EXHIBIT 10.18
EXECUTION COPY
LEASE AGREEMENT
by and between
TELC (NJ) QRS 16-30, INC.,
a Delaware corporation
as LANDLORD
and
TELCORDIA TECHNOLOGIES, INC.,
a Delaware corporation,
as TENANT
Premises: ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
Dated as of: March 15, 2005
TABLE OF CONTENTS
Page
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1. Demise of Premises........................................................ 1
2 Certain Definitions....................................................... 1
3. Title and Condition....................................................... 8
4. Use of Leased Premises; Quiet Enjoyment................................... 9
5. Term...................................................................... 10
6. Basic Rent................................................................ 10
7. Additional Rent........................................................... 11
8. Net Lease; Non-Terminability.............................................. 12
9. Payment of Impositions.................................................... 12
10. Compliance with Laws and Easement Agreements, Environmental Matters....... 14
11. Liens; Recording.......................................................... 16
12. Maintenance and Repair.................................................... 16
13. Alterations and Improvements.............................................. 17
14. Permitted Contests........................................................ 18
15. Indemnification........................................................... 19
16. Insurance................................................................. 20
17. Casualty and Condemnation................................................. 22
18. Termination Events........................................................ 24
19. Restoration............................................................... 25
20. Procedures Upon Purchase.................................................. 27
21. Assignment and Subletting, Prohibition Against Leasehold Financing........ 27
22. Events of Default......................................................... 29
23. Remedies and Damages upon Default......................................... 31
24. Notices................................................................... 34
25. Estoppel Certificate...................................................... 34
26. Surrender................................................................. 35
27. No Merger of Title........................................................ 35
28. Books and Records......................................................... 35
29. Determination of Value.................................................... 36
30. Non-Recourse as to Landlord, Etc.......................................... 37
31. Financing................................................................. 38
32. Subordination, Non-Disturbance and Attornment; Landlord's Waiver........... 38
33. Tax Treatment; Reporting.................................................. 39
34. Right of First Refusal.................................................... 36
35. Intentionally Omitted..................................................... 36
36. Intentionally Omitted..................................................... 40
37. Miscellaneous............................................................. 40
38. Post-Closing Obligations.................................................. 45
39. Subdivision of Release Parcels............................................ 46
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EXHIBITS
Exhibit "A" - Premises
Exhibit "B" - Equipment
Exhibit "C" - Schedule of Permitted Encumbrances
Exhibit "D" - Rent Schedule
Exhibit "E" - Schedule of Termination Values
Exhibit "F" - Post-Closing Obligations
Exhibit "G" - Release Parcels
Exhibit "H" - Form of Guaranty
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LEASE AGREEMENT, made as of March 15, 2005, between TELC (NJ) QRS 16 -30,
INC., a Delaware corporation ("Landlord"), with an address c/o W.P. ▇▇▇▇▇ & Co,
LLC, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and TELCORDIA
TECHNOLOGIES, INC., a Delaware corporation ('Tenant"), with an address at ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
In consideration of the rents and provisions herein stipulated to be paid
and performed, Landlord and Tenant hereby covenant and agree as follows:
1. Demise of Premises. Landlord hereby demises and lets to Tenant, and
Tenant hereby takes and leases from Landlord, for the term and upon the
provisions hereinafter specified, the following described property
(collectively, the "Leased Premises"): (a) the land consisting of approximately
117.15 acres described in Exhibit "A" attached hereto together with the
Appurtenances (collectively, the "Land"): (b) the buildings containing
approximately 891,319 square feet, structures and other improvements now or
hereafter constructed on the Land (collectively, the "Improvements"): and (c)
the fixtures, machinery, equipment and other property described in Exhibit "B"
hereto (collectively, the "Equipment").
2. Certain Definitions.
"Additional Rent" shall mean Additional Rent as defined in
Paragraph 7.
"Affiliate" of any Person shall mean any Person which shall (i)
control, (ii) be under the control of, or (iii) be under common control with
such Person (the term "control" as used herein shall be deemed to mean ownership
of more than 50% of the outstanding voting stock of a corporation or other
majority equity and control interest if such Person is not a corporation) and
the power to direct or cause the direction of the management or policies of such
Person.
"Alterations" shall mean all changes, additions, improvements or
repairs to, all alterations, reconstructions, restorations, renewals,
replacements or removals of and all substitutions or replacements for any of the
Improvements or Equipment, both interior and exterior, structural and
non-structural, and ordinary and extraordinary.
"Appurtenances" shall mean all tenements, hereditaments, easements,
rights-of-way, rights, privileges in and to the Land, including (a) easements
over other lands granted by any Easement Agreement and (b) any streets,
sidewalks, driveways ways, alleys, curbs, gores or strips of land adjoining the
Land.
"Asset Transfer" shall mean Asset Transfer as defined in
Paragraph 21(i).
"Assignment" shall mean any assignment of rents and leases from
Landlord to a Lender which (a) encumbers any of the Leased Premises and (b)
secures Landlord's obligation to repay a Loan, as the same may be amended,
supplemented or modified from time to time.
"Basic Rent" shall mean Basic Rent as defined in Paragraph 6.
"Basic Rent Payment Date" shall mean Basic Rent Payment Date as
defined in Paragraph 6.
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"Casualty" shall mean any damage to or destruction of or which
affects the Leased Premises.
"Commencement Date" shall mean Commencement Date as defined in
Paragraph 5.
"Condemnation" shall mean a Taking and/or a Requisition.
"Condemnation Notice" shall mean notice or knowledge of the
institution of or intention to institute any proceeding for Condemnation.
"Costs" of a Person or associated with a specified transaction shall
mean all reasonable costs and expenses incurred by such Person or associated
with such transaction, including without limitation, attorneys, fees and
expenses, court costs, brokerage fees, escrow fees, title insurance premiums,
recording fees and transfer taxes, as the circumstances require, subject,
however, to the limitations set forth in Paragraph 31 hereof and excluding any
Income Taxes (other than as expressly provided in clause(A) of the proviso in
Paragraph 9(a)).
"CPI Adjustment" shall mean adjustment to reflect increases in the
index known as United States Department of Labor, Bureau of Labor Statistics,
Consumer Price Index, All Urban Consumers, United States City Average, All
Items, (1982-84=100) ("CPI") or the successor index that most closely
approximates the CPI. If the CPI shall be discontinued with no successor or
comparable successor index, Landlord and Tenant shall attempt to agree upon a
substitute index or formula, but if they are unable to so agree, then the matter
shall be determined by arbitration in accordance with the rules of the American
Arbitration Association then prevailing in New York City. Any decision or award
resulting from such arbitration shall be final and binding upon Landlord and
Tenant and judgment thereon may be entered in any court of competent
jurisdiction; provided that, in no event shall any initial amount set forth in
this Lease and indicated to be subject to subsequent CPA Adjustment be reduced
below such initial amount as a result of such adjustment.
"Credit Entity" shall mean, with respect to an assignment or
subletting under Paragraph 21, any Person that immediately following such
assignment or subletting and having given effect thereto will have (x) a net
worth of not less than Two Billion Dollars and (y) a published unsecured senior
debt rating of "A" or better from Moody's or a rating of "A" or better from S&P
(or, if such Person does not then have rated debt, a determination that by
either of such rating agencies its unsecured senior debt would be so rated by
such agency and will not be on "Negative Credit Watch"), and in the event both
such rating agencies cease to furnish such ratings, then a comparable rating by
any rating agency acceptable to Landlord and Lender
"Default Rate" shall mean the Default Rate as defined in Paragraph
7(a)(iii).
"Easement Agreement" shall mean any conditions, covenants,
restrictions, easements, declarations, licenses and other agreements listed as
Permitted Encumbrances or as may hereafter affect the Leased Premises.
"Environmental Law" shall mean (a) whenever enacted or promulgated,
any applicable federal, state and local law, statute, ordinance, rule,
regulation, license, permit, authorization, approval, consent, court order,
judgment, decree, injunction, code, requirement or agreement with any
governmental entity, (i) relating to pollution (or the cleanup thereof), or the
protection of air, water vapor, surface water, groundwater, drinking water
supply, land (including land surface or subsurface), plant, aquatic and animal
life from injury caused by a Hazardous Substance or (ii) concerning exposure to,
or the use, containment, storage, recycling,
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reclamation, reuse, treatment, generation, discharge, transportation,
processing, handling, labeling, production, disposal or remediation of Hazardous
Substances, Hazardous Conditions or Hazardous Activities, in each case as
amended and as now or hereafter in effect, and (b) any common law or equitable
doctrine (including, without limitation, injunctive relief and tort doctrines
such as negligence, nuisance, trespass and strict liability) that may impose
liability or obligations for injuries or damages due to or threatened as a
result of the presence of, exposure to, or ingestion of, any Hazardous
Substance. The term Environmental Law includes, without limitation, the federal
Comprehensive Environmental Response Compensation and Liability Act of 1980, the
Superfund Amendments and Reauthorization Act, the federal Water Pollution
Control Act, the federal Clean Air Act, the federal Clean Water Act, the federal
Resources Conservation and Recovery Act of 1976 (including the Hazardous and
Solid Waste Amendments to RCRA), the federal Solid Waste Disposal Act, the
federal Toxic Substance Control Act, the federal Insecticide, Fungicide and
Rodenticide Act, the federal Occupational Safety and Health Act of 1970, the
federal National Environmental Policy Act and the federal Hazardous Materials
Transportation Act, the New Jersey Industrial Site Recovery Act (formerly known
as the Environmental Cleanup Responsibility Act), as amended (NJ.S.A. section
13:1K et seq.), and the New Jersey Spill Compensation Act and Control Act,
N.J.S.A. section 58:10.23.11b et seq., each as amended and as now or hereafter
in effect and any similar state or local Law.
"Environmental Violation" shall mean (a) any direct or indirect
discharge, disposal, spillage, emission, escape, pumping, pouring, injection,
leaching, release, seepage, filtration or transporting of any Hazardous
Substance at, upon, under, onto or within the Leased Premises, or from the
Leased Premises to the environment, in violation of any Environmental Law or in
excess of any reportable quantity established under any Environmental Law or
which could result in any liability to Landlord, Tenant or Lender, any Federal,
state or local government or any other Person for the costs of any removal or
remedial action or natural resources damage or for bodily injury or property
damage, (b) any deposit, storage, dumping, placement or use of any Hazardous
Substance at, upon, under or within the Leased Premises in violation of any
Environmental Law or in excess of any reportable quantity established under any
Environmental Law or which could result in any liability to any Federal, state
or local government or to any other Person for the costs of any removal or
remedial action or natural resources damage or for bodily injury or property
damage, (c) the abandonment or discarding of any barrels, containers or other
receptacles containing any Hazardous Substances in violation of any
Environmental Laws, (d) any activity, occurrence or condition which could result
in any liability, cost or expense to Landlord or Lender or any other owner or
occupier of the Leased Premises, or which could result in a creation of a lien
on the Leased Premises under any Environmental Law, or (e) any violation of or
noncompliance with any Environmental Law.
"Equipment" shall mean the Equipment as defined in Paragraph 1.
"Event of Default" shall mean an Event of Default as defined in
Paragraph 22(a).
"Fair Market Rental Value" shall mean the fair market rental value
of the Leased Premises for the relevant Renewal Term determined in accordance
with the procedure specified in Paragraph 29.
"Fair Market Value Date" shall mean the date when the Fair Market
Rental Value is determined in accordance with Paragraph 29.
"Federal Funds" shall mean federal or other immediately available
funds which at the time of payment are legal tender for the payment of public
and private debts in the United States of America.
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"Guarantor" shall mean, subject to the terms of the Guaranty,
collectively, DATABASE SERVICE MANAGEMENT, INC., a Delaware corporation,
TELCORDIA TECHNOLOGIES INTERNATIONAL, INC., a Delaware corporation, GRANITE
SYSTEMS, INC., a Delaware corporation, GRANITE SYSTEMS HOLDING COMPANY, INC., a
Delaware corporation, MEDITERRANEAN VENTURES, LLC, a Delaware limited liability
company, ITALY HOLDINGS, LLC, a Delaware limited liability company and MESA
SOLUTIONS, INC., a Delaware corporation.
"Guaranty" shall mean the Guaranty and Suretyship Agreement, dated
as of the date hereof, from Guarantor to Landlord guaranteeing the payment and
performance by Tenant of all of Tenant's obligations under the Lease, a form of
which is attached hereto as Exhibit "H".
"Hazardous Activity" means any activity, process, procedure or
undertaking which directly or indirectly (a) procures, generates or creates any
Hazardous Substance; (b) causes or results in (or threatens to cause or result
in) the release, seepage, spill, leak, flow, discharge or emission of any
Hazardous Substance into the environment (including the air, ground water,
watercourses or water systems), (c) involves the containment or storage of any
Hazardous Substance; or (d) would cause the Leased Premises or any portion
thereof to become a hazardous waste treatment, recycling, reclamation,
processing, storage or disposal facility within the meaning of any Environmental
Law.
"Hazardous Condition" means any condition which would support any
claim or liability under any Environmental Law, including the presence of
underground storage tanks.
"Hazardous Substance" means (i) any substance, material, product,
petroleum, petroleum product, derivative, compound or mixture, mineral
(including asbestos), chemical, gas, medical waste, or other pollutant, in each
case whether naturally occurring, man-made or the by-product of any process,
that is toxic, harmful or hazardous or acutely hazardous to the environment or
public health or safety or (ii) any substance supporting a claim under any
Environmental Law, whether or not defined as hazardous as such under any
Environmental Law. Hazardous Substances include, without limitation, any toxic
or hazardous waste, pollutant, contaminant, industrial waste, petroleum or
petroleum-derived substances or waste, radon, radioactive materials, asbestos,
asbestos containing materials, microbial matter (including but not limited to
mold, mildew and other fungi or bacterial matter which reproduces through the
release of spores or the splitting of cells), urea formaldehyde foam insulation,
lead and polychlorinated biphenyls.
"Impositions" shall mean the Impositions as definedin
Paragraph 9(a).
"Improvements" shall mean the Improvements as defined in
Paragraph 1.
"Income Taxes" shall mean any federal, state, local or foreign tax,
assessment, fee, levy, charge, withholding tax or similar charge imposed on or
measured by net income, net wealth, profits or overall gross income, and
franchise taxes to the extent imposed in lieu of taxes on such income or profits
(and all liabilities in connection therewith, including penalties and interest)
with respect thereto.
"Indemnitee" shall mean an Indemnitee as defined in Paragraph 15.
"Insurance Requirements" shall mean the requirements of all
insurance policies required to be maintained in accordance with this Lease.
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"Land" shall mean the Land as defined in Paragraph 1.
"Landlord's Agreement" shall mean the Landlord's Waiver and
Agreement by and among Landlord, Tenant and Tenant's senior and/or subordinate
lenders under the Credit Facility and /or the Capital Markets Security (as such
terms are defined in the Guaranty), dated as of the date hereof, in form and
substance acceptable to all parties thereto
"Law" shall mean any constitution, statute, rule of law, code,
ordinance, order, judgment, decree, injunction, rule, regulation, policy,
requirement or administrative or judicial determination, even if unforeseen or
extraordinary, of every duly constituted governmental authority, court or
agency, now or hereafter enacted or in effect.
"Lease" shall mean this Lease Agreement.
"Lease Year" shall mean, with respect to the first Lease Year, the
period commencing on the Commencement Date and ending at midnight on the last
calendar day of the twelfth (12th) full consecutive calendar month following the
month in which the Commencement Date occurred, and each succeeding twelve (12)
month period during the Term.
"Leased Premises" shall mean the Leased Premises as defined in
Paragraph 1.
"Legal Requirements" shall mean the requirements of all present and
future Laws (including but not limited to Environmental Laws and Laws relating
to accessibility to, usability by, and discrimination against, disabled
individuals) and all covenants, restrictions and conditions now or hereafter of
record which may be applicable to Tenant or to any of the Leased Premises, or to
the use, manner of use, occupancy, possession, operation, maintenance,
alteration, repair or restoration of any of the Leased Premises, even if
compliance therewith necessitates structural changes or improvements or results
in interference with the use or enjoyment of any of the Leased Premises or
requires Tenant to carry insurance other than as required by this Lease.
"Lender" shall mean any Person (and its respective successors and
assigns) which may, on or after the date hereof, make a Loan to Landlord or be
the holder of a Note.
"Loan" shall mean any loan made by one or more Lenders to Landlord,
which loan is secured by a Mortgage and an Assignment and evidenced by a Note.
"Monetary Obligations" shall mean Rent and all other sums payable by
Tenant under this Lease to Landlord, to any third party on behalf of Landlord or
to any Indemnitee.
"Moody's" shall mean ▇▇▇▇▇'▇ Investor Services, Inc.
"Mortgage" shall mean any mortgage or deed of trust from Landlord to
a Lender which (a) encumbers any of the Leased Premises and (b) secures
Landlord's obligation to repay a Loan, as the same may be amended, supplemented
or modified.
"Net Award" shall mean (a) the entire award payable to Landlord or
Lender by reason of a Condemnation whether pursuant to a judgment or by
agreement or otherwise, or (b) the entire proceeds of any insurance required
under clauses (i), (ii) (to the extent payable to Landlord or Lender), (iv), (v)
or (vi) of Paragraph 16(a), as the case may be, less any Costs incurred by
Landlord and Lender in collecting such award or proceeds.
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"Note" shall mean any promissory note evidencing Landlord's
obligation to repay a Loan, as the same may be amended, supplemented or
modified.
"Partial Casualty" shall mean any Casualty that does not constitute
a Termination Event.
"Partial Condemnation" shall mean any Condemnation that does not
constitute a Termination Event.
"Permitted Encumbrances" shall mean those covenants, restrictions,
reservations, liens, conditions and easements and other encumbrances, other than
any Mortgage or Assignment, listed on Exhibit "C" hereto (but such listing shall
not be deemed to revive any such encumbrances that have expired or terminated or
are otherwise invalid or unenforceable).
"Person" shall mean an individual, partnership, association,
corporation or other entity.
"Post Closing Obligations" shall mean those obligations of Tenant
specified in Exhibit "F" hereto.
"Prepayment Premium" shall mean, subject to the provisions of
Paragraph 31(c), any payment required to be made by Landlord to a Lender under
a Note or any other document evidencing or securing a Loan (other than payments
of principal and/or interest which Landlord is required to make under a Note or
a Mortgage) solely by reason of any prepayment or defeasance by Landlord of any
principal due under a Note or Mortgage, and which may without limitation take
the form of (a) a "make whole" or yield maintenance clause requiring a
prepayment premium or (b) a defeasance payment (such defeasance payment to be an
amount equal to the positive difference between (i) the total amount required to
defease a Loan and (ii) the outstanding principal balance of the Loan as of the
date of such defeasance plus reasonable Costs of Landlord and Lender.
"Present Value" of any amount shall mean such amount discounted by a
rate per annum equal to nine and one-half percent (9.5%).
"Prime Rate" shall mean the annual interest rate as published, from
time to time, in The Wall Street Journal as the "Prime Rate" in its column
entitled "Money Rate". The Prime Rate may not be the lowest rate of interest
charged by any "large U.S. money center commercial banks" and Landlord makes no
representations or warranties to that effect. In the event The Wall Street
Journal ceases publication or ceases to publish the "Prime Rate" as described
above, the Prime Rate shall be the average per annum discount rate (the
"Discount Rate") on ninety-one (91) day bills ("Treasury Bills") issued from
time to time by the United States Treasury at its most recent auction, plus
three hundred (300) basis points. If no such 91-day Treasury Bills are then
being issued, the Discount Rate shall be the discount rate on Treasury Bills
then being issued for the period of time closest to ninety-one (91) days.
"Release Parcels" shall mean, collectively, the areas of undeveloped
land more particularly identified by hatching as "Release Parcel A" and "Release
Parcel B", respectively, on Exhibit "G" annexed hereto (and each of "Release
Parcel A" and "Release Parcel B", respectively, sometimes hereinafter referred
to individually as a "Release Parcel").
"Relevant Date" shall mean the date on which Fair Market Rental
Value is determined in the event of an extension of this Lease for the third or
fourth Renewal Term pursuant to Paragraph 5(b), as applicable.
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"Renewal Term" shall mean Renewal Term as defined in Paragraph 5.
"Rent" shall mean, collectively, Basic Rent and Additional Rent.
"Requisition" shall mean any temporary requisition or confiscation
of the use or occupancy of any of the Leased Premises occurring in whole or in
part during the Term by any governmental authority, civil or military, whether
pursuant to an agreement with such governmental authority in settlement of or
under threat of any such requisition or confiscation, or otherwise.
"S&P" shall mean Standard & Poor's Rating Services, a division of
The McGraw Hill Companies.
"Sales Contract" shall mean Sales Contract as defined in
Paragraph 34(a).
"Site Assessment" shall mean a Site Assessment as defined in
Paragraph 10(c).
"State" shall mean the State of New Jersey.
"Subsidiary(ies)" shall mean a direct or indirect wholly-owned
subsidiary of a Person.
"Surviving Obligations" shall mean any obligations of Tenant under
this Lease, actual or contingent, which arise on or prior to the expiration or
prior termination of this Lease or which survive such expiration or termination
by their own terms.
