all of the terms, covenants and
conditions set forth in the Lease remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the day and year first above written.
LANDLORD:
WITNESS: METRO FOUR ASSOCIATES
LIMITED PARTNERSHIP,
a New Jersey Limited Partnership
___________________________________ ________________________________________
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
TITLE: Partner
TENANT:
ATTEST: PAMEX CAPITAL PARTNERS, L.L.C.
A New Jersey Limited Liability Company
[ILLEGIBLE] /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- ----------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇
TITLE: MANAGER
3
[FLOOR MAP]
SCHEDULE A
METRO FOUR ASSOCIATES, L.P., AS LANDLORD
PAMEX CAPITAL PARTNERS, L.L.C., AS TENANT
SCHEDULE B
LANDLORD'S WORK
1. HVAC - Perimeter baseboard electric heat, central high velocity fan
system which utilizes a minimum of 10% to a maximum of 100% fresh air
to maintain no less than 68 degrees interior at zero degrees exterior,
with a 15-mile per hour wind. Air-cooling shall maintain no more than
78 degrees F dry bulb with approximately 50% relative humidity when the
outdoor conditions are 91 degrees F dry bulb. The above heating and
cooling standard is for normal office use only which shall be deemed to
be one person for every 200 square feet in any given or confined area
which shall not include areas with special HVAC requirements such as
computer rooms, conference rooms, cafeterias, high density or excessive
heat producing equipment. Perimeter baseboard electric heat is used
during winter operations and an air cooling system is utilized during
summer operations.
One (1) diffuser per 250 sq. ft. of usable area.
2. Window covering - one (1) building-standard Venetian blind per window.
3. Landlord shall complete the interior of the Demised Premises in
accordance with space plans and specifications as noted herein, in
Schedule A, dated March 27, 2000, and Schedule ▇-▇, dated March
28,2000. The Landlord's work shall consist of removing an entry door,
building of one new wall, some painting and some re-carpeting. Any
additional work not specifically noted in the foregoing shall be
performed by the Landlord at the Tenant's expense.
4. Tenant further agrees that if an elevator lobby or corridor is included
in Tenant's Demised Premises or if by virtue of the size and
configuration of Tenant's Demised Premises, other tenants of the
Building when in the lobby or corridor can see into Tenant's Demised
Premises through a demising wall, Tenant shall not place any window
treatments, signs or materials on the exterior glass demising walls
unless expressly approved by Landlord in writing. The Landlord shall
have the sole and final decision as to the color and design of all
paint, furniture, artwork, wall coverings and floor coverings so
visible from the lobby or corridor.
5. The Tenant shall be responsible for the telephone and computer
installation. The Landlord shall coordinate the timing of these items
with the Tenant. The Landlord shall not charge any overhead fees or
profit for this work.
6. All changes to Landlord's Work requested by Tenant shall be in writing.
Landlord shall advise Tenant before accepting the change, of the cost
thereof or, if applicable, the
-2-
savings and the delay in the substantial completion, if any, caused by
the change and, for any major changes to Landlord's Work, any
additional restoration requirements, if any. Tenant shall have five (5)
days from receipt of this information from Landlord to advise Landlord
to proceed with the change or to withdraw the request. Tenant shall pay
the cost of the change order within thirty (30) days after receipt of
Landlord's invoice with respect to such change if there shall be an
increased cost to Landlord as a result thereof.
[FLOOR MAP]
SCHEDULE B-1
LEASE AGREEMENT
BETWEEN
METRO FOUR ASSOCIATES LIMITED PARTNERSHIP,
AS LANDLORD
-AND-
PAMEX CAPITAL PARTNERS, L.L.C.,
AS TENANT
PREMISES: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
PORTION OF 2ND FLOOR
DATED: SEPTEMBER 3, 1997
INDEX
ARTICLE CAPTION PAGE
------- ------- ----
1 Demised Premises, Term, Rent..................................................... 1
2 Use ............................................................................. 3
3 Preparation of the Demised Premises.............................................. 4
4 When Demised Premises Ready for Occupancy........................................ 4
5 Additional Rent.................................................................. 4
6 Subordination, Notice to Lessors and Mortgagees.................................. 8
7 Quiet Enjoyment.................................................................. 9
8 Assignment, Mortgaging, Subletting............................................... 9
9 Compliance with Laws and Requirements of Public Authorities...................... 11
10 Insurance........................................................................ 12
11 Rules and Regulations............................................................ 14
12 Tenant's Changes................................................................. 14
13 Tenant's Property................................................................ 16
14 Repairs and Maintenance.......................................................... 17
15 Electricity...................................................................... 18
16 Heating, Ventilation and Air-Conditioning........................................ 20
17 Landlord's Other Services........................................................ 20
18 Access, Changes in Building Facilities, Name..................................... 22
19 Notices of Accidents............................................................. 23
20 Non-Liability and Indemnification................................................ 23
(i)
ARTICLE CAPTION PAGE
------- ------- ----
21 Destruction or Damage............................................................ 24
22 Eminent Domain .................................................................. 25
23 Surrender ....................................................................... 27
24 Conditions of Limitation......................................................... 27
25 Re-Entry by Landlord ............................................................ 29
26 Damages...... ................................................................... 30
27 Waivers ......................................................................... 31
28 No Other Waivers or Modifications................................................ 32
29 Curing Tenant's Defaults ........................................................ 33
30 Broker .......................................................................... 33
31 Notices ......................................................................... 33
32 Estoppel Certificate ............................................................ 34
33 Arbitration...................................................................... 34
34 No Other Representations, Construction, Governing Law............................ 35
35 Security ........................................................................ 36
36 Parties Bound ................................................................... 37
37 Consents ........................................................................ 37
38 Mortgage Financing - Tenant Cooperation ......................................... 38
39 Environmental Compliance ........................................................ 38
40 Holding Over..................................................................... 39
41 Certain Definitions & Constructions ............................................. 39
(ii)
ARTICLE CAPTION PAGE
------- ------- ----
42 Relocation of Tenant............................................................. 40
EXHIBIT A - Description of Land
EXHIBIT B - Floor Plan
EXHIBIT C - Separate Workletter
EXHIBIT D - Cleaning and Maintenance Specifications
EXHIBIT E - Rules and Regulations
EXHIBIT F - Definitions
(iii)
LEASE, dated September 3 1997, between METRO FOUR ASSOCIATES LIMITED
PARTNERSHIP, a New Jersey Limited Partnership, c/o Alfieri Property Management,
having its principal office located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.O. Box 2911,
Edison, New Jersey 08818-2911, ("Landlord"), and PAMEX CAPITAL PARTNERS, L.L.C.,
a New Jersey Limited Liability Company, having its principal office located at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ("Tenant").
WITNESSETH:
ARTICLE 1
DEMISED PREMISES, TERM, RENT
1.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ("Building") on the parcel of land more
particularly described in Exhibit A ("Land"), for the term hereinafter stated,
for the rents hereinafter reserved and upon and subject to the conditions
(including limitations, restrictions and reservations) and covenants hereinafter
provided. Each party hereby expressly covenants and agrees to observe and
perform all of the conditions and covenants herein contained on its part to be
observed and performed.
1.02. The premises hereby leased to Tenant is a portion of the 2nd
floor of the Building, as shown on the floor plans annexed hereto as Exhibit B.
Landlord and Tenant have mutually agreed that the premises leased has a rentable
area of 5,200 square feet which includes Tenant's share of the common area. Said
premises, together with all fixtures and equipment which at the commencement, or
during the term of this Lease are thereto attached (except items not deemed to
be included therein and removable by Tenant as provided in Article 13)
constitute the "Demised Premises".
1.03. The term of this Lease, for which the Demised Premises are
hereby leased, shall commence on May 1, 1997 ("Commencement Date") and shall end
on April 30, 2000, which ending date is hereinafter called the "Expiration
Date", or shall end on such earlier date upon which said term may expire or be
canceled or terminated pursuant to any of the conditions or covenants of this
Lease or pursuant to law.
1.04. The rents reserved under this Lease, for the term thereof,
shall be and consist of:
(a) Fixed rent of $106,600.00 per year, (calculated on
the basis of $20.50/sq. ft. for 5,200 sq. ft. of rentable area) which shall be
payable in equal monthly installments of $8,883.33 in advance on the first day
of each and every calendar month during the term of this Lease, (except Tenant
shall pay, upon execution and delivery of this Lease by Tenant, the sum of
$8,883.33 to be applied against the first monthly installment or installments of
fixed rent becoming due under this Lease) and
1
(b) Additional rent consisting of all such other sums of
money as shall become due from and payable by Tenant to Landlord hereunder (for
default in payment of which Landlord shall have the same remedies as for a
default in payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such agent
at such place, as Landlord may designate by notice to Tenant, in lawful money of
the United States of America.
1.05. Tenant shall pay the fixed rent and additional rent herein
reserved promptly as and when the same shall become due and payable, without
demand therefor and without any abatement, deduction or setoff whatsoever except
as expressly provided in this Lease.
1.06. If the Commencement Date occurs on a day other than the first
day of a calendar month, the fixed rent for such calendar month shall be
prorated and the balance of the first month's fixed rent theretofore paid shall
be credited against the next monthly installment of fixed rent.
1.07. Late payments of any payment of rent, including monthly rent
or any portion thereof, which is not received within ten (10) days after it is
due, will be subject to a late charge equal to five percent (5%) of the unpaid
payment, or $100.00, whichever is greater. This amount is in compensation of
Landlord's additional cost of processing late payments. In addition, any rent
which is not paid when due, including monthly rent, will accrue interest at a
late rate charge of First Union Prime Rate plus three percent (3%) per annum, as
said rate is reasonably determined by Landlord from published reports, (but in
no event in an amount in excess of the maximum rate allowed by applicable law)
from the date on which it was due until the date on which it is paid in full
with accrued interest. If Tenant is in default of the Lease for failure to pay
rent, in addition to the late charges and interest set forth above, Tenant shall
be charged with all attorney fees in connection with the collection of all
sums due Landlord.
1.08. Landlord, at any time during the term of the Lease, as
amended, may recapture a portion of the Demised Premises specified in Exhibit G,
Schedule 1 and 2, as BLDG. Services (the "Space") as future Building services.
Landlord shall give Tenant written notice of its desire to recapture the Space
and Tenant shall vacate the Space within sixty (60) days of receipt of such
written notice by Landlord. Any work required as a result of such recapture
shall be done by Landlord at Landlord's sole cost and expense. Tenant's rent,
including proportional expenses and electric as set forth in Paragraph 1.04(a)
above shall be reduced proportionately based on rentable square footage of the
Space. Tenant recognizes and agrees that there may be some inconvenience to
Tenant as a result of Landlord recapturing the Space and agrees that any work,
such as the erection of a demising wall, associated with the recapture shall not
constitute a actual or constructive eviction in whole or in part, or entitle
Tenant to any abatement of rent, or relieve Tenant from any of its obligations
under this Lease or impose any liability upon Landlord or its agents.
2
ARTICLE 2
USE
2.01. Tenant shall use and occupy the Demised Premises for executive
and general offices for the transaction of Tenant's business and for no other
purpose.
2.02. The use of the Demised Premises for the purposes specified in
Section 2.01 shall not include, and Tenant shall not use or permit the use of
the Demised Premises or any part thereof, for:
(a) A school of any kind other than for the training of
Tenant's employees;
(b) An employment agency; or
(c) An office for any governmental or quasi governmental
bureau, department, agency, foreign or domestic, including any autonomous
governmental corporation or diplomatic or trade mission.
(d) Any telemarketing activities or other direct selling
activities; or
(e) Any use, including executive and general office use,
which results in a density of a population of more than one person for every 250
square feet. Notwithstanding the foregoing, Landlord acknowledges that Tenant
shall have up to one person for every 200 rentable square feet in the Demised
Premises and that such number of individuals violates the aforesaid density
requisite. Tenant agrees that it shall not increase the number of individuals in
the Demised Premises beyond the density of one person for every 200 rentable
square feet. Any sublessee or assignee shall not occupy the Demised Premises at
a density greater than one person for every 250 square feet.
2.03. If any governmental license or permit, other than a
Certificate of Occupancy, shall be required for the proper and lawful conduct of
Tenant's business in the Demised Premises, or any part thereof, and if failure
to secure such license or permit would in any way affect Landlord, Tenant, at
its expense, shall submit the same to inspection by Landlord. Tenant shall at
all times comply with the terms and conditions of each such license or permit.
2.04. Tenant shall not at any time use or occupy, or do or permit
anything to be done in the Demised Premises, in violation of the Certificate of
Occupancy (or other similar municipal ordinance) governing the use and
occupation of the Demised Premises or for the Building.
3
ARTICLE 3
PREPARATION OF THE DEMISED PREMISES
3.01. Tenant accepts the Demised Premises in "AS-IS" condition and
Landlord shall not be responsible in any manner to prepare the Demised Premises
in order for Tenant to occupy said Demised Premises.
3.02. On or before the expiration date of this Lease, Tenant shall
remove from the Demised Premises all equipment comprising Tenant's Voice, Data
and Security Systems, including associated outlets, wires, wiring trays and
other equipment, materials and facilities, whether located in the ceiling, floor
and/or walls which in any way relates, pertains to, constitutes or is connected
with Tenant's Voice, Data and/or Security Systems and regardless of whether
Landlord or Tenant installed and/or paid for the installation of such systems.
ARTICLE 4
WHEN DEMISED PREMISES READY FOR OCCUPANCY
INTENTIONALLY DELETED
ARTICLE 5
ADDITIONAL RENT
5.01. For the purpose of Sections 5.01 through 5.03.
(a) "Taxes" shall mean real estate taxes, special and
extraordinary assessments and governmental levies against the Land and Building
of which the Demised Premises (but excluding therefrom that portion of the real
estate taxes directly attributable to improvements made by other tenants in the
Building beyond Landlord's allowances) are a part provided, however, if at any
time during the term of this Lease the method of taxation prevailing at the date
of this Lease shall be altered so that in lieu of, or as an addition to, or as a
substitute for any or all of the above there shall be assessed, levied or
imposed (i) a tax, assessment, levy, imposition or charge based on the income or
rents received therefrom whether or not wholly or partially as a capital levy or
otherwise; or (ii) a tax, assessment, levy, imposition or charge measured by or
based in whole or in part upon all or any part of the Land and/or Building and
imposed upon Landlord; or (iii) a license fee measured by the rents; or (iv) any
other tax, assessment, levy, imposition, charge or license fee however described
or imposed, then all such taxes, assessments, levies, impositions, charges or
license fees or the part thereof so measured or based shall be included in the
definition of "Taxes." Tenant shall pay to Landlord directly that portion of any
real estate taxes directly attributable to improvements made by Tenant beyond
Landlord's allowances (hereinafter referred to as "Tenant's Direct Tax
Payment").
(b) "Base Taxes" shall mean the assessed valuation of the
Land and Building as finally determined for the Tax Year 1997.
