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EXHIBIT 10.3
LEASE AND LEASE AGREEMENT
Between
CARNEGIE 214 ASSOCIATES LIMITED PARTNERSHIP
The Landlord
And
▇▇▇▇▇▇ COMMUNICATIONS, INC.
The Tenant
For Leased Premises In
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
January 23, 1996
Prepared by:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(xxx) xxx-xxxx
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TABLE OF CONTENTS
Article Page
1. Definitions 1
2. Lease of the Leased Premises 1
3. Rent 1
4. Term 2
5. Preparation of the Leased Premises 2
6. Options 2
7. Use and Occupancy 3
8. Utilities, Services, Maintenance and Repairs 4
9. Allocation of the Expense of Utilities,
Services, Maintenance, Repairs and Taxes 5
10. Computation and Payment of Allocated Expenses of Utilities,
Services, Maintenance, Repairs, Taxes and Capital Expenditures 6
11. Leasehold Improvements, Fixtures and Trade Fixtures 11
12. Alterations, Improvements and Other Modifications by the Tenant 11
13. Landlord's Rights of Entry and Access 13
14. Liabilities and Insurance Obligations 13
15. Casualty Damage to Building or Leased Premises 15
16. Condemnation 16
17. Assignment or Subletting by Tenant 16
18. Signs, Displays and Advertising 18
19. Quiet Enjoyment 19
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20. Relocation 19
21. Surrender 19
22. Events of ▇▇▇▇▇▇▇ ▇▇
▇▇. Rights and Remedies 20
24. Termination of the ▇▇▇▇ ▇▇
▇▇. Mortgage and Underlying Lease Priority 24
26. Transfer by Landlord 24
27. Indemnification 25
28. Parties' Liability 26
29. Security Deposit 27
30. Representations 27
31. Reservation in Favor of Tenant 28
32. Tenant's Certificates and Mortgagee Notice Requirements 28
33. Waiver of Jury Trial and Arbitration 30
34. Severability 30
35. Notices 30
36. Captions 30
37. Counterparts 30
38. Applicable Law 30
39. Exclusive Benefit 30
40. Successors 30
41. Amendments 31
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42. Waiver 31
43. Course of Performance 31
44. Landlord's Concessions 31
TABLE OF EXHIBITS
Exhibit
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Leased Premises Floor Space Diagram A
Property Description B
Work Letter C
Building Rules and Regulations D
Definitions and Index of Definitions E
Form of Estoppel Certificate F
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LEASE AND LEASE AGREEMENT, dated as of January 23, 1996, between CARNEGIE 214
ASSOCIATES LIMITED PARTNERSHIP, a New Jersey limited partnership, with offices
at Suite 101, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Landlord"),
and ▇▇▇▇▇▇ COMMUNICATIONS, INC., a Delaware corporation, with an office at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Tenant").
Subject to all the terms and conditions set forth below, the Landlord and the
Tenant hereby agree as follows:
1. Definitions.
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Certain terms and phrases used in this Agreement (generally those whose first
letters are capitalized) are defined in Exhibit E attached hereto and, as used
in this Agreement, they shall have the respective meanings assigned or referred
to in that exhibit.
2. Lease of the Leased Premises.
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2.1. The Landlord shall, and hereby does, lease to the Tenant, and the Tenant
shall, and hereby does, accept and lease from the Landlord, the Leased
Premises during the Term. The Leased Premises consist of 5,720 square feet
of gross rentable floor space on the first floor of 214 Carnegie Center,
as more fully described in the definition of Leased Premises set forth in
Exhibit E attached hereto.
2.2. The Landlord shall, and hereby does, grant to the Tenant, and the Tenant
shall, and hereby does, accept from the Landlord, the non-exclusive right
to use the Common Facilities during the Term for itself, its employees,
other agents and Guests in common with the Landlord, any tenants of Other
Leased Premises, any of their respective employees, other agents and
guests and such other persons as the Landlord may, in the Landlord's sole
discretion, determine from time to time.
3. Rent.
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3.1. The Tenant shall punctually pay the Rent for the Leased Premises for the
Term to the Landlord in the amounts and at the times set forth below,
without ▇▇▇▇ or other demand and without any offset, deduction or, except
as may be otherwise specifically set forth in this Agreement, abatement
whatsoever.
3.2. The Basic Rent for the Leased Premises during the Initial Term shall be at
the rate per year set forth below.
ANNUAL RATE MONTHLY RATE
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$127,269.96 $10,605.83
The annual rate of Basic Rent for the Leased Premises during any Renewal
Term shall be calculated as set forth in subsection 6.3 of this Agreement
for the respective Renewal Term.
3.3. The Tenant shall punctually pay the applicable Basic Rent in equal monthly
installments in advance on the first day of each month during the Term,
subject to the concession provided by the terms of subsection 44.2 of this
Agreement for the first eight calendar months of the Initial Term. The
Tenant shall pay the Basic Rent for the ninth full calendar month of the
Initial Term upon execution and delivery of this Agreement. The Tenant
also shall punctually pay the Basic Rent for a period of less than a full
calendar month at the beginning of the Term on the Commencement Date.
3.4. The Basic Rent and the Additional Rent for any period of less than a full
calendar month shall be prorated. In the event that any installment of
Basic Rent cannot be calculated by the time payment is due, such portion
as is then known or calculable shall be then due and payable; and the
balance shall be due upon the Landlord's giving notice to the Tenant of
the amount of the balance due.
3.5. The Additional Rent for the Leased Premises during the Term shall be
promptly paid by the Tenant in the respective amounts and at the
respective times set forth in this Agreement.
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3.6. That portion of any amount of Rent or other amount due under this
Agreement which is not paid on the day it is first due shall incur a late
charge equal to the sum of: (i) five percent of that portion of any amount
of Rent or other amount due under this Agreement which is not paid on the
day it is first due and (ii) interest on that portion of any amount of
Rent or other amount due under this Agreement which is not paid on the day
it is first due at the Base Rate(s) in effect from time to time plus two
additional percentage points from the day such portion is first due
through the day of receipt thereof by the Landlord. Any such late charge
due from the Tenant shall be due immediately.
4. Term.
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The Initial Term shall commence on the Target Date and shall continue until July
31, 2000, unless sooner terminated in accordance with section 24 of this
Agreement. The Term shall continue until the later of the conclusion of the
Initial Term or the conclusion of any Renewal Term, unless sooner terminated in
accordance with section 24 of this Agreement.
5. Preparation of the Leased Premises.
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The Landlord shall repaint the Leased Premises, where needed, and shall improve
the lighting in the core middle section in accordance with the sketch and
specifications initialed and exchanged by the parties. Landlord shall also
permit Tenant to install new carpeting, at its expense. Landlord shall otherwise
deliver actual and exclusive possession of the Leased Premises to the Tenant in
an "AS-IS" condition, free of rubbish and debris.
6. Options.
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6.1. If, prior to the respective date of exercise thereof, (a)(i) no Event of
Default shall have occurred or (ii) if an Event of Default shall have
occurred, the Tenant shall have previously cured it in full and the
Landlord shall have waived it (b) there shall not have been a History of
Recurring Events of Default and (c) the Term has not been terminated
pursuant to the provisions of subsection 24.1.7 of this Agreement, the
Tenant shall have one option, exercisable exclusively at the time and in
the manner set forth below in subsection 6.2 of this Agreement, to extend
the Term for one additional period of five years' duration. If the option
is properly exercised, the period to which it relates shall commence upon
the end of the Expiring Term. The option is an "Option to Renew."
6.2. In the event the Tenant is interested in exercising the Option to Renew,
the Tenant shall give timely notice of the Tenant's interest to the
Landlord no earlier than nine, and no later than eight, months prior to
the end of the Expiring Term. Within four weeks of the giving of such
notice, the Landlord shall give notice to the Tenant of the Market Rental
Rate in effect eight months prior to end of the Expiring Term. In the
event the Tenant desires to exercise the Option to Renew, the Tenant shall
do so exclusively by giving timely notice thereof to the Landlord no
earlier than seven, and no later than six, months prior to the end of the
Expiring Term, and indicating in that notice whether or not the Market
Rental Rate in effect eight months prior to the end of the Expiring Term
is acceptable. In the event the Tenant fails timely to notify the Landlord
of its interest in exercising the Option to Renew or timely to exercise
the Option to Renew, that Option to Renew shall thereupon expire.
6.3. The Basic Rent for the Leased Premises during the Renewal Term shall be
the Market Rental Rate, as set forth in the Landlord's notice to the
Tenant of the Market Rental Rate, unless the Tenant, in the Tenant's
notice contemplated by the third sentence of subsection 6.2 of this
Agreement affirmatively indicates that the Market Rental Rate for the
Renewal Term is not acceptable, in which case the Basic Rent for the
Leased Premises during the Renewal Term shall be the greater of:
6.3.1. that amount which is the product of the annual rate of Basic
Rent in effect during the last 12 months of the Expiring Term
multiplied by the sum of the following two amounts: (a) one
and (b) the amount obtained by multiplying five-hundredths
(.05) by the number of full calendar months in the Expiring
Term and dividing the result by 12; or
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6.3.2. that amount which bears the same ratio to the annual rate of
Basic Rent in effect during the Expiring Term as the Index for
the ninth month before the end of the Expiring Term bears to
the Index for the ninth month before the first full calendar
month at the beginning of the Expiring Term.
6.4. Except in the case of an assignment or sublease in accordance with the
provisions of subsection 17.6 of this Agreement, in the event the Tenant
assigns this Agreement or sublets, or licenses the use or occupancy of,
the Leased Premises or any portions thereof in accordance with section 17
of this Agreement or otherwise, or attempts to do so:
6.4.1. any Option to Renew which the Tenant has theretofore properly
exercised with respect to a Renewal Term that has not yet
actually commenced shall be rescinded, if the Landlord so
elects by notice to the Tenant, to the same extent as if it
had not been exercised at all; and
6.4.2. any Option to Renew or any other type of option or optional
right exercisable by the Tenant not theretofore timely and
otherwise properly exercised by the Tenant shall thereupon
expire.
7. Use and Occupancy.
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7.1. The Tenant shall continuously occupy and use the Leased Premises during
the Term exclusively as an office for its business of healthcare marketing
services, medical education, medical advertising and related financial,
accounting and other services.
7.2. In connection with the Tenant's use and occupancy of the Leased Premises
and use of the Common Facilities, the Tenant shall observe, and the Tenant
shall cause the Tenant's employees, other agents and Guests to observe,
each of the following:
7.2.1. the Tenant shall not do, or permit or suffer the doing of,
anything which might have the effect of creating not
insignificantly increased risk of, or damage from, fire,
explosion or other casualty;
7.2.2. the Tenant shall not do, or permit or suffer the doing of,
anything which would have the effect of (a) increasing any
premium for any liability, property, casualty or excess
coverage insurance policy otherwise payable by the Landlord or
any tenant of Other Leased Premises or (b) making any such
types or amounts of insurance coverage unavailable or less
available to the Landlord or any tenant of Other Leased
Premises;
7.2.3. to the extent they are not inconsistent with this Agreement,
the Tenant and Tenant's employees, other agents and Guests
shall comply with the Building Rules and Regulations attached
hereto as Exhibit D, and with any changes made therein by the
Landlord if, with respect to any such changes, the Landlord
shall have given notice of the particular changes to the
Tenant and such changes shall not materially adversely affect
the conduct of the Tenant's business in the Leased Premises;
7.2.4. the Tenant and the Tenant's employees, other agents and Guests
shall not create, permit or continue any Nuisance in or around
the Carnegie Center Complex, the Leased Premises, the Other
Leased Premises, the Building, the Common Facilities and the
Property;
7.2.5. The Tenant and the Tenant's employees, other agents and Guests
shall not permit the Leased Premises to be regularly occupied
by more than one individual per 200 square feet of usable
floor space of the Leased Premises;
7.2.6. the Tenant and the Tenant's employees, other agents and Guests
shall comply with all Federal, state and local statutes,
ordinances, rules, regulations and orders as they pertain to
the Tenant's use and occupancy
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of the Leased Premises, to the conduct of the Tenant's
business and to the use of the Common Facilities, except that
this subsection shall not require the Tenant to make any
structural changes that may be required thereby that are
generally applicable to the Building as a whole;
7.2.7. the Tenant and the Tenant's employees, other agents and Guests
shall comply with the requirements of the Board of Fire
Underwriters (or successor organization) and of any insurance
carriers providing liability, property, casualty or excess
insurance coverage regarding the Property, the Building, the
Common Facilities or any portions thereof, any other
improvements on the Property and the Carnegie Center Complex,
except that this subsection shall not require the Tenant to
make any structural changes that may be required thereby that
are generally applicable to the Building as a whole;
7.2.8. the Tenant and the Tenant's employees, other agents and Guests
shall not bring or discharge any substance (solid liquid or
gaseous), or conduct any activity, in or on the Carnegie
Center Complex, the Property, the Building, the Common
Facilities or the Leased Premises that shall have been
identified by the scientific community or by any Federal,
state or local statute (including, without limiting the
generality of the foregoing, the Spill Compensation and
Control Act (58 N.J.S.A. Section 23.11 et seq.) and the
Industrial Site Recovery Act (13 N.J.S.A. Section -- --- 1 K-6
et seq.), as they may be amended), ordinance, rule, regulation
or order as toxic or hazardous to health or to the
environment;
7.2.9. the Tenant and the Tenant's employees, other agents and Guests
shall not draw electricity in the Leased Premises in excess of
the rated capacity of the electrical conductors and safety
devices including, without limiting the generality of the
foregoing, circuit breakers and fuses, by which electricity is
distributed to and throughout the Leased Premises and, without
the prior written consent of the Landlord in each instance,
shall not connect any fixtures, appliances or equipment to the
electrical distribution system serving the Building and the
Leased Premises other than typical professional office
equipment such as minicomputers, microcomputers, typewriters,
copiers, telephone systems, coffee machines and table top
microwave ovens, none of which, considered individually and in
the aggregate, overall and per fused or circuit breaker
protected circuit, shall exceed the above limits;
7.2.10. on a timely basis the Tenant shall pay directly and promptly
to the respective taxing authorities any taxes (other than
Taxes) charged, assessed or levied exclusively on the Leased
Premises or arising exclusively from the Tenant's use and
occupancy of the Leased Premises; and
7.2.11. the Tenant shall not initiate any appeal or contest of any
assessment or collection of Taxes for any period without, in
each instance, the prior written consent of the Landlord
which, without being deemed unreasonable, the Landlord may
withhold if the Building was not 90% occupied by paying
tenants throughout that period or if the Tenant is not joined
by tenants of Other Leased Premises that leased throughout
that period, and that are then leasing, at least 80% of all
Other Leased Premises, determined by their gross rentable
floor space.