"Taking" shall mean (a) any taking or damaging of all or a portion
of any of the Leased Premises (i) in or by condemnation or other eminent domain
proceedings pursuant to any Law, general or special, or (ii) by reason of any
agreement with any condemnor in settlement of or under threat of any such
condemnation or other eminent domain proceeding, or (iii) by any other means, or
(b) any de facto condemnation. The Taking shall be considered to have taken
place as of the later of the date actual physical possession is taken by the
condemnor, or the date on which the right to compensation and damages accrues
under the law applicable to the Leased Premises.
"Term" shall mean the Term as defined in Paragraph 5.
"Termination Amount" shall mean the applicable amount set forth on
Exhibit "E", "Termination Values"; provided that, with respect to a Termination
Event pursuant to Paragraph 18 occurring after the tenth (10th) anniversary of
the Commencement Date there shall be added to such amount any applicable
Prepayment Premium which Landlord will be required to pay in prepaying or
defeasing in whole or in part, as applicable, any Loan with proceeds of the
Termination Amount (subject to the provisions of Paragraph 31(c) hereof).
"Termination Date" shall mean Termination Date as defined in
Paragraph 18.
"Termination Event" shall mean a Termination Event as defined in
Paragraph 18.
"Termination Notice" shall mean Termination Notice as defined in
Paragraph 18(a).
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"Warranties" shall mean Warranties as defined in Paragraph 3(d).
"Work" shall mean Work as defined in Paragraph 13(b).
3. Title and Condition.
(a) The Leased Premises are demised and let subject to (i) the
rights of any Persons in possession of the Leased Premises, (ii) the existing
state of title of any of the Leased Premises, including any Permitted
Encumbrances, (iii) any state of facts which an accurate survey or physical
inspection of the Leased Premises might show, (iv) all Legal Requirements,
including any existing violation of any thereof, and (v) the condition of the
Leased Premises as of the commencement of the Term, without representation or
warranty by Landlord.
(b) Tenant Acknowledges That Tenant currently is in physical
occupancy of the Leased Premises and that the Leased Premises are in
satisfactory condition and repair at the inception of this Lease. LANDLORD
LEASES AND WILL LEASE AND TENANT TAKES AND WILL TAKE THE LEASED PREMISES AS IS.
TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN
ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED
TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT
TO ANY OF THE LEASED PREMISES, INCLUDING ANY WARRANTY OR REPRESENTATION AS TO
(i) ITS FITNESS, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE, (ii) THE
QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY
DEFECT, LATENT OR PATENT, (iv) LANDLORD'S TITLE THERETO, (v) VALUE, (vi)
COMPLIANCE WITH SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix) CONDITION, (x)
MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION, (xiii) DURABILITY, (xiv)
OPERATION, (xv) THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE, HAZARDOUS CONDITION OR
HAZARDOUS ACTIVITY OR (xvi) COMPLIANCE OF THE LEASED PREMISES WITH ANY LAW OR
LEGAL REQUIREMENT; AND ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY TENANT.
TENANT ACKNOWLEDGES THAT THE LEASED PREMISES IS OF ITS SELECTION AND TO ITS
SPECIFICATIONS AND THAT THE LEASED PREMISES HAS BEEN INSPECTED BY TENANT AND IS
SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF THE
LEASED PREMISES OF ANY NATURE, WHETHER LATENT OR PATENT, LANDLORD SHALL NOT HAVE
ANY RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING STRICT LIABILITY IN TORT). THE PROVISIONS OF
THIS PARAGRAPH 3(b) HAVE BEEN NEGOTIATED, AND ARE INTENDED TO BE A COMPLETE
EXCLUSION AND NEGATION OF ANY WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY OF THE LEASED PREMISES, ARISING PURSUANT TO THE UNIFORM
COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR ARISING
OTHERWISE.
(c) Tenant has examined the title to the Leased Premises prior to
the execution and delivery of this Lease and has found the same to be
satisfactory for the purposes contemplated hereby. Tenant acknowledges that (i)
fee simple title (both legal and equitable) is in Landlord and except as
provided in Paragraph 34 hereof with respect to certain rights of refusal to
purchase the Leased Premises that Tenant has only the leasehold right of
possession and use of the Leased Premises, as provided herein, (ii) the
Improvements conform to all material Legal Requirements and all insurance
Requirements, (iii) all easements necessary or appropriate for the use or
operation of the Leased Premises have been obtained, (iv) all
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contractors and subcontractors who have performed work on or supplied materials
to the Leased Premises have been fully paid, and all materials and supplies have
been fully paid for, (v) the Improvements have been fully completed in all
material respects and (vi) all Equipment necessary or appropriate for the use or
operation of the Leased Premises has been installed and is presently fully
operative in all material respects.
(d) Landlord hereby assigns to Tenant, without recourse or warranty
whatsoever, all assignable warranties, guaranties, indemnities and similar
rights (collectively, "Warranties") which Landlord may have against any
manufacturer, seller, engineer, contractor or builder in respect of any of the
Leased Premises. Such assignment shall remain in effect until the expiration or
earlier termination of this Lease, whereupon such assignment shall cease and all
of the Warranties shall automatically revert to Landlord. In confirmation of
such reversion Tenant shall execute and deliver promptly any certificate or
other document reasonably required by Landlord. Landlord shall also retain the
right to enforce any Warranties upon the occurrence of an Event of Default.
Tenant shall enforce the Warranties in accordance with their respective terms.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may occupy and use the Leased Premises for general,
executive and administrative offices, for software research and development
laboratory space, as a data center, customer briefing center and for uses
ancillary and incidental to any of the foregoing, including, without limitation,
a kitchen and cafeteria for use by the officers, employees and business invitees
of Tenant, a day care center for the children of officers and employees of
Tenant, a photocopying center in connection with Tenant's own business needs at
the Leased Premises and an employee training facility, and for no other purpose
without the prior written consent of Landlord, which consent shall not be
unreasonably, withheld, delayed or conditioned, Tenant shall not use or occupy
or permit any of the Leased Premises to be used or occupied, nor do or permit
anything to be done in or on any of the Leased Premises, in a manner which would
or might (i) violate any Law, Legal Requirement or Permitted Encumbrance, (ii)
make void or voidable or cause any insurer to cancel any insurance required by
this Lease, or make it difficult or impossible to obtain any such insurance at
commercially reasonable rates, (iii) make void or voidable, cancel or cause to
be cancelled or release any of the Warranties, (iv) cause structural injury to
any of the Improvements or (v) constitute a public or private nuisance or waste.
Nothing herein shall give or grant Tenant any right to apply for, obtain,
acquiesce in, or utilize all or any part of the Leased Premises for any purpose
that would require, a use variance, change in zoning or use classification, or
to apply for same, without the express written consent of Landlord in its sole
but reasonable discretion.
(b) Subject to the provisions hereof, so long as no Event of Default
has occurred and is continuing, Tenant shall quietly hold, occupy and enjoy the
Leased Premises throughout the Term, without any hindrance, ejection or
molestation by Landlord or any Person claiming by, through, or under Landlord,
with respect to matters that arise after the date hereof; provided that,
Landlord or its agents, representatives or consultants may enter upon and
examine any of the Leased Premises at such reasonable times as Landlord may
select and upon not less than two (2) business days notice to Tenant (except in
the case of an emergency, in which event no notice shall be required) for the
purpose of inspecting the Leased Premises, verifying compliance or
non-compliance by Tenant with its obligations hereunder and the existence or
non-existence of an Event of Default or event which with the passage of time
and/or notice would constitute an Event of Default, showing the Leased Premises
to prospective Lenders and purchasers, making any repairs and taking such other
action with respect to the Leased Premises as is permitted by any provision
hereof. Landlord agrees that, except in the case of emergency, each entry upon
or examination of the Leased Premises shall be accompanied by a representative
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of Tenant ;provided that Tenant makes such representative available to Landlord
or its agents, representatives or consultants at the time of scheduled visit.
(c) Notwithstanding anything to the contrary contained in this
Paragraph 4 or Paragraph 21 hereof, in no event shall any portion of the Leased
Premises be used or occupied or permitted to be used or occupied for any of the
following purposes: (i) any nightclub, bar or discotheque; (ii) any adult
bookstore or video shop, nude or semi-nude or "adult" entertainment
establishment or any lewd, obscene or pornographic purpose; (iii) any store in
which a material portion of the inventory is not available for sale or rental to
children under 18 years of age because such inventory explicitly deals with,
relates to, or depicts human sexuality, or in which any of the inventory
constitutes drug paraphernalia of the kind associated with or sold by so-called
"head shops"; (iv) any dumping, disposing, incineration or reduction of garbage
(exclusive of appropriately screened dumpsters and/or recycling bins located in
the rear of any building and garbage disposal in the ordinary course of
business); (v) any mortuary; (vi) any fire sale, bankruptcy sale (unless
pursuant to a court order) or auction house operation; (vii) any gas station;
(viii) any central laundry or dry cleaning plant or Laundromat; (ix) any
automobile, truck, trailer or RV sales, leasing, display or repair; (x) any
"flea market", secondhand, surplus or other "off-price" or deep discount store;
(xi) any gambling or off-track betting operation, or (xii) any massage parlor or
carnival.
5. Term.
(a) Subject to the provisions hereof, Tenant shall have and hold the
Leased Premises for an initial term (such term, as extended or renewed in
accordance with the provisions hereof, being called the "Term") commencing on
the date hereof (the "Commencement Date") and ending on September 30, 2023 (the
"Expiration Date").
(b) Provided that if, on or prior to the Expiration Date or any
other Renewal Date (as hereinafter defined) this Lease shall not have been
terminated pursuant to any provision hereof, then Tenant shall have the option
to extend the Term of this Lease on the Expiration Date and on the fifth (5th),
tenth (10th) and fifteenth (15th) anniversaries of the Expiration Date (the
Expiration Date and each such anniversary being referred to herein as a "Renewal
Date"), for an additional period of five (5) years (each such extension, a
"Renewal Term"), provided and upon condition that Tenant shall notify Landlord
in writing at least twelve (12), months prior to the next Renewal Date that
Tenant is electing to extend the Term of this Lease effective as of the next
Renewal Date. Any such extension of the Term shall be subject to all of the
provisions of this Lease, as the same may be amended, supplemented or modified
(except that Tenant shall not have the right to any additional Renewal Terms
other then the four (4) Renewal Terms initially set forth herein).
(c) If Tenant does not exercise its option to extend or further
extend the Term, or if an Event of Default has occurred and is continuing and
Landlord has commenced its remedies under Paragraph 23 hereof to terminate this
Lease, then Landlord shall have the right during the remainder of the Term then
in effect and, in any event, Landlord shall have the right during the last year
of the Term (taking into account any exercised Renewal Term), to (i) advertise
the availability of the Leased Premises for sale or reletting and to erect upon
the Leased Premises signs indicating such availability and (ii) show the Leased
Premises to prospective purchasers or tenants or their agents, representatives
or consultants in accordance with Paragraph 4(b) above.
6. Basic Rent. Tenant shall pay to Landlord, as annual rent for the Leased
Premises during the Term, the amounts determined in accordance with Exhibit "D"
hereto ("Basic Rent"), payable in advance for the next calendar month,
commencing on the twenty-fifth (25th) day of the first month following the date
hereof and continuing on the same day of each
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month thereafter during the Term which shall be payable as set forth in said
Exhibit "D". The date that each payment of Basic Rent is due is hereinafter
referred to as a "Basic Rent Payment Date". Each such payment of Basic Rent
shall be made in Federal Funds on each Basic Rent Payment Date to Landlord
and/or to such one or more other Persons, pursuant to wire transfer instructions
delivered to Tenant from time to time at such addresses and in such proportions
as Landlord may direct by fifteen (15) days' prior written notice to Tenant (in
which event Tenant shall give Landlord notice of each such payment concurrent
with the making thereof).
7. Additional Rent.
(a) Tenant shall pay and discharge, as additional rent
(collectively, "Additional Rent"):
(i) except as otherwise specifically provided for or limited
in this Lease, all costs and expenses of Tenant, and all Costs of Landlord and
any other Persons specifically referenced herein, which are incurred in
connection or associated with (A) Tenant's (or any Person claiming by, through
or under Tenant) use, non-use, occupancy or possession of the Leased Premises or
their operations thereat, or the condition, design, construction, maintenance,
alteration, repair or restoration of any of the Leased Premises, (B) the
performance of any of Tenant's obligations under this Lease, (C) any sale or
other transfer of any of the Leased Premises to Tenant under this Lease (other
than any Income Taxes imposed upon the Landlord, as seller), (D) any
Condemnation proceedings, (E) the adjustment, settlement or compromise of any
insurance claims involving or arising from any of the Leased Premises, (F) the
prosecution, defense or settlement of any litigation involving or arising from
any of the Leased Premises, this Lease, or the sale of the Leased Premises to
Landlord, (G) the exercise or enforcement by Landlord, its successors and
assigns, of any of its rights under this Lease, (H) any amendment to or
modification or termination of this Lease made at the request of Tenant, (I)
Costs of Landlord's counsel and reasonable internal Costs of Landlord incurred
in connection with any act undertaken by Landlord (or its counsel) at the
request of Tenant or any act of Landlord performed on behalf of Tenant (to the
extent permitted by Landlord under the terms of this Lease), or the review and
monitoring of Tenant's compliance with its obligations under Paragraph 10 hereof
or with respect to any Post-Closing Obligations and (J) any other items
specifically required to be paid by Tenant under this Lease;
(ii) after the date all or any portion of any installment of
Basic Rent is due and not paid by the applicable Basic Rent Payment Date, an
amount (the "Late Charge") equal to five percent (5%) of the amount of such
unpaid installment or portion thereof to reimburse Landlord for its cost and
inconvenience incurred as a result of Tenant's delinquency, provided, however,
that with respect to the first two (2) late payments of all or any portion of
any installment of Basic Rent in any Lease Year, the Late Charge shall not be
due and payable unless the Basic Rent has not been paid within five (5) days
following the due date thereof;
(iii) interest at the rate (the "Default Rate") of five
percent (5%) over the Prime Rate per annum on any unpaid installment of Basic
Rent (or portion thereof) or any unpaid item of Additional Rent, (or portion
thereof), for the period beginning upon the expiration of the applicable notice
and cure period until the date that such amount is paid in full.
(b) Tenant shall pay and discharge (i) any Additional Rent referred
to in Paragraph 7(a)(i) when the same shall become due, provided that amounts
which are billed to Landlord or any third party, but not to Tenant, shall be
paid within ten (10) days after Landlord's demand for payment thereof, and (ii)
any other Additional Rent, within ten (10) days after Landlord's demand for
payment thereof.
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(c) In no event shall amounts payable under Paragraph 7(a)(ii) and
(iii) or elsewhere in this Lease exceed the maximum amount permitted by
applicable Law.
8. Net Lease; Non-Terminability.
(a) This is a net lease and all Monetary Obligations shall be paid
without notice or demand and without set-off, counterclaim, recoupment,
abatement, suspension, deferment, diminution, deduction, reduction or defense
(collectively, a "Set-Off").
(b) This Lease and the rights of Landlord and the obligations of
Tenant hereunder shall not be affected by any event or for any reason or cause
whatsoever foreseen or unforeseen.
(c) The obligations of Tenant hereunder shall be separate and
independent covenants and agreements, all Monetary Obligations shall continue to
be payable in all events (or, in lieu thereof, Tenant shall pay amounts equal
thereto), and the obligations of Tenant hereunder shall continue unaffected
unless the requirement to pay or perform the same shall have been terminated
pursuant to an express provision of this Lease. The obligation to pay Rent or
amounts equal thereto shall not be affected by any collection of any sums by any
governmental body pursuant to any Imposition even if such sums are characterized
as "rent" by such governmental body. All Rent payable by Tenant hereunder shall
constitute "rent" for all purposes (including Section 502(b)(6) of the Federal
Bankruptcy Code).
(d) Except as otherwise expressly provided herein, Tenant shall have
no right and hereby waives all rights which it may have under any Law (i) to
quit, terminate or surrender this Lease or any of the Leased Premises, or (ii)
to any Set-Off of any Monetary Obligations.
9. Payment of Impositions.
(a) Tenant shall, before interest or penalties are due thereon, pay
and discharge all taxes (including real and personal property, sales, use, gross
receipts and rent taxes, and franchise taxes imposed on Tenant), all charges for
any easement or agreement maintained for the benefit of any of the Leased
Premises, all assessments and levies, all permit, inspection and license fees,
all rents and charges for water, sewer, utility and communication services
relating to any of the Leased Premises, all ground rents and all other public
charges whether of a like or different nature, even if unforeseen or
extraordinary, imposed upon or assessed against (i) Tenant, (ii) Tenant's
leasehold interest in the Leased Premises, (iii) any of the Leased Premises,
(iv) Landlord as a result of or arising in respect of the acquisition,
ownership, occupancy, leasing, use or possession of any of the Leased Premises,
any activity conducted on any of the Leased Premises, or the Rent, or (v) any
Lender by reason of a default under clause (xi) of Paragraph 22(a) and/or in
connection with the recording any Note, Mortgage, Assignment or other document
evidencing or securing a Loan and which (as to this clause (v)) Landlord has
agreed to pay (collectively, the "Impositions"): provided, that nothing herein
shall obligate Tenant to pay (A) any Income Taxes of Landlord (or Lender)
(unless such Income Taxes are in lieu of or a substitute for any other tax,
assessment or other charge upon or with respect to the Leased Premises which, if
it were in effect, would be payable by Tenant under the provisions hereof or by
the terms of such tax, assessment or other charge), (B) any estate, inheritance,
succession, gift or similar tax imposed on Landlord, (C) any transfer tax,
mortgage recording tax or similar taxes imposed on Landlord in connection with
the sale of the Leased Premises to any Person, except as may be otherwise
expressly provided for in Paragraph 31(a) and (D) any Income Taxes, or sales or
use taxes or VAT or employment taxes, of Tenant unless the nonpayment or
delinquency thereof would have, or is reasonably likely to have, a material
adverse effect on Landlord, Lender or the Leased Premises or would result in a
final, non-appealable
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claim or lien against Tenant for unpaid Taxes in an aggregate amount (including
interest and penalties) equal to or in excess of $5,000,000. Landlord shall have
the right to require Tenant to pay, together with scheduled installments of
Basic Rent, the amount of the gross receipts or rent tax, if any, payable with
respect to the amount of such installment of Basic Rent. If any Imposition may
be paid in installments without interest or penalty, Tenant shall have the
option to pay such Imposition in installments; in such event, Tenant shall be
liable only for those installments which accrue or become due and payable during
the Term. Tenant shall prepare and file all tax reports required by governmental
authorities which relate to the Impositions. Tenant shall deliver to Landlord
(1) copies of all settlements and notices pertaining to the Impositions which
may be issued by any governmental authority within ten (10) business days after
Tenant's receipt thereof, (2) receipts for payment of all taxes required to be
paid by Tenant hereunder within thirty (30) days after the due date thereof and
(3) receipts for payment of all other Impositions within ten (10) business days
after Landlord's request therefor.
(b) If an Event of Default shall occur under this Lease or if
Tenant first-named herein (or any Affiliate of such Tenant) shall cease to be
the Tenant hereunder and as a result thereof Landlord is required by a Lender to
make periodic payments (whether monthly or quarterly, each an "Escrow Payment")
into escrow of funds necessary to pay Escrow Charges (as hereinafter defined) so
that there shall be in an escrow account an amount sufficient to pay the
applicable Escrow Charges as and when same become due, then Landlord shall
notify Tenant thereof in writing, shall make such Escrow Payments, and shall pay
or cause the Lender to pay the applicable Escrow Charges when due (i.e., before
any interest or penalties shall be due thereon). Tenant shall reimburse Landlord
in the amount of such Escrow Payments as Additional Rent hereunder, upon demand
(but not earlier than the date that such taxes, assessments or insurance
premiums would otherwise be due and payable by Tenant to such third parties had
such Escrow Payments not been required by Lender. As used herein, "Escrow
Charges" shall mean real estate taxes and assessments on or with respect to the
Leased Premises or payments in lieu thereof and premiums on any insurance
required by this Lease. If Lender shall subsequently no longer require Landlord
to make Escrow Payments, Landlord shall notify Tenant in writing and Tenant
shall thereafter again pay all Impositions and insurance premiums directly to
the applicable third parties
(c) The provisions of this Paragraph 9(c) shall not be applicable to
Telcordia Technologies, Inc. or any of its Affiliates; provided that in the
event that neither Telcordia Technologies, Inc. nor any of its Affiliates is
"Tenant" under this Lease (nor liable for the performance of Tenant's
obligations under this Lease) then the provisions of Paragraph 9(b) shall be
deemed deleted in their entirety and the provisions of this Paragraph 9(c) shall
control. If (i) an Event of Default shall occur or (ii) at any time subsequent
to the tenth (10th) anniversary of the Commencement Date, Landlord is required
by a Lender to pay into escrow funds necessary to pay Escrow Charges (as
hereinafter defined), then Tenant shall pay periodically (but not more often
than monthly) Escrow Charges to Landlord (or as Landlord shall direct) in such
amounts (each an "Escrow Payment") so that there shall be in an escrow account
an amount sufficient to pay the Escrow Charges (as hereinafter defined) as they
become due. As used herein, "Escrow Charges" shall mean real estate taxes and
assessments on or with respect to the Leased Premises or payments in lieu
thereof and premiums on any insurance required by this Lease and any reserves
for capital improvements and/or deferred maintenance and repair required by
Landlord. Landlord shall reasonably determine the amount of the Escrow Charges
based upon actual taxes and insurance premiums due with respect to the Leased
Premises and then current institutional lending standards as to reserves for
improvements, maintenance and repairs (it being agreed that if such Escrow
Payments are required by a Lender, such amounts shall equal any corresponding
escrow installments required to be paid by Landlord) and the amount of each
Escrow Payment. As long as the Escrow Payments are being held by Landlord the
Escrow Payments shall not be commingled with other funds of Landlord or other
Persons and interest thereon shall accrue for the benefit of Tenant from the
date such monies are received and
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invested until the date such monies are disbursed to pay Escrow Charges.