4
(c) "Tax Year" shall mean each calendar year for which
Taxes are levied by any governmental authority.
(d) "Operational Year" shall mean each calendar year
commencing with calendar year 1998.
(e) "Tenant's Proportionate Share of Increase" shall mean
1.625% multiplied by the increase in Taxes in any Operational Year in excess of
the Base Taxes. Tenant's Proportionate Share of Increase for the first
Operational Year shall be prorated to reflect the actual occupancy by Tenant for
said Operational Year.
(f) "Tenant's Projected Share of Increase" shall mean
Tenant's Proportionate Share of Increase in Taxes for the projected Operational
Year divided by twelve (12) and payable monthly by Tenant to Landlord as
additional rent.
5.02. Commencing with the first Operational Year and thereafter,
Tenant shall pay to Landlord as additional rent for the then Operational Year,
Tenant's Projected Share of Increase in Taxes in equal monthly installments.
5.03. After the expiration of each Operational Year, Landlord shall
furnish to Tenant a written statement of the Taxes incurred for such Operational
Year as well as Tenant's Proportionate Share of Increase, if any. If the
statement furnished by Landlord to Tenant pursuant to this Section at the end of
the then Operational Year shall indicate that Tenant's Projected Share of
Increase exceeded Tenant's Proportionate Share of Increase, Landlord shall
either forthwith pay the amount of excess directly to Tenant concurrently with
the statement or credit same against Tenant's next monthly installment of rent.
If such statement furnished by Landlord to Tenant shall indicate that the
Tenant's Proportionate Share of Increase exceeded. Tenant's Projected Share of
Increase for the then Operational Year, Tenant shall forthwith pay the amount of
such excess to Landlord.
Commencing with the first Operational Year, Tenant shall pay to
Landlord in equal monthly installments together with its payment of fixed rent
one-twelfth (1/12) of Tenant's Direct Tax Payment.
5.04. As used in Sections 5.04 through 5.06:
(a) "Operating Expenses" shall mean any or all expenses
incurred by Landlord in connection with the operation of the Land and Building
of which the Demised Premises are a part, including all expenses incurred as a
result of Landlord's compliance with any of its obligations hereunder and such
expenses shall include: (i) salaries, wages, medical, surgical and general
welfare benefits, (including group life insurance) and pension payments of
employees of Landlord engaged in the operation and maintenance of the Building;
(ii) social security, unemployment, and payroll taxes, workers' compensation,
disability coverage, uniforms, and dry cleaning for the employees referred to in
Subsection (i); (iii) the cost for the Building and common areas of all charges
for oil, gas, electricity (including, but not limited to, fuel cost
5
adjustments), steam, heat, ventilation, air-conditioning, heating, and water
including any taxes on any such utilities, but excluding from Operating Expenses
the Landlord's cost, including taxes thereon, of electric energy, other than for
heating and air-conditioning, furnished to the Demised Premises (which electric
energy so furnished shall be paid for by Tenant pursuant to the provisions of
Article 15 hereof); (iv) the cost of all premiums and charges for the following
insurances rent, casualty, liability, fidelity and war risk (if obtainable from
the United States Government); (v) the cost of all building and cleaning
supplies for the common areas of the Building and charges for telephone for the
Building; (vi) the cost of all charges for management, window cleaning, security
services, if any, and janitorial services, and any independent contractor
performing work included within the definition of operating expenses; (vii)
legal and accounting services and other professional fees and disbursements
incurred in connection with the operation and management of the Land and
Building (other than as related to new leases, enforcing Landlord's rights under
existing leases, or sales of the Building); (viii) general maintenance of the
Building and the cost of maintaining and replacing the landscaping; (ix)
maintenance of the common area; and (x) the cost of capital expenditures,
including the purchase of any item of capital equipment or the leasing of
capital equipment which have the effect of reducing the expenses which would
otherwise be included in Operating Expenses, which costs shall be included in
Operating Expenses for the Operational Year in which the costs are incurred and
subsequent Operational Years on a straight-line basis, to the extent that such
items are amortized over such period of time as Landlord reasonably estimates,
with an interest factor equal to the interest rate at the time of Landlord's
having made said expenditure.
If during all or part of any Operational Year,
Landlord shall not furnish any particular item(s) of work or service (which
would otherwise constitute an Operating Expense hereunder) to portions of the
Building due to the fact that (i) such portions are not occupied or leased; (ii)
such items of work or service is not required or desired by the tenant of such
portion; (iii) such tenant is itself obtaining and providing such item of work
or service; or (iv) for other reasons, then, for the purposes of computing
Operating Expenses, the amount for such item and for such period shall be deemed
to be increased by an amount equal to the additional costs and expenses which
would reasonably have been incurred during such period by Landlord if it had at
its own expense furnished such item of work or services to such portion of the
Building or such tenant.
Notwithstanding the foregoing, the following costs
and expenses shall not be included in Operating Expenses:
(1) Executives' salaries above the grade of
building manager;
(2) Amounts received by Landlord through
proceeds of insurance except to the extent they are compensation for sums
previously included in Operating Expenses hereunder,
(3) Cost of repairs or replacements incurred by
reason of fire or other casualty or condemnation to the extent Landlord is
compensated therefor;
(4) Advertising and promotional expenditures;
6
(5) Costs incurred in performing work or
furnishing services for any tenant (including Tenant), whether at such tenant's
or Landlord's expense, to the extent that such work or service is in excess of
any work or service that Landlord is obligated to furnish to tenant at
Landlord's expense;
(6) Depreciation, except as provided above;
(7) Brokerage commissions;
(8) Taxes (as hereinbefore defined);
(9) The cost of electricity (for other than
heating and air-conditioning) furnished to the Demised Premises or any other
space leased to tenants as reasonably estimated by Landlord; and
(10) Refinancing costs and mortgage interest and
amortization payments.
(b) "Operational Year" shall mean each calendar year
commencing with calendar year 1998.
(c) "Base Year" shall mean calendar year 1997.
(d) "Tenant's Proportionate Share of Increase" shall mean
1.625% multiplied by the increase in Operating Expenses for the Operational Year
over Operating Expenses for the Base Year. For purposes hereof the Tenant's
Proportionate Share of Increase has been computed based upon a total square
footage of the Building equal to 320,000 square feet, and a total square footage
of the Demised Premises equal to 5,200 square feet.
(e) "Tenant's Projected Share of Increase" shall mean
Tenant's Proportionate Share of Increase for the projected Operational Year
divided by twelve (12) and payable monthly by Tenant to Landlord as additional
rent.
5.05. Commencing with the first Operational Year after Landlord
shall be entitled to receive Tenant's Proportionate Share of Increase, Tenant
shall pay to Landlord as additional rent for the then Operational Year, Tenant's
Projected Share of Increase.
5.06. After the expiration of the first Operational Year and for
each Operational Year thereafter, Landlord shall furnish to Tenant a written
detailed statement of the Operating Expenses (certified to be true and correct
by Landlord) incurred for such Operational Year which statement shall set forth
Tenant's Proportionate Share of Increase, if any. If the statement furnished by
Landlord to Tenant, pursuant to this Section, at the end of the then Operational
Year shall indicate that Tenant's Projected Share of Increase exceeded Tenant's
Proportionate Share of Increase, Landlord shall either forthwith pay the amount
of excess directly to Tenant concurrently with the statement or credit same
against Tenant's next monthly installment of rent. If such
7
statement furnished by Landlord to Tenant hereunder shall indicate that the
Tenant's Proportionate Share of Increase exceeded Tenant's Projected Share of
Increase for the then Operational Year, Tenant shall forthwith pay the amount of
such excess to Landlord.
5.07. Every statement given by Landlord pursuant to Sections 5.03
and 5.06 shall be conclusive and binding upon Tenant unless (i) within ninety
(90) days after the receipt of such statement Tenant shall notify Landlord that
it disputes the correctness of the statement, specifying the particular respects
in which the statement is claimed to be incorrect; and (ii) if such dispute
shall not have been settled by agreement, shall submit the dispute to judicial
proceedings within one hundred and twenty (120) days after receipt of the
statement. Within such 90 day period Tenant shall have the right to review,
examine and audit Landlord's books and records for the applicable calendar year.
Tenant agrees that it and its representatives shall conduct a review with
complete confidentiality and shall enter into a reasonable confidentiality
agreement with Landlord respecting the review, examination and audit. Pending
the determination of such dispute by agreement or judicial proceedings as
aforesaid, Tenant shall, within thirty (30) days after receipt of such
statement, pay additional rent in accordance with Landlord's statement and such
payment shall be without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay Tenant the amount of
Tenant's overpayment of rents resulting from compliance with Landlord's
statement.
ARTICLE 6
SUBORDINATION, NOTICE TO LESSORS AND MORTGAGEES
6.01. This Lease, and all rights of Tenant hereunder are and shall
be subject and subordinate in all respects to all ground leases, overriding
leases and underlying leases of the Land and/or the Building now or hereafter
existing and to all mortgages which may now or hereafter affect the Land and/or
the Building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings, to each and every advance made or hereafter
to be made under such mortgages, and to all renewals, modifications,
replacements, and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages. This Section shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver an instrument that
Landlord, the lessor of any such lease or the holder of any such mortgage or any
of their respective successors in interest may reasonably request to evidence
such subordination. The leases to which this Lease is, at the time referred to,
subject and subordinate pursuant to this Article are hereinafter sometimes
called "superior leases" and the mortgages to which this Lease is, at the time
referred to, subject and subordinate are hereinafter sometimes called "superior
mortgages", the lessor of a superior lease or its successor in interest at the
time referred to is sometimes hereinafter called a "lessor", and the holder of a
superior mortgage or its successor in interest at the time referred to is
sometimes hereinafter called a "superior mortgagee."
8
ARTICLE 7
QUIET ENJOYMENT
7.01. So long as Tenant pays all of the fixed rent and additional
rent due hereunder and performs all of Tenant's other obligations hereunder,
Tenant shall peaceably and quietly have, hold, and enjoy the Demised Premises
subject, nevertheless, to the obligations of this Lease and, as provided in
Article 6, to the superior leases and the superior mortgages.
ARTICLE 8
ASSIGNMENT, MORTGAGING, SUBLETTING
8.01. Neither this Lease, nor the term and estate hereby granted,
nor any part hereof or thereof, nor the interest of Tenant in any sublease, or
the rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant, and neither the Demised Premises, nor any part
thereof shall be encumbered in any manner by reason of any act or omission on
the part of Tenant or anyone claiming under or through Tenant or shall be
sublet, or offered or visibly advertised from the Demised Premises for
subletting, or be used or occupied or permitted to be used or occupied, or
utilized for desk space or for mailing privileges, by anyone other than Tenant
or for any purpose other than as permitted by this Lease, without the prior
written consent of Landlord in every case, except as expressly otherwise
provided in this Article. Landlord's consent to a sublease or an assignment of
the Demised Premises shall not be unreasonably withheld. Landlord shall not be
deemed unreasonable for the purposes of consent for a sublease or an assignment
if Landlord withholds its consent for any of the following: (i) in Landlord's
belief the sublessee or assignee is known as a poor tenant; (ii) the sublessee's
or assignee's use will burden the parking facilities of the Building; (iii) the
sublessee's or assignee's use will violate any provision of this Lease; (iv) if
such sublessee or assignee is an environmental nuisance; (v) if in Landlord
discretion the Landlord does not find that the financial capacity of the
sublessee or assignee is adequate; or (vi) for any other reason which shall not
be unreasonable for Landlord to withhold it's consent.
8.02. If this Lease be assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Demised Premises or any part thereof be sublet or be used or occupied by anybody
other than Tenant, whether or not in violation of this Lease, Landlord may,
after default by Tenant and expiration of Tenant's time to cure such default,
collect rent from the undertenant or occupant. In either event, Landlord may
apply the net amount collected to the rents herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
any of the provisions of Section 8.01, or the acceptance of the assignee,
undertenant or occupants as Tenant, or a release of Tenant from the further
performance by Tenant of Tenant's obligations under this Lease. The consent by
Landlord to assignment, mortgaging, underletting or use or occupancy by others
shall not in any way be considered to relieve Tenant from obtaining the express
written consent of Landlord to any other or further assignment, mortgaging or
underletting or use or occupancy by others not expressly permitted by this
Article.
9
8.03. The following provisions shall govern in connection with the
subletting of all or a portion of the Demised Premises:
(a) Tenant shall submit in writing to Landlord (i) the
name of the proposed subtenant; (ii) the nature and character of the proposed
subtenant's business, and the intended use to be made of the Demised Premises by
the proposed subtenant; (iii) the terms and conditions of the proposed sublease;
and (iv) such reasonable financial information as Landlord may request regarding
the proposed subtenant.
(b) Within fifteen (15) business days of Landlord's
receipt of the information described in (a) above, Landlord, at Landlord's
election may (i) elect to sublease the Demised Premises directly from Tenant
either upon (x) the same terms and conditions offered to the proposed subtenant
or, (y) upon the same terms and conditions as set forth in this Lease; or (ii)
cancel this Lease as to that portion of the Demised Premises which Tenant
desires to sublease, in which event Tenant agrees to surrender all of its right,
title, and interest hereunder and Landlord may thereafter enter into a direct
Lease with the proposed subtenant or with any other persons as Landlord may
desire; or (iii) consent to the subletting on such terms and conditions as
established by Landlord, including Landlord's participation in any rentals
received by Tenant.
(c) As a condition to Landlord's consent, if given under
(b) above, Landlord shall have obtained consent to such proposed subletting by a
superior lessor and/or superior mortgagee, provided such superior lessor and/or
superior mortgagee requires consent to the subletting.
(d) In connection with any subletting, Tenant shall not
offer the Demised Premises, or any part thereof, to any other tenant in the
Building or their subsidiaries or affiliates at a rental rate less than the
current rental rate for office buildings in the surrounding area.
8.04. Tenant shall remain fully liable for the performance of all
Tenant's obligations hereunder notwithstanding any subletting provided for
herein (except to Landlord), and without limiting the generality of the
foregoing, shall remain fully responsible and liable to Landlord for all acts
and omissions of any subtenant of anyone claiming under or through any subtenant
which shall be in violation of any of the obligations of this Lease and any such
violation shall be deemed to be a violation by Tenant.
8.05. Tenant shall not, without the prior written consent of
Landlord, assign this Lease, and the provisions of Section 8.03 with respect to
subletting shall equally apply to any assignment of this Lease. Tenant herein
named, or any immediate or remote successor in interest of Tenant herein named,
shall remain liable jointly and severally (as a primary obligor) with its
assignee and all subsequent assignees for the performance of Tenant's
obligations hereunder. In the event that Tenant hereunder is a corporation
(other than one whose shares, now or in the future, are regularly and publicly
traded on a recognized stock exchange, including over the counter, or is a
public company or merges with a public company), then any substantial change in
the ownership of and/or power to vote the majority of the outstanding capital
stock of Tenant,
10
other than by inheritance or operation of law, shall be deemed an assignment of
this Lease and the provisions with respect to assignment shall be applicable.