8. Utilities, Services, Maintenance and Repairs.
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8.1. The Landlord shall provide or arrange for the provision of:
8.1.1. such maintenance and repair of the Building (except the Leased
Premises and Other Leased Premises); the Common Facilities;
and the heating, ventilation and air conditioning systems, any
plumbing systems and the electrical systems in the Building,
the Common Facilities, the Leased Premises and Other Leased
Premises as is customarily provided for first class office
buildings in the immediate area;
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8.1.2. such garbage removal from the Building and the Common
Facilities and such janitorial services for the Building, the
Leased Premises and Other Leased Premises as is customarily
provided for first class office buildings in the immediate
area;
8.1.3. water to the Building and, if the appropriate plumbing has
been installed therein, the Leased Premises and Other Leased
Premises;
8.1.4. sewage disposal for the Building;
8.1.5. passenger elevator service for the Building;
8.1.6. snow clearance from, and sweeping of, Parking Facilities and
private access roads which are part of the Property or the
Common Facilities; and
8.1.7. the maintenance of landscaping which is part of the Property
or the Common Facilities.
8.2. The Landlord shall provide or arrange for the provision of:
8.2.1. such maintenance and repair of the Leased Premises, except for
refinishing walls and wall treatments, base, ceilings, floor
treatments and doors in general from time to time or for
gouges, spots, marks, damage or defacement caused by anyone
other than the Landlord, its employees and other agents, and
except for the Tenant's furniture, furnishings, equipment and
other property;
8.2.2. such maintenance and repair of the Other Leased Premises,
except for refinishing walls and wall treatments, base,
ceilings, floor treatments and doors in general from time to
time or for gouges, spots, marks, damage or defacement caused
by anyone other than the Landlord, its employees and other
agents, and except for the respective tenants' furniture,
furnishings, equipment and other property;
8.2.3. the electricity required for the operation of the Building,
the Property and the Common Facilities during Regular Business
Hours and, on a reduced service basis, during other than
Regular Business Hours, and, at all times, the electricity
required for the Leased Premises and Other Leased Premises;
8.2.4. such heat, ventilation and air conditioning for the Building,
the Leased Premises and Other Leased Premises as is
customarily provided for first class office buildings in the
immediate area for the comfortable use of the Building during
Regular Business Hours; and
8.2.5. heated water to the Building (except the Leased Premises and
Other Leased Premises, unless the appropriate plumbing,
fixtures and hot water heating units have been installed
therein).
8.3. Except as specifically set forth in subsections 8.1 and 8.2.1 of this
Agreement, the Tenant shall maintain and repair the Leased Premises and
keep the Leased Premises in as good condition and repair, reasonable wear
and use excepted, as the Leased Premises are upon the completion of any
improvements contemplated by section 5 of this Agreement.
9. Allocation of the Expense of Utilities, Services, Maintenance, Repairs and
Taxes.
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9.1. All Tenant Electric Charges shall be borne by the Tenant.
9.2. Between the Commencement Date and the end of the No Pass Through Period,
the Tenant's Share of all Operational Expenses and Taxes incurred during
such period shall be borne by the Landlord.
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9.3. Between the day after the end of the No Pass Through Period and the end of
the Term, the Tenant's Share of Operational Expenses and Taxes incurred
during each annual or shorter period ending on (a) December 31 of each
year and (b) the end of the Term shall be borne as follows:
9.3.1. the Tenant's Share of: Operational Expenses and Taxes incurred
during each such period of 12 months (or shorter period), up
to the amounts of Base Year Operational Expenses and Base Year
Taxes, respectively (or proportional amount thereof for
periods shorter than 12 months), shall be borne by the
Landlord; and
9.3.2. the Tenant's Share of: the amounts by which Operational
Expenses and Taxes incurred during each such period of 12
months (or shorter period) exceed Base Year Operational
Expenses and Base Year Taxes, respectively (or proportional
amount thereof for periods shorter than 12 months) shall be
allocated to, and borne by, the Tenant as more specifically
set forth in section 10 of this Agreement.
10. Computation and Payment of Allocated Expenses of Utilities, Services,
Maintenance, Repairs, Taxes and Capital Expenditures.
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10.1. The Tenant shall promptly pay the following additional amounts to the
Landlord at the respective times set forth below:
10.1.1. commencing with the first day after the end of the No Pass
Through Period, and on the first day of each month thereafter
during the Term, one-twelfth of the Tenant's Share of the
amount by which Taxes for the then current calendar year
exceeds Base Year Taxes, but only after Tenant receives a ▇▇▇▇
therefor computed in accordance with subsection 10.5 of this
Agreement;
10.1.2. within 20 days of the Landlord's giving notice to the Tenant
after the close of each calendar year closing during the Term,
commencing with the first calendar year closing after the
close of the No Pass Through Period, and after the end of the
Term, the Tenant's Share of the difference between the
Landlord's previously projected amount of Taxes for such
period and the actual amount of Taxes for such period, in
either case in excess of Base Year Taxes, computed in
accordance with subsection 10.6 of this Agreement (unless such
difference is a negative amount, in which case the Landlord
shall credit such difference against any amounts next due from
the Tenant under subsections 10.1.1 and 10.5 of this
Agreement);
10.1.3. commencing with the first day after the end of the No Pass
Through Period, and on the first day of each month thereafter
during the Term, one-twelfth of the Tenant's Share of the
amount by which Operational Expenses for the then current
calendar year exceed Base Year Operational Expenses, but only
after Tenant receives a ▇▇▇▇ therefor computed in accordance
with subsection 10.7 of this Agreement;
10.1.4. within 20 days of the Landlord's giving notice to the Tenant
after the close of each calendar year closing during the Term,
commencing with the first calendar year closing after the
close of the No Pass Through Period, and after the end of the
Term, the Tenant's Share of the difference between the
Landlord's previously projected amount of Operational Expenses
for such period and the actual amount of Operational Expenses
for such period, in either case in excess of Base Year
Operational Expenses, computed in accordance with subsection
10.8 of this Agreement (unless such difference is a negative
amount, in which case the Landlord shall credit such
difference against any amounts next due from the Tenant under
subsections 10.1.5 and 10.7 of this Agreement);
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10.1.5. commencing with the first day of the first month after the
Landlord gives any notice contemplated by subsection 10.9 of
this Agreement to the Tenant and continuing on the first day
of each month thereafter until the earlier of (a) the end of
the Term or (b) the last month of the useful life set forth in
the respective notice, one-twelfth of the Tenant's Share of
any Annual Amortized Capital Expenditure, computed in
accordance with subsection 10.9 of this Agreement;
10.1.6. on the first day of each month during the Term, the monthly
Tenant Electric Charges, computed in accordance with
subsection 10.10 of this Agreement; and
10.1.7. promptly as and when billed therefor by the Landlord, the
amount of any expense which would otherwise fall within the
definition of Operational Expenses, but which is specifically
paid or incurred by the Landlord for operation and maintenance
of the Building, the Common Facilities or the Property outside
Regular Business Hours at the specific request of the Tenant
or the amount of any expenditure incurred for maintenance or
repair of damage to the Building, the Common Facilities, the
Property, the Leased Premises or the Other Leased Premises
caused directly or indirectly, in whole or in part, by the
active or passive negligence or intentional act of the Tenant
or any of its employees, other agents or Guests.
10.2. "Operational Expenses" means all expenses paid or incurred by the Landlord
in connection with the Property, the Building, the Common Facilities and
any other improvements on the Property and their operation and maintenance
(other than Taxes (which are separately allocated to the Tenant in
accordance with subsections 10.1.1 and 10.1.2 of this Agreement), Capital
Expenditures (which are separately allocated to the Tenant in accordance
with subsection 10.1.5 of this Agreement) and those expenses contemplated
by subsections 10.1.6 and 10.1.7 of this Agreement)) including, without
limiting the generality of the foregoing:
10.2.1. Utilities Expenses;
10.2.2. the expense of providing the services, maintenance and repairs
contemplated by subsections 8.1, 8.2.1 and 8.2.2 of this
Agreement, whether furnished by the Landlord's employees or by
independent contractors or other agents;
10.2.3. wages, salaries, fees and other compensation and payments and
payroll taxes and contributions to any social security,
unemployment insurance, welfare, pension or similar fund and
payments for other fringe benefits required by law or union
agreement (or, if the employees or any of them are not
represented by a union, then payments for benefits comparable
to those generally required by union agreement in first class
office buildings in the immediate area which are unionized)
made to or on behalf of any employees of Landlord performing
services rendered in connection with the operation and
maintenance of the Building, the Common Facilities and the
Property, including, without limiting the generality of the
foregoing, elevator operators, elevator starters, window
cleaners, porters, janitors, maids, miscellaneous handymen,
watchmen, persons engaged in patrolling and protecting the
Building, the Common Facilities and the Property, carpenters,
engineers, firemen, mechanics, electricians, plumbers, other
tradesmen, other persons engaged in the operation and
maintenance of the Building, Common Facilities and Property,
Building superintendent and assistants, Building manager, and
clerical and administrative personnel;
10.2.4. the uniforms of all employees and the cleaning, pressing and
repair thereof;
10.2.5. premiums and other charges incurred by Landlord with respect
to all insurance relating to the Building, the Common
Facilities and the Property and the operation and maintenance
thereof, including, without
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limitation: property and casualty, fire and extended coverage
insurance, including windstorm, flood, hail, explosion, other
casualty, riot, rioting attending a strike, civil commotion,
aircraft, vehicle and smoke insurance; public liability
insurance; elevator, boiler and machinery insurance; excess
liability coverage insurance; use and occupancy insurance;
workers' compensation and health, accident, disability and
group life insurance for all employees; and casualty rent
insurance;
10.2.6. sales and excise taxes and the like upon any Operational
Expenses and Capital Expenditures;
10.2.7. management fees of any independent managing agent for the
Property, the Building or the Common Facilities; and if there
shall be no independent managing agent, or if the managing
agent shall be a person affiliated with the Landlord, the
management fees that would customarily be charged for the
management of the Property, the Building and the Common
Facilities by an independent, first class managing agent in
the immediate area;
10.2.8. the cost of replacements for tools, supplies and equipment
used in the operation, service, maintenance, improvement,
inspection, repair and alteration of the Building, the Common
Facilities and the Property;
10.2.9. the cost of repainting or otherwise redecorating any part of
the Building or the Common Facilities;
10.2.10. decorations for the lobbies and other Common Facilities in the
Building;
10.2.11. the cost of licenses, permits and similar fees and charges
related to operation, repair and maintenance of the Building,
the Property and the Common Facilities;
10.2.12. an allocable share of service, replacement, repair,
maintenance and other charges assessed from time to time by
the Carnegie Center Owner's Association II to the Building;
and
10.2.13. any and all other expenditures of the Landlord in connection
with the operation, alteration, repair or maintenance of the
Property, the Common Facilities or the Building as a
first-class office building and facilities in the immediate
area which are properly treated as an expense fully deductible
as incurred in accordance with generally applied real estate
accounting practice.
10.3. "Capital Expenditures" means the following expenditures incurred or paid
by the Landlord in connection with the Property, the Building, the Common
Facilities and any other improvements on the Property:
10.3.1. all costs and expenses incurred by the Landlord in connection
with retro-fitting the entire Building or the Common
Facilities, or any portion thereof, to comply with any change
in Federal, state or local statute, rule, regulation, order or
requirement which change takes effect after the original
completion of the Building;
10.3.2. all costs and expenses incurred by the Landlord to replace and
improve the Property, the Building or the Common Facilities or
portions thereof for the purpose of continued operation of the
Property, the Building and the Common Facilities as a first
class office complex in the immediate area; and
10.3.3. all costs and expenses incurred by the Landlord in connection
with the installation of any energy, labor or other cost
saving device or system on the Property or in the Building or
the Common Facilities.
10.4. Neither "Operational Expenses" nor "Capital Expenditures" shall include
any of the following:
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10.4.1. principal or interest on any mortgage indebtedness on the
Property, the Building or any portion thereof;
10.4.2. any capital expenditure, or amortized portion thereof, other
than those included in the definition of Capital Expenditures
set forth in subsection 10.3 above;
10.4.3. expenditures for any leasehold improvement which is made in
connection with the preparation of any portion of the Building
for occupancy by a new tenant or which is not made generally
to or for the benefit of the Leased Premises and all Other
Leased Premises or generally to the Building or the Common
Facilities;
10.4.4. to the extent the Landlord actually receives proceeds of
property and casualty insurance policies on the Building,
other improvements on the Property or the Common Facilities,
expenditures for repairs or replacements occasioned by fire or
other casualty to the Building or the Common Facilities;
10.4.5. expenditures for repairs, replacements or rebuilding
occasioned by any of the events contemplated by section 16 of
this Agreement;
10.4.6. expenditures for costs, including advertising and leasing
commissions, incurred in connection with efforts to lease
portions of the Building and to procure new tenants for the
Building;
10.4.7. legal fees and expenses incurred in enforcing any of
Landlord's rights or remedies against tenants of Other Leased
Premises;
10.4.8. expenditures for the salaries and benefits of the executive
officers, if any, of the Landlord; and
10.4.9. depreciation (as that term is used in the accounting sense in
the context of generally applied real estate accounting
practice) of the Building, the Common Facilities and any other
improvement on the Property.
10.5. As soon as practicable after the close of the No Pass Through Period and
December 31 of each year thereafter, any portion of which is during the
Term, the Landlord shall furnish the Tenant with a notice setting forth:
10.5.1. Taxes billed, or if a ▇▇▇▇ has not then been received for the
entire period, the Landlord's projection of Taxes to be
billed, for the then current calendar year;
10.5.2. the amount of Base Year Taxes;
10.5.3. the amount, if any, by which item 10.5.1 above exceeds item
10.5.2 above; and
10.5.4. the Tenant's Share of item 10.5.3 above.
10.6. As soon as practicable after December 31 of each year during the Term and
after the end of the Term, the Landlord shall furnish the Tenant with a
notice setting forth:
10.6.1. the actual amount of Taxes for the preceding calendar year in
excess of Base Year Taxes (or proportional amount thereof for
shorter periods during the Term);
10.6.2. the Landlord's previously projected amount of Taxes for the
preceding calendar year in excess of Base Year Taxes (or
proportional amount thereof for shorter periods during the
Term);
10.6.3. the difference obtained by subtracting item 10.6.2 above from
item 10.6.1 above; and
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10.6.4. the Tenant's Share of item 10.6.3 above.
10.7. As soon as practicable after the close of the No Pass Through Period and
December 31 of each year thereafter, any portion of which is during the
Term, the Landlord shall furnish the Tenant with a notice setting forth:
10.7.1. the Landlord's projection of annual Operational Expenses for
the current period (if any portion thereof is during the
Term);
10.7.2. the amount of the Base Year Operational Expenses;
10.7.3. the amount, if any, by which item 10.7.1 above exceeds item
10.7.2 above; and
10.7.4. the Tenant's Share of item 10.7.3 above.
10.8. As soon as practicable after December 31 of each year during the
Term and after the end of the Term, the Landlord shall furnish the
Tenant with a notice setting forth:
10.8.1. the actual amount of Operational Expenses for the preceding
calendar year in excess of Base Year Operational Expenses (or
proportional amount thereof for shorter periods during the
Term);
10.8.2. the Landlord's previously projected amount of Operational
Expenses for the preceding calendar year in excess of Base
Year Operational Expenses (or proportional amount thereof for
shorter periods during the Term);
10.8.3. the difference obtained by subtracting item 10.8.2 above from
item 10.8.1 above; and
10.8.4. the Tenant's Share of item 10.8.3 above.