Landlord shall apply the Escrow Payments to the payment of the Escrow Charges in
such order or priority as Landlord shall determine or as required by law. If at
any time the Escrow Payments theretofore paid to Landlord shall be insufficient
for the payment of the Escrow Charges, Tenant, within ten (10) days after
Landlord's demand therefor, shall pay the amount of the deficiency to or at the
direction of Landlord. Landlord agrees that it shall, with respect to any
Lender, use its good faith and commercially reasonable efforts to have the
obligation to make Escrow Payments waived so long as no Event of Default occurs
and Tenant first-named herein remains in physical occupancy of the Leased
Premises.
10. Compliance with Laws and Easement Agreements, Environmental
Matters.
(a) Tenant shall, at its sole cost and expense, comply with and
conform to, and cause the Leased Premises and any other Person occupying any
part of the Leased Premises to comply, in all material respects with and conform
to, all Insurance Requirements and Legal Requirements (including, without
limitation, all applicable Environmental Laws and all Laws relating to parking,
building height, zoning, access, set-backs and related ordinances). Tenant shall
not at any time (i) cause, permit or suffer to occur any Environmental Violation
or (ii) permit any sublessee, assignee or other Person occupying the Leased
Premises under or through Tenant to cause, permit or suffer to occur any
Environmental Violation and, at the request of Landlord or Lender, Tenant shall
promptly remediate or undertake any other appropriate response action to correct
any existing Environmental Violation, and (iii) without the prior written
consent of Landlord and Lender, permit any drilling or exploration for or
extraction, removal, or production of any minerals from the surface or the
subsurface of the Land, regardless of the depth thereof or the method of mining
or extraction thereof. Any and all reports prepared for or by Landlord with
respect to the Leased Premises shall be for the sole benefit of Landlord and
Lender and no other Person shall have the right to rely on any such reports.
Nothing herein shall prevent Tenant from independently obtaining copies of such
reports or from separately obtaining the right to rely thereon from the Persons
preparing same pursuant to a separate agreement.
(b) Tenant, at its sole cost and expense, will at all times promptly
and faithfully abide by, discharge and perform all of the covenants, conditions
and agreements contained in any Easement Agreement on the part of Landlord or
the occupier to be kept and performed thereunder. Tenant will not alter, modify,
amend or terminate any Easement Agreement, give any consent or approval
thereunder, or enter into any new Easement Agreement without, in each case, the
prior written consent of Landlord.
(c) Upon not less than two (2) business days prior written notice
from Landlord, Tenant shall permit such persons as Landlord may designate ("Site
Reviewers") to visit the Leased Premises during normal business hours and in a
manner which does not unreasonably interfere with Tenant's operations and
perform, and to conduct environmental site investigations and assessments ("Site
Assessments") on the Leased Premises in any of the following circumstances: (i)
in connection with any sale, financing or refinancing of the Leased Premises,
(ii) within the six month period prior to the expiration of the Term, (iii) if
required by Lender or the terms of any credit facility to which Landlord is
bound, (iv) if an Event of Default exists, or (v) at any other time that, in the
opinion of Landlord or Lender, a reasonable basis exists to believe that an
Environmental Violation or any condition that could reasonably be expected to
result in any Environmental Violation exists. Such Site Assessments may include
both above and below the ground testing for Environmental Violations and such
other tests as may be necessary, in the opinion of the Site Reviewers, to
conduct the Site Assessments. Tenant
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shall supply to the Site Reviewers such historical and operational information
regarding the Leased Premises as may be reasonably requested by the Site
Reviewers to facilitate the Site Assessments, and shall make available for
meetings with the Site Reviewers appropriate personnel having knowledge of such
matters. The costs of performing and reporting Site Assessments under clause
(ii) (but only one (1) time), under clause (iv), under clause (i) in connection
with either Landlord's initial financing of the Leased Premises or the sale of
any of the Leased Premises to Tenant or an Affiliate or designee of Tenant, and
under clause (v) if any Environmental Violation is discovered, shall be paid by
Tenant, otherwise such costs shall be paid by Landlord. Landlord shall repair
(or shall cause the Site Reviewers to repair) any incidental damage caused by
any inspection or test performed pursuant to Paragraph 10(c) and Landlord and
Tenant shall cooperate with each other to ensure that such Site Reviewers carry
appropriate insurance for the benefit of Landlord and Tenant to cover the costs
for the repair of any such damage or injury to any individual as a result of
such inspection. Notwithstanding anything to the contrary contained in this
Lease (including Paragraph 15), Tenant shall not be liable for, nor be required
to indemnify any Indemnitee against any Claim (as such terms are defined in
Paragraph 15) with respect to any damage to property or injury to persons caused
by or resulting from the entry by such Site Reviewers upon the Leased Premises
or the physical performance of the applicable Site Assessments, but nothing
herein shall limit Tenant's obligations in connection with any Environmental
Violations discovered thereby or the cost of any remedial action required.
(d) If an Environmental Violation occurs or is found to exist and,
in Landlord's reasonable judgment, the cost of remediation of, or other response
action with respect to, the same is likely to exceed $1,000,000.00, then Tenant
shall provide to Landlord, within ten (10) days after Landlord's request
therefor, assurances that Tenant has the adequate financial resources to effect
such remediation in accordance with applicable Environmental Laws (which may
include Tenant's written confirmation of access to liquid assets necessary to
complete such remediation in light of the estimated costs thereof based upon a
Site Assessment performed pursuant to Paragraph 10(c) by a Site Reviewer.
(e) Notwithstanding any other provision of this Lease, if an
Environmental Violation occurs or is found to exist during the Term and the Term
would otherwise terminate or expire, then, at the option of Landlord, the Term
shall be automatically extended beyond the date of termination or expiration and
this Lease (other than the obligation of Tenant to remain in occupancy of the
Leased Premises) shall remain in full force and effect beyond such date until
the earlier to occur of (i) the completion of all active remedial action in
accordance with applicable Environmental Laws (it being agreed that mere site
monitoring, such as periodic water or soil testing, shall not by itself prevent
a determination that remedial action has been completed) and (ii) the date
specified in a written notice from Landlord to Tenant terminating this Lease.
(f) If Tenant shall default beyond any applicable notice and cure
period in its obligation to correct any Environmental Violation which occurs or
is found to exist, then Landlord shall have the right (but no obligation) to
take any and all actions as Landlord shall deem necessary or advisable in order
to cure such Environmental Violation in accordance with applicable Laws.
(g) Tenant shall notify Landlord promptly after becoming aware of
any Environmental Violation (or alleged Environmental Violation) or
noncompliance with any of the covenants contained in this Paragraph 10 and shall
forward to Landlord immediately upon receipt thereof copies of all orders,
reports, notices, permits, applications or other communications relating to any
such violation or noncompliance.
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(h) Tenant shall not use the Leased Premises or any portion thereof
as a "Major Facility" (as such term is defined in the New Jersey Spill
Compensation Act and Control Act, N.J.S.A. section 58:10.23.11b et seq.).
(i) Tenant shall not conduct or cause or permit to be conducted on
the Leased Premises any activity which constitutes an "Industrial
Establishment," as such term is defined in the New Jersey Industrial Site
Recovery Act (formerly known as the Environmental Cleanup Responsibility Act),
as amended (N.J.S.A. section 13: 1K et seq.) ("ISRA"). In the event that the
provisions of ISRA become applicable to the Leased Premises subsequent to the
date hereof, Tenant shall give prompt written notice thereof to Landlord and
shall take immediate requisite action to insure full compliance therewith.
Tenant shall promptly deliver to Landlord copies of all correspondence, notices
and submissions that it sends to or receives from the New Jersey Department of
Environmental Protection in connection with such ISRA compliance.
(j) All future leases, subleases or concession agreements relating
to the Leased Premises entered into by Tenant shall contain covenants of the
other party not to at any time (i) cause any Environmental Violation to occur or
(ii) permit any Person occupying the Leased Premises through said subtenant or
concessionaire to cause any Environmental Violation to occur.
11. Liens; Recording;
(a) Tenant shall not, directly or indirectly, create or permit to be
created or to remain and shall promptly discharge or remove any lien, levy or
encumbrance on any of the Leased Premises or on any Rent or any other sums
payable by Tenant under this Lease, other than any Mortgage or Assignment, the
Permitted Encumbrances and any mortgage, lien, encumbrance or other charge
created by or resulting solely from any act or omission of Landlord. NOTICE IS
HEREBY GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE HOLDING OR
OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER TENANT, AND THAT NO
MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH
TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF THE LEASED PREMISES.
LANDLORD MAY AT ANY TIME, AND AT LANDLORD'S REQUEST TENANT SHALL PROMPTLY, POST
ANY NOTICES ON THE LEASED PREMISES REGARDING SUCH NON-LIABILITY OF LANDLORD.
(b) Each of Landlord and Tenant shall execute, deliver and record,
file or register (collectively, "record") all such instruments as may be
required or permitted by any present or future Law in order to evidence the
respective interests of Landlord and Tenant in the Leased Premises, and shall
cause a memorandum of this Lease (or, if such a memorandum cannot be recorded,
this Lease), and any supplement hereto or thereto, to be recorded in such manner
and in such places as may be required or permitted by any present or future Law
in order to protect the validity and priority of this Lease.
12. Maintenance and Repair.
(a) Tenant shall at all times maintain the Leased Premises in as
good repair and appearance as they are in on the date hereof and fit to be used
for their intended use in accordance with standards and practices previously
observed by Tenant with respect to the Leased Premises and a plan of maintenance
and repair reasonably consistent with sound real estate practices for similar
buildings similarly situated, and, in the case of the Equipment, in as good
mechanical condition as it was on the later of the date hereof or the date of
its installation, except for ordinary wear and tear and casualty or Condemnation
as to which Tenant is not
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otherwise obligated to repair or restore in accordance with the terms of this
Lease. Tenant shall take every other action necessary or appropriate for the
preservation and safety of the Leased Premises. Tenant shall promptly make all
Alterations of every kind and nature, whether foreseen or unforeseen, which may
be required to comply with the foregoing requirements of this Paragraph 12(a).
Landlord shall not be required to make any Alteration, whether foreseen or
unforeseen, or to maintain any of the Leased Premises in any way, and Tenant
hereby expressly waives any right which may be provided for in any Law now or
hereafter in effect to make Alterations at the expense of Landlord or to require
Landlord to make Alterations. Any Alteration made by Tenant pursuant to this
Paragraph 12 shall be made in conformity with the provisions of Paragraph 13.
(b) If any Improvement, now or hereafter constructed, shall (i)
encroach upon any setback or any property, street or right-of-way adjoining the
Leased Premises, (ii) violate the provisions of any restrictive covenant
affecting the Leased Premises, (iii) hinder or obstruct any easement or
right-of-way to which any of the Leased Premises is subject or (iv) impair the
rights of others in, to or under any of the foregoing, Tenant shall, promptly
after receiving notice or otherwise acquiring knowledge thereof, either (A)
obtain from all necessary parties waivers or settlements of all claims,
liabilities and damages resulting from each such encroachment, violation,
hindrance, obstruction or impairment, whether the same shall affect Landlord,
Tenant or both, or (B) take such action as shall be necessary to remove all such
encroachments, hindrances or obstructions and to end all such violations or
impairments, including, if necessary, making Alterations; provided however, that
with respect to any Improvements existing at the Leased Premises as of the date
of this Lease, Tenant shall not be required to take the actions required under
clauses (A) or (B) hereof unless (x) Tenant shall have received a notice to take
such actions from any governmental authority having jurisdiction over the Leased
Premises or (y) any Person other than Landlord shall commence any action or
proceeding with respect thereto.
13. Alterations and Improvements.
(a) Tenant shall have the right, without having obtained the prior
written consent of Landlord and Lender and provided that no Event of Default
then exists, (i) to make non-structural Alterations or a series of related
non-structural Alterations performed during any consecutive twelve (12) month
period that, as to any single Alterations does not cost in excess of
$3,000,000.00 or as to any such series of related Alterations, do not cost in
excess of $5,700,000.00 and (ii) to install Equipment in the Improvements or
accessions to the Equipment that, as to such Equipment or accessions, do not
cost in excess of $3,000,000.00, so long as at the time of construction or
installation of any such Equipment or Alterations no Event of Default exists and
the value and utility of the Leased Premises is not diminished thereby (provided
that the references herein to $3,000,000 and $5,700,000 shall be subject to CPI
Adjustment). If the cost of any non-structural Alterations, series of related
non-structural Alterations, Equipment or accessions thereto is in excess of the
applicable threshold amounts set forth above or if Tenant desires to make
structural Alterations to the Leased Premises, then, in each instance, the prior
written approval of Landlord shall be required; provided that, as to any
Alterations required by applicable Law (whether or not structural) and any other
non-structural Alterations only, Landlord agrees that (i) it shall not
unreasonably withhold, delay or condition its approval thereto and (ii)
Landlord's failure to approve or disapprove of such Alterations within thirty
(30) days after Tenant provides Landlord with the plans and specifications
therefor shall be deemed Landlord's approval thereof. Notwithstanding the
foregoing, Tenant shall not construct upon the Land any additional buildings
without having first obtained the prior written consent of Landlord in its sole
discretion. Landlord shall have the right to require Tenant to remove any
Alterations except for (i) Alterations required by Law, (ii) Alterations for
which Landlord's approval is not required hereunder or for which Landlord's
approval was deemed given as provided above or (iii) Alterations as to which
Landlord, at the time it approves same, fails to
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notify Tenant that same would be required to be removed upon the expiration or
termination of the Term. With respect to any Alterations consented to or
approved by Landlord hereunder (or if no such consent or approval is required,
so long as such Alterations comply with the provisions of this Lease and
applicable Law), Landlord shall reasonably cooperate with Tenant (at no cost to
Landlord) and, upon the request of Tenant, shall execute, consent to, approve
and/or authorize, as applicable, such filings, plans, applications or the like
required by the applicable governmental authorities in order for Tenant to
obtain such governmental approvals and permits necessary to commence and
complete such Alterations.
(b) If Tenant makes any Alterations pursuant to this Paragraph 13 or
Paragraph 35 or as required by Paragraph 12 or 17 (such Alterations and actions
being hereinafter collectively referred to as "Work") whether or not Landlord's
consent is required, then (i) the market value of the Leased Premises shall not
be lessened by any such Work or its usefulness impaired, (ii) all such Work
shall be performed by Tenant in a good and workmanlike manner, (iii) all such
Work shall be expeditiously completed in compliance with all Legal Requirements,
(iv) all such Work shall comply with the Insurance Requirements, (v) if any such
Work involves the replacement of Equipment or parts thereto, all replacement
Equipment or parts shall have a value and useful life equal to the greater of
(A) the value and useful life on the date hereof of the Equipment being replaced
or (B) the value and useful life of the Equipment being replaced immediately
prior to the occurrence of the event which required its replacement (assuming
such replaced Equipment was then in the condition required by this Lease), (vi)
Tenant shall promptly discharge or remove all liens filed against any of the
Leased Premises arising out of such Work, (vii) Tenant shall procure and pay for
all permits and licenses required in connection with any such Work, (viii) all
such Work shall be the property of Landlord and shall be subject to this Lease,
and Tenant shall execute and deliver to Landlord any document requested by
Landlord evidencing the assignment to Landlord of all estate, right, title and
interest (other than the leasehold estate created hereby) of Tenant or any other
Person thereto or therein, and (ix) Tenant shall comply, to the extent requested
by Landlord or required by this Lease, with the provisions of Paragraphs 12(a)
and 19(a), whether or not such Work involves restoration of the Leased Premises.
14. Permitted Contests. Notwithstanding any other provision of this
Lease, Tenant shall not be required to (a) pay any Imposition, (b) comply with
any Legal Requirement, (c) discharge or remove any lien referred to in Paragraph
11 or 13, or (d) take any action with respect to any encroachment, violation,
hindrance, obstruction or impairment referred to in Paragraph 12(b) (such
non-compliance with the terms hereof being hereinafter referred to collectively
as "Permitted Violations") and may dispute or contest the same, so long as at
the time of such contest no Event of Default exists and so long as Tenant shall
contest, in good faith, the existence, amount or validity thereof, the amount of
the damages caused thereby, or the extent of its or Landlord's liability
therefor by appropriate proceedings which shall operate during the pendency
thereof to prevent or stay (i) the collection of, or other realization upon, the
Permitted Violation so contested, (ii) the sale, forfeiture or loss of any of
the Leased Premises or any Rent to satisfy or to pay any damages caused by any
Permitted Violation, (iii) any interference with the use or occupancy of any of
the Leased Premises, (iv) any interference with the payment of any Rent, or (v)
the cancellation or increase in the rate of any insurance policy or a statement
by the carrier that coverage will be denied or (vi) the enforcement or execution
of any injunction, order or Legal Requirement with respect to the Permitted
Violation. Tenant shall provide to Landlord a bond in such amount as is
reasonably required to assure that such Permitted Violation is corrected
(including any interest and penalties that may have been incurred in connection
therewith), and any and all Costs incurred by Landlord in connection therewith
shall be payable by Tenant upon Landlord's demand as Additional Rent. While any
proceedings which comply with the requirements of this Paragraph 14 are pending
and such bond is held by Landlord, Landlord shall not have the right to correct
any Permitted Violation thereby being contested unless Landlord is required by
law to correct such Permitted Violation
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and Tenant's contest does not prevent or stay such requirement as to Landlord.
Upon the discharge of any applicable Permitted Violation, Landlord shall
promptly thereafter return the required bond to Tenant. Each such contest shall
be promptly and diligently prosecuted by Tenant to a final conclusion, except
that Tenant, so long as the conditions of this Paragraph 14 are at all times
complied with, has the right to attempt to settle or compromise such contest
through negotiations. Tenant shall pay any and all losses, judgments, decrees
and Costs in connection with any such contest and shall, promptly after the
final determination of such contest, fully pay and discharge the amounts which
shall be levied, assessed, charged or imposed or be determined to be payable
therein or in connection therewith, together with all penalties, fines, interest
and Costs thereof or in connection therewith, and perform all acts the
performance of which shall be ordered or decreed as a result thereof. No such
ontest shall subject Landlord to the risk of any civil or criminal liability.
15. Indemnification.
(a) Tenant shall pay, protect, indemnify, defend, save and hold
harmless Landlord, Lender and all other Persons described in Paragraph 30 (each
an "Indemnitee") from and against any and all liabilities, losses, damages
(including punitive damages), penalties, Costs (including reasonable attorneys'
fees and costs), causes of action, suits, claims, demands or judgments of any
nature whatsoever, howsoever caused, without regard to the form of action and
whether based on strict liability, negligence or any other theory of recovery at
law or in equity (any of the foregoing, a "Claim") and arising or accruing from
any facts or circumstances in existence at any time prior to the expiration of
the Term of the Lease (whether or not discovered thereafter), related to or in
connection with (i) any third party asserting or alleging any right or option to
use, occupy, own or acquire the Leased Premises or any part thereof or any
minerals or water therein or thereunder, (ii) the use, non-use, occupancy,
operation, condition, design, construction, maintenance, repair or restoration
of the Leased Premises, (iii) any casualty in any manner arising from the Leased
Premises, whether or not Indemnitee has or should have knowledge or notice of
any defect or condition causing or contributing to said casualty, (iv) any
violation by Tenant of any provision of this Lease, any contract or agreement to
which Tenant is a party affecting or in connection with the Leased Premises, any
Legal Requirement or any Permitted Encumbrance or any encumbrance consented to
by Tenant, to or the Mortgage or Assignment, or (v) any alleged, threatened or
actual Environmental Violation, including (A) liability for response costs and
for costs of removal and remedial action incurred by the United States
Government, any state or local governmental unit or any other Person, or damages
from injury to or destruction or loss of natural resources, including the
reasonable costs of assessing such injury, destruction or loss, incurred
pursuant to Section 107 of CERCLA, or any successor section or act or provision
of any similar state or local Law, (B) liability for costs and expenses of
abatement, correction or clean-up, fines, damages, response costs or penalties
which arise from the provisions of any of the other Environmental Laws and (C)
liability for personal injury or property damage arising under any statutory or
common-law tort theory, including damages assessed for the maintenance of a
public or private nuisance or for carrying on of a dangerous activity; provided
that, the foregoing indemnification shall not be applicable to any Claim
resulting from the gross negligence or willful misconduct of Landlord (it being
further agreed that for purposes of this Paragraph 15, as between Landlord and
Tenant, in no event shall any omission or failure to act on the part of
Landlord, or Landlord's mere absence from the Leased Premises or failure to be
aware of any condition thereat, be deemed to constitute gross negligence).