8.06. Notwithstanding anything to the contrary contained in this
Article with respect to assignment or subletting, Landlord's consent to any
assignment and/or subletting (i) to any parent, affiliate or wholly-owned
subsidiary of Tenant (as defined in Rule 240.12b-2 under the Securities Exchange
Act of 1934) or (ii) to any corporation or other entity which succeeds to all or
substantially all of the assets and business of Tenant, shall not be
unreasonably withheld.
8.07. Tenant agrees that in connection with each separate request
for a Landlord's consent to a subletting or assignment, Tenant shall pay to
Landlord the sum of $500.00 representing a reasonable compensation to Landlord
for the administration costs of evaluating and responding to the request.
8.08. Tenant further agrees that it shall not place any signs on the
windows located in the Demised Premises indicating that all or any portion of
the Demised Premises are available for subleasing or assignment.
ARTICLE 9
COMPLIANCE WITH LAWS AND REQUIREMENTS
OF PUBLIC AUTHORITIES
9.01. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of public authority, and at
its expense shall comply with all laws and requirements of public authorities
which shall, with respect to the Demised Premises or the use and occupation
thereof, or the abatement of any nuisance, impose any violation, order or duty
on Landlord or Tenant, arising from (i) Tenant's use of the Demised Premises;
(ii) the manner of conduct of Tenant's business or operation of its
installation, equipment or other property therein; (iii) any cause or condition
created by or at the instance of Tenant, other than by Landlord's performance of
any work for or on behalf of Tenant; or (iv) the breach of any of Tenant's
obligations hereunder. Furthermore, Tenant need not comply with any such law or
requirement of public authority so long as Tenant shall be contesting the
validity thereof, or the applicability thereof to the Demised Premises, in
accordance with Section 9.02.
Nothing contained herein shall be construed to require Tenant
to make structural alterations to the Building except to the extent that same
are required by reason of Tenant's specific use (other than general office).
9.02. Tenant may, at its expense (and if necessary, in the name of
but without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings provided that:
11
(a) Tenant shall defend, indemnify, and hold harmless
Landlord against all liability, loss or damage which Landlord shall suffer by
reason of such non-compliance or contest, including reasonable attorney's fees
and other expenses reasonably incurred by Landlord;
(b) Such non-compliance or contest shall not constitute
or result in any violation of any superior lease or superior mortgage, or, if
such superior lease and/or superior mortgage shall permit such non-compliance or
contest on condition of the taking of action or furnishing of security by
Landlord, such action shall be taken and such security shall be furnished at the
expense of Tenant; and
(c) Tenant shall keep Landlord advised as to the status
of such proceedings.
ARTICLE 10
INSURANCE
10.01. Tenant shall not violate, or permit the violation of, any
condition imposed by the all-risk casualty policy issued for the Building and
shall not do anything, or permit anything to be kept, in the Demised Premises
which would increase the fire or other casualty insurance rate on the Building
or the property therein over the rate which would otherwise then be in effect,
(unless Tenant pays the resulting increased amount of premium as provided in
Section 10.02) or which would result in insurance companies of good standing
refusing to insure the Building or any of such property in amounts and at normal
rates reasonably satisfactory to Landlord. However, Tenant shall not be subject
to any liability or obligation under this Article by reason of the proper use of
the Demised Premises for the purposes permitted by Article 2.
10.02. If, by reason of any act or omission on the part of Tenant,
the rate of fire insurance with extended all-risk coverage on the Building or
equipment or other property of Landlord or other tenants shall be higher than it
otherwise would be, Tenant shall reimburse Landlord, on demand, for that part of
the premiums for fire insurance and extended all-risk coverage paid by Landlord
because of such act or omission on the part of Tenant, which sum shall be deemed
to be additional rent and collectible as such.
10.03. In the event that any dispute should arise between Landlord
and Tenant concerning insurance rates, a schedule or "make up" of rates for the
Building or the Demised Premises, as the case may be, issued by the Fire
Insurance Rating Organization of New Jersey or other similar body making rates
for fire insurance and extended coverage for the premises concerned, shall be
presumptive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates with extended coverage then applicable to
such premises.
10.04. Tenant shall obtain and keep in full force and effect during
the term of this Lease, at its own cost and expense, Comprehensive General
Liability Insurance, such insurance to afford protection in an amount of not
less than $1,000,000 for injury or death to any one person, $3,000,000 for
injury or death arising out of any one occurrence, and $1,000,000 for damage to
property, protecting and naming the Landlord and the Tenant as insured against
any
12
and all claims for personal injury, death or property damage occurring in, upon,
adjacent, or connected with the Demised Premises and any part thereof. Tenant
shall pay all premiums and charges therefor and upon failure to do so Landlord
may, but shall not be obligated to, make payments, and in such latter event the
Tenant agrees to pay the amount thereof to Landlord on demand and said sum shall
be deemed to be additional rent, and in each instance collectible on the first
day of any month following the date of notice to Tenant in the same manner as
though it were rent originally reserved hereunder, together with interest
thereon at the rate of three points in excess of Prime Rate of the First Union.
Tenant will use its best efforts to include in such Comprehensive General
Liability Insurance policy a provision to the effect that same will be
non-cancelable, except upon reasonable advance written notice to Landlord. The
original insurance policies or appropriate certificates shall be deposited with
Landlord together with any renewals, replacements or endorsements to the end
that said insurance shall be in full force and effect for the benefit of the
Landlord during the term of this Lease. In the event Tenant shall fail to
procure and place such insurance, the Landlord may, but shall not be obligated
to, procure and place same, in which event the amount of the premium paid shall
be refunded by Tenant to Landlord upon demand and shall in each instance be
collectible on the first day of the month or any subsequent month following the
date of payment by Landlord, in the same manner as though said sums were
additional rent reserved hereunder together with interest thereon at the rate of
three points in excess of the Prime Rate of the First Union.
10.05. Landlord and Tenant agree to use their best efforts to include
in each of its insurance policies a waiver of the insurer's right of subrogation
against the other party or if such waiver shall be unobtainable or unenforceable
(a) an express agreement that such policy shall not be invalidated if the
insured waives or has waived before the casualty, the right of recovery against
any party responsible for a casualty covered by the policy or (b) any other form
of permission for the release of the other party. If such waiver, agreement, or
permission shall not be or shall cease to be obtainable without additional
charge, or at all, the insured party shall so notify the other party after
learning thereof. In such a case, if the other party shall agree in writing to
pay the insurer's additional charge therefor, such waiver agreement or
permission shall, if obtainable, be included in the policy.
10.06. Each party hereby releases the other party with respect to any
claim (including a claim for negligence) which it might otherwise have against
the other party for loss, damage, or destruction with respect to its property
(including rental value or business interruption) occurring during the term of
this Lease to the extent to which it is insured under a policy or policies
containing a waiver of subrogation or permission to release liability or naming
the other party as an additional insured, as provided in Sections 10.04 and
10.05. If notwithstanding the recovery of insurance proceeds by either party for
loss, damage or destruction of its property (or rental value or business
interruption) the other party is liable to the first party with respect thereto
or is obligated under this Lease to make replacement, repair, or restoration or
payment, then provided that the first party's right of full recovery under its
insurance policies is not thereby prejudiced or otherwise adversely affected,
the amount of the net proceeds of the first party's insurance against such loss,
damage or destruction shall be offset against the second party's liability to
the first party thereof, or shall be made available to the second party to pay
for replacement, repair, or restoration, as the case may be.
13
10.07. The waiver of subrogation or permission for release referred
to in Section 10.05 shall extend to the agents of each party and their employees
and, in the case of Tenant, shall also extend to all other persons and entities
occupying, using or visiting the Demised Premises in accordance with the terms
of this Lease, but only if and to the extent that such waiver or permission can
be obtained without additional charge (unless such party shall pay such charge).
The releases provided for in Section 10.06 shall likewise extend to such agents,
employees and other persons and entities, if and to the extent that such waiver
or permission is effective as to them. Nothing contained in Section 10.06 shall
be deemed to relieve either party of any duty imposed elsewhere in this Lease to
repair, restore or rebuild or to nullify any abatement of rents provided for
elsewhere in this Lease. Except as otherwise provided in Section 10.04, nothing
contained in Sections 10.05 and 10.06 shall be deemed to impose upon either
party any duty to procure or maintain any of the kinds of insurance referred to
therein or any particular amounts or limits of any such kinds of insurance.
However, each party shall advise the other, upon request, from time to time (but
not more often than once a year) of all of the policies of insurance it is
carrying of any of the kinds referred to in Sections 10.01 and 10.04, and if it
shall discontinue any such policy or allow it to lapse, shall notify the other
party thereof with reasonable promptness. The insurance policies referred to in
Sections 10.05 and 10.06 shall be deemed to include policies procured and
maintained by a party for the benefit of its lessor, mortgagee, or pledgee.
ARTICLE 11
RULES AND REGULATIONS
11.01. Tenant and its employees and agent shall faithfully observe
and comply with the Rules and Regulations annexed hereto as Exhibit E, and such
reasonable changes therein (whether by modification, elimination, or addition)
as Landlord at any time or times hereafter may make and communicate in writing
to Tenant, which do not unreasonably affect the conduct of Tenant's business in
the Demised Premises; provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations as originally promulgated or as changed, the provisions of this
Lease shall control.
11.02. Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to Tenant to enforce the Rules and
Regulations or the terms, covenants, or conditions in any other lease, as
against any other tenant and Landlord shall not be liable to Tenant for
violation of the same by any other tenant or its employees, agents or visitors.
However, Landlord shall not enforce any of the Rules and Regulations in such
manner as to discriminate against Tenant or anyone claiming under or through
Tenant.
ARTICLE 12
TENANT'S CHANGES
12.01. Tenant shall make no changes, alterations, additions,
installations, substitutions, or improvements (hereinafter Collectively called
"changes", and, as applied to changes Provided for in this Article, "Tenant's
Changes") in and to the Demised Premises without the express prior written
consent of Landlord.
14
All proposed Tenant's Changes shall be submitted to Landlord for
written consent at least sixty (60) days prior to the date Tenant intends to
commence such changes, such submission to include all plans and specifications
for the work to be done, proposed scheduling, and the estimated cost of
completion of Tenant's Changes. If Landlord consents to Tenant's Changes, Tenant
may commence and diligently prosecute to completion Tenant's Changes, under the
direct supervision of Landlord.
Tenant shall pay to Landlord a supervision fee (which shall include the
cost of review of the proposed Tenant's Changes) equal to ten percent (10%) of
the certified cost of completion of Tenant's Changes. Prior to the commencement
of Tenant's Changes, Tenant shall pay to Landlord ten percent (10%) of the
estimated cost of completion (the "Estimated Payment") as additional rent.
Within fifteen (15) days after completion of Tenant's Changes, Tenant shall
furnish Landlord with a statement, certified by an officer or a principal of
Tenant to be accurate and true, of the total cost of completion of Tenant's
Changes (the "Total Cost"). If such certified statement furnished by Tenant
shall indicate that the Estimated Payment exceeded ten percent (10%) of the
Total Cost, Landlord shall forthwith either (i) pay the amount of excess
directly to Tenant concurrently with the delivery of the certified statement or
(ii) permit Tenant to credit the amount of such excess against the subsequent
payment of rent due hereunder. If such certified statement furnished by Tenant
shall indicate that ten percent (10%) of the Total Cost exceeded Tenant's
Estimated Payment, Tenant shall, simultaneously with the delivery to Landlord of
the certified statement, pay the amount of such excess to Landlord as additional
rent.
12.02. Notwithstanding the provisions of Section 12.01, all proposed
Tenant's Changes which shall affect or alter:
(a) The outside appearance or the strength of the
Building or of any of its structural parts; or
(b) Any part of the Building outside of the Demised
Premises; or
(c) The mechanical, electrical, sanitary and other
service systems of the Building, or increase the usage of such systems;
shall be performed only by the Landlord, at a cost to be mutually agreed upon
between Landlord and Tenant.
12.03. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Tenant's Changes and for final approval thereof upon completion, and shall cause
Tenant's Changes to be performed in compliance therewith and with all applicable
laws and requirements of public authorities, and with all applicable
requirements of insurance bodies, and in good and workmanlike manner, using new
materials and equipment at least equal in quality and class to the original
installations in the Building. Tenant's Changes shall be performed in such
manner as not to unreasonably interfere with or delay and (unless Tenant shall
indemnify Landlord therefor to the latter's reasonable satisfaction) as not to
impose any additional expense upon Landlord in the construction,
15
maintenance or operation of the Building. Throughout the performance of Tenant's
Changes, Tenant, at its expense, shall carry, or cause to be carried, workmen's
compensation insurance in statutory limits and general liability insurance for
any occurrence in or about the Building, in which Landlord and its agents shall
be named as parties insured in such limits as Landlord may reasonably prescribe,
with insurers reasonably satisfactory to Landlord. Tenant shall furnish Landlord
with reasonably satisfactory evidence that such insurance is in effect at or
before the commencement of Tenant's Changes and, on request, at reasonable
intervals thereafter during the continuance of Tenant's Changes. If any of
Tenant's Changes shall involve the removal of any fixtures, equipment or other
property in the Demised Premises which are not Tenant's Property (as defined in
Article 13), such fixtures, equipment or other property shall be promptly
replaced, at Tenant's expense, with new fixtures, equipment or other property
(as the case may be) of like utility and at least equal value. In addition,
unless Landlord shall otherwise expressly consent in writing, the Tenant shall
deliver such removed fixtures to Landlord.
12.04. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant's Changes which shall be issued by any public
authority having or asserting jurisdiction. Tenant shall defend, indemnify and
save harmless Landlord against any and all mechanic's and other liens filed in
connection with Tenant's Changes, including the liens of any security interest
in, conditional sales of, or chattel mortgages upon, any material, fixtures or
articles so installed in and constituting part of the Demised Premises and,
against all costs, expenses and liabilities incurred in connection with any such
lien, security interest, conditional sale or chattel mortgage or any action or
proceeding brought thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of all such liens within fifteen (15) days after
Landlord makes written demand therefor. However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any such
notice of violation, provided that Tenant shall comply with the provisions of
Section 9.02.
12.05. Tenant agrees that the exercise of its rights pursuant to the
provisions of this Article 12 shall not be done in a manner which would create
any work stoppage, picketing, labor disruption or dispute or violate Landlord's
union contracts affecting the Land and Building, nor interference with the
business of Landlord or any tenant or occupant of the Building.
ARTICLE 13
TENANT'S PROPERTY
13.01. All fixtures, equipment, improvements, and appurtenances
attached to or built into the Demised Premises at the commencement of or during
the term of this Lease, whether or not by or at the expense of Tenant, shall be
and remain a part of the Demised Premises, shall be deemed the property of
Landlord and shall not be removed by Tenant, except as hereinafter in this
Article expressly provided.