10.9. As soon as practicable after incurring any Capital Expenditure, the
Landlord shall furnish the Tenant with a notice setting forth:
10.9.1. a description of the Capital Expenditure and the subject
thereof;
10.9.2. the date the subject of the respective Capital Expenditure was
first placed into service and the period of useful life
selected by the Landlord in connection with the determination
of the Annual Amortized Capital Expenditure;
10.9.3. the amount of the Annual Amortized Capital Expenditure; and
10.9.4. the Tenant's Share of item 10.9.3 above.
▇▇.▇▇.▇▇ soon as practicable after the Commencement Date and from time to time
thereafter, the Landlord shall furnish the Tenant with a notice setting
forth its estimate of Tenant Electric Charges per month. Unless the Tenant
desires to question the Landlord's then most recent estimate of Tenant
Electric Charges exclusively in the manner set forth below, the Landlord's
then most recent estimate shall be binding and shall continue in effect
until any question raised by the Tenant is otherwise resolved in
accordance with this subsection 10.10 of the Agreement. If the Tenant
desires to question the Landlord's estimate of Tenant Electric Charges,
the Tenant shall give notice to the Landlord of its desire. Upon receipt
of the Tenant's notice, the Landlord shall obtain, at the Tenant's
expense, a reputable, independent electrical engineer's formal written
estimate and computation of the Tenant Electric Charges. The engineer's
estimate and computation of Tenant Electric Charges shall thereupon
control for a 12 month period commencing with the date as of which it is
given effect as to Tenant Electric Charges, and until the Landlord
furnishes the Tenant with a subsequent notice setting forth its estimate
of Tenant Electric Charges per month, except to the extent that the
Landlord may increase them in proportion to increases in Utilities
Expenses during the same period.
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10.11 Within 60 days after the Landlord gives any notice enumerated in
subsections 10.5 through 10.10 of this Agreement, the Tenant or the
Tenant's authorized agent, upon one week's prior notice to the Landlord,
may inspect the Landlord's books and records, as they pertain to the
particular expense in question, at the Landlord's office regarding the
subject of any such notice to verify the amount(s) and calculation(s)
thereof. After payment of the Tenant's Share in accordance with the
provisions of section 10 of this Agreement, no further audit shall be
conducted except with respect to items which may have been questioned
within the 60 day period.
10.12 The mere enumeration of an item within the definitions of Operational
Expenses and Capital Expenditures in subsections 10.2 and 10.3 of this
Agreement, respectively, shall not be deemed to create an obligation on
the part of the Landlord to provide such item unless the Landlord is
affirmatively required to provide such item elsewhere in this Agreement.
11. Leasehold Improvements, Fixtures and Trade Fixtures.
---------------------------------------------------
All leasehold improvements to the Leased Premises, fixtures installed in the
Leased Premises and the blinds and floor treatments or coverings shall be the
property of the Landlord, regardless of when, by which party or at which party's
cost the item is installed. Movable furniture, furnishings, trade fixtures and
equipment of the Tenant which are in the Leased Premises shall be the property
of the Tenant, except as may otherwise be set forth in section 23 of this
Agreement.
12. Alterations, Improvements and Other Modifications by the Tenant.
---------------------------------------------------------------
12.1. The Tenant shall not make any alterations, improvements or other
modifications to the Leased Premises which effect structural changes in
the Building or any portion thereof, change the functional utility or
rental value of the Leased Premises or, except as may be contemplated by
section 5 of this Agreement prior to the Commencement Date, affect the
mechanical, electrical, plumbing or other systems installed in the
Building or the Leased Premises.
12.2. The Tenant shall not make any other alterations, improvements or
modifications to the Leased Premises, the Building or the Property or make
any boring in the ceiling, walls or floor of the Leased Premises or the
Building unless the Tenant shall have first:
12.2.1. furnished to the Landlord detailed, New Jersey
architect-certified construction drawings, construction
specifications and, if they pertain in any way to the heating,
ventilation and air conditioning or other systems of the
Building, related engineering design work and specifications
regarding, the proposed alterations, improvements or other
modifications;
12.2.2. not received a notice from the Landlord objecting thereto in
any respect within 30 days of the furnishing thereof (which
shall not be deemed the Landlord's affirmative consent for any
purpose);
12.2.3. obtained any necessary or appropriate building permits or
other approvals from the Municipality and, if such permits or
other approvals are conditional, satisfied all conditions to
the satisfaction of the Municipality; and
12.2.4. met, and continued to meet, all the following conditions with
regard to any contractors selected by the Tenant and any
subcontractors, including materialmen, in turn selected by any
of them:
12.2.4.1. the Tenant shall have sole responsibility for
payment of, and shall pay, such contractors;
12.2.4.2. the Tenant shall have sole responsibility for
coordinating, and shall coordinate, the work to
be supplied or performed
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by such contractors, both among themselves and
with any contractors selected by the Landlord;
12.2.4.3. the Tenant shall not permit or suffer the filing
of any mechanic's notice of intention or other
lien or prospective lien by any such contractor or
subcontractor with respect to the Property, the
Common Facilities, the Building or any other
improvements on the Property; and if any of the
foregoing should be filed by any such contractor
or subcontractor, the Tenant shall forthwith
obtain and file the complete discharge and release
thereof or provide such payment bond(s) from a
reputable, financially sound institutional surety
as will, in the opinions of the Landlord, the
holders of any mortgage indebtedness on, or other
interest in, the Property, the Building, the
Common Facilities or any other improvements on the
Property, or any portions thereof, and their
respective title insurers, be adequate to assure
the complete discharge and release thereof;
12.2.4.4. prior to any such contractor's entering upon the
Property, the Building or the Leased Premises or
commencing work the Tenant shall have delivered to
the Landlord (a) all the Tenant's certificates of
insurance set forth in section 14 of this
Agreement, conforming in all respects to the
requirements of section 14 of this Agreement,
except that the effective dates of all such
insurance policies shall be prior to any such
contractor's entering upon the Property, the
Building or the Leased Premises or commencing work
(if any work is scheduled to begin before the
Commencement Date) and (b) similar certificates of
insurance from each of the Tenant's contractors
providing for coverage in equivalent amounts,
together with their respective certificates of
workers' compensation insurance, employer's
liability insurance and products-completed
operations insurance, the latter providing
coverage in at least the amount required for the
Tenant's comprehensive general public liability
and excess insurance;
12.2.4.5. each such contractor shall be a party to
collective bargaining agreements with those unions
that are certified as the collective bargaining
agents of all bargaining units of such contractor,
of which all such contractor's workpersons shall
be members in good standing;
12.2.4.6. each such contractor shall perform its work in a
good and workpersonlike manner and shall not
interfere with or hinder the Landlord or any other
contractor in any manner;
12.2.4.7. there shall be no labor dispute of any nature
whatsoever involving any such contractor or any
workpersons of such contractor of the unions of
which they are members with anyone; and if such a
labor dispute exists or comes into existence the
Tenant shall forthwith, at the Tenant's sole cost
and expense, remove all such contractors and their
workpersons from the Building, the Common
Facilities and the Property; and
12.2.4.8. the Tenant shall have the sole responsibility for
the security of the Leased Premises and all
contractors' materials, equipment and work,
regardless of whether their work is in progress or
completed.
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12.3. After the Commencement Date, the Tenant shall not apply any wall covering
(except latex based flat paint) or other treatment to the walls of the
Leased Premises without the prior written consent of the Landlord.
13. Landlord's Rights of Entry and Access.
-------------------------------------
The Landlord and its authorized agents shall have the following rights of entry
and access to the Leased Premises:
13.1. In case of any emergency or threatened emergency, at any time for any
purpose which the Landlord reasonably believes under such circumstances
will serve to prevent, eliminate or reduce the emergency, or the threat
thereof, or damage or threatened damage to persons and property.
13.2. Upon at least one day's prior verbal advice to the Tenant, at any time for
the purpose of erecting or constructing improvements, modifications,
alterations and other changes to the Building or any portion thereof,
including, without limiting the generality of the foregoing, the Leased
Premises, the Common Facilities or the Property or for the purpose of
repairing, maintaining or cleaning them, whether for the benefit of the
Landlord, the Building, all tenants of Other Leased Premises in the
Building, or one or more tenants of Other Leased Premises, the Carnegie
Center Complex or others. In connection with any such improvements,
modifications, alterations, other changes, repairs, maintenance or
cleaning, the Landlord may close off such portions of the Property, the
Building and the Common Facilities and interrupt such services as may be
necessary to accomplish such work, without liability to the Tenant
therefor and without such closing or interruption being deemed an eviction
or constructive eviction or requiring an abatement of Rent. However, in
accomplishing any such work, the Landlord shall endeavor not to materially
interfere with the Tenant's use and enjoyment of the Leased Premises or
the conduct of the Tenant's business and to minimize interference,
inconvenience and annoyance to the Tenant.
13.3. At all reasonable hours for the purpose of operating, inspecting or
examining the Building, including the Leased Premises, or the Property.
13.4. At any time after the Tenant has vacated the Leased Premises, for the
purpose of preparing the Leased Premises for another tenant or prospective
tenant.
13.5. If practicable by appointment with the Tenant, at all reasonable hours for
the purpose of showing the Building to prospective purchasers, mortgagees
and prospective mortgagees and prospective ground lessees and lessors.
13.6. If practicable by appointment with the Tenant, at all reasonable hours
during the last six months of the Term for the purpose of showing the
Leased Premises to prospective tenants thereof.
13.7. The mere enumeration of any right of the Landlord within this section 13
of the Agreement shall not be deemed to create an obligation on the part
of the Landlord to exercise any such right unless the Landlord is
affirmatively required to exercise such right elsewhere in this Agreement.
14. Liabilities and Insurance Obligations.
-------------------------------------
14.1. The Tenant shall, at the Tenant's own expense, purchase before the
Commencement Date, and maintain in full force and effect throughout the
Term and any other period during which the Tenant may have possession of
the Leased Premises, the following types of insurance coverage from
financially sound and reputable insurers, licensed by the State of New
Jersey to provide such insurance and acceptable to the Landlord, in the
minimum amounts set forth below, each of which insurance policies shall be
for the benefit of, and shall name the Landlord, the Landlord's managing
agent and mortgagees and ground lessors known to the Tenant, if any, of
the Building, the Common Facilities, the Property or any interest therein,
their successors and assigns as additional persons insured, and none of
which insurance policies shall contain a "co-insurance" clause:
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14.1.1. commercial general liability insurance (including "broad form
and contractual liability" coverage) and excess ("umbrella")
insurance which, without limiting the generality of the
foregoing, considered together shall insure against such risks
as bodily injury, death and property damage, with a combined
single limit of not less than $3,000,000.00 for each
occurrence; and
14.1.2. "all-risks" property insurance covering the Leased Premises in
an amount sufficient, as determined by the Landlord from time
to time, to cover the replacement costs for all Tenant's
alterations, improvements, fixtures and personal property
located in or on the Leased Premises.
14.2. With respect to risks:
14.2.1. as to which this Agreement requires either party to maintain
insurance, or
14.2.2. as to which either party is effectively insured and for which
risks the other party may be liable,
the party required to maintain such insurance and the party effectively
insured shall use its best efforts to obtain a clause, if available from
the respective insurer, in each such insurance policy expressly waiving
any right of recovery, by reason of subrogation to such party's rights or
otherwise, the respective insurer might otherwise have or obtain against
the other party, so long as such a clause can be obtained in the
respective insurance policy without additional premium cost. If such a
clause can be obtained in the respective insurance policy, but only at
additional premium cost, such party shall, by notice to the other party,
promptly advise the other party of such fact and the amount of the
additional premium cost. If the other party desires the inclusion of such
a clause in the notifying party's respective insurance policy, the other
party shall, within 10 days of receipt of the notifying party's notice, by
notice advise the notifying party of its desire and enclose therewith its
check in the full amount of the additional premium cost; otherwise the
notifying party need not obtain such a clause in the respective insurance.
14.3. Each party hereby waives any right of recovery against the other party for
any and all damages for property losses and property damages which are
actually insured by either party, but only to the extent:
14.3.1. that the waiver set forth in this subsection 14.3 does not
cause or result in any cancellation of, or diminution in, the
insurance coverage otherwise available under any applicable
insurance policy;
14.3.2. of the proceeds of any applicable insurance policy (without
adjustment for any deductible amount set forth therein)
actually received by such party for such respective loss or
damages; and
14.3.3. the substance of the clause contemplated by subsection 14.2 of
this Agreement is actually and effectively set forth in the
respective insurance policy.
The waiver set forth in this subsection 14.3 of the Agreement shall not
apply with respect to liability insurance policies (as opposed to property
and casualty insurance policies).
14.4. Each party hereby waives any right of recovery against the other party for
any and all damages for property losses and property damages which are
actually insured by either party, but only to the extent of the proceeds
of any applicable insurance policy (without adjustment for any deductible
amount set forth therein) actually received by such party for such
respective loss or damages. The waiver set forth in this subsection 14.3
of the Agreement shall not apply with respect to liability insurance
policies (as opposed to property and casualty insurance policies).
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14.5. The Landlord shall have no liability whatsoever to the Tenant or the
Tenant's employees, other agents or Guests or anyone else for any death,
bodily injury, property loss or other damages suffered by any of them or
any of their property which is not caused by the negligence or intentional
misconduct of the Landlord.
14.6. Each policy of insurance required under subsection 14.1 of this Agreement
shall include provisions to the effect that:
14.6.1. no act or omission of the Tenant, its employees, other agents
or Guests shall result in a loss of insurance coverage
otherwise available under such policy to any person required
to be named as an additional insured in accordance with
subsection 14.1 of this Agreement; and
14.6.2. the insurance coverage afforded by such policy shall not be
diminished, cancelled, permitted to expire or otherwise
terminated for any reason except upon 30 days' prior written
notice from the insurer to every person required to be named
as an additional insured in accordance with subsection 14.1 of
this Agreement.
14.7. With respect to each type of insurance coverage referred to in subsection
14.1 of this Agreement, prior to the Commencement Date the Tenant shall
cause its insurer(s) to deliver to the Landlord the certificate(s) of the
insurer(s) setting forth the name and address of the insurer, the name and
address of each additional insured, the type of coverage provided, the
limits of the coverage, any deductible amounts, the effective dates of
coverage and that each policy under which coverage is provided
affirmatively includes provisions to the effect set forth in subsection
14.6 of this Agreement. In the event any of such certificates indicates a
coverage termination date earlier than the end of the Term or the end of
any other period during which the Tenant may have possession of the Leased
Premises, no later than 10 days before any such coverage termination date,
the Tenant shall deliver to the Landlord respective, equivalent, new
certificate(s) of the insurer(s).
15. Casualty Damage to Building or Leased Premises.
----------------------------------------------
15.1. In the event of any damage to the Building or any portion thereof by fire
or other casualty which was not caused directly or indirectly, in whole or
in part, by the active or passive negligence or intentional act of the
Tenant, its employees, other agents or Guests:
15.1.1. with the result that the Leased Premises are rendered
untenantable in whole or in part,
15.1.2. regarding which, within 60 days after the occurrence of the
casualty, the Landlord gives notice to the Tenant that the
Landlord can restore the Leased Premises within 180 days after
the occurrence of the casualty to such an extent that the
Leased Premises are then fully tenantable, and
15.1.3. regarding which the Landlord does restore the Leased Premises
within such period of 180 days,
then this Agreement shall remain in full force and effect, but Rent shall
▇▇▇▇▇ until such time as the Leased Premises are again fully tenantable
and be reduced during such period by the amount which bears the same
proportion to the Rent otherwise payable during such period as the gross
rentable floor space of the Leased Premises which are rendered
untenantable bears to the gross rentable floor space of the Leased
Premises.