(b) In case any action or proceeding is brought against any
Indemnitee by reason of any such Claim, (i) Tenant may, except in the event of a
conflict of interest or a dispute between Tenant and any such Indemnitee or
during the continuance of an Event of Default, retain its own counsel and defend
such action (it being understood that Landlord may employ counsel of its choice
to monitor the defense of any such action, the reasonable cost of
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which shall be paid by Tenant) and (ii) such Indemnitee shall notify Tenant to
resist or defend such action or proceeding by retaining counsel reasonably
satisfactory to such Indemnitee, and such Indemnitee will cooperate and assist
in the defense of such action or proceeding if reasonably requested so to do by
Tenant. In the event of a conflict of interest or dispute or during the
continuance of an Event of Default, Landlord shall have the right to select
counsel, and the reasonable costs of such counsel shall by paid by Tenant.
(c) The obligations of Tenant under this Paragraph 15 shall survive
any termination, expiration or rejection in bankruptcy of this Lease.
16. Insurance.
(a) Tenant shall obtain, pay for and maintain the following
insurance on or in connection with the Leased Premises:
(i) Insurance against all risk of physical loss or damage to
the Improvements and Equipment as provided under "Special Causes of Loss" form
coverage, and including customarily excluded perils of hail, windstorm, flood
coverage, earthquake and, to the extent required by Lender, terrorism insurance,
in amounts no less than the actual replacement cost of the Improvements and
Equipment; provided that, if Tenant's insurance company is unable or unwilling
to include any of all of such excluded perils, Tenant shall have the option of
purchasing coverage against such perils from another insurer on a "Difference in
Conditions" form. Such policies shall contain Replacement Cost and Agreed Amount
Endorsements and "Law and Ordinance" coverage (covering loss to the undamaged
portion of the applicable Improvements, demolition costs and any increased costs
of construction). Such policies and endorsements shall contain deductibles not
more than $250,000 per occurrence, except for earthquake, flood and "named"
storm wind coverage, in which cases the deductibles shall not exceed five (5%)
of the full replacement value of the Improvements at the Leased Premises,
subject to minimum deductible of $250,000.
(ii) Commercial General Liability Insurance, with limits of
$1,000,000 per occurrence and $2,000,000 in aggregate, with a combined single
limit of $1,000,000 and $10,000,000 in excess limits, against claims for
personal and bodily injury, death or property damage occurring on, in or as a
result of the use of the Leased Premises, on a claims occurrence basis, which
insurance may contain a deductible not to exceed $250,000.
(iii) Workers' compensation insurance in the amount required
by applicable Law and employers' liability insurance covering all persons
employed by Tenant in connection with any work done on or about any of the
Leased Premises.
(iv) Comprehensive Boiler and Machinery/Equipment Breakdown
Insurance on any of the Equipment or any other equipment on or in the Leased
Premises, in an amount not less than $5,000,000 per accident for damage to
property (and which may be carried as part of the coverage required under clause
(i) above or pursuant to a separate policy or endorsement). Either such Boiler
and Machinery policy or the Special Causes of Loss policy required in clause (i)
above shall include at least $3,000,000 per incidence for Off-Premises Service
Interruption, Expediting Expenses, Ammonia Contamination, and Hazardous
Materials Clean-Up Expense and may contain a deductible not to exceed $250,000.
(v) Business Income/Extra Expense Insurance at limits
sufficient to cover 100% of the period of indemnity not less than twelve (12)
months from time of loss, including extended period of indemnity which provides
that after the physical loss to the Improvements and Equipment has been
repaired, the continued loss of income will be insured until such income either
returns to the same level it was at prior to the loss, or the expiration of
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two (2) months from the date that the Leased Premises are repaired or replaced
and operations are resumed, whichever first occurs.
(vi) During any period in which substantial Alterations at the
Leased Premises are being undertaken, builder's risk insurance covering the
total completed value, including all hard and soft costs (which shall include
business interruption coverage) with respect to the Improvements being
constructed, altered or repaired (on a completed value, non-reporting basis),
replacement cost of work performed and equipment, supplies and materials
furnished in connection with such construction, alteration or repair of
Improvements or Equipment, together with such other endorsements as Landlord may
reasonably require, and general liability, worker's compensation and automobile
liability insurance with respect to the Improvements being constructed, altered
or repaired; provided that Tenant shall either maintain the various coverage
required under this clause (vi) or cause the applicable contractor to maintain
same through insurers acceptable to Landlord.
(vii) Such other insurance, including mold insurance (or other
or different terms with respect to any insurance required pursuant to this
Paragraph 16, including, without limitation, amounts of coverage, deductibles,
form of mortgagee clause and/or insurer rating), on or in connection with any of
the Leased Premises as Landlord or Lender may reasonably require; provided that
such insurance is available to Tenant on a commercially reasonable basis and is
consistent, as to types of coverage and amounts, with the requirements generally
of institutional lenders or prudent owners or operators of similar properties.
(b) The insurance required by Paragraph 16(a) shall be written by
companies having a Best's rating of A-:VII or above and a claims paying ability
rating of AA or better by Standard & Poor's Rating Services, a division of the
McGraw Hill Companies, Inc. or equivalent rating agency approved by Landlord and
Lender in their sole discretion and are authorized to write insurance policies
by, the State Insurance Department (or its equivalent) for the State. The
insurance policies shall be for such policy periods as Landlord may reasonably
approve. If said insurance or any part thereof shall expire, be withdrawn,
become void, voidable, or deemed unreliable or unsafe for any reason (in
Landlord's or Lender's reasonable determination), including a breach of any
condition thereof by Tenant or the failure or impairment of the capital of any
insurer, or if for any other reason whatsoever said insurance shall become
reasonably unsatisfactory to Landlord, Tenant shall immediately obtain new or
additional insurance reasonably satisfactory to Landlord. Notwithstanding the
ratings and related criteria set forth in the first sentence of this Paragraph
16(b), Landlord and Lender hereby agree to accept and approve Factory Mutual as
Tenant's initial insurance carrier for purposes of the insurance required under
Paragraphs 16(a)(i), (iv) and (v), but such carrier shall be subject to the
rights of Landlord and Lender pursuant to the immediately preceding sentence of
this Paragraph 16(b). In the event that Tenant shall elect to change carriers at
any time hereafter, such new carrier must satisfy the criteria set forth in the
first sentence of this Paragraph 16(b)
(c) Each insurance policy referred to in clauses (i), (iv), (v) and
(vi) of Paragraph 16(a) shall contain standard non-contributory mortgagee
clauses in favor of and acceptable to Lender. Each policy required by any
provision of Paragraph 16(a), except clause (iii) thereof, shall provide that it
may not be cancelled, substantially modified or allowed to lapse on any renewal
date except after thirty (30) days' prior written notice to Landlord and Lender.
(d) Tenant shall pay as they become due all premiums for the
insurance required by Paragraph 16(a), shall renew or replace each policy and
deliver to Landlord evidence of the payment of the full premium therefor or
installment then due at least ten (10) days prior to the expiration date of such
policy, and shall promptly deliver to Landlord all original certificates of
insurance evidencing such coverages or, if required by Lender, a
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duplicate original (if available) or certified copy of such policies. All
certificates of insurance (including liability coverage) provided to Landlord
and Lender shall be on appropriate and current ▇▇▇▇▇ Forms (or their
equivalent).
(e) Anything in this Paragraph 16 to the contrary notwithstanding,
any insurance which Tenant is required to obtain pursuant to Paragraph 16(a) may
be carried under a "blanket" policy or policies covering other properties of
Tenant or under an "umbrella" policy or policies covering other liabilities of
Tenant, as applicable; provided that, such blanket or umbrella policy or
policies otherwise comply with the provisions of this Paragraph 16, and upon
request, Tenant shall provide to Landlord a Statement of Values which may be
reviewed annually and shall be amended to the extent determined necessary by
Landlord based on revised Replacement Cost Valuations. A duplicate original (if
available) or a certified copy of each such blanket or umbrella policy shall
promptly be delivered to Landlord.
(f) Tenant shall not carry separate insurance concurrent in form or
contributing in the event of a Casualty with that required in this Paragraph 16
unless (i) Landlord and Lender are included therein as named insureds, with loss
payable as provided herein, and (ii) such separate insurance complies with the
other provisions of this Paragraph 16. Tenant shall immediately notify Landlord
of such separate insurance and shall deliver to Landlord the original policies
or certified copies thereof.
(g) Each policy (other than workers' compensation coverage) shall
contain an effective waiver by the carrier against all claims for payment of
insurance premiums against Landlord and shall contain a full waiver of
subrogation against the Landlord.
(h) The proceeds of any insurance required under Paragraph 16(a)
shall be payable as follows:
(i) proceeds payable under clauses (ii), (iii) and (iv) of
Paragraph 16(a) and proceeds attributable to the general liability coverage of
Builder's Risk insurance under clause (vi) of Paragraph 16(a) shall be payable
to the Person entitled to receive such proceeds; and
(ii) proceeds of insurance required under clause (i) of
Paragraph 16(a) and proceeds attributable to Builder's Risk insurance (other
than its general liability coverage provisions) under clause (vi) of Paragraph
16(a) shall be payable to Landlord or Lender and applied as set forth in
Paragraph 17 or, if applicable, Paragraph 18. Tenant shall apply the Net Award
to restoration of the Leased Premises in accordance with the applicable
provisions of this Lease unless a Termination Event shall have occurred and
Tenant has given a Termination Notice.
17. Casualty and Condemnation.
(a) If any Casualty to the Leased Premises occurs, Tenant shall give
Landlord and Lender prompt notice thereof. Provided that no Event of Default has
occurred and is continuing, with respect to any and all claims under any of the
insurance policies required by Paragraph 16(a) (except public liability
insurance claims payable to a Person other than Tenant, Landlord or Lender) in
an amount of less than $4,000,000.00 (the "Threshold Amount"), Tenant shall be
and is hereby authorized to adjust, collect, settle and compromise same, in its
reasonable discretion and upon notice to Landlord and any Lender, so long as any
such settlement or compromise contains a full and unconditional release of
Landlord and Lender from any liability or obligation in connection therewith, if
applicable. Only Landlord and Lender are authorized to adjust, collect and
compromise, in their discretion, any and all claims under any of the insurance
policies required by Paragraph 16(a) (except public liability insurance claims
payable to a Person
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other than Tenant, Landlord or Lender) in excess of the Threshold Amount (upon
notice to Tenant unless the giving or effectiveness of such notice is prohibited
by stay but with out any approval by Tenant if an Event of Default has occurred
and is continuing); provided that, if no Event of Default by Tenant shall have
occurred and be continuing hereunder, Tenant shall be entitled to participate
with Landlord and Lender in any adjustment, collection and compromise of the Net
Award payable in connection with a Casualty whether below or in excess of the
Threshold Amount and, except in the case of a Casualty where Landlord has
delivered a Rejection of Tenant's offer to pay the Termination Amount following
a Termination Event as described in Paragraph 18, all final adjustments,
settlements or compromises for claims above the Threshold Amount shall
nevertheless be subject to the approval of Tenant (such approval not to be
unreasonably withheld, delayed or conditioned). Subject to the foregoing, Tenant
agrees to sign, upon the request of Landlord and Lender, all such proofs of
loss, receipts, vouchers and releases, and if Tenant fails to do so or if an
Event of Default has occurred and is continuing, Landlord and Lender are each
hereby authorized to execute and deliver on behalf of Tenant all necessary
proofs of loss, receipts, vouchers and releases required by the insurers.
Notwithstanding the foregoing, for claims in excess of the Threshold Amount,
Landlord and Lender shall have the option to prosecute or contest, or to require
Tenant to prosecute or contest, any such claim, adjustment, settlement or
compromise ,and if Landlord or Lender so instructs in writing, Tenant shall
prosecute, contest, adjust, collect and compromise any and all such claims at it
own cost and expense in accordance with such instructions, and Landlord and
Lender shall have the right to join with Tenant therein. Any adjustment,
settlement or compromise of any such claim not consistent with such instructions
shall be subject to the prior written approval of Landlord and Lender. Each
insurer is hereby authorized and directed to make payment under said policies,
including return or unearned premiums, directly to Landlord or, if required by
the Mortgage, to Lender instead of to Landlord and Tenant jointly, and Tenant
hereby appoints each of Landlord and Lender as Tenant's attorneys-in-fact to
endorse any draft therefor. The rights of Landlord under this Paragraph 17(a)
shall be extended to Lender if and to the extent that any Mortgage so provides.
(b) Tenant, promptly upon receiving a Condemnation Notice, shall
notify Landlord and Lender thereof. Only Landlord and Lender are authorized to
collect, settle and compromise, in their discretion (upon notice to Tenant
unless the giving or effectiveness of such notice is prohibited by stay), the
amount of any Net Award. Provided that no Event of Default has occurred and is
continuing, Tenant shall be entitled to participate with Landlord and Lender in
any Condemnation proceeding or negotiations under threat thereof and to contest
the Condemnation or the amount of the Net Award therefor. No agreement with any
condemning authority in settlement or under threat of any Condemnation shall be
made by Tenant without the written consent of Landlord and Lender. Subject to
the provisions of this Paragraph 17(b), Tenant hereby irrevocably assigns to
Landlord any award or payment to which Tenant is or may be entitled by reason of
any Condemnation, whether the same shall be paid or payable for Tenant's
leasehold interest hereunder or otherwise; but nothing in this Lease shall
impair Tenant's right to any award or payment on account of Tenant's trade
fixtures, equipment or other tangible property which is not part of the
Equipment, moving expenses or loss of business, if available, to the extent that
and so long as (i) Tenant shall have the right to make, and does make, a
separate claim therefor against the condemnor and (ii) such claim does not in
any way reduce either the amount of the award otherwise payable to Landlord for
the Condemnation of Landlord's fee interest in the Leased Premises or the amount
of the award (if any) otherwise payable for the Condemnation of Tenant's
leasehold interest hereunder. The rights of Landlord under this Paragraph 17(b)
shall also be extended to Lender if and to the extent that any Mortgage so
provides.
(c) If any Partial Casualty (whether or not insured against) or any
Partial Condemnation shall occur, this Lease shall continue notwithstanding such
event, and there shall be no abatement or reduction of any Monetary Obligations.
Promptly after such
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Partial Casualty or Partial Condemnation, Tenant, as required in Paragraphs
12(a) and 13(b), shall commence and diligently continue to restore the Leased
Premises as nearly as possible to its value, condition and character immediately
prior to such event (assuming the Leased Premises to have been in the condition
required by this Lease). So long as the actual Net Award (or any amount equal
thereto) is made available to Tenant (including through the Restoration Fund),
Tenant shall have the obligation to restore the Leased Premises in accordance
with the preceding sentence whether or not the Net Award is sufficient therefor,
and such restoration obligation shall remain in effect even if no Net Award is
available to Tenant from (i) the applicable governmental authority due to the
acts or omissions of Tenant or (ii) the Tenant's insurance carrier due to the
acts or omissions of Tenant or because of Tenant's failure to maintain the
insurance required to be carried under Paragraph 16. So long as no Event of
Default exists, any Net Award up to the Threshold Amount shall be paid by
Landlord to Tenant and Tenant shall restore the Leased Premises in accordance
with the requirements of Paragraphs 12(a) and 13(b) of this Lease, and any
balance shall promptly be refunded to Landlord. Any Net Award in excess of the
Threshold Amount shall (unless such Casualty or Condemnation resulting in the
Net Award is a Termination Event) be made available by Landlord (or by Lender,
if the Net Award is paid to Lender pursuant to the terms of any Mortgage, SNDA
or other document in connection with a Loan) to Tenant for the restoration of
any of the Leased Premises pursuant to and in accordance with the provisions of
Paragraph 19 hereof. If any Casualty or Condemnation which is not a Partial
Casualty or Partial Condemnation shall occur, Tenant shall comply with the terms
and conditions of Paragraph 18.
(d) In the event of a Requisition of any of the Leased Premises, if
any Net Award payable by reason of such Requisition is actually received and
retained by Landlord, such Net Award shall be applied as a credit against the
next occurring installments of Basic Rent due hereunder until applied in full or
until the earlier to occur of (i) the expiration of the stated period of the
Requisition or (ii) the expiration of the Term; provided that any portion of the
Net Award that either exceeds the Basic Rent for the stated period or as to
which Landlord is not obligated to credit to Tenant hereunder, shall, upon the
expiration of the Term, be retained by Landlord without any further credit or
other compensation to Tenant.
(e) Tenant hereby waives the benefits of N.J.S.A. 46:8-6 and 46:8-7,
and agrees that Tenant shall not be relieved of the obligations to pay Basic
Rent and Additional Rent in the event of damage to, or destruction of, the
Leased Premises, except as otherwise expressly provided in this Lease.
18. Termination Events.
(a) If either (i) the entire Leased Premises shall be taken by a
Taking or (ii) any substantial portion of the Leased Premises shall be taken by
a Taking or all or any substantial portion of the Leased Premises shall be
damaged or destroyed by a Casualty and, in such case, Tenant certifies and
covenants to Landlord that it has determined, in good faith, exercising its
reasonable judgment, that the required restoration and continued operation of
Tenant's business at the Leased Premises is not economically practicable (each
of the events described in the above clauses (i) and (ii) shall hereinafter be
referred to as a "Termination Event"), then (x) in the case of (i) above, Tenant
shall be obligated, within thirty (30) days after Tenant receives a Condemnation
Notice and (y) in the case of (ii) above, Tenant shall have the option, within
thirty (30) days after Tenant receives a Condemnation Notice or thirty (30) days
after the Casualty, as the case may be, to give to Landlord written notice in
the form described in Paragraph 18(b) of the Tenant's election to terminate this
Lease (a "Termination Notice"). If Tenant elects under clause (y) above not to
give Landlord a Termination Notice, then Tenant shall rebuild or repair the
Leased Premises in accordance with Paragraphs 17 and 19.
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(b) A Termination Notice shall contain (i) notice of Tenant's
intention to terminate this Lease on the first Basic Rent Payment Date which
occurs at least sixty (60) days after the date such Termination Notice is given
to Landlord (the "Termination Date"), (ii) a binding and irrevocable offer of
Tenant to pay to Landlord the Termination Amount and (iii) if the Termination
Event is an event described in Paragraph 18(a)(ii), the certification and
covenants described therein and a certified resolution of the Board of Directors
of Tenant authorizing the same.
(c) If Landlord shall reject such offer by Tenant to pay to Landlord
the Termination Amount pursuant to Paragraph 18(b) above by written notice to
Tenant (a "Rejection"), which Rejection shall contain the written consent of
Lender to Landlord's rejection of Tenant's offer to pay the Termination Amount,
then this Lease shall terminate on the Termination Date; provided that, if
Tenant has not satisfied all Monetary Obligations and all other obligations
under this Lease which have arisen on or prior to the Termination Date
(collectively, "Remaining Obligations") as of the Termination Date, then
Landlord may, at its option, extend the effective date on which this Lease may
terminate to the date which is the last calendar day of the month subsequent to
Termination Date on which Tenant has satisfied all Remaining Obligations. Upon
such termination (i) all obligations of Tenant hereunder shall terminate except
for any Surviving Obligations, (ii) Tenant shall immediately vacate and shall
have no further right, title or interest in or to any of the Leased Premises and
(iii) the Net Award shall be retained by Landlord. Notwithstanding anything to
the contrary hereinabove contained, if Tenant shall have received a Rejection
and, on the date when this Lease would otherwise terminate, Landlord shall not
have received the agreed amount of the Net Award payable by reason of the
applicable Termination Event though no fault on the part of Landlord, then the
date on which this Lease is to terminate shall be automatically extended to the
date that is the last calendar day of the month in which Landlord receives the
agreed amount of the Net Award or the scheduled Expiration Date of this Lease,
whichever is earlier; provided that, if Tenant has not satisfied all Remaining
Obligations as of such date, then Landlord may, at its option, extend the date
on which this Lease may terminate to the date which is the last calendar day of
the month in which Tenant has satisfied all such Remaining Obligations.
(d) Unless Tenant shall have received a Rejection not later than the
thirtieth (30th) day following the delivery of the Termination Notice, Landlord
shall be conclusively presumed to have accepted such offer from Tenant to pay
the Termination Amount. If such offer from Tenant to pay the Termination Amount
is accepted by Landlord then, on the Termination Date, Tenant shall pay to
Landlord the Termination Amount and all Remaining Obligations after deducting
therefrom (as consideration for Tenant's loss of its Leasehold rights and estate
hereunder), the amount of any Net Award actually received and retained by
Landlord or Lender as of the Termination Date, or if no Net Award shall have
been received and retained by Landlord or Lender as of such Termination Date,
Landlord shall assign to Tenant (and cause Lender to assign to Tenant), each of
Landlord's and Lender's respective entire interest in and to the Net Award.