13.02. All business and trade fixtures, machinery and equipment,
communications equipment and office equipment, whether or not attached to or
built into the Demised Premises, which are installed in the Demised Premises by
or for the account of Tenant,
16
without expense to Landlord, and can be removed without permanent structural
damage to the Building, and all furniture, furnishings and other articles of
movable personal property owned by Tenant and located in the Demised Premises
(all of which are sometimes called "Tenant's Property"), shall be and shall
remain the property of Tenant and may be removed by it at any time during the
term of this Lease; provided that if any of Tenant's Property is removed, Tenant
shall repair or pay the cost of repairing any damage to the Demised Premises or
to the Building resulting from such removal. Any equipment or other property for
which Landlord shall have granted any allowance or credit to Tenant shall not be
deemed to have been installed by or for the account of Tenant, without expense
to Landlord, and shall not be considered Tenant's Property.
13.03. At or before the Expiration Date, or the date of an earlier
termination of this Lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of Tenant's Property, including those items set forth in Section 3.02,
except such items thereof as Tenant shall have expressly agreed in writing with
Landlord were to remain and to become the property of Landlord, and, if
requested by Landlord, all items of work done by or on behalf of Tenant after
the Commencement Date shall be removed by Tenant and Tenant shall repair any
damage to the Demised Premises or the Building resulting from such removal. If
Tenant fails to remove its Property and/or otherwise fails to perform any
restoration required of it under this Lease, then Tenant shall be deemed a
hold-over Tenant as contemplated in Article 40.
13.04. Any other items of Tenant's Property (except money,
securities, and other like valuables) which shall remain in the Demised Premises
after the Expiration Date or after a period of fifteen (15) days following an
earlier termination date, may, at the option of the Landlord, be deemed to have
been abandoned, and in such case either may be retained by Landlord as its
property or may be disposed of, without accountability, in such manner as
Landlord may see fit, at Tenant's expense.
ARTICLE 14
REPAIRS AND MAINTENANCE
14.01. Tenant shall take good care of the Demised Premises. Tenant,
at its expense, shall promptly make all repairs, ordinary or extraordinary,
interior or exterior, structural or otherwise in and about the Demised Premises
and the Building, as shall be required by reason of (i) the performance of any
Tenant's Changes; (ii) the installation, use or operation of Tenant's Property
in the Demised Premises by Tenant, its agents or employees; (iii) the moving of
Tenant's Property in or out of the Building; or (iv) the misuse or neglect of
Tenant or any of its employees, agents, contractors or invitees; but Tenant
shall not be responsible, and Landlord shall be responsible, for any of such
repairs as are required by reason of Landlord's neglect or other fault in the
manner of performing any Tenant's Changes which may be undertaken by Landlord
for Tenant's account or are otherwise required by reason of neglect or other
fault of Landlord or its employees, agents, or contractors. Except if required
by the neglect or other fault of Landlord or its employees, agents, or
contractors, Tenant, at its expense, shall replace all scratched, damaged or
broken doors or other glass in or about the Demised Premises and shall be
responsible for all
17
repairs, maintenance, and replacement of wall and floor coverings in the Demised
Premises and, for the repair and maintenance of all lighting fixtures therein.
14.02. Landlord, subject to the provisions of Section 5.04, shall
keep and maintain the Building and its fixtures, appurtenances, systems and
facilities serving the Demised Premises, in good working order, condition, and
repair and shall make with all due diligence all repairs, structural and
otherwise, interior and exterior, as and when needed in or about the Demised
Premises, except for those repairs for which Tenant is responsible pursuant to
any other provisions of this Lease.
14.03. Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption, or injury to Tenant's business arising
from Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or required by law, to make in or to any portion of the
Building or the Demised Premises, or in or to the fixtures, equipment of
appurtenances of the Building or the Demised Premises, provided that Landlord
shall use due diligence with respect thereto and shall perform such work, except
in case of emergency, at a time reasonably convenient to Tenant and otherwise in
such a manner as will not materially interfere with Tenant's use of the Demised
Premises.
ARTICLE 15
ELECTRICITY
15.01. Landlord shall furnish the electric energy that Tenant shall
require in the Demised Premises. Tenant shall pay to Landlord, as additional
rent, the costs and charges for all electric energy furnished to Tenant at the
Demised Premises. Additional rent for such electric energy shall be calculated
and payable in the manner hereinafter set forth.
15.02. Within a reasonable time after the commencement of the term of
this Lease, subsequent to Tenant's having taken occupancy of the Demised
Premises and having installed and commenced the use of Tenant's electrical
equipment, Landlord, at Tenant's sole expense, shall cause a survey to be made
by a reputable independent electrical engineer or similar agency of the
estimated use of electric energy (other than for Building standard heat and air
conditioning as described in Exhibit C) to the Demised Premises, and shall
compute the cost thereof for the quantity so determined at prevailing retail
rates. Tenant shall pay Landlord the cost of such electric energy, as so
calculated, on a monthly basis, as additional rent, together with its payment of
fixed rent.
Until such time as Landlord shall complete the aforedescribed
survey, Tenant shall pay to Landlord, each and every month, as additional rent,
for and on account of Tenant's electrical consumption, the sum of $541.67 to be
applied against Tenant's obligations hereunder. Upon completion of the survey,
there shall be an adjustment for the period from the Commencement Date through
the date that the results of the survey shall be effectuated as shall be
required. Landlord shall have the right, at any time, during the term of this
Lease, to cause the Demised Premises to be resurveyed. In the event that such
resurvey shall indicate increased electrical consumption by Tenant at the
Demised Premises, there shall be an adjustment in the
18
amount paid by Tenant to Landlord for Tenant's electrical consumption in
accordance with the resurvey as well as an adjustment retroactive to the date
Landlord establishes Tenant's increase in electrical consumption in excess of
the consumption established by the prior survey.
Landlord shall submit to Tenant the results of any electrical
survey and the same shall be deemed binding upon Tenant unless Tenant shall
object to same within ninety (90) days of the date that Landlord shall furnish
Tenant with the results of the survey. In the event that Landlord and Tenant
cannot agree upon the results of a survey the same shall be submitted to
arbitration in accordance with Article 33, provided, however, until such time as
the arbitration shall have been concluded, the results of Landlord's survey
shall be utilized for the purposes of determining Tenant's electrical
consumption with an appropriate adjustment to be made based upon the results of
the arbitration.
15.03. Landlord shall not be liable in any way to Tenant for any
failure or defect in the supply or character of electric energy furnished to the
Demised Premises by reason of any requirement, act, or omission of the public
utility serving the Building with electricity or for any other reason. Landlord
shall furnish and install all replacement lighting tubes, lamps, bulbs, and
ballasts required in the Demised Premises at Tenant's expense.
15.04. Tenant's use of electric energy in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
Building electric service, Tenant shall not, without Landlord's prior written
consent in each instance (which shall not be unreasonably withheld), connect any
additional fixtures, appliances, or equipment to the Building electrical
distribution system or make any alteration or addition to the electric system of
the Demised Premises existing on the Commencement Date. Should Landlord grant
such consent, all additional risers, HVAC equipment or other electrical
equipment required therefor shall be provided by Landlord and the cost of
installation and maintenance thereof shall be paid by Tenant upon Landlord's
demand. As a condition to granting such consent, Landlord, at Tenant's sole
expense, may cause a new survey to be made of the use of electric energy (other
than for Building standard heating and air-conditioning as described in Exhibit
C) in order to calculate the potential additional electric energy to be made
available to Tenant based upon the estimated additional capacity of such
additional risers or other equipment. When the amount of such increase is so
determined, and the estimated cost thereof is calculated, the amount of monthly
additional rent payable pursuant to Section 15.02 hereof shall be adjusted to
reflect the additional cost, and shall be payable as therein provided.
15.05. If the public utility rate schedule for the supply of electric
current to the Building shall be increased during the term of this Lease, the
additional rent payable pursuant to Section 15.02 hereof shall be equitably
adjusted to reflect the resulting increase in Landlord's cost of furnishing
electric service to the Demised Premises effective as of the date of any
increase. Landlord and Tenant agree that the rate charged to Tenant for
electricity shall not be greater than the rate Tenant would have paid had the
Demised Premises been separately metered.
19
15.06. Tenant agrees within three (3) months from the Commencement
Date to submit to Landlord a list of fixtures and equipment utilizing electric
current including, but not limited to, copying machines, computers and word
processing equipment and equipment of a similar nature. On the first day of each
calendar quarter thereafter, Tenant shall submit to Landlord a statement
indicating any substantial changes in the list previously supplied as same may
be updated by the required quarterly statements.
ARTICLE 16
HEATING, VENTILATION AND AIR-CONDITIONING
16.01 Landlord, subject to the provisions of Section 5.04, shall
maintain and operate the heating, ventilating, and air-conditioning systems
(hereinafter called "the systems") and shall furnish heat, ventilating, and air
conditioning (hereinafter collectively called "air conditioning service" in
the Demised Premises through the systems, in compliance with the performance
specifications set forth in Exhibit C, as may be required for comfortable
occupancy of the Demised Premises from 8:00 A.M. to 6:00 P.M. Monday through
Friday except days observed by the Federal or the state government as legal
holidays ("Regular Hours") throughout the year. If Tenant shall require
air-conditioning service at any other time (hereinafter called "after hours"),
Landlord shall furnish such after hours air-conditioning service upon reasonable
advance notice from Tenant, and Tenant shall pay Landlord's then established
charges therefor on Landlord's demand.
16.02 Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) specified in Exhibit C for air-conditioning service in the Demised
Premises, or rearrangement of partitioning which interferes with normal
operation of the air-conditioning in the Demised Premises, may require changes
in the air-conditioning system servicing the Demised Premises. Such changes, so
occasioned, shall be made by Landlord, at Tenant's expense, as Tenant's Changes
pursuant to Article 12.
ARTICLE 17
LANDLORD'S OTHER SERVICES
17.01. Landlord, subject to the provisions of Section 5.04, shall
provide public elevator service, passenger and service, by elevators serving the
floor on which the Demised Premises are situated during Regular Hours, and shall
have at least one passenger elevator subject to call at all other times.
17.02. Landlord, subject to the provisions of Section 5.04, shall
cause the Demised Premises, including the exterior and the interior of the
windows thereof, to be cleaned. Tenant shall pay to Landlord on demand the costs
incurred by Landlord for (a) extra cleaning work in the Demised Premises
required because of (i) misuse or neglect on the part of Tenant or its employees
or visitors; (ii) use of portions of the Demised Premises for preparation,
serving or consumption of food or beverages, data processing, or reproducing
operations, private lavatories
20
or toilets or other special purpose areas requiring greater or more difficult
cleaning work than office areas; (iii) unusual quantity of interior glass
surfaces; (iv) non-building standard materials or finishes installed by Tenant
or at its request; and (b) removal from the Demised Premises and the Building of
so much of any refuse and rubbish of Tenant as shall exceed that ordinarily
accumulated daily in the routine of business office occupancy. Landlord, its
cleaning contractor, and their employees shall have after-hours access to the
Demised Premises and the free use of light, power, and water in the Demised
Premises as reasonably required for the purpose of cleaning the Demised Premises
in accordance with Landlord's obligations hereunder.
17.03. Landlord, subject to the provisions of Section 5.04, shall
furnish adequate hot and cold water to each floor of the Building for drinking,
lavatory, and cleaning purposes, together with soap, towels, and toilet tissue
for each lavatory. If Tenant uses water for any other purpose, Landlord, at
Tenant's expense, shall install meters to measure Tenant's consumption of cold
water and/or hot water for such other purposes and/or steam, as the case may be.
Tenant shall pay for the quantities of cold water and hot water shown on such
meters, at Landlord's cost thereof, on the rendition of Landlord's bills
therefor.
17.04. Landlord, at its expense, and at Tenant's request, shall
insert initial listings on the Building directory of the names of Tenant, and
the names of any of their officers and employees, provided that the names so
listed shall not take up more than Tenant's proportionate share of the space on
the Building directory. All Building directory changes made at Tenant's request
after the Tenant's initial listings have been placed on the Building directory
shall be made by Landlord at the expense of Tenant, and Tenant agrees to
promptly pay to Landlord as additional rent the cost of such changes within ten
(10) days after Landlord has submitted an invoice therefor.
17.05. Landlord reserves the right, without any liability to Tenant,
to stop service of any of the heating, ventilating, air conditioning, electric,
sanitary, elevator, or other Building systems serving the Demised Premises, or
the rendition of any of the other services required of Landlord under this
Lease, whenever and for so long as may be necessary, by reason of accidents,
emergencies, strikes, or the making of repairs or changes which Landlord is
required by this Lease or by law to make or in good ▇▇▇▇▇ ▇▇▇▇▇ necessary, by
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond
Landlord's reasonable control.
17.06. Landlord shall make available for Tenant's use Tenant's
Proportionate Share of parking spaces in common with other tenants of the
Building in the parking area adjacent to the Building.
17.07. The Building and the Demised Premises shall be cleaned in
accordance with the Cleaning and Maintenance Schedule set forth on Exhibit D
annexed hereto and made a part hereof.
17.08. Tenant acknowledges that as part of the consideration for this
Lease, and in order not to interfere with the rights of other tenants or other
tenants' quiet enjoyment of the common areas of the Building and otherwise
prevent Landlord from performing its services
21
without causing increases to the cost of such services, Tenant agrees that it
shall not permit its employees to congregate in hallways or elevators, shall not
permit its employees to create an unsightly condition in or about any passageway
from the Building or the common areas or to the parking lot/deck, with regard to
smoking, including the disposal of cigarettes, in the courtyard and/or outer
areas adjacent to the Building and will otherwise require its employees to act
and conduct themselves in the common areas in such a manner as will not disturb
other tenants or the use and enjoyment by other tenants of the Building.
ARTICLE 18
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
18.01 All walls, windows, and doors bounding the Demised Premises
(including exterior Building walls, core corridor walls and doors, and any core
corridor entrance), except the inside surfaces thereof, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan room, ducts, electric or
other utilities, sinks or other Building facilities, and the use thereof, as
well as access thereto through the Demised Premises for the purposes of
operation, maintenance, decoration, and repair are reserved to Landlord.
18.02 Tenant shall permit Landlord to install, use, and maintain
pipes, ducts, and conduits within the demising walls, bearing columns, and
ceilings of the Demised Premises.