15.2. In the event of casualty damages in the circumstances set forth in
subsection 15.1 of this Agreement which do not result in a termination of
the Term, the Landlord shall cause restoration to proceed diligently and
expediently to the extent the Landlord has received proceeds of any
property, casualty or liability insurance on the damaged portions. If the
Landlord does not complete the restoration within the permitted time then
the Term shall terminate thirty (30) days after written notice
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from the Tenant unless the restoration is completed within the thirty (30)
day interval.
15.3. The Tenant shall promptly advise the Landlord by the quickest means of
communication of the occurrence or threatened occurrence of any casualty
damage to the Building or the Leased Premises of which the Tenant becomes
aware.
16. Condemnation.
------------
If the Leased Premises, or any portion thereof, or the Building or the Common
Facilities, or any substantial portion of any of the foregoing, shall be
acquired for any public or quasi-public use or purpose by statute, right of
eminent domain or private sale in lieu thereof, with the result the Tenant can
not use and occupy the Leased Premises for the purpose set forth in subsection
7.1 of this Agreement, the Tenant hereby waives any claim against the Landlord,
the condemning authority or other person acquiring same for any thing of value,
tangible or intangible, including, without limiting the generality of the
foregoing, the putative value of any leasehold interest or loss of the use of
same, except for any right the Tenant might have to make a claim, independent
of, and without reference to or having any effect on, any award or claim of the
Landlord, against the condemning authority or other acquiring party regarding
the value of the Tenant's installed trade fixtures and other installed equipment
which are not removable from the Leased Premises or for ordinary and necessary
moving expenses occasioned thereby.
17. Assignment or Subletting by Tenant.
----------------------------------
17.1. Except as may be specifically set forth in this section 17 of the
Agreement, the Tenant shall not:
17.1.1. assign, or purport to assign, this Agreement or any of the
Tenant's rights hereunder;
17.1.2. sublet, or purport to sublet, the Leased Premises or any
portion thereof;
17.1.3. license, or purport to license, the use or occupancy of the
Leased Premises or any portion thereof;
17.1.4. otherwise transfer, or attempt to transfer any interest
including, without limiting the generality of the foregoing, a
mortgage, pledge or security interest, in this Agreement, the
Leased Premises or the right to the use and occupancy of the
Leased Premises; or
17.1.5. indirectly accomplish, or permit or suffer the accomplishment
of, any of the foregoing by merger or consolidation with
another entity, by acquisition or disposition of assets or
liabilities outside the ordinary course of the Tenant's
business or by acquisition or disposition, by the Tenant's
equity owners or subordinated creditors, of any of their
respective interests in the Tenant.
17.2. The Tenant shall not assign this Agreement or any of the Tenant's rights
hereunder or sublet the Leased Premises or any portion thereof without
first giving 45 days' prior notice to the Landlord of its desire to assign
or sublet and requesting the Landlord's consent and without first
receiving the Landlord's prior written consent.
The Tenant's notice to the Landlord shall include:
17.2.1. the full name, address and telephone number of the proposed
assignee or sublessee;
17.2.2. a description of the type(s) of business in which the proposed
assignee or sublessee is engaged and proposes to engage;
17.2.3. a description of the precise use to which the proposed
assignee or sublessee intends to put the Leased Premises or
portion thereof;
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17.2.4. the proposed assignee's or subtenant's most recent quarterly
and annual financial statements prepared in accordance with
generally accepted accounting principles and any other
evidence of financial position and responsibility that the
Tenant or proposed assignee or sublessee may desire to submit;
17.2.5. by diagram and measurement of the actual square feet of floor
space, the precise portion of the Leased Premises proposed to
be subject to the assignment of this Agreement or to be
sublet;
17.2.6. a complete, accurate and detailed description of the terms of
the proposed assignment or sublease including, without
limiting the generality of the foregoing, all consideration
paid or given, or proposed to be paid or to be given, by the
proposed assignee, sublessee or other person to the Tenant and
the respective times of payment or delivery; and
17.2.7. any other information reasonably requested by the Landlord.
17.3. By the expiration of the notice period contemplated by subsection 17.2 of
this Agreement, the Landlord, in its sole discretion, shall take one of
the following actions by notice to the Tenant:
17.3.1. grant consent on the terms and conditions set forth in
subsection 17.4 of this Agreement and such other reasonable
terms and conditions set forth in the Landlord's notice;
17.3.2. refuse to grant consent for any of the reasons set forth in
subsection 17.5 of this Agreement or for any other reasonable
reason set forth in the Landlord's notice; or
17.3.3. elect to terminate the Term as of (a) the end of the third
full month after the Tenant has given notice of the Tenant's
desire to assign or sublet or (b) the proposed effective date
of the proposed assignment or sublease.
17.4. The Landlord's consent to the Tenant's proposed assignment or sublease, if
granted under subsection 17.3.1 of this Agreement, shall be subject to all
the following terms and conditions (and to any other terms and conditions
permitted by that subsection):
17.4.1. any proposed assignee or sublessee shall, by document executed
and delivered forthwith to the Landlord, agree to be bound by
all the obligations of the Tenant set forth in this Agreement;
17.4.2. the Tenant shall remain liable under this Agreement, jointly
and severally with any proposed assignee or sublessee, for the
timely performance of all obligations of the Tenant set forth
in this Agreement;
17.4.3. the Tenant shall forthwith deliver to the Landlord manually
executed copies of all documents regarding the proposed
assignment or sublease and a written, accurate and complete
description, manually executed both by the Tenant and the
proposed assignee or sublessee, of any other agreement,
arrangement or understanding between them regarding the same;
17.4.4. with respect to any consideration or other thing of value
received or to be received by the Tenant in connection with
any such assignment or sublease (other than those payable in
equal monthly installments each month during the proposed term
of any such assignment or sublease), the Tenant shall pay to
the Landlord one-half of any such amount and one-half of the
fair market value of any other thing of value within 10 days
of receipt of same; and
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17.4.5. with respect to any amount payable to the Tenant in equal
monthly installments each month during the proposed term of
any such assignment or sublease in connection with such
assignment or sublease, which amount is in excess of the
amount which bears the same ratio to the monthly installment
of Rent due from the Tenant as the usable floor space of the
Leased Premises subject to the assignment or sublease bears to
the usable floor space of the entire Leased Premises, the
Tenant shall pay one-half of such excess to the Landlord
together with the Tenant's monthly installment of Rent.
17.5. The Landlord's refusal to grant consent under subsection 17.3.2 of this
Agreement shall not be deemed an unreasonable withholding of consent if
based upon any of the following reasons (or any other reason permitted by
that subsection):
17.5.1. the Landlord desires to take one of the other actions
enumerated in subsection 17.3 of this Agreement;
17.5.2. there is already another assignee, sublessee or licensee of
all or a portion of the Leased Premises;
17.5.3. the proposed sublease is for a term of less than one year;
17.5.4. the proposed sublease is for a term which would expire after
the Term;
17.5.5. less than one year remains in the Term as of the proposed
effective date of the proposed assignment or sublease;
17.5.6. the general reputation, financial position or ability or type
of business of, or the anticipated use of the Leased Premises
by, the proposed assignee or proposed sublessee is
unsatisfactory to the Landlord or is inconsistent with those
of tenants of Other Leased Premises or of the Carnegie Center
Complex or inconsistent with any commitment made by the
Landlord to any such other tenant;
17.5.7. the proposed consideration to be paid to the Tenant during any
period of 12 months is less than the amount of the Market
Rental Rate divided by the gross rentable floor space of the
Leased Premises and multiplied by that portion of the gross
rentable floor space of the Leased Premises proposed to be
subject to the proposed assignment or sublease; or
17.5.8. the gross rentable floor space of the portion of the Leased
Premises proposed to be sublet is less than one-third of the
gross rentable floor space of the Leased Premises.
17.6. An assignment or sublease to a parent, subsidiary, affiliate, or successor
in interest by acquisition or merger of Tenant may be done without consent
provided that (i) the Tenant complies with the requirements of subsection
17.4 of this Agreement; and (ii) the assignment is not to an entity formed
for the purpose of avoiding the provisions of section 17 of this
Agreement.
18. Signs, Displays and Advertising.
-------------------------------
18.1. The Tenant shall have one sign identifying the Landlord's assigned number
for the Leased Premises at the principal entrance to the Leased Premises.
The Tenant may identify itself in or on each of: the sign at the principal
entrance to the Leased Premises, the Building directory and the directory,
if any, on the floor of the Building on which the Leased Premises is
located. All such signs, and the method and materials used in mounting and
dismounting them, shall be in accordance with the Landlord's
specifications. All such signs shall be provided and mounted by the
Landlord at the Landlord's expense, except that the Tenant shall bear any
expense of identifying itself on the sign at the principal entrance to the
Leased Premises.
18.2. No other sign, advertisement, fixture or display shall be used by the
Tenant on the Property or in the Building or the Common Facilities. Any
signs other than those
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specifically permitted under subsection 18.1 of this Agreement shall be
removed promptly by the Tenant or by the Landlord at the Tenant's expense.
19. Quiet Enjoyment.
---------------
The Landlord is the owner of the Building, the Property and those Common
Facilities located on the Property. The Landlord has the right and authority to
enter into and execute and deliver this Agreement with the Tenant. So long as an
Event of Default shall not have occurred and be continuing, the Tenant shall and
may peaceably and quietly have, hold and enjoy the Leased Premises during the
Term in accordance with this Agreement.
20. Relocation.
----------
At any time and from time to time during the Term, on at least one hundred
twenty (120) days prior notice to Tenant, the Landlord shall have the right to
move the Tenant out of the Leased Premises and into premises having at least
equal square footage as the Leased Premises located in the Building or in any
other comparable building in the Carnegie Center Complex for the duration of the
Term. In the event that there is not comparable space located in the Building,
the Landlord shall use its best efforts to relocate the Tenant into a 200 Series
building in the Carnegie Center Complex. If comparable space is not available in
a 200 Series building, the Landlord may relocate the Tenant to another building
in the Carnegie Center Complex. In connection with the relocation of the Tenant,
the Landlord shall pay (i) all costs and expenses of preparing and decorating
the new premises so that such premises will be substantially similar to the
Leased Premises; (ii) all costs and expenses of removing, relocating and
installing Tenant's furniture, trade fixtures, furnishings and equipment to the
new premises; and (iii) other expenses incurred by Tenant including, but not
limited to, the reprinting of stationery and business cards. The use and
occupancy by Tenant of the new premises shall be under and pursuant to the same
terms, conditions and provisions of this Lease except that the description of
the Leased Premises, building (if applicable) and the Property which, upon
completion of such relocation, shall be deemed amended to describe the
substitute new premises, building and property respectively, to which Tenant
shall have been relocated in accordance with this Section 20. Notwithstanding
the foregoing, upon receipt of the written notice of the Landlord's intention to
relocate the Tenant, the Tenant may, upon written notice to Landlord, elect not
to relocate to such other premises and, in lieu thereof, may terminate this
Lease effective on the date the proposed relocation would have been effective.
21. Surrender.
---------
Upon termination of the Term, or at any other time at which the Landlord, by
virtue of any provision of this Agreement or otherwise has the right to re-enter
and re-take possession of the Leased Premises, the Tenant shall surrender
possession of the Leased Premises; remove from the Leased Premises all property
owned by the Tenant or anyone else other than the Landlord; remove from the
Leased Premises any alterations, improvements or other modifications to the
Leased Premises that the Landlord may request by notice; make any repairs
required by such removal; clean the Leased Premises; leave the Leased Premises
in as good order and condition as it was upon the completion of any improvements
contemplated by section 5 of this Agreement, ordinary wear and use excepted;
return all copies of all keys and passes to the Leased Premises, the Common
Facilities and the Building to the Landlord; and receive the Landlord's written
acceptance of the Tenant's surrender. The Landlord shall not be deemed to have
accepted the Tenant's surrender of the Leased Premises unless and until the
Landlord shall have executed and delivered the Landlord's written acceptance of
surrender to the Tenant, which shall not be unreasonably withheld or delayed.
22. Events of Default.
-----------------
The occurrence of any of the following events shall constitute an Event of
Default under this Agreement:
22.1. the Tenant's failure to pay any installment of Basic Rent or any amount of
Additional Rent when it is first due;
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22.2. the Tenant's failure to perform any of its obligations under this
Agreement if such failure has caused, or may cause, loss or damage that
can not promptly be cured by subsequent act of the Tenant;
22.3. the Tenant's failure to complete performance of any of the Tenant's
obligations under this Agreement (other than those contemplated by
subsections 22.1 and 22.2 of this Agreement) within 30 days after the
Landlord shall have given notice to the Tenant specifying which of the
Tenant's obligations has not been performed and in what respects, unless
completion of performance within such period of 30 days is not possible
using diligence and expedience, then within a reasonable time of the
Landlord's notice so long as the Tenant shall have commenced substantial
performance within the first three days of such period of 30 days and
shall have continued to provide substantial performance, diligently and
expediently, through to completion of performance;
22.4. the discovery that any representation made by the Tenant in this Agreement
shall have been inaccurate or incomplete in any material respect either on
the date it was made or the date as of which it was made;
22.5. the sale, transfer or other disposition of any interest of the Tenant in
the Leased Premises by way of execution or other legal process;
22.6. with the exception of those of the following events to which section 365
of the Bankruptcy Code shall apply in the context of an office lease (in
which case subsection 22.7 of this Agreement shall apply):
22.6.1. the Tenant's becoming a "debtor," as that term is defined in
section 101 of the Bankruptcy Code;
22.6.2. any time when either the value of the Tenant's liabilities
exceed the value of the Tenant's assets or the Tenant is
unable to pay its obligations as and when they respectively
become due in the ordinary course of business;
22.6.3. the appointment of a receiver or trustee of the Tenant's
property or affairs; or
22.6.4. the Tenant's making an assignment for the benefit of, or an
arrangement with or among, creditors or filing a petition in
insolvency or for reorganization or for the appointment of a
receiver;
22.7. in the event of the occurrence of any of the events enumerated in
subsection 22.6 of this Agreement to which section 365 of the Bankruptcy
Code shall apply in the context of an office lease, the earlier of the
bankruptcy trustee's rejection or deemed rejection (as those terms are
used in section 365 of the Bankruptcy Code) of this Agreement; or
22.8. the Tenant's abandoning the Leased Premises before expiration of the Term
without the prior written consent of the Landlord.