Landlord shall retain title to the entire Leased Premises notwithstanding such
acceptance of the Termination Amount, except that in the case of Taking, to the
extent any portion of the Leased Premises is not subject to the Taking, Landlord
shall retain title to such remaining portion of the Leased Premises.
19. Restoration.
(a) If any Net Award is in excess of the Threshold Amount, Landlord
(or Lender if required by any Mortgage) shall hold the entire Net Award in a
fund (the "Restoration Fund") and disburse amounts from the Restoration Fund
only in accordance with the following conditions:
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(i) prior to commencement of restoration, (A) the architects,
contracts, contactors, plans and specifications and a budget for the restoration
shall have been approved by Landlord, and (B) Tenant shall cause the applicable
contractors to provide Landlord and Lender with mechanics' lien insurance (if
available at commercially reasonable rates) and acceptable performance and
payment bonds which insure satisfactory completion of and payment for the
restoration, are in an amount and form and have a surety reasonably acceptable
to Landlord, and name Landlord and Lender as additional dual obligees;
(ii) at the time of any disbursement, no Event of Default
shall exist and no mechanics' or materialmen's liens shall have been filed
against any of the Leased Premises in connection with such restoration which
remain undischarged (other than liens removed of record by bond or otherwise);
(iii) disbursements shall be made from time to time in an
amount not exceeding the cost of the Work completed since the last disbursement,
upon receipt of (A) satisfactory evidence, including architects' certificates,
of the stage of completion, the estimated total cost of completion and
performance of the Work to date in a good and workmanlike manner in accordance
with the contracts, plans and specifications, (B) waivers of liens, (C)
contractors' and subcontractors' sworn statements as to completed Work and the
cost thereof for which payment is requested, (D) a satisfactory bringdown of
title insurance and (E) such other reasonable evidence of cost and payment so
that Landlord can verify that the amounts disbursed from time to time are
represented by Work that is completed, in place and free and clear of mechanics'
and materialmen's lien claims;
(iv) each request for disbursement shall be accompanied by a
certificate of Tenant, signed by the president or a vice president of Tenant,
describing the Work for which payment is requested, stating the cost incurred in
connection therewith, stating that Tenant has not previously received payment
for such Work and, upon completion of the Work, also stating that the Work has
been fully completed and complies with the applicable requirements of this
Lease;
(v) Landlord may retain 10% of the restoration fund until the
Work is 50% completed; five 5% of the restoration fund until the Work is
substantially completed and, thereafter, 125 % of the estimated cost of
completion of punch-list items;
(vi) if the Restoration Fund is held by Landlord, the
Restoration Fund shall not be commingled with Landlord's other funds and shall
bear interest at a rate agreed to by Landlord and Tenant; and
(vii) such other reasonable conditions as Landlord or Lender
may impose consistent with prudent institutional construction lending practices.
(b) Prior to commencement of restoration and at any time during
restoration, if the estimated cost of completing the restoration Work free and
clear of all liens, as determined by Landlord, exceeds the amount of the Net
Award available for such restoration, the amount of such excess shall, upon
demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration
Fund. Any sum so added by Tenant which remains in the Restoration Fund upon
completion of restoration shall be refunded to Tenant. For purposes of
determining the source of funds with respect to the disposition of funds
remaining after the completion of restoration, the Net Award shall be deemed to
be disbursed prior to any amount added by Tenant.
(c) If any sum remains in the Restoration Fund after completion of
the Work and any refund to Tenant pursuant to Paragraph 19(b), such sum shall be
paid to Tenant.
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20. Procedures Upon Purchase.
(a) If the Leased Premises is purchased by Tenant pursuant to the
provisions of Paragraph 34 of this Lease, Landlord shall convey the same, but no
better, state of title thereto than that which was conveyed to Landlord, and
Tenant shall accept such title, subject, however, to the Permitted Encumbrances
and to all other liens, exceptions and restrictions on, against or relating to
any of the Leased Premises and to all applicable Laws, but free of the lien of
and security interest created by any Mortgage or Assignment and liens,
exceptions and restrictions on, against or relating to the Leased Premises which
have been created by or resulted solely from acts of Landlord or Lender after
the date of this Lease, unless the same are Permitted Encumbrances or customary
utility easements benefiting the Leased Premises or were created with the
concurrence of Tenant or as a result of a default by Tenant under this Lease.
(b) Upon the date fixed for any such purchase of the Leased Premises
pursuant to Paragraph 34 of this Lease (any such date the "Purchase Date"),
Tenant shall pay to Landlord, or to any Person to whom Landlord directs payment,
the applicable purchase price therefor, in Federal Funds, and Landlord shall
deliver to Tenant or its designee (i) a Bargain and Sale Deed with Covenants
Against Grantor's Acts which describes the premises being conveyed and conveys
the title thereto as provided in Paragraph 20(a), (ii) such other instruments as
shall be necessary to transfer to Tenant or its designee any other property then
required to be sold by Landlord to Tenant pursuant to this Lease, including a
customary affidavit of title as may be reasonably necessary for Tenant's title
insurance company to issue an owner's policy to Tenant, then Tenant shall pay to
Landlord on the Purchase Date the amount of such Monetary Obligations as a
condition to Landlord's obligation to convey the Leased Premises to Tenant. Upon
the completion of such purchase, this Lease and all obligations and liabilities
of Tenant hereunder shall terminate, except any Surviving Obligations. The Costs
of the purchase transaction contemplated by this Paragraph 20 shall be paid by
Tenant at the time of closing, except as otherwise provided in Paragraph 34
hereof.
(c) If the completion of such purchase shall be delayed through no
fault of Landlord or Lender after the date scheduled for such purchase, then
Rent shall continue to be due and payable until completion of such purchase.
(d) Any prepaid Monetary Obligations paid to Landlord shall be
prorated as of the Purchase Date, and the prorated unapplied balance shall be
deducted from the purchase price due to Landlord; provided, that no
apportionment of any Impositions shall be made upon any such purchase.
21. Assignment and Subletting. Prohibition Against Leasehold Financing.
(a) Except as otherwise expressly provided to the contrary in this
Paragraph 21 and Paragraph 4(c), Tenant shall have the right to assign this
Lease, whether by operation of law or otherwise (including through merger or
consolidation) to any Person, without the prior written consent of Landlord;
provided that, notwithstanding the foregoing or anything to the contrary
contained below in this Paragraph 21, Tenant shall not have the right to assign
this Lease (voluntarily or involuntarily, whether by operation of law or
otherwise), or sublet any of the Leased Premises to any Person at any time that
an Event of Default shall have occurred and then be continuing. Any purported
sublease or assignment in violation of this Paragraph 21 shall be null and void.
(b) Subject to Paragraph 4(c), Tenant shall have the right to enter
into one or more subleases with any third parties for all or any portion of the
gross leaseable area of the Improvements at the Leased Premises, with no consent
or approval of Landlord being
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required or necessary. Each sublease of any of the Leased Premises (1) shall be
expressly subject and subordinate to this Lease and any Mortgage encumbering the
Leased Premises; (2) not extend beyond the then current Term minus thirty
(30)days; (3) terminate upon any termination of this Lease, unless Landlord
elects in writing, to cause the sublessee to attorn to and recognize Landlord as
the lessor under such sublease, whereupon such sublease shall continue as a
direct lease between the sublessee and Landlord upon all the terms and
conditions of such sublease; and (4) bind the sublessee to all covenants
contained in Paragraph 4(a) and (c), 10 and 12 with respect to subleased
premises to the same extent as if the sublessee were the Tenant. In addition,
Tenant shall, within ten (10) days after the execution and delivery of any
sublease, deliver a duplicate original counterpart thereof to Landlord
(c) If Tenant desires to assign this Lease or to enter into any
sublease or series of subleases to a single Person (including its Affiliates)
that demise, in the aggregate (including expansion options), in excess of ten
percent (10%) of the gross leaseable area of the Improvements at the Leased
Premises (a "Major Sublease"), then Tenant shall, not less than ten (10) days
prior to the date on which it desires to enter into such assignment or Major
Sublease, submit to Landlord (for Landlord's review and files, but not for
approval) reasonably detailed information regarding the following with respect
to the proposed assignee or subtenant: (1) credit, (2) capital structure, (3)
management, (4) operating history, and (5) proposed use of the Leased Premises.
With respect to any assignment to a Credit Entity in which Tenant seeks to be
released from its obligations under this Lease, at least thirty (30) days prior
to the effective date of such assignment, Tenant shall provide Landlord with
such information as reasonably required by Landlord to establish that the Person
involved in any such proposed assignment satisfies the criteria set forth in
this Lease for a Credit Entity.
(d) If Tenant assigns all its rights and interest under this Lease,
the assignee under such assignment shall expressly assume all the obligations of
Tenant hereunder, actual or contingent, including obligations of Tenant which
may have arisen on or prior to the date of such assignment, by a written
instrument of assignment and assumption, a fully executed original counterpart
of which shall be delivered to Landlord at the time of such assignment. No
assignment or sublease shall affect or reduce any of the obligations of Tenant
hereunder, and all such obligations of Tenant shall continue in full force and
effect as obligations of a principal and not as obligations of a guarantor, as
if no assignment or sublease had been made, except that in the case of an
assignment of this Lease to a Credit Entity, Tenant shall have the right to
request a release of Tenant from all obligations under this Lease arising from
and after the date of such assignment and provided Landlord is able to confirm
that such assignee is in fact a Credit Entity by objective evidence, Landlord
agrees to grant such release in writing within five (5) business days after the
later to occur of (x) the effective date of such assignment or (y) the date
Tenant delivers to Landlord an original fully executed counterpart of such
assignment and assumption agreement. No assignment or sublease shall impose any
additional obligations on Landlord under this Lease.
(e) Notwithstanding any provision in this Paragraph 21 or elsewhere
in this Lease to the contrary, including any right or option Tenant may have to
assign this Lease or sublease all or any portion of the Leased Premises without
Landlord's consent, Tenant shall, upon the request of Landlord, provide and
cause such assignee or sublessee to provide, such information (including,
without limitation, any certification) as to any proposed assignee or sublessee
and its principals as may be required for Landlord and Tenant to comply with
regulations administered by the Office of Foreign Asset Control ("OFAC") of the
Department of the Treasury, codified at 31 C.F.R. Part 500 (including those
named on OFAC's Specially Designated and Blocked Persons list) or under any
statute, executive order (including the September 24,2001, Executive Order
Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action regarding persons
or entities with whom U.S. persons or entities are restricted from doing
business.
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(f) In addition to any remedy to which Landlord is entitled under
Paragraph 23 of this Lease and subject to the terms of the Landlord's Agreement,
Landlord shall have the right, at any time upon the occurrence and during the
continuance of a Event of Default under clause (i) of Paragraph 22(a) or upon
any default termination of this lease (upon notice to Tenant unless the giving
or effectiveness of such notice is stayed) to collect the rents and other sums
of money payable under any sublease or other occupancy agreement for any of the
Leased Premises and to retain the same, provided that any amounts collected
shall be applied to Rent payments next due and owing. At any time that an Event
of Default shall have occurred and during its continuance Tenant shall not
consent to, cause or allow any modification or alteration of any of the terms,
conditions or covenants of any of subleases or other occupancy agreement for any
of the Leased Premises without the prior written approval of Landlord, which
consent shall not be unreasonably withheld or delayed in the case of a
termination of such sublease or other agreement as a result of a default
thereunder by such subtenant or occupant, nor shall Tenant accept any rents more
than thirty (30) days in advance of the accrual thereof nor do nor permit
anything to be done, the doing of which, nor omit or refrain from doing
anything, the omission of which, will or could be a breach of or default in the
terms of any of the subleases.
(g) Tenant shall not have the power to mortgage, pledge or otherwise
encumber its interest under this Lease or any sublease of the Leased Premises
except as expressly provided pursuant to Paragraph 32(c) of this Lease, and any
such mortgage, pledge or encumbrance made in violation of this Paragraph 21
shall be void and of no force and effect.
(h) Subject to the provisions of Paragraphs 34 hereof Landlord may
sell or transfer the Leased Premises at any time without Tenant's consent to any
third party (each a "Third Party Purchaser"). In the event of any such transfer,
Tenant shall attorn to any Third Party Purchaser as Landlord so long as such
Third Party Purchaser and Landlord notify Tenant in writing of such transfer. At
the request of Landlord, Tenant will execute such documents confirming the
agreement referred to above and such other agreements as Landlord may reasonably
request, provided that such agreements do not increase the liabilities and
obligations of Tenant hereunder.
(i) Notwithstanding the provisions of Paragraph 21 (a) above, Tenant
shall not, in a single transaction or series of transactions (including any
interim merger or consolidation), sell or convey, transfer or lease all or
substantially all of its assets (it being agreed that subsidiaries of Tenant
shall be deemed assets thereof) (an "Asset Transfer") to any Person, and any
such Asset Transfer shall be deemed an assignment in violation of this Lease;
unless either (i) Tenant has obtained Landlord's consent thereto or (ii) the
Asset Transfer is (A) to a Person that immediately following such transaction or
transactions, taken in the aggregate, has (or would have, on a pro forma basis)
a net worth equal to or better than that of Tenant as of the date immediately
prior to the Asset Transfer and (B) this Lease is assigned to and assumed by
such Person as a part of such Asset Transfer. In the event of an Asset Transfer
to a subsidiary of Tenant, any subsequent sale of the assets of the original
Tenant named herein by such subsidiary shall be governed by the requirements of
this subparagraph (i) irrespective of whether or not such sale would be
considered a sale of all or substantially all of the assets of such subsidiary.
22. Events of Default.
(a) The occurrence of any one or more of the following shall, at the
sole option of Landlord, constitute an "Event of Default" under this Lease:
(i) a failure by Tenant to (A) make any payment of Basic Rent
on or prior to its due date, regardless of the reason for such failure and such
failure continues for three (3) business days after Landlord has given Tenant
notice thereof, or (B) make any payment of any other Monetary Obligation on or
prior to its due date, regardless of the reason for such
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failure, and such failure continues for twenty (20) days after Landlord has
given Tenant notice thereof;
(ii) a failure by Tenant duly to perform and observe, or a
violation or breach of, any other provision hereof not otherwise specifically
mentioned in this Paragraph 22(a) and, subject to the provisions of Paragraph
22(b) below, such failure continues for thirty (30) days after Landlord has
given Tenant notice thereof; provided that, if the default consists of the
failure to timely provide evidence of any insurance required to be maintained by
Paragraph 16, such failure continues for three (3) business days after Landlord
has given Tenant notice thereof and; provided further that, no notice or cure
period shall be required for any default that consists of a failure to maintain
any insurance required by Paragraph 16 or if the default is such that any delay
in the exercise of a remedy by Landlord could reasonably be expected to cause
irreparable harm to Landlord,
(iii) any material representation or warranty made by Tenant
herein or in any certificate, demand or request made pursuant hereto proves to
be incorrect, now or hereafter, in any material respect;
(iv) a default beyond any applicable cure period or at
maturity by Tenant in any payment of principal or interest on any obligations
for borrowed money having an original principal balance of $20,000,000 or more
in the aggregate, or in the performance of any other provision contained in any
instrument under which any such obligation is created or secured (including the
breach of any covenant thereunder), if (x) such payment default is for a payment
at maturity or a final payment, or (y) the effect of such default is to cause
the holder of such obligation to accelerate the balance due of such obligation
prior to its stated maturity and no waiver, extension or forbearance agreement
is then in effect; provided further that (A) any subsequent cure by payment or
satisfaction accepted by the holder of such obligation shall constitute a cure
of the default under this clause (iv), and (B) if the only Event of Default
having occurred and then continuing under this Lease is an Event of Default
under this clause (iv), then Landlord's remedy shall be limited to an
acceleration of the Basic Rent due under this Lease in accordance with the
provisions of Paragraph 23(a)(iii) hereof;
(v) a final, non-appealable judgment or judgments for the
payment of money in excess of $5,000,000 in the aggregate shall be rendered
against Tenant and the same shall remain undischarged for a period of sixty (60)
consecutive days;
(vi) Tenant shall (A) voluntarily be adjudicated a bankrupt or
insolvent, (B) seek or consent to the appointment of a receiver or trustee for
itself or for the Leased Premises, (C) file a petition seeking relief under the
bankruptcy or other similar laws of the United States, any state or any
jurisdiction, (D) make a general assignment for the benefit of creditors, or (E)
be unable to pay its debts as they mature;
(vii) a court shall enter an order, judgment or decree
appointing, without the consent of Tenant, a receiver or trustee for it or for
any of the Leased Premises or approving a petition filed against Tenant which
seeks relief under the bankruptcy or other similar laws of the United States,
any state or any jurisdiction, and such order, judgment or decree shall remain
undischarged or unstayed ninety (90) days after it is entered;
(viii) if (A) the entire Leased Premises shall have been (1)
abandoned or (2) vacated for a period in excess of thirty (30) consecutive days
(other than during a period of repair or restoration following a Casualty or
Taking or during the performance of Alterations to prepare the Leased Premises
for reletting pursuant to a executed assignment or sublease or (B) the entirety
of any one building at the Leased Premises shall have vacated for a period in
excess of thirty (30) consecutive days (other than during a period of repair or
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restoration following a Casualty or Taking or during the performance of any
Alterations consistent with the provisions of this Lease), unless Tenant shall
have provided Landlord with reasonable evidence of its plan for the
preservation, maintenance and security of such building (including confirmation
that the insurance required to be carried under this Lease will remain in full
effect as to such building notwithstanding Tenant's election to vacate same);
(ix) Tenant shall be liquidated or dissolved or shall begin
proceedings towards its liquidation or dissolution;
(x) the estate or interest of Tenant in any of the Leased
Premises shall be levied upon or attached in any proceeding and such estate or
interest is about to be sold or transferred or such process shall not be vacated
or discharged within ninety (90) days after it is made;
(xi) a failure by Tenant to perform or observe, or a violation
or breach of, or a misrepresentation by Tenant under any provision of any
Assignment, SNDA, or any other document between Tenant and Lender or from Tenant
to Lender, if the result of such failure, violation, breach or misrepresentation
is Lender's declaration of a default beyond any applicable cure period with
respect to any Loan;
(xii) a failure by Tenant to maintain in effect any license or
permit necessary for the use, occupancy or operation of the Leased Premises and,
subject to the provisions of Paragraph 22(b) below, such failure continues for
thirty (30) days after Landlord has given Tenant notice thereof;
(xiii) a failure by Tenant to deliver the estoppel described
in Paragraph 25 within the time period specified therein and such failure
continues for ten (10) days after Landlord has given Tenant notice thereof;
(xiv) Tenant shall enter into an Asset Transfer in violation
of Paragraph 21; or
(xv) Tenant's failure to timely comply with any of Tenant's
Post-Closing Obligations and such failure continues for ten (10) days after
Landlord has given Tenant notice thereof.
(b) Except as expressly set forth in Paragraph 22(a) above no notice
and cure period shall be required as a condition precedent to the occurrence of
an Event of Default. If the default consists of a default under clause (ii) or
(xii) of Paragraph 22(a) (other than the failure to maintain or provide evidence
of any insurance required by Paragraph 16), then if the default cannot be cured
within such thirty (30) day period and delay in the exercise of a remedy would
not (in Landlord's reasonable judgment) cause any material adverse harm to
Landlord or any of the Leased Premises, the cure period shall be extended for
the period required to cure the default (but such cure period, including any
extension, shall not in the aggregate exceed ninety (90) days), provided that
Tenant shall commence to cure the default within the said thirty (30) day period
and shall actively, diligently and in good faith proceed with and continue the
curing of the default until it shall be fully cured.
23. Remedies and Damages upon Default.
(a) If an Event of Default shall have occurred and is continuing,
Landlord shall have the right, at its sole option, then or at any time
thereafter, to exercise its remedies and to collect damages from Tenant in
accordance with this Paragraph 23, subject in all
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events to applicable Law, without demand upon or notice to Tenant except as
otherwise provided in Paragraph 22 and this Paragraph 23.
(i) Landlord may give Tenant notice of Landlord's intention to
terminate this Lease on a date specified in such notice. Upon such date, this
Lease, the estate hereby granted and all rights of Tenant hereunder shall expire
and terminate. Upon such termination, Tenant shall immediately surrender and
deliver possession of the Leased Premises to Landlord in accordance with
Paragraph 26. If Tenant does not so surrender and deliver possession of the
Leased Premises, Landlord may re-enter and repossess the Leased Premises by any
available legal process. Upon or at any time after taking possession of the
Leased Premises, Landlord may, by legal process, remove any Persons or property
therefrom. Landlord shall be under no liability for or by reason of any such
entry, repossession or removal. Notwithstanding such termination of the Lease,
Landlord may collect the damages set forth in Paragraph 23(b)(i) or 23(b)(ii).