18.03. Landlord or Landlord's agent shall have the right upon request
(except in emergency under clause (ii) hereof) to enter and/or pass through the
Demised Premises or any part thereof, at reasonable times during reasonable
hours, (i) to examine the Demised Premises and to show them to the fee owners,
lessors of superior leases, holders of superior mortgages, or prospective
purchasers, mortgagees, or lessees of the Building as an entirety; and (ii) for
the purpose of making such repairs or changes or doing such repainting in or to
the Demised Premises or its facilities, as may be provided for by this Lease or
as may be mutually agreed upon by the parties or as Landlord may be required to
make by law or in order to repair and maintain said structure or its fixtures or
facilities. Landlord shall be allowed to take all materials into and upon the
Demised Premises that may be required for such repairs, changes, repainting, or
maintenance, without liability to Tenant but Landlord shall not unreasonably
interfere with Tenant's use of the Demised Premises. Landlord shall also have
the right to enter on and/or pass through the Demised Premises, or any part
thereof, at such times as such entry shall be required by circumstances of
emergency affecting the Demised Premises or the Building.
18.04. During the period of six (6) months prior to the Expiration
Date, Landlord may exhibit the Demised Premises to prospective tenants.
18.05. Landlord reserves the right, at any time after completion of
the Building, without incurring any liability to Tenant therefor, to make such
changes in or to the Building and the fixtures and equipment thereof, as well as
in or to the street entrances, halls, passages, elevators, escalators, and
stairways thereof, as it may deem necessary or desirable, provided, however,
that such changes shall not reduce the size of the Demised Premises.
22
18.06. Landlord may adopt any name for the Building. Landlord
reserves the right to change the name or address of the Building at any time.
ARTICLE 19
NOTICE OF ACCIDENTS
19.01. Tenant shall give notice to Landlord, promptly after Tenant
learns thereof, of (i) any accident in or about the Demised Premises for which
Landlord might be liable; (ii) all fires in the Demised Premises; (iii) all
damage to or defects in the Demised Premises, including the fixtures, equipment,
and appurtenances thereof, for the repair of which Landlord might be
responsible; and (iv) all damage to or defects in any parts or appurtenances of
the Building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator, and other systems located in or passing through the Demised Premises
or any part thereof.
ARTICLE 20
NON-LIABILITY AND INDEMNIFICATION
20.01. Neither Landlord nor any agent or employee of Landlord shall
be liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant or
of any other person, irrespective of the cause of such injury, damage, or loss,
unless caused by or due to the negligence of Landlord, its agents, or employees
without contributory negligence on the part of Tenant.
20.2. Tenant shall indemnify and save harmless Landlord and its
agents against and from (a) any and all claims (i) arising from (x) the conduct
or management of the Demised Premises or of any business therein, or (y) any
work or thing whatsoever done, or any condition created (other than by Landlord
for Landlord's or Tenant's account) in or about the Demised Premises during the
term of this Lease or during the period of time, if any, prior to the
Commencement Date that Tenant may have been given access to the Demised
Premises, or (ii) arising from any negligent or otherwise wrongful act or
omission of Tenant or any of its subtenants, invitees or licensees or its or
their employees, agents, or contractors, and (b) all costs, expenses, and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon. In case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall
resist and defend such action or proceeding.
20.3. Except as otherwise expressly provided in this Lease, this
Lease and the obligations of Tenant hereunder shall be in no wise affected,
impaired or excused because Landlord is unable to fulfill, or is delayed in
fulfilling, any of its obligations under this Lease by reason of strike, other
labor trouble, governmental pre-emption or priorities or other controls in
connection with a national or other public emergency or shortages of fuel
supplies or labor resulting therefrom, or other like cause beyond Landlord's
reasonable control.
23
ARTICLE 21
DESTRUCTION OR DAMAGE
21.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents or visitors (and if this Lease shall not have been
terminated as in this Article hereinafter provided), Landlord shall repair the
damage and restore and rebuild the Building and/or the Demised Premises, at its
expense, with reasonable dispatch after notice to it of the damage or
destruction; provided, however, that Landlord shall not be required to repair or
replace any of the Tenant's Property.
21.02. If the Building or the Demised Premises shall be partially
damaged or partially destroyed by fire or other cause not attributable to the
fault or negligence of Tenant, its agents, or employees, the rents payable
hereunder shall be abated to the extent that the Demised Premises shall have
been rendered untenantable and for the period from the date of such damage or
destruction to the date the damage shall be repaired or restored; provided,
however, if the damage shall be attributable to the fault or negligence of
Tenant, its agents or employees, then rent shall continue but shall be reduced
by any amounts received by Landlord pursuant to Landlord's coverage for business
interruption and/or rent insurance attributable to the Demised Premises. If the
Demised Premises or a major part thereof shall be totally (which shall be deemed
to include substantially totally) damaged or destroyed or rendered completely
(which shall be deemed to include substantially completely) untenantable on
account of fire or other cause, the rents shall ▇▇▇▇▇ as of the date of the
damage or destruction and until Landlord shall repair, restore, and rebuild the
Building and the Demised Premises, provided, however, that should Tenant
reoccupy a portion of the Demised Premises during the period of restoration work
is taking place and prior to the date that the same are made completely
tenantable, rents allocable to such portion shall be payable by Tenant from the
date of such occupancy.
21.03. If the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other cause, or if the Building shall be so
damaged or destroyed by fire or other cause (whether or not the Demised Premises
are damaged or destroyed) as to require a reasonably estimated expenditure of
more than twenty-five percent (25%) of the full insurable value of the Building
immediately prior to the casualty then in either such case Landlord may
terminate this Lease by giving Tenant notice to such effect within one hundred
eighty (180) days after the date of the casualty. In case of any damage or
destruction mentioned in this Article, Tenant may terminate the Lease by notice
to Landlord, if Landlord has not completed the making of the required repairs
and restored and rebuilt the Building and the Demised Premises within twelve
(12) months from the date of such damage or destruction, or within such period
after such date (not exceeding six (6) months) as shall equal the aggregate
period Landlord may have been delayed in doing so by adjustment of insurance,
labor trouble, governmental controls, act of God, or any other cause beyond
Landlord's reasonable control.
21.04. No damages, compensation, or claim shall be payable by
Landlord for inconvenience, loss of business, or annoyance arising from any
repair or restoration of any portion of the Demised Premises or of the Building
pursuant to this Article. Landlord shall use its best
24
efforts to effect such repair or restoration promptly and in such manner as not
unreasonably to interfere with Tenant's use and occupancy during such time that
Tenant is able to use the Demised Premises during Landlord's restoration.
21.05 Notwithstanding any of the foregoing provisions of this
Article, if Landlord or the lessor of any superior lease or the holder of any
superior mortgage shall be unable to collect all of the insurance proceeds
(including rent insurance proceeds) applicable to damage or destruction of the
Demised Premises or the Building by fire or other cause, by reason of some
action or inaction on the part of Tenant or any of its employees, agents or
contractors in connection with the processing of any claim, then, without
prejudice to any other remedies which may be available against Tenant, there
shall be no abatement of Tenant's rents.
21.06 Landlord will not carry insurance of any kind on Tenant's
Property, and, except as provided by law or by reason of its fault or its breach
of any of its obligations hereunder, shall not be obligated to repair any damage
thereto or replace the same; to the extent that Tenant shall maintain insurance
on Tenant's Property, Landlord shall not be obligated to repair any damage
thereto or replace the same.
21.07. The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and any law of the State of New Jersey providing for
such a contingency in the absence of an express agreement, and any other law of
like import, now of hereafter in force, shall have no application in such case.
21.08. If the Demised Premises and/or access thereto become partially
or totally damaged or destroyed by any casualty not insured against, then
Landlord shall have the right to terminate this Lease upon giving the Tenant
thirty (30) days notice and upon the expiration of said thirty (30) day notice
period this Lease shall terminate as if such termination date were the
Expiration Date.
ARTICLE 22
EMINENT DOMAIN
22.01. If the whole of the Building shall be lawfully taken by
condemnation or in any other manner for any public or quasi-public use of
purpose, this Lease and the term and estate hereby granted shall forthwith
terminate as of the date of vesting of title on such taking (which date is
herein after also referred to as the "date of the taking"), and the rents shall
be prorated and adjusted as of such date.
22.02. If any part of the Building shall be so taken, this Lease
shall be unaffected by such taking, except that Tenant may elect to terminate
this Lease in the event of a partial taking, if the area of the Demised Premises
shall not be reasonably sufficient for Tenant to continue feasible operation of
its business. Tenant shall give notice of such election to Landlord not later
than thirty (30) days after the date of such taking. Upon the giving of such
notice to Landlord, this Lease shall terminate on the date of service of notice
and the rents apportioned to
25
the part of the Demised Premises so taken shall be prorated and adjusted as of
the date of the taking and the rents apportioned to the remainder of the Demised
Premises shall be prorated and adjusted as of such termination date. Upon such
partial taking and this Lease continuing in force as to any part of the Demised
Premises, the rents apportioned to the part taken shall be prorated and adjusted
as of the date of taking and from such date the fixed rent shall be reduced to
the amount apportioned to the remainder of the Demised Premises and additional
rent shall be payable pursuant to Article 5 according to the rentable area
remaining.
22.03. Except as specifically set forth in Section 22.04. hereof,
Landlord shall be entitled to receive the entire award in any proceeding with
respect to any taking provided for in this Article without deduction therefrom
for any estate vested in Tenant by this Lease, and Tenant shall receive no part
of such award. Tenant hereby expressly assigns to Landlord all of its right,
title, and interest in or to every such award.
22.04. If the temporary use or occupancy of all or any part of the
Demised Premises shall be lawfully taken by condemnation or in any other manner
for any public or quasi-public use or purpose during the term of this Lease,
Tenant shall be entitled, except as hereinafter set forth, to receive any award
which does not serve to diminish Landlord's award in any respect and, if so
awarded, for the taking of Tenant's Property and for moving expenses, and
Landlord shall be entitled to receive that portion which represents
reimbursement for the cost of restoration of the Demised Premises. This Lease
shall be and remain unaffected by such taking and Tenant shall remain
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay in full the fixed rent and
additional rent when due. If the period of temporary use or occupancy of the
Demised Premises (or a part thereof) shall be divided between Landlord and
Tenant so that Tenant shall receive so much thereof as represents the period
prior to the Expiration Date and Landlord shall receive so much thereof as
represents the period subsequent to the Expiration Date. All moneys received by
Tenant as, or as part of an award for temporary use and occupancy for a period
beyond the date to which the rents hereunder have been paid by Tenant shall be
received, held, and applied by Tenant as a trust fund for payment of the rents
falling due hereunder.
22.05. In the event of any taking of less than the whole of the
Building which does not result in a termination of this Lease, or in the event
of a taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, shall proceed with reasonable diligence to repair, alter, and restore
the remaining parts of the Building and the Demised Premises to substantially
their former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and Demised Premises provided that
Landlord's liability under this Section 22.05 shall be limited to the net amount
(after deducting all costs and expenses, including but not limited to, legal
expenses incurred in connection with the eminent domain proceeding) received by
Landlord as an award arising out of such taking. If such taking occurs within
the last: three (3) years of the term of this Lease, Landlord shall have the
right to terminate this Lease by giving the Tenant written notice to such effect
within ninety (90) days after such taking, and this Lease shall then expire on
that effective date stated in the notice as if that were the Expiration Date,
but the fixed rent and the additional rent shall be prorated and adjusted as of
the date of such taking.
26
22.06. Should any part of the Demised Premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in this Article then, (i) if such compliance is the
obligation of Tenant under this Lease, Tenant shall not be entitled to any
diminution or abatement of rent or other compensation from Landlord therefor,
but (ii) if such compliance is the obligation of Landlord under this Lease, the
fixed rent hereunder shall be reduced and additional rents under Article 5 shall
be adjusted in the same manner as is provided in Section 22.02 according to the
reduction in rentable area of the Demised Premises resulting from such taking.
22.07. Any dispute which may arise between the parties with respect
to the meaning or application of any of the provisions of this Article shall be
determined by arbitration in the manner provided in Article 33.
ARTICLE 23
SURRENDER
23.01. On the last day of the term of this Lease, or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the Demised
Premises, Tenant shall quit and surrender the Demised Premises to Landlord in
good order, condition, and repair, except for ordinary wear and tear and such
damage or destructions as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all of Tenant's Property therefrom except as
otherwise expressly provided in this Lease. Landlord reserves the right to
require Tenant to remove all items installed by, for or on behalf of Tenant. At
or before the Expiration Date of the Lease, along with any other restoration
required by Tenant pursuant to the Lease or any Tenant Change, Tenant agrees to
perform the following restoration to the Demised Premises:
Tenant shall remove from the Demised Premises all equipment comprising Tenant's
Voice, Data and Security Systems, including associated outlets, wires, wiring
trays and other equipment, materials and facilities, whether located in the
ceiling, floor and/or walls which in any way relates, pertains to, constitutes
or is connected with Tenant's Voice, Data and/or Security Systems and regardless
of whether Landlord or Tenant installed and/or paid for the installation of such
systems.
If Tenant fails to perform any restoration required of it under this Lease on or
before the last day of the term of this Lease or upon any earlier termination,
Tenant shall be deemed a hold-over Tenant under Article 40 of this Lease until
such time as Tenant has completed such restoration.
ARTICLE 24
CONDITIONS OF LIMITATION
24.01. This Lease and the term and estate hereby granted are subject
to the limitation that whenever Tenant shall make an assignment of the property
of Tenant for the benefit of creditors, or shall file a voluntary petition under
any bankruptcy or insolvency law, or
27
an involuntary petition alleging an act of bankruptcy or insolvency shall be
filed against Tenant under any bankruptcy or insolvency law, or whenever a
petition shall be filed by or against Tenant under the reorganization provisions
of the United States Bankruptcy Act or under the provisions of any law of like
imports or whenever a petition shall be filed by Tenant under the arrangement
provisions of any law of like import, whenever a permanent receiver of Tenant or
of or for the property of Tenant shall be appointed, then Landlord, (a) at any
time of receipt of notice of the occurrence of any such event, or (b) if such
event occurs without the acquiescence of Tenant, at any time after the event
continues for thirty (30) days, Landlord may give Tenant a notice of intention
to end the term of this Lease at the expiration of five (5) days from the date
of service of such notice of intention, and upon the expiration of said five (5)
day period this Lease and the term and estate hereby granted, whether or not the
term shall theretofore have commenced, shall terminate with the same effect as
if that day were the Expiration Date, but Tenant shall remain liable for damages
as provided in Article 26.