23. Rights and Remedies.
-------------------
23.1. Upon the occurrence of an Event of Default the Landlord shall have all the
following rights and remedies:
23.1.1. to elect to terminate the Term by giving notice of such
election, and the effective date thereof, to the Tenant and to
receive Termination Damages;
23.1.2. to elect to re-enter and re-take possession of the Leased
Premises, without thereby terminating the Term, by giving
notice of such election, and the effective date thereof, to
the Tenant and to receive Re-Leasing Damages;
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23.1.3. if the Tenant remains in possession of the Leased Premises
after the Tenant's obligation to surrender the Leased Premises
shall have arisen, to remove the Tenant and the Tenant's and
any others' possessions from the Leased Premises by any of the
following means without any liability to the Tenant therefor,
any such liability to the Tenant therefor which might
otherwise arise being hereby waived by the Tenant: legal
proceedings (summary or otherwise), writ of dispossession and
any other means and to receive Holdover Damages and, except in
the circumstances contemplated by section 20 of this
Agreement, to receive all expenses incurred in removing the
Tenant and the Tenant's and any others' possessions from the
Leased Premises, and of storing such possessions if the
Landlord so elects;
23.1.4. to be awarded specific performance, temporary restraints and
preliminary and permanent injunctive relief regarding Events
of Default where the Landlord's rights and remedies at law may
be inadequate, without the necessity of proving actual damages
or the inadequacy of the rights and remedies at law;
23.1.5. to receive all expenses incurred in securing, preserving,
maintaining and operating the Leased Premises during any
period of vacancy, in making repairs to the Leased Premises,
in preparing the Leased Premises for re-leasing and in
re-leasing the Leased Premises including, without limiting the
generality of the foregoing, any brokerage commissions;
23.1.6. to receive all legal expenses, including without limiting the
generality of the foregoing, attorneys' fees incurred in
connection with pursuing any of the Landlord's rights and
remedies, including indemnification rights and remedies;
23.1.7. if the Landlord, in its sole discretion, elects to perform any
obligation of the Tenant under this Agreement (other than the
obligation to pay Rent) which the Tenant has not timely
performed, to receive all expenses incurred in so doing;
23.1.8. to elect to pursue any legal or equitable right and remedy
available to the Landlord under this Agreement or otherwise;
and
23.1.9. to elect any combination, or any sequential combination of any
of the rights and remedies set forth in subsection 23.1 of
this Agreement.
23.2. In the event the Landlord elects the right and remedy set forth in
subsection 23.1.1 of this Agreement, Termination Damages shall be equal to
the amount which, at the time of actual payment thereof to the Landlord,
is the sum of:
23.2.1. all accrued but unpaid Rent;
23.2.2. the present value (calculated using the most recently
available (at the time of calculation) published weekly
average yield on United States Treasury securities having
maturities comparable to the balance of the then remaining
Term) of the sum of all payments of Rent remaining due (at the
time of calculation) until the date the Term would have
expired (had there been no election to terminate it earlier)
less the present value (similarly calculated) of all payments
of rent to be received through the end of the Term (had there
been no election to terminate it earlier) from a lessee, if
any, of the Leased Premises at the time of calculation (and it
shall be assumed for purposes of such calculations that (i)
the amount of future Additional Rent due per year under this
Agreement will be equal to the average Additional Rent per
month due during the 12 full calendar months immediately
preceding the date of any such calculation, increasing
annually at a rate of eight percent compounded, (ii) if any
calculation is made before the first anniversary of the end of
the No Pass Through Period, the average Additional Rent due
for any month after the end of the No Pass Through Period will
be equal to nine percent of the sum of the Base Year Operating
Expenses,
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Base Year Taxes and Tenant Electric Charges (considered on an
annual basis), (iii) if any calculation is made before the
beginning of the Base Year, the sum of Base Year Taxes and
Base Year Operational Expenses shall be assumed to be $5.00
per gross rentable square foot and (iv) if any calculation is
made before the end of the Base Year, Base Year Taxes and Base
Year Operational Expenses may be extrapolated based on the
year to date experience of the Landlord);
23.2.3. the Landlord's reasonably estimated cost of demolishing any
leasehold improvements to the Leased Premises; and
23.2.4. that amount, which as of the occurrence of the Event of
Default, bears the same ratio to the costs, if any, incurred
by the Landlord (and not paid by the Tenant) in building out
the Leased Premises in accordance with section 5 of this
Agreement as the number of months remaining in the Term
(immediately before the occurrence of the Event of Default)
bears to the number of months in the entire Term (immediately
before the occurrence of the Event of Default).
23.3. In the event the Landlord elects the right and remedy set forth in
subsection 23.1.2 of this Agreement, Re-Leasing Damages shall be equal to
the Rent less any rent actually and timely received by the Landlord from
any lessee of the Leased Premises or any portion thereof, payable at the
respective times that Rent is payable under the Agreement plus the cost,
if any, to the Landlord of building out or otherwise preparing the Leased
Premises for, and leasing the Leased Premises to, any such lessee.
23.4. In the event the Landlord elects the right and remedy set forth in
subsection 23.1.3 of this Agreement, Holdover Damages shall mean damages
at the rate per month or part thereof equal to the greater of: (a) one and
one-half times one-twelfth of the then Market Rental Rate plus all
Additional Rent as set forth in this Agreement or (b) double the average
amount of all payments of Rent due under this Agreement during each of the
last 12 full calendar months prior to the Landlord's so electing or, in
the event the Term shall have terminated by expiration under subsection
24.1.1 of this Agreement, the last full 12 calendar months of the Term, in
either case payable in full on the first day of each holdover month or
part thereof.
23.5. In connection with any summary proceeding to dispossess and remove the
Tenant from the Leased Premises under subsection 23.1.3 of this Agreement,
the Tenant hereby waives:
23.5.1. any notices for delivery of possession thereof, of
termination, of demand for removal therefrom, of the cause
therefor, to cease, to quit and all other notices that might
otherwise be required pursuant to 2A N.J.S.A. Section 18-53 et
seq.;
23.5.2. any right the Tenant might otherwise have to cause a
termination of the action or proceeding by paying to the
Landlord or into court or otherwise any Rent in arrears;
23.5.3. any right the Tenant might otherwise have to a period of
waiting between issuance of any warrant in execution of any
judgment for possession obtained by the Landlord and the
execution thereof;
23.5.4. any right the Tenant might otherwise have to transfer or
remove such proceeding from the court (or the particular
division or part of the court) or other forum in which it
shall have been instituted by the Landlord to another court,
division or part;
23.5.5. any right the Tenant might otherwise have to redeem the
Tenant's former leasehold interest between the entry of any
judgment and the execution of any warrant issued in connection
therewith by paying to the Landlord or into Court or otherwise
any Rent in arrears; and
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23.5.6. any right the Tenant might otherwise have to appeal any
judgment awarding possession of the Leased Premises to the
Landlord.
23.6. The enumeration of rights and remedies in this section 23 of the Agreement
is not intended to be exhaustive or exclusive of any rights and remedies
which might otherwise be available to the Landlord, or to force an
election of one or more rights and remedies to the exclusion of others,
concurrently, consecutively or sequentially. On the contrary, each right
and remedy enumerated in this section 23 of the Agreement is intended to
be cumulative with each other right and remedy enumerated in this section
23 of the Agreement and with each other right and remedy that might
otherwise be available to the Landlord; and the selection of one or more
of such rights and remedies at any time shall not be deemed to prevent
resort to one or more others of such rights and remedies at the same time
or a subsequent time, even with regard to the same occurrence sought to be
remedied.
23.7. It is expressly understood and agreed that the Landlord shall have no duty
to mitigate damages. In the event the Landlord elects the right and remedy
set forth in subsection 23.1.2 of this Agreement, Re-Leasing Damages shall
be equal to the Rent less any rent actually and timely received by the
Landlord from any lessee of the Leased Premises or any portion thereof,
payable at the respective times that Rent is payable under the Agreement
plus the cost, if any, to the Landlord of building out or otherwise
preparing the Leased Premises for, and leasing the Leased Premises to, any
such lessee. The Landlord may relet some or all of the Leased Premises but
shall have no duty to do so. The Tenant shall retain its rights to sublet
or assign the Leased Premises, or portions thereof, pursuant to Article 17
hereof and the right to exercise the Option to Renew in connection
therewith except to the extent that the Landlord shall have already relet
the same which shall abrogate the Tenant's rights, pro tanto.
23.8 Notwithstanding the provisions of section 23.1 of this Agreement, if
notice of Landlord's election is served because of a failure to pay Basic
Rent or Additional Rent, and the Tenant pays the Basic Rent or Additional
Rent and other charges due as a result of the Event of Default within five
days of the service of the notice then the notice shall be withdrawn and
the Term or right to possession shall continue as though no Event of
Default had occurred. The Tenant may not avail itself of this grace
provision more than twice in any twelve month period.
24. Termination of the Term.
-----------------------
24.1. The Term shall terminate upon the earliest of the following events to
occur:
24.1.1. expiration of the Term;
24.1.2. in connection with a transaction contemplated by section 16 of
this Agreement, the later of (a) the vesting of the acquiring
party's right to possession or (b) the Tenant's vacating the
Leased Premises;
24.1.3. under the circumstances contemplated by subsection 15.1 of
this Agreement, upon the Tenant's giving prompt notice of the
failure of the Landlord to give, on a timely basis, the notice
contemplated by subsection 15.1.2 of this Agreement and that
the Tenant desires termination of the Term (which termination
shall be effective as of the date of the subject casualty with
respect to those portions of the Leased Premises rendered
untenantable and as of the date of the Tenant's giving notice
with respect to those portions of the Leased Premises which
were not rendered untenantable);
24.1.4. under the circumstances contemplated by subsection 15.1 of
this Agreement, upon the expiration of 45 additional days
(without the Landlord's completion of restoration in the
interim) after the Tenant shall have given prompt notice that
the Landlord has not restored the Leased Premises on a timely
basis and that the Tenant desires termination of the Term
(which termination shall be effective as of the date of the
subject casualty with respect to those portions of the Leased
Premises rendered untenantable and as of the date of the
Tenant's
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giving notice with respect to those portions of the Leased
Premises which were not rendered untenantable);
24.1.5. the effective date of any election by the Landlord under
subsection 17.3.3 of this Agreement in response to the
Tenant's notice of the Tenant's desire to assign this
Agreement or to sublet all or a portion of the Leased
Premises; or
24.1.6. the effective date of any election by the Landlord to
terminate the Term under subsection 23.1.1 of this Agreement.
24.2. No termination of the Term shall have the effect of releasing the Tenant
from any obligation or liability theretofore or thereby incurred and,
until the Tenant shall have surrendered the Leased Premises in accordance
with section 21 of this Agreement, from any obligation or liability
thereafter incurred.
25. Mortgage and Underlying Lease Priority.
--------------------------------------
25.1. This Agreement and the estate, interest and rights hereby created for the
benefit of the Tenant are, and shall always be, subordinate to any
mortgage (other than a mortgage created by the Tenant or a sale, transfer
or other disposition by the Tenant in the nature of a security interest in
violation of subsections 17.1.4 and 22.5, respectively, of this Agreement)
already or afterwards placed on the Carnegie Center Complex, the Property,
the Common Facilities, the Building or any estate or interest therein
including, without limiting the generality of the foregoing, any new
mortgage or any mortgage extension, renewal, modification, consolidation,
replacement, supplement or substitution. This Agreement and the estate,
interest and rights hereby created for the benefit of the Tenant are, and
shall always be, subordinate to any ground lease already or afterwards
made with regard to the Carnegie Center Complex, the Property, the Common
Facilities, the Building or any estate or interest therein including,
without limiting the generality of the foregoing, any new ground lease or
any ground lease extension, renewal, modification, consolidation,
replacement, supplement or substitution. The provisions of this section 25
of the Agreement shall be self-effecting; and no further instrument shall
be necessary to effect any such subordination. Nevertheless, the Tenant
hereby consents that any mortgagee or mortgagee's successor in interest
may, at any time and from time to time, by notice to the Tenant,
subordinate its mortgage to the estate and interest created by this
Agreement; and upon the giving of such notice, the subject mortgage shall
be deemed subordinate to the estate and interest created by this Agreement
regardless of the respective times of execution or delivery of either or
of recording the subject mortgage.
25.2. Notwithstanding anything to the contrary that may be set forth in
subsection 25.1 of this Agreement, the Landlord shall obtain from each
such mortgagee and ground lessor its respective standard form of
nondisturbance, attornment and subordination agreement including a
provision to the effect that, in the event of enforcement of any remedies
provided in the respective mortgage or ground lease, so long as an Event
of Default shall not have occurred and be continuing, the Tenant shall not
be disturbed in its possession of the Leased Premises in accordance with
this Agreement.
26. Transfer by Landlord.
--------------------
26.1. The Landlord shall have the right at any time and from time to time to
sell, transfer, lease or otherwise dispose of the Carnegie Center Complex,
the Property, the Common Facilities or the Building or any of the
Landlord's interests therein, or to assign this Agreement or any of the
Landlord's rights thereunder.
26.2. Upon giving notice of the occurrence of any transaction contemplated by
subsection 26.1 of this Agreement, the Landlord shall thereby be relieved
of any obligation that might otherwise exist under this Agreement with
respect to periods subsequent to the effective date of any such
transaction. If, in connection with any transaction contemplated by
subsection 26.1 of this Agreement the Landlord transfers, or makes
allowance for, any Security Deposit of the Tenant and gives notice of that
fact to the Tenant, the Landlord shall thereby be relieved of any
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further obligation to the Tenant with regard to any such Security Deposit;
and the Tenant shall look solely to the transferee with respect to any
such Security Deposit.
26.3. In the event of the occurrence of any transaction contemplated by
subsection 26.1 of this Agreement the Tenant, upon written request
therefor from the transferee, shall attorn to and become the tenant of
such transferee upon the terms and conditions set forth in this Agreement.
26.4. Notwithstanding anything to the contrary that may be set forth in
subsections 26.1, 26.2 and 26.3 of this Agreement, in the event any
mortgage contemplated by section 25 of this Agreement is enforced by the
respective mortgagee pursuant to remedies provided in the mortgage or
otherwise provided by law or equity and any person succeeds to the
interest of the Landlord as a result of, or in connection with, any such
enforcement, the Tenant shall, upon the request of such successor in
interest, automatically attorn to and become the Tenant of such successor
in interest without any change in the terms or provisions of this
Agreement, except that such successor in interest shall not be bound by:
(a) any payment of Basic Rent or Additional Rent (exclusive of prepayments
in the nature of a Security Deposit) for more than one month in advance or
(b) any amendment or other modification of this Agreement which was made
without the consent of such mortgagee or such successor in interest; and,
upon the request of such successor in interest, the Tenant shall execute,
acknowledge and deliver any instrument(s) confirming such attornment.
26.5. If this Agreement and the estate, interest and rights hereby created for
the benefit of the Tenant are ever subject and subordinate to any ground
lease contemplated by section 25 of this Agreement:
26.5.1. upon the expiration or earlier termination of the term of any
such ground lease before the termination of the Term under
this Agreement, the Tenant shall attorn to, and become the
Tenant of, the lessor under any such ground lease and
recognize such lessor as the Landlord under this Agreement for
the balance of the Term; and
26.5.2. such expiration or earlier termination of the term of any such
ground lease shall have no effect on the Term under this
Agreement.