(ii) Landlord may terminate Tenant's right of possession (but
not this Lease) and may repossess the Leased Premises by any available legal
process without thereby releasing Tenant from any liability hereunder and
without demand or notice of any kind to Tenant and without terminating this
Lease. After repossession of the Leased Premises pursuant hereto, Landlord shall
have the right to relet any of the Leased Premises to such tenant or tenants,
for such term or terms, for such rent, on such conditions and for such uses as
Landlord in its sole discretion may determine, and collect and receive any rents
payable by reason of such reletting. Landlord may make such Alterations in
connection with such reletting as it may deem advisable in its sole discretion.
Notwithstanding any such termination of Tenant's right of possession of the
Leased Premises, Landlord may exercise the remedy set forth in and collect the
damages set forth in or permitted by Paragraph 23(b)(ii) or, at any time
thereafter, elect to terminate this Lease and in such event Landlord shall have
the right and remedies specified in the last sentence of Paragraph 23(a)(i).
(iii) Unless Landlord shall have terminated this Lease or
Tenant's right of possession of the Leased Premises, Landlord may declare by
notice to Tenant the entire Basic Rent (in the amount of Basic Rent then in
effect) for the remainder of the then current Term to be immediately due and
payable. Tenant shall immediately pay to Landlord all such Basic Rent discounted
to its Present Value, all accrued Rent then due and unpaid, all other Monetary
Obligations which are then due and unpaid and all Monetary Obligations which
arise or become due by reason of such Event of Default (including any Costs of
Landlord). Upon receipt by Landlord of all such accelerated Basic Rent and
Monetary Obligations, this Lease shall remain in full force and effect and
Tenant shall have the right to possession of the Leased Premises from the date
of such receipt by Landlord to the end of the Term, and subject to all the
provisions of this Lease, including the obligation to pay all increases in Basic
Rent and all Monetary Obligations that subsequently become due, except that (A)
no Basic Rent or other Monetary Obligations which have been prepaid hereunder
shall be due thereafter during the said Term, (B) Tenant shall have no option to
extend or renew the Term and (C) Tenant shall have no further rights under
Paragraph 34.
(b) The following constitute damages to which Landlord shall be
entitled if Landlord exercises its remedies under Paragraph 23(a)(i) or
23(a)(ii):
(i) If Landlord exercises its remedy under Paragraph 23(a)(i)
but not its remedy under Paragraph 23(a)(ii) (or attempts to exercise such
remedy and is unsuccessful in reletting the Leased Premises) then, upon written
demand from Landlord, Tenant shall pay to Landlord, as liquidated and agreed
final damages for Tenant's default and in lieu of all current damages beyond the
date of such demand (it being agreed that it would be impracticable or extremely
difficult to fix the actual damages), an amount equal to the Present
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Value of the excess, if any, of (A) all Basic Rent from the date of such demand
to the date on which the Term is scheduled to expire hereunder in the absence of
any earlier termination, reentry or repossession over (B) as consideration for
the loss of Tenant's leasehold rights and estate hereunder, the then fair market
rental value of the Leased Premises for the same period. Tenant shall also pay
to Landlord all accrued Rent then due and unpaid, all other Monetary Obligations
which are then due and unpaid, all Monetary Obligations which arise or become
due by reason of such Event of Default, including any Costs of Landlord in
connection with the repossession of the Leased Premises and any attempted
reletting thereof, including all brokerage commissions, reasonable attorneys'
fees and expenses, employees' expenses, costs of Alterations and expenses and
preparation for reletting.
(ii) If Landlord exercises its remedy under Paragraph 23(a)(i)
or its remedies under Paragraph 23(a)(i) and 23(a)(ii), then Tenant shall, until
the end of what would have been the Term in the absence of the termination of
the Lease, and whether or not any of the Leased Premises shall have been relet,
be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed
current damages all Monetary Obligations which would be payable under this Lease
by Tenant in the absence of such termination less, as consideration for the loss
of Tenant's lease rights, the net proceeds, if any, of any reletting pursuant to
Paragraph 23(a)(ii), after deducting from such proceeds all accrued Rent then
due and unpaid, all other Monetary Obligations which are then due and unpaid,
all Monetary Obligations which arise or become due by reason of such Event of
Default, including any Costs of Landlord incurred in connection with such
repossessing and reletting, including all brokerage commissions, legal expenses
attorneys' fees, employees' expenses, costs of Alterations and expenses and
preparation for reletting; provided, that if Landlord has not relet the Leased
Premises, such Costs of Landlord shall be considered to be Monetary Obligations
payable by Tenant.
(iii) Tenant shall be and remain liable for all sums
aforesaid, and Landlord may recover such damages from Tenant and institute and
maintain successive actions or legal proceedings against Tenant for the recovery
of such damages as and when same are due and payable under this Lease. Nothing
herein contained shall be deemed to require Landlord to wait to begin such
action or other legal proceedings until the date when the Term would have
expired by its own terms had there been no such Event of Default.
(c) Notwithstanding anything to the contrary herein contained, in
lieu of or in addition to any of the foregoing remedies and damages, Landlord
may exercise any remedies and collect any damages available to it at law or in
equity. If Landlord is unable to obtain full satisfaction pursuant to the
exercise of any remedy, it may pursue any other remedy which it has hereunder or
at law or in equity.
(d) Landlord shall not be required to mitigate any of its damages
hereunder unless required to by applicable Law. If any Law shall validly limit
the amount of any damages provided for herein to an amount which is less than
the amount agreed to herein, Landlord shall be entitled to the maximum amount
available under such Law.
(e) No termination of this Lease, repossession or reletting of the
Leased Premises, exercise of any remedy or collection of any damages pursuant to
this Paragraph 23 shall relieve Tenant of any Surviving Obligations.
(f) WITH RESPECT TO ANY REMEDY OR PROCEEDING OF LANDLORD OR TENANT
HEREUNDER, LANDLORD AND TENANT HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY.
(g) Upon the occurrence and during the continuance of any Event of
Default, Landlord shall have the right (but no obligation) to perform any act
required of Tenant
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hereunder and, if performance of such act requires that Landlord enter the
Leased Premises, Landlord may enter the Leased Premises for such purpose.
(h) No failure of Landlord (i) to insist at any time upon the strict
performance of any provision of this Lease or (ii) to exercise any option,
right, power or remedy contained in this Lease shall be construed as a waiver,
modification or relinquishment thereof. A receipt by Landlord of any sum in
satisfaction of any Monetary Obligation with knowledge of the breach of any
provision hereof shall not be deemed a waiver of such breach, and no waiver by
Landlord of any provision hereof shall be deemed to have been made unless
expressed in a writing signed by Landlord.
(i) Tenant hereby waives and surrenders, for itself and all those
claiming under it, including creditors of all kinds, (i) any right and privilege
which it or any of them may have under any present or future Law to redeem any
of the Leased Premises or to have a continuance of this Lease after termination
of this Lease or of Tenant's right of occupancy or possession pursuant to any
court order or any provision hereof, and (ii) the benefits of any present or
future Law which exempts property from liability for debt or for distress for
rent.
(j) Except as otherwise provided herein, all remedies are cumulative
and concurrent and no remedy is exclusive of any other remedy. Each remedy may
be exercised at any time an Event of Default has occurred and is continuing and
may be exercised from time to time. No remedy shall be exhausted by any exercise
thereof.
24. Notices. All notices, demands, requests, consents, approvals, offers,
statements and other instruments or communications required or permitted to be
given pursuant to the provisions of this Lease shall be in writing and shall be
deemed to have been given and received for all purposes when delivered in person
or by Federal Express or other reliable 24- hour delivery service or five (5)
business days after being deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
other party at its address stated on page one of this Lease or when delivery is
refused. Notices sent to Landlord shall be to the attention of Director, Asset
Management, and notices to Tenant shall be to the attention of Chief Financial
Officer and shall simultaneously be given by Landlord to ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq. A copy of any notice given by Tenant to Landlord shall be
addressed to the attention of Director, Asset Management and shall
simultaneously be given by Tenant to ▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chairman, Real Estate Department. For the
purposes of this Paragraph, any party may substitute another address stated
above (or substituted by a previous notice) for its address by giving fifteen
(15) days' notice of the new address to the other party, in the manner provided
above.
25. Estoppel Certificate. At any time upon not less than twenty (20) days'
prior written request by either Landlord or Tenant (the "Requesting Party") to
the other party (the "Responding Party"), the Responding Party shall deliver to
the Requesting Party a statement in writing, executed by an authorized officer
of the Responding Party, certifying (a) that, except as otherwise specified,
this Lease is unmodified and in full force and effect, (b) the dates to which
Basic Rent, Additional Rent and all other Monetary Obligations have been paid,
(c) that, to the knowledge of the signer of such certificate and except as
otherwise specified, no default by either Landlord or Tenant exists hereunder,
(d) such other matters as the Requesting Party may reasonably request, and (e)
if Tenant is the Responding Party that, except as otherwise specified, there are
no proceedings pending or, to the knowledge of the signer, threatened, against
Tenant before or by any court or administrative agency which, if adversely
decided, would materially and adversely affect the financial condition and
operations of Tenant. Any such statements by the Responding Party may be relied
upon by the Requesting Party, any Person whom the Requesting Party notifies the
Responding Party in its request for the Certificate is an intended
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recipient or beneficiary of the Certificate, any Lender or their assignees and
by any prospective purchaser or mortgagee of any of the Leased Premises. Any
certificate required under this Paragraph 25 and delivered by Tenant shall state
the title of the signatory thereto and that such person is duly authorized to
execute and deliver same on behalf of Tenant.
26. Surrender. Upon the expiration or earlier termination of this Lease,
Tenant shall peaceably leave and surrender the Leased Premises to Landlord in
the same condition in which the Leased Premises was at the commencement of this
Lease, except as repaired, rebuilt, restored, altered, replaced or added to as
permitted or required by any provision of this Lease, and ordinary wear and
tear, and damage from Casualty or Condemnation for which Tenant is not otherwise
required to repair or restore under the terms of this Lease, expected. Upon such
surrender, Tenant shall (a) remove from the Leased Premises all property which
is owned by Tenant or third parties other than Landlord and Alterations required
to be removed pursuant to Paragraph 13 hereof and (b) repair any damage caused
by such removal. Property not so removed shall become the property of Landlord,
and Landlord may thereafter cause such property to be removed from the Leased
Premises. The Costs of removing and disposing of such property and repairing any
damage to any of the Leased Premises caused by such removal shall be paid by
Tenant to Landlord upon demand. Landlord shall not in any manner or to any
extent be obligated to reimburse Tenant for any such property which becomes the
property of Landlord pursuant to this Paragraph 26.
27. No Merger of Title. There shall be no merger of the leasehold estate
created by this Lease with the fee estate in any of the Leased Premises by
reason of the fact that the same Person may acquire or hold or own, directly or
indirectly, (a) the leasehold estate created hereby or any part thereof or
interest therein and (b) the fee estate in any of the Leased Premises or any
part thereof or interest therein, unless and until all Persons haying any
interest in the interests described in (a) and (b) above which are sought to be
merged shall join in a written instrument effecting such merger and shall duly
record the same.
28. Books and Records.
(a) Tenant shall keep adequate records and books of account with
respect to the finances and business of Tenant generally and with respect to the
Leased Premises, in accordance with generally accepted accounting principles
("GAAP") consistently applied, and shall permit Landlord and Lender by their
respective agents, accountants and attorneys, upon reasonable notice to Tenant,
to visit and inspect the Leased Premises and examine (and make copies of) the
records and books of account and to discuss the finances and business with the
officers of Tenant, at such reasonable times as may be requested by Landlord.
Upon the request of Lender or Landlord (either telephonically or in writing),
Tenant shall provide the requesting party with copies of any information to
which such party would be entitled in the course of a personal visit.
(b) Tenant shall deliver to Landlord and Lender within ninety (90)
days of the close of each fiscal year of Tenant annual audited financial
statements of Tenant certified by a nationally recognized firm of independent
certified public accountants. Notwithstanding the foregoing, Tenant's audited
annual financial statements for the fiscal year ending January 31, 2005 shall be
delivered to Landlord no later than the ninetieth (90th) day following the date
of this Lease. Tenant shall also furnish to Landlord within forty-five (45) days
after the end of each of the three remaining quarters unaudited financial
statements and all other quarterly reports of Tenant, certified by Tenant's
chief financial officer, and all filings, if any, of Form 10-K, Form 10-Q and
other required filings with the Securities and Exchange Commission pursuant to
the provisions of the Securities Exchange Act of 1934, as amended, or any other
Law. All financial statements shall be prepared in accordance with GAAP
consistently applied. All annual financial statements shall be accompanied (i)
by an opinion of said
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accounting firm stating that (A) there are no qualifications as to the scope of
the audit and (B) the audit was performed in accordance with GAAP and (ii) by
the affidavit of the president or a vice president of Tenant, dated within five
(5) days of the delivery of such statement, stating that (A) the affiant knows
of no Event of Default, or event which, upon notice or the passage of time or
both, would become an Event of Default which has occurred and is continuing
hereunder or, if any such event has occurred and is continuing, specifying the
nature and period of existence thereof and what action Tenant has taken or
proposes to take with respect thereto and (B) except as otherwise specified in
such affidavit, that, to the best knowledge of the affiant, Tenant has fulfilled
all of its obligations under this Lease which are required to be fulfilled on or
prior to the date of such affidavit.
29. Determination of Value.
(a) Whenever a determination of Fair Market Rental Value is required
pursuant to this Lease, such Fair Market Rental Value shall be determined in
accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree on Fair Market
Rental Value on the date (an "Applicable Initial Date") which is six (6)
calendar months prior to the expiration of the then current Term if Tenant has
previously exercised its option pursuant to Paragraph 5(b) to have the Term
extended for the third or fourth Renewal Terms. Upon reaching such agreement,
the parties shall execute an agreement setting forth the amount of such Fair
Market Rental Value.
(ii) If the parties shall not have signed such agreement
within thirty (30) days after the Applicable Initial Date, Tenant shall within
thirty (30) days after the Applicable Initial Date select an appraiser and
notify Landlord in writing of the name, address and qualifications of such
appraiser. Within twenty (20) days following Landlord's receipt of Tenant's
notice of the appraiser selected by Tenant, Landlord shall select an appraiser
and notify Tenant of the name, address and qualifications of such appraiser.
Such two appraisers shall endeavor to agree upon Fair Market Rental Value based
on a written appraisal made by each of them (and given to Landlord by Tenant) as
of the Relevant Date. If such two appraisers shall agree upon a Fair Market
Rental Value, the amount of such Fair Market Rental Value as so agreed shall be
binding and conclusive upon Landlord and Tenant.
(iii) If such two appraisers shall be unable to agree upon a
Fair Market Rental Value within twenty (20) days after the selection of an
appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of
their respective determination of Fair Rental Market Value and shall select a
third appraiser to make the determination of Fair Market Rental Value. The
selection of the third appraiser shall be binding and conclusive upon Landlord
and Tenant.
(iv) If such two appraisers shall be unable to agree upon the
designation of a third appraiser within ten (10) days after the expiration of
the twenty (20) day period referred to in clause (iii) above, or if such third
appraiser does not make a determination of Fair Market Rental Value within
twenty (20) days after his selection, then such third appraiser or a substituted
third appraiser, as applicable, shall, at the request of either party hereto, be
appointed by the President or Chairman of the American Arbitration Association
in New York, New York. The determination of Fair Market Rental Value made by the
third appraiser appointed pursuant hereto shall be made within twenty (20) days
after such appointment.
(v) If a third appraiser is selected, Fair Market Rental Value
shall be the average of the determination of Fair Market Rental Value made by
the third appraiser and the determination of Fair Market Rental Value made by
the appraiser (selected
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pursuant to Paragraph 29(a)(ii) hereof) whose determination of Fair Market
Rental Value is nearest to that of the third appraiser. Such average shall be
binding and conclusive upon Landlord and Tenant.
(vi) All appraisers selected or appointed pursuant to this
Paragraph 29(a) shall (A) be independent qualified MAI appraisers (B) have no
right, power or authority to alter or modify the provisions of this Lease, (C)
utilize the definition of Fair Market Rental Value hereinabove set forth above,
and (D) be registered in the State if such State provides for or requires such
registration.
(vii) Each party shall bear the Costs of its own appraiser and
the Costs of the third appraiser shall be split equally by Landlord and Tenant.
(b) If, by virtue of any delay, Fair Market Rental Value is not
determined by the expiration or termination of the then current Term, then until
Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent
during the succeeding Renewal Term in the same amount which it was obligated
under this Lease to pay prior to the commencement of the Renewal Term. When Fair
Market Rental Value is determined, the appropriate Basic Rent shall be
calculated retroactive to the commencement of the Renewal Term and Tenant shall
either receive a refund from Landlord (in the case of an overpayment) or shall
pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Rental Value, the appraisers shall
determine the amount that a willing tenant would pay, and a willing landlord of
a comparable building located in a radius of 25 miles of the Leased Premises
would accept, at arm's length, to rent a building of comparable size and quality
as the Improvements, taking into account: (i) the age, quality, condition (as
required by the Lease) of the Improvements; (ii) that the Leased Premises
will-be leased as a whole or substantially as a whole to a single user; (iii) a
lease term equal to the Renewal Term; (iv) an absolute triple net lease; and (v)
such other items that professional real estate appraisers customarily consider.
30. Non-Recourse as to Landlord, etc. (a) Anything contained herein to
the contrary notwithstanding, any claim based on or in respect of any liability
of Landlord under this Lease shall be limited to actual damages and shall be
enforced only against the Leased Premises and not against any other assets,
properties or funds of (i) Landlord, (ii) any director, officer, member, general
partner, shareholder, limited partner, beneficiary, employee or agent of
Landlord or any members or general partners of Landlord (or any legal
representative, heir, estate, successor or assign of any thereof), (iii) any
predecessor or successor partnership or corporation (or other entity) of
Landlord or any of its general partners, shareholders, officers, directors,
members, employees or agents, either directly or through Landlord or its general
partners, shareholders, officers, directors, employees of agents or any
predecessor or successor partnership or corporation (or other entity), or (iv)
any Person affiliated with any of the foregoing, or any director, officer,
employee or agent of any thereof. Anything contained herein to the contrary
notwithstanding, any claim based on or in respect of any liability of Tenant
under this Lease shall be limited to actual damages and shall be enforced only
against the Tenant and not against any assets, properties or funds of any
director, officer, member, shareholder, limited partner, beneficiary, employee
or agent of Tenant (or any legal representative, heir, estate, successor or
assign of any thereof).
(b) Tenant shall not be precluded from instituting legal proceedings
for the purpose of making a claim against Landlord on account of an alleged
violation of Landlord's obligations under this Lease, subject, however, to the
limitations of Paragraph 30(a) above. Except as may be the result of a holding
over by Tenant, neither party shall be liable to the other hereunder for any
consequential, indirect, or special damages.
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31. Financing.
(a) Tenant agrees to pay, within five (5) business days following
written request from Landlord (or upon the date of this Lease with respect to
Costs incurred as of such date), (i) all Costs incurred by Landlord in
connection with the initial purchase and leasing of the Leased Premises as
contemplated by this Lease, including, without limitation, transfer taxes and
recording fees, the cost of appraisals, environmental reports, engineering
reports and zoning reports, UCC and related searches, title insurance charges
and premiums, the cost of surveys, reliance letters and the fees and expenses of
Landlord's counsel; provided that Tenant's payment obligations hereunder with
respect the fees and expenses of Landlord's counsel shall not exceed an
aggregate amount of $200,000 for the initial purchase and leasing and the
initial Loan (the "Cost Cap"); provided further, however, in the event that
there exists at the Leased Premises a material Environmental Violation or a
Hazardous Condition such that a Phase II Site Assessment must be performed or
additional expenditures are incurred (including additional or extraordinary due
diligence and the reasonable legal fees and expenses of Landlord's and Lender's
counsel in connection therewith), then the cost of such Phase II Site Assessment
and such additional due diligence and/or reasonable attorneys' fees and expenses
of Landlord or Lender shall be paid by Tenant in addition such Cost Cap.
(b) If Landlord desires to obtain or refinance any Loan, Tenant
shall negotiate in good faith with Landlord concerning any request made by any
Lender or proposed Lender for changes or modifications in this Lease. In
particular, Tenant shall agree, upon request of Landlord, to supply any such
Lender with such notices and information as Tenant is required to give to
Landlord hereunder and to extend the rights of Landlord hereunder to any such
Lender and to consent to such financing if such consent is requested by such
Lender. Tenant shall provide any other consent or statement and shall execute
any and all other documents that such Lender reasonably requires in connection
with such financing, including any environmental indemnity agreement and
subordination, non-disturbance and attornment agreement, so long as the same do
not adversely affect any right, benefit or privilege of Tenant under this Lease
or increase any Monetary Obligations or materially increase any non-monetary
obligations of Tenant under this Lease. Such subordination, nondisturbance and
attornment agreement ("SNDA") may require Tenant to confirm that (a) Lender and
its assigns will not be liable for any misrepresentation, act or omission of
Landlord and (b) Lender and its assigns will not be subject to any counterclaim,
demand or offset which Tenant may have against Landlord. Notwithstanding
anything to the contrary herein, Tenant shall not be responsible for any Costs
associated with Landlord's refinancing, or modification of the initial Loan
(c) In connection with any Loan, Landlord agrees that it shall use
good faith and commercially reasonable efforts to negotiate then current
"market" or customary prepayment premiums in connection with any such Loan,
taking into account the credit and financial standing of Tenant at the time Loan
is made, current market circumstances and the type and amounts of prepayment
Premiums or penalties which are generally being required in connection with
mortgages held by an institutional lender for similar properties, similarly
situated (including, without limitation, mortgages anticipated to be subject to
a securitization). Landlord further agrees that, notwithstanding the fact that
Landlord may have elected to refinance the initial Loan prior to its stated
maturity date, from the Commencement Date until the date that is the tenth (10)
anniversary of the Commencement Date of this Lease the Prepayment Premium for
which Tenant shall be responsible under the terms of Paragraph 18 of this Lease
shall not exceed the Prepayment Premium that Tenant would have been otherwise
obligated to pay at such time and under such circumstances had such initial Loan
remained in place.