24.02. This Lease and the term and estate hereby granted are subject
to the further limitation that:
(a) Whenever Tenant shall default in the payment of
installment of fixed rent, or in the payment of any additional rent or any other
charge payable by Tenant to Landlord, or any day upon which the same ought to be
paid, and such default shall continue for five (5) days after written notice
thereof; or
(b) Whenever Tenant shall do or permit anything to be
done, whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a
written notice specifying the same, or, in the case of a happening or default
which cannot with due diligence be cured within a period of thirty (30) days and
the continuance of which for the period required for cure will not subject
Landlord to risk of criminal liability or termination of any superior Lease or
foreclosure of any superior mortgage if Tenant shall not, (i) within said thirty
(30) day period advise Landlord of Tenant's intention to duly institute all
steps necessary to remedy such situation; (ii) duly institute within said thirty
(30) day period, and thereafter diligently prosecute to completion all steps
necessary to remedy the same; (iii) complete such remedy within such time after
the date of giving of said notice to Landlord as shall reasonably be necessary;
or
(c) Whenever any event shall occur or any contingency
shall arise whereby this Lease or the estate hereby granted or the unexpired
balance of the term hereof would, by operation of law or otherwise, devolve upon
or pass to any person, firm, or corporation other than Tenant, except as
expressly permitted by Article 8; or
(d) Whenever Tenant shall abandon the Demised Premises
(unless as a result of a casualty), or
(e) If Tenant shall default in the timely payment of rent
or additional rent and any such default shall continue to be repeated for two
(2) consecutive months or for a total of four (4) months in any period of twelve
(12) months, or more than three (3) times in any
28
six (6) month period, then, notwithstanding that such defaults shall have each
been cured within the applicable period, any similar default shall be deemed to
be deliberate and Landlord may thereafter serve a notice of termination upon
Tenant without affording to Tenant opportunity to cure such default;
then, and in any of the foregoing cases, this Lease and the term and estate
hereby granted, whether or not the term shall theretofore have commenced, shall,
if the Landlord so elects, terminate upon ten (10) days written notice by
Landlord to Tenant of Landlord's election to terminate the Lease and the term
hereof shall expire and come end on the date fixed in such notice, with the same
effect as if that day were the Expiration Date, but Tenant shall remain liable
for the rent and additional rent which subsequently accrues and for damages as
provided in Article 26.
ARTICLE 25
RE-ENTRY BY LANDLORD
25.01. If Tenant shall default in the payment of any installment of
fixed rent, or of any installment of additional rent, on any date upon which the
same ought to be paid and if such default shall continue for five (5) days after
written notice thereof, or if this Lease shall expire as provided in Article 24,
Landlord or Landlord's agents and employees may immediately or at any time
thereafter re-enter the Demised Premises, or any part thereof, in the name of
the whole, either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
persons therefrom, to the end that Landlord may have, hold, and enjoy the
Demised Premises again as and of its first estate and interest therein. The word
"re-enter", as herein used, is not restricted to its technical legal meaning. In
the event of any termination of this Lease under the provisions of Article 24 or
if Landlord shall re-enter the Demised Premises under the provisions of this
Article or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall thereupon
pay to Landlord the fixed rent and additional rent payable by Tenant to Landlord
up to the time of such termination of this Lease, or of such recovery of
possession or the Demised Premises by Landlord, as the case may be, and shall
also pay to Landlord damages as provided in Article 26.
25.02. In the event of a breach or threatened breach by Landlord or
Tenant of any of their respective obligations under this Lease, either Landlord
or Tenant, as the case may be, shall also have the right of injunction. The
special remedies hereunder are cumulative and are not intended to be exclusive
of any other remedies or means of redress to which the parties may lawfully be
entitled at any time.
25.03. If this Lease shall terminate under the provisions of Article
24, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article, or in the event of any termination of this Lease, or of re-entry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Landlord
shall be entitled to retain all moneys, if any, paid by Tenant to Landlord,
whether as
29
advance rent, security, or otherwise, but such moneys shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or re-entry or, at Landlord's option, against any damages
payable by Tenant under Article 26 or pursuant to law.
ARTICLE 26
DAMAGES
26.01. If this Lease is terminated under the provisions of Article
24, or if Landlord shall re-enter the Demised Premises under the provisions of
Article 25, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action of any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay
to Landlord as damages, at the election of Landlord, either
(a) A sum which at the time of such termination of this
Lease or at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate of the
fixed rent and the additional rent payable hereunder which would have been
payable by Tenant (conclusively presuming the additional rent to be the same as
was payable for the year immediately preceding such termination) for the period
commencing with such earlier termination of this Lease or the date of any such
re-entry, as the case may be, and ending with the Expiration Date, had this
Lease not so terminated or had Landlord not so re-entered the Demised Premises,
over (ii) the aggregate rental value of the Demised Premises for the same
period, or
(b) Sums equal to the fixed rent and the additional rent
(as above presumed) payable hereunder which would have been payable by Tenant
had this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the Expiration Date, provided, however,
that if Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such reletting,
such net rents to be determined by first deducting from the gross rents as and
when received by Landlord from such reletting, the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and
in securing possession thereof, as well as the expenses of reletting, including
altering and preparing the Demised Premises for new tenants, brokers'
commissions, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom; it being understood that any such reletting
may be for a period shorter or longer than the remaining term of this Lease; but
in no event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this Subsection
to a credit in respect of any net rents from a reletting, except to the extent
that such net rents are actually received by Landlord. If the Demised Premises
or any part thereof should be relet in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent received from
such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof to be relet by
Landlord for the unexpired portion of the term of this Lease, or any part
thereof, before presentation of proof
30
of such damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for the Demised Premises, or part thereof, so relet during the term
of the reletting.
26.02. Suit or 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 under the provisions of Article 24, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to seek and obtain as
liquidated damages by reason of the termination of this Lease or re-entry on the
Demised Premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 26.01.
26.03. In addition to the foregoing and without regard to whether
this Lease is terminated, Tenant shall pay to Landlord upon demand, all costs
and expenses incurred by Landlord, including reasonable attorney's fees, with
respect to any lawsuit instituted or defended or any action taken by Landlord to
enforce all or any of the provisions of this Lease.
ARTICLE 27
WAIVERS
27.01. Tenant, for Tenant, and on behalf of any and all persons
claiming through or under Tenant, including creditors of all kinds, does hereby
waive and surrender all right and privilege which they or any of them might have
under or by reason of any present or future law, to redeem the Demised Premises
or to have a continuance of this Lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as herein provided.
27.02. In the event that Tenant is in arrears in payment of fixed
rent or additional rent hereunder, Tenant waives Tenant's right, if any, to
designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
27.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or
31
occupancy of the Demised Premises, including any claim of injury or damage, or
any emergency or other statutory remedy with respect thereto.
27.04. The provisions in Articles 16 and 17 shall be
considered express agreements governing the services to be furnished by
Landlord, and Tenant agrees that any laws and/or requirements of public
authorities, now or hereafter in force, shall have no application in connection
with any enlargement of Landlord's obligations with respect to such services.
ARTICLE 28
NO OTHER WAIVERS OR MODIFICATIONS
28.01. The failure of either party to insist in any one or
more instances upon the strict performance of any one or more of the obligations
of this Lease, or to exercise any election herein contained, shall not be
construed as a waiver or relinquishment for the future of the performance of
such one or more obligations of this Lease or of the right to exercise such
election, but the same shall continue and remain in full force and effect with
respect to any subsequent breach, act, or omission. No executory agreement
hereafter made between Landlord and Tenant shall be effective to change, modify,
waive, release, discharge, terminate or effect an abandonment of this Lease, in
whole or in part, unless such executory agreement is in writing, refers
expressly to this Lease and is signed by the party against whom enforcement of
the change, modification, waiver, release, discharge, or termination of
effectuation of the abandonment is sought.
28.02. Without limiting Section 28.01, the following
provisions shall also apply:
(a) No agreement to accept a surrender of all or
any part of the Demised Premises shall be valid unless in writing and signed by
Landlord. The delivery of keys to an employee of Landlord or of its agent shall
not operate as a termination of this Lease or a surrender of the Demised
Premises. If Tenant shall at any time request Landlord to sublet the Demised
Premises for Tenant's account, Landlord or its agent is authorized to receive
said keys for such purposes without releasing Tenant from any of its obligations
under this Lease, and Tenant hereby releases Landlord from any liability for
loss or damage to any of Tenant's property in connection with such subletting.
(b) The receipt by Landlord of rent with
knowledge of breach of any obligation of this Lease shall not be deemed a waiver
of such breach.
(c) No payment by Tenant or receipt by Landlord
of a lesser amount than the correct fixed rent or additional rent due hereunder
shall be deemed to be other than a payment on account, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or pursue any other
remedy in this Lease or at law provided.
32
ARTICLE 29
CURING TENANT'S DEFAULTS
29.01. If Tenant shall default in the performance of any of
Tenant's obligations under this Lease, Landlord, without thereby waiving such
default, may (but shall not be obligated to) perform the same for the account
and at the expense of Tenant, without notice, in a case of emergency, and in any
other case, only if such default continues after the expiration of (i) ten (10)
days from the date Landlord gives Tenant notice of intention so to do, or (ii)
the applicable grace period provided in Section 24.02 or elsewhere in this Lease
for cure of such default, whichever occurs later.
29.02. Bills, invoices and purchase orders for any and all
costs, charges, and expenses incurred by Landlord in connection with any such
performance by it for the account of Tenant, including reasonable counsel fees,
involved in collecting or endeavoring to collect the fixed rent or additional
rent or any part thereof, or enforcing or endeavoring to enforce any rights
against Tenant, under or in connection with this Lease, or pursuant to law,
including any such cost, expense, and disbursement involved in instituting and
prosecuting summary proceedings, may be sent by Landlord to Tenant monthly, or
immediately, at Landlord's option, and, shall be due and payable in accordance
with the terms of such bills.
ARTICLE 30
BROKER
30.01. Tenant covenants, warrants, and represents that there
was no broker except ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ASSOCIATES, ("Broker")
instrumental in consummating this Lease and that no conversations or
negotiations were had with any broker except Broker concerning the renting of
the Demised Premises. Tenant agrees to hold Landlord harmless against any claims
for a brokerage commission arising out of any conversations or negotiations had
by Tenant with any broker except Broker. Landlord agrees to pay Broker pursuant
to a separate agreement.
ARTICLE 31
NOTICES
31.01. Any notice, statement, demand, or other
communications required or permitted to be given, rendered, or made by either
party to the other, pursuant to this Lease or pursuant to any applicable law or
requirement of public authority, shall be in writing (whether or not so stated
elsewhere in this Lease) and shall be deemed to have been properly given,
rendered or made, if sent by registered or certified mail, return receipt
requested, addressed to the other party at the address hereinabove set forth
(except that after the Commencement Date, Tenant's address, unless Tenant shall
give notice to the contrary, shall be the Building) and shall be deemed to have
been given, rendered, or made on the date following the date of mailing. Notice
may also
33
be given by facsimile transmittal over overnight mail. If such notice is given
by facsimile transmittal, it shall be deemed received the day it was sent and
overnight mail shall be deemed received the day after it was sent. Either party
may, by notice as aforesaid, designate a different address or addresses for
notices, statements, demands, or other communications intended for it. In the
event of the cessation of any mail delivery for any reason, personal delivery
shall be substituted for the aforedescribed method of serving notices.
ARTICLE 32
ESTOPPEL CERTIFICATE
32.01. Tenant agrees, when requested by Landlord, to execute
and deliver to Landlord a statement certifying that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same is
in full force and effect as modified and stating the modifications), certifying
the dates to which the fixed rent and additional rent have been paid, whether
any dispute exists with respect thereto and stating whether or not, to Tenant's
best knowledge, Landlord is in default in performance of any of its obligations
under this Lease, and, if so, specifying each such default of which Tenant may
have knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by others. Such statement shall be served upon
Landlord by Tenant within ten (10) days of Landlord's request. If Tenant fails
to deliver such notice, Landlord shall be deemed appointed as Tenant's
attorney-in-fact to prepare and deliver such-notice on behalf of Tenant, and
Tenant shall be deemed bound thereby upon Landlord's furnishing a copy of the
notice to Tenant.
ARTICLE 33
ARBITRATION
33.01. The parties hereto shall not be deemed to have agreed
to determination of any dispute arising out of this Lease by arbitration unless
determination in such manner shall have been specifically provided for in this
Lease.
33.02. The party desiring arbitration shall give notice to
that effect to the other party and shall in such notice appoint a person as
arbitrator on its behalf. Within ten (10) days, the other party by notice to the
original party shall appoint a second person as arbitrator on its behalf. The
arbitrators thus appointed shall appoint a third person, and such three
arbitrators shall as promptly as possible determine such matter, provided,
however that:
(a) If the second arbitrator shall not have been
appointed as aforesaid, the first arbitrator shall proceed to determine such
matter; and
(b) If the two arbitrators appointed by the
parties shall be unable to agree, within ten (10) days after the appointment of
the second arbitrator, upon the appointment of a third arbitrator, they shall
give written notice to the parties of such failure to agree, and, if the parties
fail to agree upon the selection of such third arbitrator within ten (10) days
after the arbitrators appointed by the parties give notice as aforesaid, then
within five (5) days thereafter
34
either of the parties upon notice to the other party may request such
appointment by the American Arbitration Association (or any organization
successor thereto), or in it absence, refusal, failure, or inability to act, may
apply for a court appointment of such arbitrator.
33.03. Each arbitrator shall be a fit and impartial person
who shall have had at least five years' experience in a calling connected with
the matter of dispute.
33.04. The arbitration shall be conducted, to the extent
consistent with this Article, in accordance with the then prevailing rules of
the American Arbitration Association (or any organization successor thereto).
The arbitrators shall render their decision and award, upon the concurrence of
at least two of their number, within thirty (30) days after the appointment of
the third arbitrator. Such decision and award shall be in writing and shall be
final and conclusive on the parties, and counterpart copies thereof shall be
delivered to each of the parties. In rendering such decision and award, the
arbitrators shall not add to, subtract from, or otherwise modify the provisions
of this Lease. Judgment may be had on the decision and award of the
arbitrator(s) so rendered in any court of competent jurisdiction.
33.05. Each party shall pay the fees and expenses of the one
of the two original arbitrators appointed by or for such party and the fees and
expenses of the third arbitrator and all other expenses of the arbitration
(other than the fees and disbursement of attorneys or witnesses for each party)
shall be borne by the parties equally.
33.06. Notwithstanding the provisions of this Article, if
any delay in complying with any requirements of this Lease by Tenant might
subject Landlord to any fine or penalty, or to prosecution for a crime, or if it
would constitute a default by Landlord under any mortgage, Landlord may exercise
its right under Article 29, to remedy such default and in such event the sole
question to be determined by the arbitrators under this Article, shall be
whether Tenant is liable for Landlord's cost and expenses of curing such
default.
ARTICLE 34
NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW
34.01. Tenant expressly acknowledges and agrees that
Landlord has not made and is not making, and Tenant, in executing and delivering
this Lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
Lease. It is understood and agreed that all understandings and agreements
heretofore had between the parties are merged in the Lease, which alone fully
and completely express their agreements and that the same are entered into after
full investigation, neither party relying upon any statement or representation
not embodied in the Lease made by the other.
34.02. If any of the provisions of this Lease, or the
application thereof to any person or circumstances, shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than
35
those as to whom or which it is held invalid or unenforceable, shall not be
affected thereby, and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
34.03. This Lease shall be governed in all respects by the
laws of the State of New Jersey.