27. Indemnification.
---------------
27.1. The Tenant shall, and hereby does, indemnify the Landlord against any and
all liabilities, obligations, damages, penalties, claims, costs, charges
and expenses including, without limiting the generality of the foregoing,
expenses of investigation, defense and enforcement thereof or of the
obligation set forth in this section 27 of the Agreement including,
without limiting the generality of the foregoing, attorneys' fees, imposed
on or incurred by the Landlord in connection with any of the following
matters which occurs during the Term:
27.1.1. any matter, cause or thing arising out of the use, occupancy,
control or management of the Leased Premises or any portion
thereof which is not caused by the Landlord's negligence or
intentional act;
27.1.2. any negligence or intentional act on the part of the Tenant or
any of its employees, other agents or Guests;
27.1.3. any accident, injury or damage to any person or property
occurring in or about the Leased Premises which is not caused
by the Landlord's negligence or intentional act;
27.1.4. any representation made by the Tenant in this Agreement shall
have been inaccurate or incomplete in any material respect
either on the date it was made or the date as of which it was
made;
27.1.5. the imposition of any mechanic's, materialman's or other lien
on the Property, the Common Facilities, the Building, the
Leased Premises or any portion of any of the foregoing, or the
filing of any notice of
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intention to obtain any such lien, in connection with any
alteration, improvement or other modification of the Leased
Premises made or authorized by the Tenant (which
indemnification obligation shall be deemed to include the
Tenant's obligations set forth in subsection 12.2.4.3 of this
Agreement); or
27.1.6. any failure on the part of the Tenant to perform or comply
with any obligation of the Tenant set forth in this Agreement.
27.2. Payment of indemnification claims by the Tenant to the Landlord shall be
due upon the Landlord's giving notice thereof to the Tenant.
27.3. The Landlord shall promptly give notice of any claim asserted, or action
or preceeding commenced, against it as to which it intends to claim
indemnification from the Tenant and, upon notice from the Tenant so
requesting, shall forward to the Tenant copies of all claim or litigation
documents received by it. Upon receipt of such notice the Tenant may, by
notice to the Landlord, participate therein and, to the extent it may
desire, assume the defense thereof through independent counsel selected by
the Tenant and reasonably satisfactory to the Landlord. The Landlord shall
not be bound by any compromise or settlement of any such claim, action or
proceeding without its prior written consent.
28. Parties' Liability.
------------------
28.1. None of the following occurrences shall constitute a breach of this
Agreement by the Landlord, a termination of the Term, an active or
constructive eviction or an occurrence requiring an abatement of Rent:
28.1.1. the inability of the Landlord to provide any utility or
service to be provided by the Landlord, as described in
section 8 of this Agreement which is due to causes beyond the
Landlord's control, or to necessary or advisable improvements,
maintenance, repairs or emergency, so long as the Landlord
uses reasonable efforts and diligence under the circumstances
to restore the interrupted service or utility;
28.1.2. any improvement, modification, alteration or other change made
to the Carnegie Center Complex, the Property, the Building or
the Common Facilities by the Landlord consistently with the
Landlord's obligations set forth in subsection 13.2 of this
Agreement; and
28.1.3. any change in any Federal, state or local law or ordinance.
28.2. Except for the commencement, duration or termination of the Term (other
than under the circumstances contemplated by subsection 15.1 of this
Agreement), the Tenant's obligation to make timely payments of Rent, the
Tenant's obligation to maintain certain insurance coverage in effect, the
Tenant's failure to perform any of its other obligations under this
Agreement if such failure has caused loss or damage that can not promptly
be cured by subsequent act of the Tenant and the period within which any
Option to Renew or any other type of option or optional right exercisable
by the Tenant must be exercised, any period of time during which the
Landlord or the Tenant is prevented from performing any of its respective
obligations under this Agreement because of fire, any other casualty or
catastrophe, strikes, lockouts, civil commotion, acts of God or the public
enemy, governmental prohibitions or preemptions, embargoes or inability to
obtain labor or material due to shortage, governmental regulation or
prohibition, shall be added to the time when such performance is otherwise
required under this Agreement.
28.3. In the event the Landlord is an individual, partnership, joint venture,
association or a participant in a joint tenancy or tenancy in common, the
Landlord, the partners, venturers, members and joint owners shall not have
any personal liability or obligation under or in connection with this
Agreement or the Tenant's use and occupancy of the Leased Premises; but
recourse shall be limited exclusively to the Landlord's interest in the
Building.
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28.4. If, at any time during the Term, the payment or collection of any Rent
otherwise due under this Agreement shall be limited, frozen or otherwise
subjected to a moratorium by applicable law, and such limitation, freeze
or other moratorium shall subsequently be lifted, whether before or after
the termination of the Term, such aggregate amount of Rent as shall not
have been paid or collected during the Term on account of any such
limitation, freeze or other moratorium, shall thereupon be due and payable
at once. There shall be added to the maximum period of any otherwise
applicable statute of limitation the entire period during which any such
limitation, freeze or other moratorium shall have been in effect.
28.5. If this Agreement is executed by more than one person as Tenant, their
liability under this Agreement and in connection with the use and
occupancy of the Leased Premises shall be joint and several.
28.6. In the event any rate of interest, or other charge in the nature of
interest, calculated as set forth in this Agreement would lead to the
imposition of a rate of interest in excess of the maximum rate permitted
by applicable usury law, only the maximum rate permitted shall be charged
and collected.
28.7. The rule of construction that any ambiguities that may be contained in any
contract shall be construed against the party drafting the contract shall
be inapplicable in construing this Agreement.
29. Security Deposit.
----------------
(This section has been omitted intentionally.)
30. Representations.
---------------
30.1. The Tenant hereby represents and warrants that:
30.1.1. its Standard Industrial Classification (SIC) code is 9886 and
it will promptly give notice of any change therein during the
Term to the Landlord;
30.1.2. no broker or other agent has shown the Leased Premises or the
Building to the Tenant, or brought either to the Tenant's
attention, except Princeton Realty Advisors, whose entire
commission therefor is set forth in a separate document and
which commission the Tenant understands will be paid by the
Landlord directly to the person named;
30.1.3. the execution and delivery of, the consummation of the
transactions contemplated by and the performance of all its
obligations under, this Agreement by the Tenant have been duly
and validly authorized by its general partners, to the extent
required by their partnership agreement and applicable law, if
the Tenant is a partnership or, if the Tenant is a
corporation, by its board of directors and, if necessary, by
its stockholders at meetings duly called and held on proper
notice for that purpose at which there were respective quorums
present and voting throughout; and no other approval,
partnership, corporate, governmental or otherwise, is required
to authorize any of the foregoing or to give effect to the
Tenant's execution and delivery of this Agreement; and
30.1.4. the execution and delivery of, the consummation of the
transactions contemplated by and the performance of all its
obligations under, this Agreement by the Tenant will not
result in a breach or violation of, or constitute a default
under, the provisions of any statute, charter, certificate of
incorporation or bylaws or partnership agreement of the Tenant
or any affiliate of the Tenant, as presently in effect, or any
indenture, mortgage, lease, deed of trust, other agreement,
instrument, franchise, permit, license, decree, order, notice,
judgment, rule or order to or of which the Tenant or any
affiliate of the Tenant is a party, a subject or a recipient
or by which the Tenant, any affiliate of the Tenant or any of
their respective properties and other assets is bound.
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30.2. The Landlord hereby represents and warrants that:
30.2.1. the execution and delivery of, the consummation of the
transactions contemplated by and the performance of all its
obligations under, this Agreement by the Landlord have been
duly and validly authorized by its general partner, to the
extent required by its partnership agreement and applicable
law, and no other approval, partnership, governmental or
otherwise, is required to authorize any of the foregoing
except for the approval of Connecticut General Life Insurance
Company, the holder of the first mortgage, or to give effect
to the Landlord's execution and delivery of this Agreement;
and
30.2.2. the execution and delivery of, the consummation of the
transactions contemplated by and the performance of all its
obligations under, this Agreement by the Landlord will not
result in a breach or violation of, or constitute a default
under, the provisions of any statute, charter, or partnership
agreement of the Landlord or any affiliate of the Landlord, as
presently in effect, or any indenture, mortgage, lease, deed
of trust, other agreement, instrument, franchise, permit,
license, decree, order, notice, judgment, rule or order to or
of which the Landlord or any affiliate of the Landlord is a
party, a subject or a recipient or by which the Landlord, any
affiliate of the Landlord or any of their respective
properties and other assets is bound, except as above stated.
31. Reservation in Favor of Tenant.
------------------------------
Neither the Landlord's forwarding a copy of this document to any prospective
tenant nor any other act on the part of the Landlord prior to execution and
delivery of this Agreement by the Landlord shall give rise to any implication
that any prospective tenant has a reservation, an option to lease or an
outstanding offer to lease any premises.
32. Tenant's Certificates and Mortgagee Notice Requirements.
-------------------------------------------------------
32.1. Promptly upon request of the Landlord at any time or from time to time,
but in no event more than five days after the Landlord's respective
request, the Tenant shall execute, acknowledge and deliver to the Landlord
or its designee an estoppel or other certificates, satisfactory in form
and substance to the Landlord and any of its mortgagees, ground lessors or
lessees or transferees or prospective mortgagees, ground lessors or
lessees or transferees, with respect to any of or all the following
matters:
32.1.1. whether this Agreement is then in full force and effect;
32.1.2. whether this Agreement has not been amended, modified,
superseded, canceled, repudiated or revoked;
32.1.3. whether the Landlord has satisfactorily completed all
construction work, if any, required of the Landlord or
contractors selected and retained by the Landlord in
connection with readying the Leased Premises for occupancy by
the Tenant in accordance with section 5 of this Agreement;
32.1.4. whether the Tenant is then in actual possession of the Leased
Premises;
32.1.5. whether the Tenant then has no defenses or counterclaims under
this Agreement or otherwise against the Landlord or with
respect to the Leased Premises;
32.1.6. whether Landlord is not then in breach of this Agreement in
any respect;
32.1.7. whether the Tenant then has no knowledge of any assignment of
this Agreement, the pledging or granting of any security
interest in this Agreement or in Rent due and to become due
under this Agreement;
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32.1.8. whether Rent is not then accruing under this Agreement in
accordance with its terms;
32.1.9. whether any Rent is not then in arrears;
32.1.10. whether Rent due or to become due under this Agreement has not
been prepaid by more than one month;
32.1.11. if the response to any of the foregoing matters is in the
negative, a specification of all the precise reasons that
necessitated the negative response in each instance; and
32.1.12. any other matter reasonably requested by the Landlord or any
of its mortgagees, ground lessors or lessees or transferees or
prospective mortgagees, ground lessors or lessees or
transferees, including, without limiting the generality of the
foregoing, such information as the Landlord may request for
purposes of assuring compliance with the Industrial Site
Recovery Act (13 N.J.S.A. Section 1K-6 et seq.), as it may be
amended, and any other applicable Federal, state or local
statute, ordinance, rule, regulation or order concerned with
environmental matters.
32.2. If, in connection with the Landlord's or a prospective transferee's
obtaining financing or refinancing of the Carnegie Center Complex, the
Property, the Building, the Common Facilities, any portion thereof or any
interest therein, the Landlord or a prospective lender shall so request,
the Tenant shall furnish to the requesting party within 15 days of the
request:
32.2.1. its written consent to any requested modifications of this
Agreement provided that, in each such instance, the requested
modification does not increase the Rent otherwise due or, in
the reasonable judgment of the Tenant, otherwise materially
increase the obligations of the Tenant under this Agreement or
materially adversely affect the Tenant's leasehold interest
created hereby or the Tenant's use and enjoyment of the Leased
Premises (except in the circumstances contemplated by section
16 of this Agreement); and
32.2.2. summary financial information regarding its financial position
as of the close of its most recently completed fiscal year and
its most recently completed interim fiscal period and
regarding its results of operations for the periods then ended
and comparable year earlier periods, certified by Tenant's
chief financial officer to be a complete, accurate and fair
presentation of the summary financial information purporting
to be set forth therein.
32.3. If the Landlord or any of its mortgagees gives notice to the Tenant of any
of their respective names and addresses from time to time, the Tenant
shall give notice to each such mortgagee of any notice of breach or
default previously or afterwards given by the Tenant to the Landlord under
this Agreement and provide in such notice that if the Landlord has not
cured such breach or default within any permissible cure period then such
mortgagee shall have the greater of (a) an additional period of 30 days or
(b) if such default cannot practically be cured within such period, such
additional period as is reasonable under the circumstances, within which
to cure such default. Upon request of the Landlord at any time or from
time to time, the Tenant shall execute, acknowledge and deliver to the
Landlord or its designee an acknowledgment of receipt of any such notice,
an acknowledgment of receipt of any notice of assignment of this Agreement
or rights hereunder by the Landlord to any of its mortgagees and the
Tenant's agreement to the foregoing effect on the respective forms, if
any, furnished by the Landlord or the respective mortgagees.
32.4. Approximately (i) 90 days prior to the termination of the Term and (ii) 30
days prior to any relocation of the Tenant from the Leased Premises (as
constituted on the Commencement Date), the Tenant shall obtain from the
New Jersey Department of Environmental Protection, and deliver to the
Landlord, the Department's unconditional certificate of non-applicability
or approval of the Tenant's negative
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declaration or clean-up plan, together with copies of all documents
furnished to the Department in connection with obtaining such certificate
or approval.
33. Waiver of Jury Trial and Arbitration.
------------------------------------
The parties hereby waive any right they might otherwise have to a trial by jury
in connection with any dispute arising out of or in connection with this
Agreement or the use and occupancy of the Leased Premises; and they hereby
consent to arbitration of any such dispute in Princeton, New Jersey, in
accordance with the rules for commercial arbitration of the American Arbitration
Association or successor organization, except that the Landlord, in its sole
discretion, may, with respect to any dispute involving either (i) the Landlord's
right to re-enter and re-take possession of the Leased Premises or (ii) the
determination of money damages following the occurrence of an Event of Default
under this Agreement, elect to pursue any of or all its rights in any court of
competent jurisdiction. Judgment upon any arbitration award may be entered in
any court of competent jurisdiction.
34. Severability.
------------
In the event that any provision of this Agreement, or the application of any
provision in any instance, shall be conclusively determined by a court of
competent jurisdiction to be illegal, invalid or otherwise unenforceable, such
determination shall not affect the validity or enforceability of the balance of
this Agreement.
35. Notices.
-------
All notices contemplated by, permitted or required by this Agreement shall be in
writing. All notices required by this Agreement shall be personally delivered or
forwarded by certified mail--return receipt requested, addressed to the intended
party at its address first set forth above (adding, in the case of notices to
the Landlord after the Commencement Date, "Attention: Lease Administration") or,
in the case of notices to the Tenant during the Term or any other period during
which the Tenant shall be in possession of the Leased Premises, at the Leased
Premises. Either party may from time to time change the address prescribed in
this Agreement for notices to it by notice to the other. All notices required
under this Agreement shall be deemed given upon their deposit, properly
addressed and postage prepaid, in a postal depository or upon personal delivery
to the intended party, regardless of whether delivery shall be refused.
36. Captions.
--------
Captions have been inserted at the beginning of each section of this Agreement
for convenience of reference only and such captions shall not affect the
construction or interpretation of any such section of this Agreement.