32. Subordination, Non-Disturbance and Attornment: Landlord's Waiver, (a)
This Lease and Tenant's interest hereunder shall be subordinate to any Mortgage
or other
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security instrument hereafter placed upon the Leased Premises by Landlord, and
to any and all advances made or to be made thereunder, to the interest thereon,
and all renewals, replacements and extensions thereof, provided that any holder
of such Mortgage or other security instrument shall provide for the recognition
of this Lease and all Tenant's rights hereunder unless and until an Event of
Default exists or Landlord shall have the right to terminate this Lease pursuant
to any applicable provision hereof, in any event, pursuant to an SNDA in
recordable form and in substance reasonably acceptable to Tenant.
(b) Landlord agrees that, upon the request of any Person that shall
be Tenant's senior secured lender, subordinate senior lender, purchase money
equipment lender or an equipment lessor of Tenant, Landlord shall execute and
deliver a commercially reasonable waiver of Landlord's statutory lien rights, if
any, and a consent and agreement with respect to the respective rights of
Landlord and such Person regarding the security interests in, and the timing and
removal of, any inventory, equipment or other collateral in which such Person
has a secured interest (the "Collateral"), in form and substance reasonably
acceptable to Landlord and such Person, so long as such waiver and agreement (i)
provides for the indemnification of Landlord against any claims by Tenant or any
Person claiming through Tenant, and against any physical damage caused to the
Leased Premises, in connection with the removal of any of the Collateral by such
Person, (ii) expressly excludes any claim by such Person to any right, title or
interest in or to any of the Equipment as defined in this Lease, (iii) provides
for a reasonable, but limited, time frame for the removal of such Collateral by
such Person after the expiration of which same shall be deemed abandoned, and
(iv) provides for the per diem payment of Basic Rent due hereunder by such
Person for each day after the fifth (5th) Business Day following the date of the
expiration or termination of this Lease that Landlord permits such Person's
Collateral to remain in the Leased Premises.
(c) Concurrently with the execution of this Lease, each of Landlord
and Tenant agrees that it shall enter into the Landlord's Agreement, permitting
Tenant to pledge its interest, as lessee, in this Lease, subject to the
provisions and limitations set forth in such Landlord's Agreement.
33. Tax Treatment; Reporting. (a) Landlord and Tenant each acknowledge
that each shall treat this transaction as a true lease for state law purposes
and shall report this transaction as a true lease for Federal income tax
purposes. For Federal income tax purposes each shall report this Lease as a true
lease with Landlord as the owner of the Leased Premises and Equipment and Tenant
as the lessee of such Leased Premises and Equipment including: (1) treating
Landlord as the owner of the property eligible to claim depreciation deductions
under Section 167 or 168 of the Internal Revenue Code of 1986 (the "Code") with
respect to the Leased Premises and Equipment, (2) Tenant reporting its Rent
payments as rent expense under Section 162 of the Code, and (3) Landlord
reporting the Rent payments as rental income. For the avoidance of doubt,
nothing in this Lease shall be deemed to constitute a guaranty, warranty or
representation by either Landlord or Tenant as to the actual treatment of this
transaction for state law purposes and for federal income tax purposes.
(b) Landlord shall deliver to Tenant two duly signed, properly
completed copies of IRS Form W-9 prior to the first date when Tenant is required
hereunder to make a payment to Landlord, certifying that Landlord is entitled to
exemption from United States backup withholding tax, or any successor form.
Landlord shall promptly provide Tenant with updated, duly signed, and properly
completed copies of IRS Form W-9 (or successor form) if events occur that cause
the copies of IRS Form W-9 already in the possession of Tenant no longer to be
true, accurate and complete.
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34. Right of First Refusal.
(a) Except as otherwise provided in clause (f) of this Paragraph 34,
and provided an Event of Default does not then exist, if Landlord shall enter
into a contract for the sale (the "Sale Contract") of the Leased Premises based
upon a bona fide, arms-length offer from a third party purchaser unaffiliated
with Landlord or Tenant (a "Third Party Purchaser") (which sale Contract may
include other property owned by Landlord so long as a specific purchase price is
allocated to the Leased Premises), which Sale Contract shall be conditioned upon
Tenant's failure to exercise its right under this Paragraph 34, then Landlord
shall give written notice to Tenant of the Sale Contract, together with a copy
of the executed Sale Contract and the name and business address of the Third
Party Purchaser.
(b) For a period of fifteen (15) days following receipt of such
notice, Tenant shall have the right, exercisable by written notice to Landlord
given within said fifteen (15) day period, to elect to purchase the Leased
Premises at the purchase price and upon all the terms and conditions set forth
in such Sale Contract except that no contingencies contained in such Sale
Contract as to environmental assessments, engineering studies, inspection of the
Leased Premises, availability of financing, sale of other property, state of the
title to or encumbrances on the Leased Premises (other than as set forth in
Paragraph 20 hereof), or any other condition or contingency to the Third Party
Purchaser's obligation to purchase the Leased Premises which would otherwise be
the obligation of Tenant under this Lease, shall apply to Tenant's obligation to
purchase the Leased Premises under this Paragraph 34, and Tenant shall be
obligated to purchase the Leased Premises without any such condition or
contingency.
(c) If at the expiration of the aforesaid fifteen (15) day period
Tenant shall have failed to exercise the aforesaid option by written notice to
Landlord, Landlord may sell the Leased Premises to such Third Party Purchaser
upon the terms set forth in such Sale Contract. Time shall be of the essence
with respect to such fifteen (15) day period.
(d) Except as otherwise specifically provided herein, the closing
date for any purchase of the Leased Premises by Tenant pursuant to this
Paragraph 34 shall be the earlier to occur of (i) ninety (90) days after the
date of Tenant's notice to Landlord of its intention to purchase the Leased
Premises upon the terms of a Sale Contract with a Third Party Purchaser or (ii)
the closing date provided in such Sale Contract. At such closing Landlord shall
convey the Leased Premises to Tenant in accordance with, and Tenant shall pay to
Landlord the purchase price and other consideration set forth in, the applicable
contract and Paragraph 20 of this Lease.
(e) If Tenant does not exercise its right of first refusal to
purchase the Leased Premises and the Leased Premises are transferred to a Third
Party Purchaser, Tenant will attorn to any Third Party Purchaser as Landlord so
long as such Third Party Purchaser and Landlord notify Tenant in writing of such
transfer. At the request of Landlord, Tenant will execute such documents
confirming the agreement referred to above and such other agreements as Landlord
may reasonably request, provided that such agreements do not increase the
liabilities or obligations of Tenant hereunder.
(f) The provisions of this Paragraph 34 shall not apply to or
prohibit (i) any mortgaging, subjection to deed of trust or other hypothecation
of Landlord's interest in the Leased Premises, (ii) any sale of the Leased
Premises pursuant to a private power of sale under or judicial foreclosure of
any Mortgage or other security instrument or device to which Landlord's interest
in the Leased Premises is now or hereafter subject, (iii) any transfer of
Landlord's interest in the Leased Premises to a Lender, beneficiary under deed
of trust or other holder of a security interest therein or their designees by
deed in lieu of foreclosure, (iv) the sale or transfer of the Leased Premises by
such Lender (or a beneficiary under deed of trust or other
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holder of a security interest therein or their designees) to a third party
purchaser for value subsequent to such Lender's obtaining fee title to the
Leased Premises by deed in lieu of foreclosure, private power of sale under or
judicial foreclosure of any Mortgage or other security instrument or device to
which Landlord's interest in the Leased Premises is now or hereafter subject,
(v) any transfer of the Leased Premises to any governmental or
quasi-governmental agency with power of condemnation, (vi) any transfer of the
Leased Premises or any interest therein or in Landlord to any Affiliate of
Landlord or to any entity (or a Subsidiary thereof) to whom all or substantial
portion of the assets of the parent company of Landlord is transferred, or to
any of the so-called "Corporate Property Associates" family of REIT funds (such
as, CIP, CPA:12, CPA:14, CPA:15), whether now or hereafter created, as part of a
roll-up or other corporate restructuring or reorganization and for whom W.P.
▇▇▇▇▇ & Co. LLC or any of their Affiliates or successors provides investment
advisory services, and (vii) any transfer of the Leased Premises to any of the
successors or assigns of any of the Persons referred to in the foregoing clauses
(i) through (v).
35. Intentionally Omitted.
36. Intentionally Omitted.
37. Miscellaneous.
(a) The paragraph headings in this Lease are used only for
convenience in finding the subject matters and are not part of this Lease or to
be used in determining the intent of the parties or otherwise interpreting this
Lease.
(b) As used in this Lease, the singular shall include the plural and
any gender shall include all genders as the context requires and the following
words and phrases shall have the following meanings: (i) "including" shall mean
"including without limitation"; (ii) "provisions" shall mean "provisions, terms,
agreements, covenants and/or conditions"; (iii) "lien" shall mean "lien, charge,
encumbrance, title retention agreement, pledge, security interest, mortgage
and/or deed of trust"; (iv) "obligation" shall mean "obligation, duty,
agreement, liability, covenant and/or condition"; (v) "any of the Leased
Premises" shall mean "the Leased Premises or any part thereof or interest
therein"; (vi) "any of the Land" shall mean "the Land or any part thereof or
interest therein"; (vii) "any of the Improvements" shall mean "the Improvements
or any part thereof or interest therein"; and (viii) "any of the Equipment"
shall mean "the Equipment or any part thereof or interest therein".
(c) Any act which Landlord is permitted to perform under this Lease
may be performed at any time and from time to time by Landlord or any person or
entity designated by Landlord. Each appointment of Landlord as attorney-in-fact
for Tenant hereunder is irrevocable and coupled with an interest. Landlord shall
not unreasonably withhold or delay its consent whenever such consent is required
under this Lease, except as otherwise specifically provided herein and except
that with respect to any assignment of this Lease or subletting of the Leased
Premises not expressly permitted by the terms of this Lease, Landlord may
withhold its consent for any reason or no reason. In any instance in which
Landlord agrees not to act unreasonably, Tenant hereby waives any claim for
damages against or liability of Landlord which is based upon a claim that
Landlord has unreasonably withheld or unreasonably delayed any consent or
approval requested by Tenant, and Tenant agrees that its sole remedy shall be an
action for declaratory judgment. If with respect to any required consent or
approval Landlord is required by the express provisions of this Lease not to
unreasonably withhold or delay its consent or approval, and if it is determined
in any such proceeding referred to in the preceding sentence that Landlord acted
unreasonably, the requested consent or approval shall be deemed to have been
granted; however, Landlord shall have no liability whatsoever to Tenant for its
refusal or failure to give such consent or approval. Tenant's sole remedy for
Landlord's unreasonably
-41-
withholding or delaying, consent or approval shall be as provided in this
Paragraph. Time is of the essence with respect to the performance by Tenant of
its obligations under Paragraphs 5(b); 6(a); 7(a)(ii) and 7(b); 18; 22; 24; 25;
26; 28(b); 29; 31(a); 34(b),(c) and (d); 35(f); and 36 of this Lease.
(d) Landlord shall in no event be construed for any purpose to be a
partner, joint venturer or associate of Tenant or of any subtenant, operator,
concessionaire or licensee of Tenant with respect to any of the Leased Premises
or otherwise in the conduct of their respective businesses.
(e) This Lease and any documents which may be executed by Tenant on
or about the effective date hereof at Landlord's request constitute the entire
agreement between the parties and supersede all prior understandings and
agreements, whether written or oral, between the parties hereto relating to the
Leased Premises and the transactions provided for herein. Landlord and Tenant
are business entities having substantial experience with the subject matter of
this Lease and have each fully participated in the negotiation and drafting of
this Lease. Accordingly, this Lease shall be construed without regard to the
rule that ambiguities in a document are to be construed against the drafter.
(f) This Lease may be modified, amended, discharged or waived only
by an agreement in writing signed by the party against whom enforcement of any
such modification, amendment, discharge or waiver is sought.
(g) The covenants of this Lease shall run with the land and bind
Tenant, its successors and assigns and all present and subsequent encumbrancers
and subtenants of any of the Leased Premises, and shall inure to the benefit of
Landlord, its successors and assigns. If there is more than one Tenant, the
obligations of each shall be joint and several.
(h) If any one or more of the provisions contained in this Lease
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Lease, but this Lease shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
(i) All exhibits attached hereto are incorporated herein as if fully
set forth.
(j) This Lease shall be governed by and construed and enforced in
accordance with the laws of the State.
(k) Tenant is not, nor will Tenant become, a Person with whom U.S.
persons or entities are restricted from doing business under regulations of the
Office of Foreign Asset Control ("OFAC") of the Department of the Treasury
(including those named on OFAC's Specially Designated and Blocked Persons list)
or under any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action
and Tenant not will engage in any dealings or transactions or be otherwise
associated with such persons or entities.
(l) This Lease may be executed in a number of counterparts and by
different parties hereto in separate counterparts each of which, when so
executed, shall be deemed to be an original and all of which taken together
shall constitute but one and the same agreement.
-42-
(m) Each of Landlord and Tenant represents, warrants and confirms to
and for the benefit of the other party that it has dealt with no broker, agent,
finder or consultant, other than NVD Consulting, Inc. ("NVD") and ▇▇▇▇▇▇▇ &
Wakefield, Inc. ("C&W") with respect to this Lease. And each of Landlord and
Tenant hereby agrees to indemnify and save the other harmless of, from and
against any and all claims (and all expenses and fees including, without
limitation, attorneys' fees, related thereto) for commissions, fees or other
compensation made by any other broker or entity alleging to have dealt with such
party or arising out of or based upon the acts of such party or its employees,
officers, shareholders, partners and/or agents, subject to payment obligations
of the respective parties as set forth at the end of this Paragraph 37(m). In
case any action hereunder or proceeding shall be instituted against Landlord for
the payment of any such commissions, fees or other compensation, arising out of
or based upon any such acts of Tenant, its employees, officers, partners and/or
agents, then Tenant, upon notice from Landlord and at Tenant's sole cost and
expense, shall resist and defend such action or proceeding by counsel chosen by
and paid for by Tenant, who shall be reasonably satisfactory to Landlord, and
Landlord shall also have the right, but not the obligation, to participate in
the defense of any such action or proceeding by counsel of its own choice. In
case any action hereunder or proceeding shall be instituted against Tenant for
the payment of any such commissions, fees or other compensation, arising out of
or based upon any such acts of Landlord, its employees, officers, partners
and/or agents, then Landlord, upon notice from Tenant and at Landlord's sole
cost and expense, shall resist and defend such action or proceeding by counsel
chosen by and paid for by Landlord, who shall be reasonably satisfactory to
Tenant, and Tenant shall also have the right, but not the obligation, to
participate in the defense of any such action or proceeding by counsel of its
own choice. Landlord shall pay any commission or other fee or compensation due
NVD pursuant to the terms of a separate agreement. Tenant shall pay any
commission or other fee or compensation due C&W pursuant to the terms of
separate agreement. The provisions of this Paragraph 37(m) shall survive the
Expiration Date or any earlier termination of this Lease.
38. Post Closing Obligations.
Pursuant to (i) that certain Phase I Site Assessment Report of the
Leased Premises performed by Engineering Consulting Services Inc. and dated as
of January 19, 2005, (ii) that certain Property Condition Report performed by
RPMS Consulting Engineers and dated as of January 25, 2005, and (iii) that
certain Loss Prevention Report from Factory Mutual Insurance Company dated
January 8, 2004, Tenant shall complete, remediate or obtain or caused to be
completed, remediated or obtained the Post Closing Obligations within the time
periods specified in Exhibit "F".
39. Subdivision of Release Parcels.
Landlord shall have the right, at any time during the Term, to cause
the subdivision of the Release Parcels (or either of them), subject to the
compliance with the following provisions and criteria (which may be satisfied by
means of the express terms of the amendment or pursuant to separate use, right
of way, access and/or easement agreements executed in connection with the
proposed release): (1) the Release Parcel shall have been legally subdivided
from the remainder of the Leased Premises (also the "Retained Premises") in
compliance with all applicable subdivision laws, Legal Requirements (including
zoning, access and parking requirements) and Easement Agreements so that the
Release Parcel(s), and the Retained Premises are separate tracts and tax lots,
and in compliance with applicable Laws, Legal Requirements and Easements
Agreements, (2) the subdivision and/or release of the applicable Release
Parcel(s) does not adversely impact the functional use, legal use or
availability of the Retained Premises, (3) the Retained Premises continues to
have available to it all necessary utilities and adequate, free, unimpeded and
unencumbered access for pedestrian and vehicular ingress and egress onto
adjacent public roads, (4) any requirements of Lender set forth
-43-
in the Mortgage (or any other loan documents executed by Landlord in connection
with the Loan) with respect to the subdivision and /or release of the Release
Parcel(s) have been satisfied, and (5) the costs and expenses of the release and
any subsequent conveyance of the Release Parcel and in complying with the above
conditions shall be borne by Landlord. Notwithstanding the foregoing provisions
of this Paragraph 39, Landlord's right to subdivide the Release Parcels and to
cause the Release Parcels (or either of them) to be released and severed from
the lien of the Mortgage shall not include the right to release and sever the
Release Parcel from the leasehold estate created by this Lease unless Tenant
shall have, in its sole and absolute discretion, consented thereto in advance in
writing.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
-44-
Lease-Telcordia March 15, 2005
------------------------------------
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed under seal as of the day and year first above written.
LANDLORD:
TELC (NJ) QRS 16-30, INC.,
a Delaware corporation
By: ▇▇▇▇▇ ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
ATTEST: TENANT:
TELCORDIA TECHNOLOGIES, INC.
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- -----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: ASSISTANT SECRETARY Title: CVP. AND DEPUTY GENERAL COUNSEL
[Corporate Seal]
SIGNATURE PAGE TO LEASE AGREEMENT
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed under seal as of the day and year first above written.
LANDLORD:
TELC (NJ) QRS 16-30, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇
Title: VP
ATTEST: TENANT:
TELCORDIA TECHNOLOGIES, INC.
a Delaware corporation
By: ________________________________ By: _____________________________________
Name: ______________________________ Name: ___________________________________
Title: _____________________________ Title: __________________________________
[Corporate Seal]
SIGNATURE PAGE TO LEASE AGREEMENT
EXHIBIT A
PROPERTY DESCRIPTION
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, WITH THE BUILDING AND
IMPROVEMENTS THEREON ERECTED, SITUATE, LYING AND BEING IN ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ OF NEW JERSEY, BOUNDED AND DESCRIBED AS
FOLLOWS:
PARCEL ONE - BLOCK 591, LOT 2.01 - RECORD DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the westerly sideline of Hoes Lane, variable
width Right-of-Way, with the northerly sideline of ▇▇▇▇▇▇ Avenue, 66 foot
Right-of-Way, and from said point running; thence
1. Along the said northerly sideline of ▇▇▇▇▇▇ Avenue on a curve to the
right said curve having a radius of 20.00 feet, a length along the
arc of 28.17 feet, a bearing along the chord of South 27 degrees 22
minutes 04 seconds West, and a chord distance of 25.90 feet to a
point of tangency; thence
2. Continuing along said northerly sideline, South 67 degrees 43
minutes 22 seconds West, a distance of 473.88 feet; thence
3. North 22 degrees 16 minutes 39 seconds West, a distance of 250.00
feet; thence
4. South 67 degrees 43 minutes 21 seconds West, a distance of 280.00
feet; thence
5. South 22 degrees 16 minutes 39 seconds East, a distance of 250.00
feet to the said northerly sideline of ▇▇▇▇▇▇ Avenue; thence
6. Along said sideline, South 67 degrees 43 minutes 22 seconds West, a
distance of 292.29 feet; thence
7. South 67 degrees 53 minutes 22 seconds West, a distance of 787.50
feet; thence
8. North 20 degrees 10 minutes 39 seconds West, a distance of 414.90
feet; thence
9. North 43 degrees 04 minutes 48 seconds West, a distance of 328.55
feet; thence
10. North 13 degrees 38 minutes 03 seconds West, a distance of 435.20
feet; thence
11. North 12 degrees 16 minutes 28 seconds West, a distance of 278.51
feet; thence
12. North 12 degrees 11 minutes 18 seconds West, a distance of 626.96
feet; thence
13. North 18 degrees 37 minutes 49 seconds West, a distance of 62.60
feet; thence
14. North 65 degrees 49 minutes 40 seconds East, a distance of 97.25
feet; thence
15. North 70 degrees 47 minutes 05 seconds East, a distance of 465.73
feet; thence
1
16. North 70 degrees 37 minutes 52 seconds East, a distance of 664.05
feet; thence
17. North 70 degrees 38 minutes 36 seconds East, a distance of 524.76
feet to a concrete monument in the westerly sideline of Hoes Lane;
thence
18. Along said sideline, South 24 degrees 17 minutes 54 seconds East, a
distance of 526.99 feet to a point of curvature; thence
19. Continuing along the said sideline on a curve to the left said curve
having a radius of 6052.00 feet, a length along the arc of 422.51
feet, a bearing along the chord of South 26 degrees 17 minutes 34
seconds East, and a chord distance of 422.42 feet to a point of
reverse curvature; thence
20. Continuing along the said sideline on a curve to the right said
curve having a radius of 2948.00 feet, a length along the arc of
823.24 feet, a bearing along the chord of South 20 degrees 17
minutes 54 seconds East and a chord distance of 820.56 feet to a
point of tangency; thence
21. South 12 degrees 17 minutes 54 seconds East, a distance of 184.28
feet to the POINT of BEGINNING.