ARTICLE 35
SECURITY
35.01. Tenant shall deposit with Landlord the sum of
$10,725.00 upon the execution of this Lease. Said deposit (sometimes referred to
as the "Security Deposit") shall be held by Landlord as security for the
faithful performance by Tenant of all the terms of the Lease by said Tenant to
be observed and performed. The Security Deposit shall not and may not be
mortgaged, assigned, transferred, or encumbered by Tenant, without the written
consent of Landlord, and any such act on the part of Tenant shall be without
force and effect and shall not be binding upon Landlord. If any of the fixed or
additional rent herein reserved or any other sum payable by Tenant to Landlord
shall be overdue and unpaid, or if Landlord makes payment on behalf of Tenant,
or if Tenant shall fail to perform any of the terms, covenants, and conditions
of the Lease, then Landlord may, at its option and without prejudice to any
other remedy which Landlord may have on account thereof, appropriate and apply
the entire Security Deposit or so much thereof as may be necessary to compensate
Landlord toward the payment of fixed or additional rent and any loss or damage
sustained by Landlord due to such breach on the part of Tenant, plus expenses;
and Tenant shall forthwith upon demand restore the Security Deposit to the
original sum deposited. The issuance of a warrant and/or the re-entering of the
Demised Premises by Landlord for any default on the part of Tenant or for any
other reason prior to the expiration of the term shall not be deemed such a
termination of the Lease as to entitle Tenant to the recovery of the Security
Deposit. If Tenant complies with all of the terms, covenants, and conditions of
the Lease and pays all of the fixed and additional rent and all other sums
payable by Tenant to Landlord as they fall due, the Security Deposit shall be
promptly returned in full to Tenant after the expiration of the term of the
Lease and Tenant's satisfaction of all its obligations accruing prior to the
Lease expiration date. In the event of bankruptcy or other creditor-debtor
proceedings against Tenant, the Security Deposit and all other securities shall
be deemed to be applied first to the payment of fixed and additional rent and
other charges due Landlord for all periods prior to the filing of such
proceedings. In the event of sale by Landlord of the Building, Landlord may
deliver the then balance of the Security Deposit to the transferee of Landlord's
interest in the Demised Premises and Landlord shall thereupon be discharged from
any further liability with respect to the Security Deposit and this provision
shall also apply to any subsequent transferees. No holder of a superior mortgage
or a lessor's interest in a superior lease to which the Lease is subordinate
shall be responsible in connection with the Security Deposit, by way of credit
or payment of any fixed or additional rent, or otherwise, unless such mortgagee
or lessor actually shall have received the entire Security Deposit.
36
ARTICLE 36
PARTIES BOUND
36.01. The obligation of this Lease shall bind and benefit
the successors and assigns of the parties with the same effect as if mentioned
in each instance where a party is named or referred to, except that no violation
of the provisions of Article 8 shall operate to vest any rights in any successor
or assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 24.
However, the obligations of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in event of such
transfer said obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee of the Building,
but only with respect to the period ending with a subsequent transfer within the
meaning of this Article.
36.02. If Landlord shall be an individual, joint venture,
tenancy in common, partnership, unincorporated association, or other
unincorporated aggregate of individuals and/or entities or a corporation, Tenant
shall look only to such Landlord's estate and property in the Building (or the
proceeds thereof) and, where expressly so provided in this Lease, to offset
against the rents payable under this Lease for the collection of a judgment (or
other judicial process) which requires the payment of money by Landlord in the
event of any default by Landlord hereunder. No other property or assets of such
Landlord shall be subject to levy, execution or other enforcement procedure for
the satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Demised Premises. Further, Tenant agrees that Landlord shall not be liable
to Tenant for any special, indirect, or consequential damages arising out of
Landlord's breach of this Lease.
ARTICLE 37
CONSENTS
37.01. Wherever it is specifically provided in this Lease
that a party's consent is not to be unreasonably withheld, a response to a
request for such consent shall also not be unreasonably delayed. If either
Landlord or Tenant considers that the other had unreasonably withheld or delayed
a consent, it shall so notify the other party within ten (10) days after receipt
of notice of denial of the requested consent or, in case notice of denial is not
received, within twenty (20) days after making its request for the consent.
37.02. Tenant hereby waives any claim against Landlord which
it may have based upon any assertion that Landlord has unreasonably withheld or
unreasonably delayed any such consent, and Tenant agrees that its sole remedy
shall be an action or proceeding to enforce any such provision or for specific
performance, injunction or declaratory judgment. In the event of such
determination, the requested consent shall be deemed to have been granted,
however, Landlord shall have no liability to Tenant for its refusal or failure
to give such consent. The sole
37
remedy for Landlord's unreasonably withholding or delaying of consent shall be
as provided in this Article.
ARTICLE 38
MORTGAGE FINANCING - TENANT COOPERATION
38.01. In the event that Landlord desires to seek mortgagee
financing secured by the Demised Premises, Tenant agrees to cooperate with
Landlord in the making of any application(s) by Landlord for such financing
including the delivery to Landlord's mortgage broker or mortgagee, of such
information as they shall require with respect to Tenant's occupancy of the
Demised Premises, including, but not limited to the current financial statement
of Tenant, but Tenant shall not be required to deliver such information directly
to Landlord, all of the above to be at no cost and expense of Tenant. In the
event that Landlord's mortgagee shall request changes to the within Lease in
order to make same acceptable to Landlord's mortgagee, Tenant agrees to consent
to such changes, provided such changes shall not affect the term of this Lease
nor the financial obligations of Tenant hereunder.
ARTICLE 39
ENVIRONMENTAL COMPLIANCE
39.01. Tenant shall, at Tenant's sole cost and expense,
comply with the New Jersey Industrial Site Recovery Act and the regulations
promulgated hereunder (referred to as "ISRA") as same relate to Tenant's
occupancy of the Demised Premises, as well as all other state, federal or local
environmental law, ordinance, rule, or regulation either in existence as of the
date hereof or enacted or promulgated after the date of this Lease, that concern
the management, control, discharge, treatment and/or removal of hazardous
discharges or otherwise affecting or affected by Tenant's use and occupancy of
the Demised Premises. Tenant represents that Tenant's SIC number is 7398, and
does not subject it to ISRA. Tenant shall, at Tenant's own expense, make all
submissions to, provide all information to, and comply with all requirements of
the Bureau of Industrial Site Evaluation (the "Bureau") of the New Jersey
Department of Environmental Protection ("NJDEP"). Should the Bureau or any other
division of NJDEP, pursuant to any other environmental law, rule, or regulation,
determine that a cleanup plan be prepared and that a cleanup be undertaken
because of any spills or discharge of hazardous substances or wastes at the
Demised Premises which occur during the term of this Lease and were caused by
Tenant or its agents or contractors, then Tenant shall, at Tenant's own expense
prepare and submit the required plans and financial assurances, and carry out
the approved plans. In the event that Landlord shall have to comply with ISRA by
reason of Landlord's actions, Tenant shall promptly provide all information
requested by Landlord for preparation of non-applicability affidavits or a
Negative Declaration and shall promptly sign such affidavits when 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 or
wastes at the Demised Premises which occur during the term of this Lease and
were caused by Tenant or its agents or contractors, and from all fines, suits,
procedures, claims, and actions of any kind arising out of Tenant's failure to
provide all
38
information, make all submission and take all actions required by the Bureau or
any other division of NJDEP. Tenant's obligations and liabilities under this
Paragraph shall continue so long as Landlord remains responsible for any spills
or discharges of hazardous substances or wastes at the Demised Premises, which
occur during the term of this Lease and were caused by Tenant or its agents or
contractors. Tenant's failure to abide by the terms of this paragraph shall be
restrainable by injunction. Tenant shall have no responsibility to obtain a
"Negative Declaration" or "Letter of Non-Applicability" from the NJDEP if the
sole reason for obtaining same is in connection with a sale or other disposition
of the real estate by Landlord but Tenant agrees to cooperate with Landlord in
Landlord's effort to obtain same and shall perform at Tenant's expense any clean
up required by reason of Tenant's use and occupancy of the Demised Premises.
ARTICLE 40
HOLDING OVER
40.01. Tenant will have no right to remain in possession of
all or part of the Demised Premises after the expiration of the term. If Tenant
remains in possession of all or any part of the Demised Premises after the
expiration of the Lease, without the express consent of Landlord: (a) such
tenancy will be deemed to be a periodic tenancy from month-to-month only; (b)
such tenancy will not constitute a renewal or extension of this Lease for any
further term; and (c) such tenancy may be terminated by Landlord upon the
earlier of (i) thirty (30) days prior written notice, or (ii) the earliest date
permitted by law. In such event, monthly rent will be increased to an amount
equal to two hundred percent (200%) of the monthly rent payable during the last
month of the term, and any other sums due under this Lease will be payable in
the amount and at the times specified in this Lease. Such month-to-month tenancy
will be subject to every other term, condition, and covenant contained in this
Lease. The provisions of this Section shall not be construed to relieve Tenant
from liability to Landlord for damages resulting from any such holding over, or
preclude Landlord from implementing summary dispossess proceedings. Tenant
further acknowledges that its failure to perform any restoration required of it
under this Lease shall be deemed the same as its remaining in possession of the
Demised Premises after the expiration of the term, subjecting it to hold-over
rent in accordance with this Article 40.
ARTICLE 41
CERTAIN DEFINITIONS AND CONSTRUCTIONS
41.01. For the purpose of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires, the
definitions set forth in Exhibit F annexed hereto shall be utilized.
41.02. The various terms which are italicized and defined in
other Articles of this Lease or are defined in Exhibits annexed hereto, shall
have the meanings specified in such other Articles and such Exhibits for all
purposes of this Lease and all agreements supplemental thereto, unless the
context shall otherwise require.
39
41.03. The submission of this Lease for examination does not
constitute a reservation of, or option for, the Demised Premises, and this Lease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord and Tenant.
41.04. The Article headings in this Lease and the Index
prefixed to this Lease are inserted only as a matter of convenience in reference
and are not to be given any effect whatsoever in construing this Lease.
ARTICLE 42
RELOCATION OF TENANT
42.01. Landlord at its sole expense, on at least sixty (60)
days prior written notice, may require Tenant to move from the Demised Premises
to another location of comparable size and decor in the Building or in the
building(s) commonly known and designated as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 499 Thornall
Street, Edison, New Jersey or any future Landlord related, properties within the
Metro Park Office Complex. By written notice to Landlord served within five (5)
days of Tenant's receipt of the relocation notice, Tenant may elect not to move
to the other space and in lieu thereof may terminate this Lease. In the event of
any such relocation, Landlord shall be responsible for the expenses of preparing
and decorating the relocated premises so that they will be substantially similar
to the Demised Premises described in Exhibit C. Notwithstanding the foregoing,
Landlord shall be entitled to rescind its notice of relocation within forty-five
(45) days of its having forwarded to Tenant the notice of relocation or within
forty-eight (48) hours of Tenant having properly elected to terminate this
Lease. In the event Landlord rescinds the notice as aforesaid, this Lease shall
continue in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this Lease as of the day and year first above written.
WITNESS: LANDLORD:
METRO FOUR ASSOCIATES
LIMITED PARTNERSHIP
a New Jersey Limited Partnership
/s/ [ILLEGIBLE] /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------- --------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Partner
ATTEST: TENANT:
PAMEX CAPITAL PARTNERS, L.L.C.
a New Jersey Limited Liability Company
/s/ [ILLEGIBLE] /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------- --------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇
Title: EXECUTIVE VICE PRESIDENT
40
EXHIBIT A
DESCRIPTION OF LAND
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ALL that certain tract, lot and parcel of land lying and being in the Township
of Edison, County of Middlesex, and State of New Jersey being more particularly
described as follows:
BEGINNING at a point in the new Southeasterly Right-of-Way line of Thornall
Street, distant Southwestwardly 1,544.77 feet from the intersection formed by
the Southeasterly Right-of-Way line of Thornall Street, with the Southwesterly
Right-of-Way line of Wood Avenue South and from said beginning point running:
1. South 53 degrees 23 minutes 59 seconds East, along a new line in Lot 2-B-4
in Block 676, as shown on the current Township of Edison Tax Map, 264.80
feet to a point; running thence
2. South 36 degrees 36 minutes 01 second West, 76.19 feet to a point; running
thence
3. South 53 degrees 23 minutes 59 seconds East, 612.14 feet to a point;
running thence
4. South 31 degrees 14 minutes 31 seconds West, along the common line between
Lots 2-B-4 and 5, in Block 676, as shown on the current Township of Edison
Tax Map, 280.48 feet to a point, running thence
5. North 53 degrees 23 minutes 59 seconds West, along the common line between
Lots 2-B-3 and 2-A, in Block 676, as shown on said Tax Map, 889.65 feet to
a point in the new Southeasterly Right-of-Way line of Thornall Street;
running thence
6. Northeastwardly, along the new Southeasterly Right-of-Way line of Thornall
Street, along a curve to the left having a radius of 4,694.00 feet and an
arc length of 355.79 feet to a point, said point being the point and place
of BEGINNING.
Being also known as Lot 2-B-3 in Block 676, on the current Tax Map of the
Township of Edison, Middlesex County, New Jersey.
Subject to easements, restrictions and covenants of record and such state of
facts as an accurate survey may reveal.
1A
EXHIBIT B
FLOOR PLAN
SEE ATTACHED
1B
[FLOOR MAP]
EXHIBIT 'B'
EXHIBIT C
HVAC SPECIFICATIONS
Perimeter baseboard electric heat, central high velocity fan system with ▇▇▇▇▇▇
▇▇▇▇▇▇▇ mixing boxes, featuring return heat of light recaptured. System utilizes
a minimum of 10% to a maximum of 100% fresh air to maintain no less than 68
degrees interior at zero degrees exterior, with a 15-mile per hour wind. Air
cooling shall maintain no more than 78 degrees F dry bulb with approximately 50%
relative humidity when the outdoor conditions are 91 degrees F dry bulb. Duel
system - building standard. The above standard is for normal office use only
which shall be deemed to be one person for every 200 sq. ft. in any given or
confined area which shall not include areas with special HVAC requirements such
as computer rooms, conference rooms, cafeterias, high density or excessive heat
producing equipment. Perimeter baseboard electric heat is used during the winter
operations and an air cooling system is utilized during summer operations. One
(1) diffuser per 250 sq. ft. of usable area. The foregoing in Landlord's
Building Standard HVAC and shall not apply to any special HVAC requirements
above Landlord's Building Standard such as computer rooms, conference rooms,
cafeterias, high density or excessive heat used during winter operations and air
cooling system. Any supplemental HVAC placed in the Demised Premises shall be
repaired and maintained by Landlord or Landlord's contractor at Tenant's sole
expense.