37. Counterparts.
------------
This Agreement may be executed in more than one counterpart, each of which shall
constitute an original of this Agreement but all of which, taken together, shall
constitute one and the same Agreement.
38. Applicable Law.
--------------
This Agreement and the obligations of the parties hereunder shall be governed by
and construed in accordance with the laws of the State of New Jersey.
39. Exclusive Benefit.
-----------------
Except as may be otherwise specifically set forth in this Agreement, this
Agreement is made exclusively for the benefit of the parties hereto and their
permitted assignees and no one else shall be entitled to any right, remedy or
claim by reason of any provision of this Agreement.
40. Successors.
----------
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This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.
41. Amendments.
----------
This Agreement contains the entire agreement of the parties hereto, subsumes all
prior discussions and negotiations and, except as may otherwise be specifically
set forth in this Agreement, this Agreement may not be amended or otherwise
modified except by a writing signed by all the parties to this Agreement.
42. Waiver.
------
Except as may otherwise be specifically set forth in this Agreement, the failure
of any party at any time or times to require performance of any provision of
this Agreement shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition, or of the breach of any term,
covenant, representation or warranty set forth in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach, or
as a waiver of any other condition or of the breach of any other term, covenant,
representation or warranty set forth in this Agreement. The Landlord's
acceptance of, or endorsement on, any partial payment of Rent or any late
payment of Rent from the Tenant shall not operate as a waiver of the Landlord's
right to the balance of the Rent due on a timely basis regardless of any writing
to the contrary on, or accompanying, the Tenant's partial payment or the
Landlord's putative acquiescence therein.
43. Course of Performance.
---------------------
No course of dealing or performance by the parties, or any of them, shall be
admissible for the purpose of obtaining an interpretation or construction of
this Agreement at variance with the express language of the Agreement itself.
44. Landlord's Concessions.
-----------------------
44.1. The Tenant agrees to accept the Leased Premises as presently configured.
Landlord will make ▇▇▇▇▇▇ ▇▇▇▇▇▇ furniture systems available to Tenant for
its use without charge. Tenant shall move, install and return the
furniture systems at the end of the Term at its expense and in good order,
reasonable wear and tear excepted.
44.2. Notwithstanding anything to the contrary that may be set forth in section
3 of this Agreement, (a)(i) if no Event of Default shall have occurred or
(ii) if an Event of Default shall have occurred, the Tenant shall have
previously cured it in full and the Landlord shall have waived it and (b)
if there shall not have been a History of Recurring Events of Default, the
Landlord hereby waives its right to receive one-half of the Basic Rent
otherwise due and payable for the first eight calendar months of the
Initial Term.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
LANDLORD:
CARNEGIE 214 ASSOCIATES LIMITED PARTNERSHIP
By: 214 Capital Corp.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
TENANT:
▇▇▇▇▇▇ COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
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[EXHIBIT A]
LEASED PREMISES FLOOR SPACE DIAGRAM
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Communications, Inc.
[Floor Plan]
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EXHIBIT B
DESCRIPTION OF ▇▇▇ ▇▇, ▇▇▇▇▇ ▇-▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
All that certain lot, parcel, or tract of land situate and lying in the Township
of West Windsor, County of ▇▇▇▇▇▇ and State of New Jersey and being more
particularly bounded and described as follows:
BEGINNING at a point, said point being distant the following five courses
(designated A through E) from the intersection of the southerly line of ▇▇▇▇▇▇
Road (60' R.O.W.) and the westerly line of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇-▇ as shown on a Major
Subdivision Map entitled "Preliminary-Final ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇, ▇▇▇▇▇ ▇-▇
situated in ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇," prepared by
Lynch, Carmody, Giuliano & ▇▇▇▇▇, P.A., filed in the ▇▇▇▇▇▇ County Clerk's
Office on February 18, 1983, as Map No. 2513, and running thence:
(A) South 44 13' 07" East, a distance of 324.42 feet to a point; thence
(B) South 58 57' 14" West, a distance of 716.08 feet to a point; thence
(C) South 16 48' 22" West, a distance of 198.72 feet to a point; thence
(D) South 49 39' 04" West, a distance of 583.64 feet to a point; thence
(E) South 42 48' 22" West, a distance of 10.00 feet to the aforementioned
point of BEGINNING, and running thence from the point of BEGINNING:
1. Along a curve to the right, said curve having a radius of 250.00 feet and
an arc length of 196.35 feet, to a point of tangency; thence
2. South 87 48' 22" West, a distance of 340.00 feet to a point; thence
3. North 02 11' 38" West, a distance of 394.25 feet to a point of curvature;
thence
4. Along a curve to the left, said curve having a radius of 200.00 feet and
an arc length of 157.08 feet, to a point of tangency; thence
5. North 47 11' 38" West, a distance of 295.16 feet to a point; thence
6. North 42 48' 22" East, a distance of 615.00 feet to a point; thence
7. South 47 11' 38" East, a distance of 279.19 feet to a point; thence
8. South 02 11' 38" East, a distance of 756.83 feet to a point; thence
9. South 47 11' 38" East, a distance of 214.65 feet to the point and place of
BEGINNING.
The above described parcel of land is intended to be the same as shown on a map
entitled "Preliminary-Final Major Subdivision, ▇▇▇▇ ▇ & ▇▇, ▇▇▇▇▇ ▇-▇, situated
in ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇," prepared by Lynch,
Carmody, Giuliano & ▇▇▇▇▇, P.A., dated October 8, 1984, and revised to December
10, 1985, and filed in the ▇▇▇▇▇▇ County Clerk's office on October 30, 1985 as
Map No. 2730. The above description is in accordance with a survey prepared by
Fellows Read & Associates, Inc. dated January 9, 1986, revised to January 30,
1986.
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EXHIBIT C
WORK LETTER
The following is the Work Letter provided for in the Agreement of which this
exhibit is a part.
The Building's structure is a three-story office building of Construction Type
2C with a steel frame, a metal deck floor system, a granite and concrete
exterior facade and insulated glass. The floors will sustain a live load of 100
pounds per square foot of usable floor space plus an allowance of 20 pounds per
square foot for partitions and will have a typical bay size of 30 feet by 30
feet.
Among other Common Facilities, the Building will contain two men's and two
women's bathrooms on each floor, two drinking fountains on each floor and two
hydraulic elevators with a capacity of 2,500 pounds each and will have Parking
Facilities with approximately 500 lined parking spaces.
As used in this Work Letter, "building standard" shall mean the type and grade
of material, equipment or device designated by the Landlord as standard for
leased premises in the Building. Any work performed in the Building shall
conform to such standard.
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EXHIBIT D
BUILDING RULES AND REGULATIONS
The following are the Building Rules and Regulations adopted in accordance with
subsection 7.2.3 of the Agreement of which this exhibit is a part; and the
Tenant and the Tenant's employees, other agents and Guests shall comply with
these Building Rules and Regulations:
1. The sidewalks, driveways, entrances, passages, courts, lobby, esplanade
areas, plazas, elevators, vestibules, stairways, corridors, halls and
other Common Facilities shall not be obstructed or encumbered or used for
any purpose other than ingress and egress to and from the Leased Premises.
The Tenant shall not permit or suffer any of its employees, other agents
or Guests to congregate in any of the said areas. No door mat of any kind
whatsoever shall be placed or left in any public hall or outside any entry
door of the Leased Premises.
2. No awnings or other projections shall be attached to the outside walls of
the Building. No curtains, drapes, blinds, shades or screens shall be
attached to, hung in or used in connection with any window or door of the
Leased Premises without the prior written consent of Landlord. If such
consent is given, such curtains, drapes, blinds, shades or screens shall
be of a quality, type, design and color, and attached in the manner,
approved by Landlord.
3. Except as otherwise specifically provided in subsection 18.1 of the
Agreement, no sign, insignia, advertisement, object, notice or other
lettering shall be exhibited, inscribed, painted or affixed so as to be
visible from outside the Leased Premises or the Building. In the event of
the violation of the foregoing by the Tenant, the Landlord may remove same
without any liability and may charge the expense incurred in such removal
to the Tenant.
4. The sashes, doors, skylights, windows, and doors that reflect or admit
light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed and no bottles, parcels or
other articles shall be placed on the window ▇▇▇▇▇.
5. No showcase or other articles shall be placed in front of or affixed to
any part of the Building or the Common Facilities.
6. The lavatories, water and wash closets and other plumbing fixtures shall
not be used for any purposes other than those for which they were designed
and constructed, and no sweepings, rubbish, rags, acids or other
substances shall be thrown or deposited therein. All damages resulting
from any misuse thereof shall be repaired at the expense of the Tenant
that permitted or suffered the violation hereof by the Tenant, the
Tenant's employees, other agents or Guests.
7. The Tenant shall not ▇▇▇▇, paint, drill into or in any way deface any part
of the Leased Premises, the Building, the Common Facilities or the
Property. No boring, cutting or stringing of wires shall be permitted,
except with the prior written consent of the Landlord, and as the Landlord
may direct. Linoleum and other resilient floor coverings shall be laid so
that the same shall not come in direct contact with the floor of the
Leased Premises; and if linoleum or other resilient floor coverings are
desired, an interlining of builder's deadening felt shall be first affixed
to the floor by a paste or other material that is, and will remain,
soluble in water. The use of cement or other adhesive material that either
is not, or will not remain, soluble in water is prohibited.
8. No bicycles, vehicles, animals, reptiles, fish or birds of any kind shall
be brought into or kept in or about the Leased Premises.
9. No noise including, without limiting the generality of the foregoing,
music or the playing of musical instruments, recordings, radio or
television which, in the reasonable judgment of Landlord, might disturb
tenants of Other Leased Premises shall be made or permitted by the Tenant.
Nothing shall be done or permitted in the Leased Premises by the Tenant
which would impair or interfere with the use or enjoyment of Other Leased
Premises by any tenant thereof. Nothing shall be thrown
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out of the doors, windows or skylights or down the passageways of the
Building.
10. The Tenant shall not manufacture any commodity, or prepare or dispense any
foods or beverages, tobacco, flowers or other commodities or articles
without the prior written consent of the Landlord.
11. Duplicates of keys and passes distributed to the Tenant by the Landlord
shall not be made. The Tenant shall provide appropriate security for keys.
Nothing shall be done to render any lock inoperable by the Building Grand
Master Key. No lock shall be installed without the Landlord's prior
written consent; and any lock so installed shall be operable by the
Building Grand Master Key. Upon termination of the Term, all keys, passes
and duplicates provided by the Landlord to the Tenant, or otherwise
procured by the Tenant, shall be returned to the Landlord. Any failure to
comply with the foregoing which requires changes in locks, new or
additional keys, passes or duplicates or other services of a locksmith
shall be paid by the Tenant.
12. All deliveries and removals, and the carrying in or out of any safes,
freight, furniture, packages, boxes, crates or any other object or matter
of any description shall take place during such hours, in such manner and
in such elevators and passageways as the Landlord may determine from time
to time. The Landlord reserves the right to inspect all objects and matter
being brought into the Building or the Common Facilities and to exclude
from the Building and the Common Facilities all objects and matter that
violates any of these Building Rules and Regulations or that are
contraband. The Landlord may (but shall not be obligated to) require any
person leaving the Building or the Common Facilities with any package or
object or matter from the Leased Premises to establish his authority from
the Tenant to do so. The establishment and enforcement of such a
requirement shall not impose any responsibility on the Landlord for the
protection of the Tenant against the removal of property from the Leased
Premises. The Landlord shall not be liable to the Tenant for damages or
loss arising from the admission, exclusion or ejection of any person to or
from the Leased Premises or the Building or the Common Facilities under
this rule.
13. The Tenant shall not place any object in any portion of the Building that
is in excess of the safe carrying or designed load capacity of the
structure.
14. The Landlord shall have the right to prohibit any advertising or display
of any identifying sign by the Tenant which in the Landlord's judgment
tends to impair the reputation of the Building or its desirability; and,
on written notice from the Landlord, the Tenant shall refrain from or
discontinue such advertising or display of such identifying sign.
15. The Landlord reserves the right to exclude from the Building and the
Common Facilities during hours other than Regular Business Hours all
persons who do not present a pass thereto signed by both the Landlord and
the Tenant. All persons entering or leaving the Building or the Common
Facilities during hours other than Regular Business may be required to
sign a register. The Landlord will furnish passes to persons for whom the
Tenant requests same in writing. The establishment and enforcement of such
a requirement shall not impose any responsibility on the Landlord for the
protection of the Tenant against unauthorized entry of persons.
16. The Tenant, before closing and leaving the Leased Premises at any time
shall see that all lights and appliances generating heat (other than the
heating system) are turned off. All entrance doors to the Leased Premises
shall be left locked by the Tenant when the Leased Premises are not in
use. At any time when the Building or the Common Facilities are locked
during hours other than Regular Business Hours, the Building and the
Common Facilities locks shall not be defeated by any means, such as by
leaving a door ajar.
17. No person shall go upon the roof of the Building without the prior written
consent of the Landlord.
18. Any requirements of the Tenant may be attended to only upon application at
the office of the Building. The Landlord and its agents shall not perform
any work or do any work or do anything outside of the Landlord's
obligations under the Agreement
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except upon special instructions from the Landlord on terms acceptable to
the Landlord and the Tenant.
19. Canvassing, soliciting and peddling in the Building and the Common
Facilities are prohibited and the Tenant shall cooperate to prevent same.
20. There shall not be used in any space, or in the public halls or other
Common Facilities of the Building, in connection with the moving or
delivery or receipt of safes, freight, furniture, packages, boxes, crates,
paper, office material, or any other matter or thing, any hand trucks or
dollies except those equipped with rubber tires, side guards and such
other safeguards as the Landlord shall require. No hand trucks shall be
used in passenger elevators, and no passenger elevators shall be used for
the moving, delivery or receipt of the aforementioned articles. In
connection with moving in or out any furniture, furnishings, equipment,
heavy articles and heavy packages, the Tenant shall take such precautions
as may be necessary to prevent excessive wear and tear in the Building's
Common Facilities and the Leased Premises including, without limiting the
generality of the foregoing, floor and wall treatments.
21. The Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Leased
Premises which might constitute a Nuisance. No cooking shall be done in
the Leased Premises other than as specifically permitted in the Agreement.
22. The Landlord reserves the right not to enforce any Building Rule or
Regulation against any tenants of Other Leased Premises. The Landlord
reserves the right to rescind, amend or waive any Building Rule and
Regulation when, in the Landlord's reasonable judgment, it appears
necessary or desirable for the reputation, safety, care or appearance of
the Building or the preservation of good order therein or the operation of
the Building or the comfort of tenants or others in the Building. No
rescission, amendment or waiver of any Building Rule and Regulation in
favor of one tenant shall operate as a rescission, amendment or waiver in
favor of any other tenant.
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EXHIBIT E
DEFINITIONS AND INDEX OF DEFINITIONS
In accordance with section 1 of the Agreement of which this exhibit is a part,
throughout the Agreement the following terms and phrases shall have the meanings
set forth or referred to below:
1. "Additional Rent" means all amounts, other than Basic Rent and any
Security Deposit, required to be paid by the Tenant to the Landlord in
accordance with this Agreement.