1C
EXHIBIT D
CLEANING AND MAINTENANCE SPECIFICATIONS
Landlord will provide building standard cleaning services to the tenant area and
the ground floor lobby area in accordance with the following specifications:
1. GENERAL CLEANING
NIGHTLY
a. Empty all waste receptacles, removing waste to designated
central location for disposal.
b. Empty and wipe clean all ashtrays. Screen and clean all sand
urns.
c. Wash and disinfect all water coolers and drinking fountains.
d. Wipe clean fingermarks, smudges, etc. from all doors and wall
surfaces.
e. Clean all tenant's interior stairways.
f. Replace plastic liners in all waste-disposal cans.
WEEKLY
a. Hand-dust all office equipment, furniture, fixtures, including
panelling, shelving, window ▇▇▇▇▇, telephones, door louvers,
and all flat surfaces with a treated cloth or yard duster.
2. GROUP A - Ceramic tile, marble, terrazzo.
GROUP B - Linotile, asphalt, koroseal, plastic vinyl, rubber,
wood, cork, or other types of floors and base.
NIGHTLY
a. All floors in Group A to be swept and wet-mopped
b. All floors in Group B to be dry mopped, using a "dustdown"
preparation, and spots to be removed by wet process.
1D
PERIODIC
a. A wet mopping, waxing, buffing, stripping, or machine
scrubbing of the floors in Group B will be accomplished
whenever required to maintain a hard lustrous finish and will
be governed by the amount of wear due to weather and other
conditions.
3. VACUUMING
NIGHTLY
a. Vacuum once per week. Carpet-sweep four times per week all
rugs and carpeted areas, moving light furniture and office
equipment other than desks and file cabinets. Spot clean to
remove soluble spots, which safely respond to standard
spotting procedures without risk of injury to color or fabric.
4. HIGH DUSTING
PERIODIC
a. Dust all closet shelving and wash all closet floors when
accessible, monthly.
b. Damp dust all pictures, charts, graphs, etc., not reached in
nightly cleaning, quarterly.
c. Dust clean all vertical surfaces such as walls, partitions,
doors, door bucks, and other surfaces not reached in nightly
cleaning, quarterly.
d. Damp dust ceiling air conditioning diffusers, wall grills,
door louvers, registers, and venetian blinds, quarterly.
e. Dust exterior of light fixtures, annually.
5. WASHROOMS AND TOILETS
NIGHTLY
a. Sweep, mop, rinse, and dry floors. Polish mirrors and
bright-work. Clean enameled surfaces.
b. Wash and disinfect basins, urinals, and bowls using scouring
powder to remove stains, making certain to clean undersides of
rims of urinals and bowls.
c. Wash and disinfect both sides of all toilet seats.
2D
d. Supply and service all toilet tissue, soap, towels, and
sanitary napkins. Sanitary Napkins will be supplied in
coin operated dispensers.
e. All wastepaper cans and all receptacles are to be emptied and
new plastic liners installed.
f. Hand dust and wash clean all partitions, tile walls,
dispensers, and receptacles in lavatories and vanity area.
g. Empty and clean sanitary disposal receptacles.
WEEKLY
a. Wash down walls in washrooms and stalls, from trim to floor.
6 . ELEVATORS
NIGHTLY
a. Clean the floor in accordance with specifications outlined
above based upon the type of flooring installed. The doors,
surfaces, and fixtures shall be dusted daily and damp wiped
weekly.
7. GLASS
PERIODIC
a. Clean both sides of all lobby glass including the building
entrance doors, nightly
b. Clean all perimeter windows quarterly.
c. Clean glass partitions, doors, and furniture once every six
months (limited to reasonable quantities).
8. MISCELLANEOUS
a. Check all stairwells and landings nightly throughout entire
demised area, and keep in clean condition. All stairways and
landings will be dry mopped nightly. Railings, ledges, and
equipment will be dusted nightly. These areas will be wet
mopped weekly, scrubbed when necessary, and shall be waxed and
buffed weekly where required.
b. Wipe down mail chute and mail depository nightly.
3D
c. On completion of work, all slop sinks are to be thoroughly
cleaned, and cleaning equipment to be stored neatly in
designated locations.
d. All cleaning services except those performed by day porters,
window cleaners, and matrons are to be performed nightly, five
nights per week. No Saturday, Sunday or bank holiday service
to be provided. In no event shall performance of any cleaning
service interfere with Tenant's normal business operation.
e. The Contractor or Landlord is to furnish all necessary
approved cleaning materials, implements, and machinery for the
satisfactory completion of the work. This includes
scaffolding, vacuum machines, scrubbing machines, etc.
f. Contractor shall furnish proof of liability and property
damage insurance suitable to the bank, and ▇▇▇▇▇▇▇'▇
Compensation Insurance in amounts required under the laws of
New Jersey.
g. Tenant will be charged for cleaning services in excess of the
specifications outlined above.
h. Tenant will be charged for the incremental cost to clean any
areas of the Demised Premises used for special purposes
requiring more difficult cleaning work than office areas
including, but not limited to, private toilets and showers,
dining areas, cafeteria, kitchen, etc.
4D
EXHIBIT E
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors,
elevators, and escalators of the Building are limited to ingress to and egress
from the tenants' demised premises for the tenants and their employees,
licensees, and invitees, and no tenant shall use or permit the use of the
entrances, corridors, escalators, or elevators for any other purpose. No tenant
shall invite to the tenant's demised premises, or permit the visit of, persons
in such numbers or under such conditions as to interfere with the use and
enjoyment of any of the plazas, entrances, corridors, escalators, elevators, and
other facilities of the Building by other tenants. Fire exits and stairways are
for emergency use only, and they shall not be used for any other purpose by the
tenants, their employees, licensees, or invitees. No tenant shall encumber or
obstruct, or permit the encumbrance or obstruction of any of the sidewalks,
plazas, entrances, corridors, escalators, elevators, fire exits, or stairways of
the Building. The Landlord reserves the right to control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of the tenants generally.
2. The Landlord may refuse admission to the Building
outside of ordinary business hours to any person not having a pass issued by the
Landlord or the tenant whose demised premises are to be entered or not otherwise
properly identified, and may require all persons admitted to or leaving the
Building outside of ordinary business hours to register. Any person whose
presence in the Building at any time shall, in the judgment of the Landlord, be
prejudicial to the safety, character, reputation, and interests of the Building
or of its tenants may be denied access to the Building or may be ejected
therefrom. In case of invasion, riot, public excitement, or other commotion, the
Landlord may prevent all access to the Building during the continuance of the
same, by closing the doors or otherwise, for the safety of the tenants and
protection of property of the Building. The Landlord may require any person
leaving the Building with any package or other object to exhibit a pass from the
tenant from whose premises the packaging or object is being removed, but the
establishment and enforcement of such requirement shall not impose any
responsibilities on the Landlord for the protection of any tenant against the
removal of property from the premises of the tenant. The Landlord shall in no
way be liable to any tenant for damages or loss arising from the admission,
exclusion, or ejection of any person to or from the tenant's premises or the
Building under the provisions of this rule. Canvassing, soliciting, or peddling
in the Building is prohibited, and every tenant shall cooperate to prevent the
same.
3. No tenant shall obtain or accept for use in its
demised premises ice, food for on premises preparation other than warming,
beverage towel, barbering, boot blackening, floor polishing, lighting
maintenance, cleaning, or other similar services from any persons not authorized
by the Landlord in writing to furnish such services, provided that the charges
for such services by persons authorized by the Landlord are not excessive and
where appropriate and consonant with the security and proper operation of the
Building sufficient persons are so
1E
authorized for the same service to provide tenants with a reasonably competitive
selection. Such services shall be furnished only at such hours, in such places
within the Tenants' Demised Premises and under such reasonable regulations as
may be fixed by the Landlord. Tenant may have a coffee service, subject to
Landlord's approval, and a kitchen for the use of its employees commensurate
with normal office use.
4. The cost of repairing any damage to the public
portions of the Building or the public facilities or to any facilities used in
common with other tenants, caused by a tenant or the employees, licensees, or
invitees of the tenant shall be paid by such tenant.
5. No lettering, sign, advertisement, notice or object
shall be displayed in or on the windows or doors, or on the outside of any
tenant's demised premises, or at any point inside any tenant's premises where
the same might be visible outside of such demised premises, except that the name
of the tenant may be displayed on the entrance door of the tenant's demised
premises, and in the elevator lobbies of the floors which are occupied entirely
by any tenant, subject to the approval of the Landlord as to the size, color,
and style of such display. The inscription of the name of the tenant on the door
of the tenant's demised premises shall be done by the Landlord at the expense of
the tenant.
6. No awnings or other projections over or around the
windows shall be installed by any tenant, and only such window blinds as are
supplied or permitted by the Landlord shall be used in a tenant's demised
premises. Linoleum, tile, or other floor covering shall be laid in a tenant's
demised premises only in a manner approved by the Landlord.
7. The Landlord shall have the right to prescribe the
weight and position of safes and other objects of excessive weight, and no safe
or other object whose weight exceeds the lawful load for the area upon which it
would stand shall be brought into or kept upon a tenant's demised premises. If,
in the judgment of the Landlord, it is necessary to distribute the concentrated
weight of any heavy object, the work involved in such distribution shall be done
at the expense of the tenant and in such manner as the Landlord shall determine.
The moving of safes and other heavy objects shall take place only outside of
ordinary business hours upon the same upon previous notice to the Landlord, and
the persons employed to move the same in and out of the Building shall be
reasonably acceptable to the Landlord and if so required by law, shall hold a
Master Rigger's license. Freight, furniture, business equipment, merchandise,
and bulky matter of any description shall be delivered to and removed from the
demised premises only in the freight elevators and through the service entrances
and corridors, and only during hours and in a manner approved by the Landlord.
Arrangements will be made by the Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building.
8. No machines or mechanical equipment of any kind other
than typewriters and other ordinary portable business machines, may be installed
or operated in any tenant's demised premises without Landlord's prior written
consent, and in no case (even where the same are of a type so accepted or as so
consented to by Landlord) shall any machines or mechanical equipment be so
placed or operated as to disturb other tenants; but machines and mechanical
equipment which may be permitted to be installed and used in a tenant's demised
premises shall be
2E
so equipped, installed and maintained by such tenant as to prevent any
disturbing noise, vibration, or electrical or other interference from being
transmitted from such premises to any other area of the Building.
9. No noise, including the playing of any musical
instruments, radio or television, which, in the judgment of the Landlord might
disturb other tenants in the building, shall be made or permitted by any tenant,
and no cooking shall be done in the tenant's demised premises, except as
expressly approved by the Landlord. Nothing shall be done or permitted in any
tenants' demised premises, and nothing shall be brought into or kept in any
tenants' demised premises, which would impair or interfere with any of the
Building services or the proper and economic heating, cleaning, or other
servicing of the Building or the demised premises, or the use of enjoyment by
any other tenant of any other demised premises, nor shall there be installed by
any tenant any ventilating, air conditioning, electrical or other equipment of
any kind which, in the judgment of the Landlord, might cause any such impairment
or interference. No dangerous, inflammable, combustible, or explosive object or
material shall be brought into the building by any tenant or with the permission
of any tenant. Any cuspidors or similar containers or receptacles used in any
tenants' demised premises shall be cared for and cleaned by and at the expense
of the tenant.
10. No acids, vapors, or other materials shall be
discharged or permitted to be discharged into the waste lines, vents or flues of
the Building which may damage them. The water and wash closets and other
plumbing fixtures in or serving any tenant's premises shall not be used for any
purpose other than the purposes for which they were designed or constructed, and
no sweepings, rubbish, rags, acids or other foreign substances shall be
deposited therein.
11. No additional locks or bolts of any kind shall be
placed upon any of the doors or windows in any tenants' demised premises and no
lock on any door therein shall be changed or altered in any respect. Additional
keys for a tenant's demised premises and toilet rooms shall be procured only
from the Landlord, which may make a reasonable charge therefor. Upon the
termination of a tenant's lease, all keys of the tenant's demised premises and
toilet rooms shall be delivered to the Landlord.
12. All entrance doors in each tenants' demised premises
shall be left locked, and all windows shall be left closed by the tenant when
the tenant's demised premises are not in use. Entrance doors shall not be left
open at any time.
13. Hand trucks not equipped with rubber tires and side
guards shall not be used within the Building.
14. All windows in each tenant's demised premises shall
be kept closed and all blinds therein above the ground floor shall be lowered
when and as reasonably required because of the position of the sun, during the
operation of the Building air conditioning system to cool or ventilate the
tenant's demised premises.
3E
15. The Landlord reserves the right to rescind, alter, or
waive any rule or regulation at any time prescribed for the Building when, in
its judgment, it deems it necessary, desirable, or proper for its best interest
and for the best interests of the tenants, and no alteration or waiver of any
rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. The Landlord shall not be responsible to
any tenant for the nonobservance or violation by any other tenant of any of the
rules and regulations at any time prescribed by the Building.
4E
EXHIBIT F
DEFINITIONS
(a) The term "mortgage" shall mean an indenture of
mortgage and deed of trust to a trustee to secure an issue of bonds, and the
term "mortgagee" shall mean such a trustee.
(b) The terms "include," "including," and "such as" shall
each be construed as if followed by the phrase "without being limited to."
(c) References to Landlord as having no liability to
Tenant or being without liability to Tenant, shall mean the Tenant is not
entitled to terminate this Lease, or to claim actual or constructive eviction,
partial or total, or to receive any abatement or diminution of rent, or to be
relieved in any manner of any of its other obligations hereunder, or to be
compensated
(d) The term laws and/or requirements of public
authorities and words of like import shall mean laws and ordinances of any or
all of the Federal, state, city, county, and borough governments and rules,
regulations, orders and/or directives of any or all departments, subdivisions,
bureaus, agencies, or office thereof, or of any other governmental, public, or
quasipublic authorities, having jurisdiction in the premises, and/or the
direction of any public officer pursuant to law.
(e) The term requirements of insurance bodies and words
of like import shall mean rules, regulations, orders, and other requirements of
the New Jersey Board of Fire Underwriters and/or similar body performing the
same or similar functions and having jurisdiction or cognizance of the Building
and/or the Demised Premises.
(f) The term repair shall be deemed to include
restoration and replacement as may be necessary to achieve and/or maintain good
working order and condition.
(g) Reference to termination of this Lease includes
expiration or earlier termination of the term of this Lease or cancellation of
this Lease pursuant to any of the provisions of this Lease or to law. Upon a
termination of this Lease, the term and estate granted by this Lease shall end
at noon of the date of termination as if such date were the date of expiration
of the term of this Lease and neither party shall have any further obligation or
liability to the other after such termination (i) except as shall be expressly
provided for in this Lease, or (ii) except for such obligation as by its nature
or under the circumstances can only be, or by the provisions of this Lease, may
be performed after such termination and, in any event, unless expressly
otherwise provided in this Lease, any liability for a payment which shall have
accrued to or with respect to any period ending at the time of termination shall
survive the termination of this Lease.
1F
[FLOOR MAP]
EXHIBIT G
[FLOOR MAP]
SCHEDULE 2