2. "Agreement" means this Lease and Lease Agreement (including exhibits), as
it may have been amended.
3. "Annual Amortized Capital Expenditure" means the payment amount determined
as an annuity in arrears using the cost incurred by the Landlord for any
Capital Expenditure as the present value, the number of years of its
useful life (not exceeding 10 years) selected by the Landlord in
accordance with generally applied real estate accounting practice as the
number of periods and the Base Rate in effect when the respective
improvement is first placed into service plus two additional percentage
points as the annual rate of interest.
4. "Base Rate" means the prime commercial lending rate per year as announced
from time to time by The Chase Manhattan Bank (National Association) at
its principal office in New York City.
5. "Base Year" means the full calendar year 1996 with respect to Operational
Expenses and Taxes.
6. "Base Year Operational Expenses" means actual Operational Expenses
incurred by the Landlord during the Base Year.
7. "Base Year Taxes" means the product of the final assessed value, as the
same may subsequently be adjusted in any appeal of the tax assessor's
valuation, of the Property, the Building and any other improvements on the
Property in the Base Year and the Municipality's tax rate for the Base
Year.
8. "Basic Rent" is defined in subsection 3.2 of this Agreement.
9. "Building" means the office building erected on the Property which is
commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as it
may, in the Landlord's sole discretion, be increased, decreased, modified,
altered or otherwise changed from time to time before, during or after the
Term. As the Building is presently constructed it consists of 149,043
gross rentable square feet of floor space.
10. "Capital Expenditure" is defined in subsection 10.3 of this Agreement.
11. "Commencement Date" is defined in section 4 of this Agreement.
12. "Common Facilities" means the areas, facilities and improvements provided
by the Landlord in the Building (except the Leased Premises and the Other
Leased Premises) and on or about the Property, including, without limiting
the generality of the foregoing, the Parking Facilities and access roads
thereto, for non-exclusive use by the Tenant in accordance with subsection
2.2 of this Agreement, as they may, in the Landlord's sole discretion, be
increased, decreased, modified, altered or otherwise changed from time to
time before, during or after the Term.
13. "Common Walls" means those walls which separate the Leased Premises from
Other Leased Premises.
14. "Electric Charges" means all the supplying utility's charges for, or in
connection with, furnishing electricity including charges determined by
actual usage, any seasonal adjustments, demand charges, energy charges,
energy adjustment charges and any other charges, howsoever denominated, of
the supplying utility, including sales and excise taxes and the like.
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15. "Event of Default" is defined in section 22 of this Agreement.
16. "Expiring Term" means, when used in the context of any Option to Renew,
the Term as it is then scheduled to expire (immediately prior to exercise
of the next available Option to Renew).
17. The Tenant's "Guests" shall mean the Tenant's licensees, invitees and all
others in, on or about the Leased Premises, the Building, the Common
Facilities or the Property, either at the Tenant's express or implied
request or invitation or for the purpose of soliciting or visiting the
Tenant.
18. A "History of Recurring Events of Default" means the occurrence of three
or more Events of Default (whether or not cured by the Tenant) in any
period of 12 months.
19. "Holdover Damages" is defined in subsection 23.4 of this Agreement.
20. The "Index" means the "all items" index figure for the New York
Northeastern New Jersey average of the Consumer Price Index for all urban
wage earners and clerical workers which uses a base period of 1982-84=100,
published by the United States Department of Labor, so long as it
continues to be published. If the Index is not published for a period of
three consecutive months, or if its base period is changed, the term
"Index" shall mean that index, as nearly equivalent in purpose, function
and coverage as practicable to the original Index, which the Landlord
shall have designated by notice to the Tenant.
21. "Initial Term" means the period so designated in subsection 4.1 of this
Agreement.
22. "Initial Year" means the first 12 full calendar months of the Initial
Term.
23. "Landlord" means the person so designated at the beginning of this
Agreement and those successors to the Landlord's interest in the Property
and/or the Landlord's rights and obligations under this Agreement
contemplated by section 26 of this Agreement.
24. "Leased Premises" means that portion of the interior of the Building (as
viewed from the interior of the Leased Premises) bounded by the interior
sides of the unfinished floor and the finished ceiling on the first floor
(as the floors have been designated by the Landlord) of the Building, the
centers of all Common Walls and the exterior sides of all walls other than
Common Walls, the outline of which floor space is designated on the
diagram set forth in Exhibit A attached hereto, which portion contains
4,807 square feet of usable floor space and 5,720 square feet of gross
rentable floor space; and references within this Agreement to the gross
rentable floor space and the usable floor space, respectively, of the
Leased Premises shall mean the respective quantities herein specified.
25. "Legal Holidays" means New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
26. "Market Rental Rate" means, at the time of reference, the gross rentable
floor space of the Leased Premises multiplied by the greater of: (a) that
annual rate of Basic Rent per square foot of gross rentable floor space
which is then being quoted by the Landlord for comparable Other Leased
Premises (or would then be quoted if comparable Other Leased Premises were
then available) or (b) that annual rate of Basic Rent per square foot of
gross rentable floor space in effect during the Expiring Term.
27. "Municipality" means the Township of West Windsor in ▇▇▇▇▇▇ County, New
Jersey, or any successor municipality with jurisdiction over the Property.
28. "No Pass Through Period" means, in the context of Operational Expenses and
Taxes, the period beginning on the Commencement Date and ending on
December 31, 1996.
29. "Nuisance" means any condition or occurrence which unreasonably or
materially interferes with the authorized use and enjoyment of the Other
Leased Premises and the Common Facilities by any tenant of Other Leased
Premises or by any person authorized to use any Other Leased Premises or
Common Facilities or with the
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authorized use of any other areas, buildings or other improvements in the
Carnegie Center Complex.
30. "Operational Expenses" is defined in subsection 10.2 of this Agreement.
31. "Option to Renew" is defined in subsection 6.1 of this Agreement.
32. "Other Leased Premises" means all premises within the Building, with the
exception of the Leased Premises, that are, or are available to be, leased
to tenants or prospective tenants, respectively.
33. "Parking Facilities" means the parking area adjacent to the Building,
containing the approximate number of lined parking spaces set forth in the
Work Letter, which parking area is provided as Common Facilities.
34. "Person" includes an individual, a corporation, a partnership, a trust, an
estate, an unincorporated group of persons and any group of persons.
35. "Property" means the parcel of land, as it may, in the Landlord's sole
discretion, be increased, decreased, modified, altered or otherwise
changed from time to time before, during or after the Term, on which the
Building is (or is about to be) erected. As the Property is presently
constituted, it is more particularly described in Exhibit B attached
hereto.
36. "Regular Business Hours" means 8:00 A.M. to 6:00 P.M., Monday through
Friday, except on Legal Holidays.
37. "Re-Leasing Damages" is defined in subsection 23.3.
38. "Renewal Term" means, at the time of reference, any portion of the Term,
other than the Initial Term, as to which the Tenant has properly exercised
an Option to Renew which Option to Renew has not been rescinded in
accordance with subsection 6.4.1 of this Agreement.
39. "Rent" means Basic Rent and Additional Rent.
40. "Security Deposit" is designated in section 29 of this Agreement.
41. "Target Date" means, upon execution and delivery of this Agreement, the
then estimated Commencement Date which is hereby established to be
February 1, 1996.
42. "Taxes" means, in any calendar year, the aggregate amount of real property
taxes, assessments and sewer rents, rates and charges, state and local
taxes, transit taxes and every other governmental charge, whether general
or special, ordinary or extraordinary (except corporate franchise taxes
and taxes imposed on, or computed as a function of, net income or net
profits from all sources and except taxes charged, assessed or levied
exclusively on the Leased Premises or arising exclusively from the
Tenant's occupancy of the Leased Premises) charged, assessed or levied by
any taxing authority with respect to the Property, the Building, the
Common Facilities and any other improvements on the Property and an
allocable portion of Taxes with respect to other portions of the Carnegie
Center Complex, less any refunds or rebates (net of expenses incurred in
obtaining any such refunds or rebates) of Taxes actually received by the
Landlord during such calendar year with respect to any period during the
Term for the benefit of the Tenant, tenants of Other Leased Premises and
the Landlord. If during the Term there shall be a change in the means or
methods of taxing real property generally in effect at the beginning of
the Term and another type of tax or method of taxation should be
substituted in whole or in part for, or in lieu of, Taxes, the amounts
calculated under such other types of tax or by such other methods of
taxation shall also be deemed to be Taxes. Until such time as the actual
amount of Taxes for any calendar year becomes known, the amount thereof
shall be the Landlord's estimate of Taxes for that calendar year.
43. "Tenant" means the person so designated at the beginning of this
Agreement.
44. "Tenant Electric Charges" means (a) during Regular Business Hours,
Electric Charges
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attributable to the Tenant's use of electricity in the Leased Premises for
purposes other than heating, ventilation and air conditioning provided to
the Leased Premises by the Landlord in accordance with subsection 8.2.4 of
this Agreement and (b) during other than Regular Business Hours, a charge
at the rate of $75.00 per hour or partial hour of use plus Electric
Charges attributable to the Tenant's use of electricity in the Leased
Premises for all purposes including, without limiting the generality of
the foregoing, heating, ventilation and air conditioning.
45. "Tenant's Share" of any amount means 3.838%.
46. "Term" means the Initial Term plus, at the time of reference, any Renewal
Term.
47. "Termination Damages" is defined in subsection 23.2 of this Agreement.
48. "Utilities Expenses" means Electric Charges (other than Tenant Electric
Charges) and all charges for any other fuel that may be used in providing
electricity and services powered by electricity that the Landlord provides
in accordance with section 8 of this Agreement to the Building, the Leased
Premises, Other Leased Premises, the Common Facilities and the Property,
including sales and excise taxes and the like, but excluding charges for
electricity which is recovered by Landlord as tenant electric charges
pursuant to leases for Other Leased Premises.
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EXHIBIT F
STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA
FORM OF ESTOPPEL CERTIFICATE
STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
This instrument is being furnished to State Mutual Life Assurance Company of
America ("Lender") by _________ _____ ("Tenant"), which is the tenant under a
lease (the "Lease") dated ____________ from CARNEGIE 214 ASSOCIATES LIMITED
PARTNERSHIP ("Landlord"), pertaining to and covering a portion, as such portion
is specifically described in the Lease (the "Demised Premises"), of that real
estate commonly designated as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ (the "Property" or "Building"), such real estate being more specifically
described in Exhibit "A" attached hereto.
As an inducement to Lender to make a loan (the "Loan") as permanent financing
for the Property, with the intention of having Lender rely thereon, and for
other good and valuable consideration, Tenant hereby warrants and represents to
Lender and agrees with Lender as follows:
(a) That the Lease has not been amended or modified, except as follows:
____________________ and is in full force and effect as originally
executed or as so amended, whichever is appropriate, and that neither
Landlord nor the Tenant is in default in any respect under any terms of
the Lease;
(b) The commencement date of the term of the Lease was _______________, and
the term of the Lease will expire on ______________________, unless
extended or sooner terminated as provided in the Lease;
(c) That Tenant is in possession of the Demised Premises and that Landlord has
complied fully and completely with all of Landlord's covenants, warranties
and other undertakings and obligations under the Lease to this date,
including, without limitation, those with respect to (i) the construction,
character, condition and location of the Demised Premises; (ii)
improvements, tenant's spaces and the common areas situated on the
Property; (iii) other tenancies, occupancies, stores or businesses on the
Property; (iv) any property adjacent to the Property; (v) parking and
access; and (vi) the provision of maintenance and services under the
Lease, with the result that Tenant is fully obligated to pay, and is
paying, the rent and other charges due thereunder, and is fully obligated
to perform, and is performing, all of the other obligations of Tenant
under the Lease without current claim or counterclaim, offset, defense or
otherwise;
(d) That Tenant has not and will not make any prepayment of rental under the
Lease for more than one (1) month in advance of the due date thereof, and
that there are currently no offsets, defenses, counterclaims or credits
against the rentals due thereunder;
(e) That Tenant has not received notice and has no knowledge of any
assignment, hypothecation or pledge of the rents or of Landlord's interest
under the Lease other than ___________________.
(f) That Tenant understands and acknowledges that (i) Landlord shall execute a
conditional assignment of the Lease in favor of Lender; (ii)
notwithstanding said assignment, all rental payments under the Lease shall
be paid as heretofore stated and in accordance with the terms of the Lease
until and unless Tenant is notified to the contrary in writing by Lender;
(iii) under the conditions of said assignment and after the date thereof,
it is expressly agreed that, unless the written consent of Lender be first
obtained, no rents are to be collected more than one month in advance of
the due date thereof, and no alterations, modification, amendments,
terminations, waivers, consents, approvals or other actions whatsoever are
to be
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made or become effective with respect to the Lease except as permitted
under the terms of said conditional assignment; and (iv) the interest of
the Landlord in the Lease shall be assigned to Lender solely as additional
security for said Loan and Lender assumes no duty, liability or obligation
under the Lease, either by virtue of said assignment, the exercise of
remedies thereunder, or by any subsequent receipt or collection of rents
thereunder or any other sums due under the terms of the Lease;
(g) That Lender shall not be (i) liable for any action or omission of any
person or party who may be Landlord under the Lease prior to your
acquisition of title to the Property by foreclosure or otherwise; (ii)
subject to any offsets or defenses which Tenant may have against any such
prior Landlord; or (iii) liable for the return of any security deposit
unless Lender actually receives such deposit;
(h) That Tenant has not subordinated by separate written instrument its
interest under the Lease to any mortgage, deed of trust or other lien on
title to the Property.
(i) That Tenant has paid in full for all labor and materials and other
services in connection with Tenant's construction work and Tenant's other
work in the Demised Premises, so that no lien by reason thereof may attach
against the Landlord's interest in the Demised Premises or the Property of
which they are a part and that Tenant, to the extent required by the terms
of the Lease, has been fully reimbursed by Landlord for all improvements
made by Tenant to the Demised Premises.
(j) In consideration of the premises and other good and valuable consideration
to the Tenant by Lender, the receipt and sufficiency of which are hereby
acknowledged, Tenant further agrees with Lender as follows: In the event
of any default by Landlord under the Lease, Tenant shall promptly send to
Lender at the address hereinabove set forth a copy of any notice of such
default sent to Landlord, in the same manner as such notice to Landlord is
sent, and in such event and prior to the exercise by Tenant of any of its
rights or remedies under the Lease or otherwise with respect to such
default, Lender shall be permitted to cure such default within the period
of time during which Landlord would be permitted to cure such default as
set forth in the Lease.
(k) Tenant agrees that, with respect to any successor to Landlord's interest
in the Property, to look solely to such successor's interest in the
Property for recovery of any judgment from such successor to Landlord; it
being specifically agreed that no successor to Landlord's interest in the
Property shall ever be personally liable for any such judgment.
(l) This Certificate shall inure to the benefit of Lender, its successors and
assigns, and shall be binding upon Tenant and Tenant's heirs, legal
representatives, successors and assigns. This Certificate shall not be
deemed to alter or modify any of the terms, conditions, covenants or
obligations of the Lease, except to the extent, if any specifically set
forth herein.
EXECUTED this ________ day of _______________, 19___.
ATTEST:
______________________ BY:____________________
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