The above described being known as a description of Block 591, Lots 2.01, said
Lot being shown on the Piscataway Township Tax Map Sheet 51, also being shown on
a plat entitled "Reverse Subdivision Plan" prepared by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Associates, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ dated May 26, 1999.
PARCEL ONE - BLOCK 591, LOT 2.01 - SURVEY DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the westerly sideline of Hoes Lane, variable
width Right-of-Way, with the northerly sideline of ▇▇▇▇▇▇ Avenue, 66 foot
Right-of-Way, and from said point running; thence
1. Along the said northerly sideline of ▇▇▇▇▇▇ Avenue on a curve to the
right said curve having a radius of 20.00 feet, a length along the
arc of 28.17 feet, a bearing along the chord of South 27 degrees 22
minutes 04 seconds West, and a chord distance of 25.90 feet to a
point of tangency; thence
2. Continuing along said northerly sideline, South 67 degrees 43
minutes 22 seconds West, a distance of 473.88 feet; thence
3. North 22 degrees 16 minutes 39 seconds West, a distance of 250.00
feet; thence
4. South 67 degrees 43 minutes 21 seconds West, a distance of 280.00
feet; thence
5. South 22 degrees 16 minutes 39 seconds East, a distance of 250.00
feet to the said northerly sideline of ▇▇▇▇▇▇ Avenue; thence
2
6. Along said sideline, South 67 degrees 43 minutes 22 seconds West, a
distance of 292.29 feet; thence
7. South 67 degrees 53 minutes 22 seconds West, a distance of 787.50
feet; thence
8. North 20 degrees 10 minutes 39 seconds West, a distance of 414.90
feet; thence
9. North 43 degrees 04 minutes 48 seconds West, a distance of 328.55
feet; thence
10. North 13 degrees 38 minutes 03 seconds West, a distance of 435.20
feet; thence
11. North 12 degrees 16 minutes 28 seconds West, a distance of 278.51
feet; thence
12. North 12 degrees 11 minutes 18 seconds West, a distance of 626.96
feet; thence
13. North 18 degrees 37 minutes 49 seconds West, a distance of 62.60
feet; thence
14. North 65 degrees 49 minutes 40 seconds East, a distance of 97.25
feet; thence
15. North 70 degrees 47 minutes 05 seconds East, a distance of 465.73
feet; thence
16. North 70 degrees 37 minutes 52 seconds East, a distance of 664.05
feet; thence
17. North 70 degrees 38 minutes 36 seconds East, a distance of 524.76
feet to a concrete monument in the westerly sideline of Hoes Lane;
thence
18. Along said sideline, South 24 degrees 17 minutes 54 seconds East, a
distance of 526.99 feet to a point of curvature; thence
19. Continuing along the said sideline on a curve to the left said curve
having a radius of 6052.00 feet, a length along the arc of 422.51
feet, a bearing along the chord of South 26 degrees 17 minutes 54
seconds East, and a chord distance of 422.42 feet to a point of
reverse curvature; thence
20. Continuing along the said sideline on a curve to the right said
curve having a radius of 2948.00 feet, a length along the arc of
823.24 feet, a bearing along the chord of South 20 degrees 17
minutes 54 seconds East and a chord distance of 820.56 feet to a
point of tangency; thence
21. South 12 degrees 17 minutes 54 seconds East, a distance of 184.28
feet to a point of curvature; thence
22. Continuing along the said sideline on a curve to the left said curve
having a radius of 5052.02 feet, a length along the arc of 60.70
feet, a bearing along the chord of South 12 degrees 38 minutes 34
seconds East and a chord distance of 60.70 feet to the Point of
BEGINNING.
The above description is drawn in accordance with a Survey prepared by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, PLS of ▇▇▇▇▇▇ Associates, PA, dated January 10, 2005, last revised
January 24, 2005.
For Information Only:
Commonly known as: ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ Block 591, Lot 2.01 - Tax Map of the Township of
Piscataway
3
PARCEL TWO - BLOCK 501.1, LOT 6.01 - RECORD DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the southerly sideline of Knightsbridge Road,
with the westerly sideline of Hoes Lane, variable width Right-of-Way, and from
said point; running; thence
1. Along the said westerly sideline of Hoes Lane, South 26 degrees 25
minutes 40 seconds East, a distance of 20.89 feet; thence
2. South 70 degrees 22 minutes 20 seconds West, a distance of 234.83
feet; thence
3. South 26 degrees 25 minutes 40 seconds East, a distance of 250.00
feet; thence
4. North 70 degrees 22 minutes 20 seconds East, a distance of 234.84
feet to the said westerly sideline of Hoes Lane; thence
5. Along said sideline, South 26 degrees 25 minutes 40 seconds East, a
distance of 536.53 feet to a point on a non-tangent curve; thence
6. Continuing along said sideline on a curve to the left said curve
having a radius of 6934.54 feet, a length along the arc of 528.81
feet, a bearing along the chord of South 22 degrees 06 minutes 50
seconds East and a chord distance of 528.69 feet to a point of
tangency; thence
7. Continuing along said sideline, South 24 degrees 17 minutes 54
seconds East, a distance of 46.89 feet to a concrete monument;
thence
8. South 70 degrees 38 minutes 36 seconds West, a distance of 524.76
feet; thence
9. South 70 degrees 37 minutes 52 seconds West, a distance of 664.05
feet; thence
10. North 00 degrees 42 minutes 10 seconds West, a distance of 984.92
feet to a point of curvature; thence
11. Along a curve to the left said curve having a radius of 525.75 feet,
a length along the arc of 173.66 feet, a bearing along the chord of
North 10 degrees 09 minutes 55 seconds East and a chord distance of
172.87 feet to a point of tangency; thence
12. North 19 degrees 37 minutes 40 seconds West, a distance of 278.70
feet to a point of curvature; thence
13. Along a curve to the left said curve having a radius of 30.00 feet,
a length along the arc of 40.36 feet, a bearing along the chord of
North 58 degrees 10 minutes 06 seconds West and a chord distance of
37.38 feet to a point on a non-tangent curve in the southerly
sideline of Knightsbridge Road; thence
14. Along said sideline on a curve to the left said curve having a
radius of 656.91 feet, a length along the arc of 99.40, a bearing
along the chord of North 74 degrees 42
4
minutes 26 seconds East and a chord distance of 99.31 feet to a
point of tangency; thence
15. Continuing along said sideline, North 70 degrees 22 minutes 20
seconds East, a distance of 343.84 feet; thence
16. Continuing along said sideline, South 26 degrees 25 minutes 40
seconds East, a distance of 5.04 feet; thence
17. Continuing along said sideline, North 70 degrees 22 minutes 20
seconds East, a distance of 268.62 feet to a point of curvature;
thence
18. Along said sideline on a curve to the right said curve having a
radius of 30.00 feet, a length along the arc of 43.56 feet, a
bearing along the chord of South 68 degrees 01 minutes 40 seconds
East and a chord distance of 39.84 feet to the Point of BEGINNING.
The above described being known as a Consolidated description of Block 501.1,
Lots 6, 9.01 and 10, said Lots being shown on the Piscataway Township Tax Map
Sheet 44C, also being shown on a plat entitled "Reverse Subdivision Plan"
prepared by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Associates, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, dated May 26, 1999.
PARCEL TWO - BLOCK 501.1, LOT 6.01 - SURVEY DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the southerly sideline of Knightsbridge Road,
with the westerly sideline of Hoes Lane, variable width Right-of-Way, and from
said point; running; thence
1. Along the said westerly sideline of Hoes Lane, South 26 degrees 49
minutes 32 seconds East, a distance of 20.89 feet; thence
2. South 69 degrees 58 minutes 28 seconds West, a distance of 234.83
feet; thence
3. South 26 degrees 49 minutes 32 seconds East, a distance of 250.00
feet; thence
4. North 69 degrees 58 minutes 28 seconds East, a distance of 234.84
feet to the said westerly sideline of Hoes Lane; thence
5. Along said sideline, South 26 degrees 49 minutes 32 seconds East, a
distance of 535.73 feet to a point on a non-tangent curve; thence
6. Continuing along said sideline on a curve to the left said curve
having a radius of 6934.54 feet, a length along the arc of 537.85
feet, a bearing along the chord of South 22 degrees 30 minutes 27
seconds East and a chord distance of 537.71 feet to a point of
tangency; thence
7. Continuing along said sideline, South 24 degrees 17 minutes 54
seconds East, a distance of 46.89 feet to a concrete monument;
thence
5
8. South 70 degrees 38 minutes 36 seconds West, a distance of 524.76
feet; thence
9. South 70 degrees 37 minutes 52 seconds West, a distance of 664.05
feet; thence
10. North 01 degrees 06 minutes 02 seconds West, a distance of 984.92
feet to a point of curvature; thence
11. Along a curve to the left said curve having a radius of 525.75 feet,
a length along the arc of 173.66 feet, a bearing along the chord of
North 10 degrees 33 minutes 47 seconds West and a chord distance of
172.87 feet to a point of tangency; thence
12. North 20 degrees 01 minutes 32 seconds West, a distance of 278.70
feet to a point of curvature; thence
13. Along a curve to the left said curve having a radius of 30.00 feet,
a length along the arc of 40.36 feet, a bearing along the chord of
North 58 degrees 33 minutes 57 seconds West and a chord distance of
37.38 feet to a point on a non-tangent curve in the southerly
sideline of Knightsbridge Road; thence
14. Along said sideline on a curve to the left said curve having a
radius of 656.91 feet, a length along the arc of 99.40, a bearing
along the chord of North 74 degrees 18 minutes 34 seconds East and a
chord distance of 99.31 feet to a point of tangency; thence
15. Continuing along said sideline, North 69 degrees 58 minutes 28
seconds East, a distance of 343.84 feet; thence
16. Continuing along said sideline, South 26 degrees 49 minutes 31
seconds East, a distance of 5.04 feet; thence
17. Continuing along said sideline, North 69 degrees 58 minutes 28
seconds East, a distance of 268.62 feet to a point of curvature;
thence
18. Along said sideline on a curve to the right said curve having a
radius of 30.00 feet, a length along the arc of 43.56 feet, a
bearing along the chord of South 68 degrees 25 minutes 32 seconds
East and a chord distance of 39.84 feet to the Point of BEGINNING.
The above description is drawn in accordance with a Survey prepared by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, PLS of ▇▇▇▇▇▇ Associates, PA, dated January 10, 2005, last revised
January 24, 2005.
For Information Only:
Commonly known as: ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
Block 501.01, Lot 6.01 - Tax Map of the Township of
Piscataway
6
EXHIBIT B
EQUIPMENT
All fixtures, machinery, apparatus, equipment, fittings and appliances of every
kind and nature whatsoever now or hereafter affixed or attached to or installed
in any of the Leased Premises (except as hereafter provided), including all
electrical, anti-pollution, heating, lighting (including hanging fluorescent
lighting), incinerating, power, air cooling, air conditioning, humidification,
sprinkling, plumbing, lifting, cleaning, fire prevention, fire extinguishing and
ventilating systems, devices and machinery and all engines, pipes, pumps, tanks
(including exchange tanks and fuel storage tanks), motors, conduits, ducts,
steam circulation coils, blowers, steam lines, compressors, oil burners,
boilers, doors, windows, loading platforms, lavatory facilities, stairwells,
fencing (including cyclone fencing), passenger and freight elevators, overhead
cranes and garage units, together with all additions thereto, substitutions
therefor and replacements thereof required or permitted by this Lease, but
excluding all personal property and all trade fixtures, machinery, office,
manufacturing and warehouse equipment which are not necessary to the operation
of the buildings which constitute part of the Leased Premises for the uses
permitted under Paragraph 4(a) of this Lease, including, but not limited to, the
following:
a. All data center equipment -- PDU's, A/C units, batteries, UPS units,
etc.
b. Two 1500 KW generators and ancillary equipment
c. Mechanics' tools and equipment
d. Laboratory equipment and furniture
e. A/C units specific to a lab or office
f. Built-in and portable audio/visual equipment
g. Portable kitchen equipment
h. Office furniture
i. Personal computers
j. Computer Servers
k. Vehicles
EXHIBIT B-1
EXHIBIT C
PERMITTED ENCUMBRANCES
1. Encroachments, overlaps, boundary line disputes, and any other matters
which would be disclosed by an accurate survey and inspection of the
premises.
2. Easement to the Defense Plant Corporation recorded in Deed Book 1235, Page
263; an Easement to Texas Eastern Transmission Corporation recorded in
Deed Book 2157, Page 85; as confirmed by Agreement recorded in Deed Book
2238, Page 52; as further confirmed by Agreement recorded in Deed Book
2426, Page 439; and as shown on the Survey prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
PLS of ▇▇▇▇▇▇ Associates, PA, dated January 10, 2005, last revised January
24, 2005 (affects Parcel One).
3. Subject to the benefits and burdens of those certain Easements with The
New Jersey ▇▇▇▇ Telephone Company recorded in Deed Book 2604, Page 802;
Deed Book 2766, Page 463; and Deed Book 2762, Page 1172; and as shown on
the Survey prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PLS of ▇▇▇▇▇▇ Associates, PA,
dated January 10, 2005, last revised January 24, 2005 (affects Parcel
One).
4. Sewer Agreement with the Township of Piscataway recorded in Deed Book
2610, Page 423 (affects Parcel One).
5. Easement to Public Service Electric and Gas Company recorded in Deed Book
2642, Page 88; and as shown on the Survey prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
PLS of ▇▇▇▇▇▇ Associates, PA, dated January 10, 2005, last revised January
24, 2005 (affects Parcel One).
6. Matters shown on that certain Map entitled "Survey Map of Proposed
Easement, Part of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇
Co., N.J." filed March 9, 1988 as Map ▇▇. ▇▇▇▇, ▇▇▇▇ ▇▇. ▇▇▇, including,
but not limited to: Proposed twenty-five. (25') foot NJ. ▇▇▇▇ Tel. Co.
Easement; and as shown on the Survey prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PLS
of ▇▇▇▇▇▇ Associates, PA, dated January 10, 2005, last revised January 24,
2005 (affects Parcel One).
7. Easements to Public Service Electric and Gas Company and/or New Jersey
▇▇▇▇ Telephone Company recorded in Deed Book 3034, Page 629; Deed Book
3061, Page 921; Deed Book 3077, Page 851; and Deed Book 4853, Page 615;
and as shown on the Survey prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PLS of ▇▇▇▇▇▇
Associates, PA, dated January 10, 2005, last revised January 24, 2005
(affects Parcel Two).
8. Restrictive Covenant recorded in Deed Book 4770, Page 570 (affects Parcel
One and Parcel Two).
9. Developer's Agreement recorded in Deed Book 4793, Page 447 (affects Parcel
One and Parcel Two).
EXHIBIT D-1
10. Rights of the following licensees and tenants having rights as licensees
only, none of which have an option to purchase or right of first refusal
affecting the Premises: MCImetro Access Transmission Services, LLC
("MCImetro"), Sprint Spectrum L.P. ("Sprint'), SkyTel Corp., a DE
corporation, ("SkyTel"), New York SMSA Limited Partnership ("NY SMSA"),
and Toshiba, a __ ("Toshiba").
11. Taxes and assessments for the year 2005 and subsequent years.
12. Rights or claims of parties in possession not shown by the public records.
13. Easements, or claims of easements, roads, ways or streams not shown by the
public records.
14. Any facts, rights, interests, or claims which are not shown by the public
records but which could be ascertained by an inspection of said land or by
making inquiry of persons in possession thereof.
15. Any lien, or right to a lien, for services, labor or material heretofore
or hereafter furnished, imposed by law and not shown by the public
records.
16. Planning, zoning and subdivision regulations and restrictions.
EXHIBIT D
BASIC RENT PAYMENTS
1. Basic Rent.
(a) Initial Term. Subject to the adjustments provided for in below in this
Exhibit D, Basic Rent payable in respect of the Term shall be US $8,913,190.00
per annum, payable monthly, in advance on each Basic Rent Payment Date, in equal
installments of US $742,765.83 each. Pro rata Basic Rent for the period from the
date hereof through the last day of the calendar month in which the Commencement
Date of this Lease occurs shall be paid on the date hereof.
(b) Renewal Term. Annual Basic Rent for each Renewal Term shall be payable
monthly, in advance, on each Basic Rent Payment Date, in equal installments, as
follows: (i) for the first Renewal Term, the Basic Rent for the first Lease Year
of such first Renewal Term shall be an amount equal to 120% of the Basic Rent in
effect as of the First Full Basic Rent Payment Date under this Lease and shall
be subject to the applicable annual adjustments provided for below in this
Exhibit D, (ii) for the second Renewal Term, the Basic Rent for the first Lease
Year of such second Renewal Term shall be an amount equal to 120% of the Basic
Rent in effect as of the First Full Basic Rent Payment Date under this Lease
and, thereafter, shall be subject to the applicable annual adjustments provided
below in this Exhibit D, (iii) for the third Renewal Term, the Basic Rent for
such third Renewal Term shall be an amount equal to 94% of the Fair Market
Rental Value as of the first day of such third Renewal Term, as determined in
accordance with Paragraph 29 of this Lease, and (iv) for the fourth Renewal
Term, the Basic Rent for such Renewal Term shall be an amount equal to 94% of
the Fair Market Rental Value as of the first day of such fourth Renewal Term, as
determined in accordance with Paragraph 29 of this Lease.
2. Initial Term Adjustments to Basic Rent.
(a) Basic Rent shall during the Initial Term not be adjusted until
the first (1st) anniversary of the Basic Rent Payment Date on which the first
full monthly installment of Basic Rent shall be due and payable (the "First Full
Basic Rent Payment Date") As of the first (1st) anniversary of the First Full
Basic Rent Payment Date and, thereafter, on each subsequent anniversary date
(each such date being hereinafter referred to as the "Basic Rent Adjustment
Date") of the First Full Basic Rent Payment Date occurring during the Initial
Term, Basic Rent shall be adjusted as follows:
(i) commencing on the first (1st) anniversary of the First Full
Basic Rent Payment Date and continuing for each Basic Rent Adjustment Date
occurring through and including the fourth (4th) anniversary date thereof,
by increasing the Basic Rent then in effect by the lesser of (x) the CPI
Increase (as defined below) and (y) two percent (2%) per annum over the
adjusted Basic Rent then in effect immediately preceding each such
anniversary date;
(ii) for the Lease Year commencing upon the fifth (5th) anniversary
of the First Full Basic Rent Payment Date, to an amount equal to the
greater of (A) the amount obtained by multiplying US $8,913,190.00 by the
lesser of (x) (100% plus the cumulative percentage CPI Increase over the
CPI in effect as of the First Full Basic Rent Payment Date) and (y)
113.14%, and (B) the Basic Rent then in effect immediately prior to such
fifth (5th) anniversary of the First Full Basic Rent Payment Date.
(iii) commencing upon the sixth (6th) anniversary of the First Full
Basic Rent Payment Date and continuing for each Basic Rent Adjustment Date
occurring
EXHIBIT D-1
during the Initial Term by increasing the Basic Rent then in effect by the
lesser of (x) the actual CPI increase and (y) two and one half percent
(2.5%) per annum over the adjusted Basic Rent then in effect immediately
preceding each such anniversary date;
(iv) notwithstanding the provisions of clause (iii) above, if, as of
any Basic Rent Adjustment Date occurring after the eleventh (11th)
anniversary of the First Full Basic Rent Payment Date (such date, the
"Calculation Date"), (1) the sum of (x) the aggregate Basic Rent due and
payable for the period up to and as of the applicable Basic Rent
Adjustment Date plus (y) the aggregate Basic Rent that remains due and
payable for the balance of the initial Term of the Lease without further
adjustment, equals or exceeds US $199,943,274.00, then, in such event, the
adjustments to Basic Rent set forth in clause (iii) above shall thereafter
cease and the Basic Rent for the balance of the initial Term of the Lease
shall remain at the amount per annum due and payable as of the date
immediately preceding such Calculation Date; provided that, (A) the
provisions of this clause (iv) shall not be self-operative and shall only
be effective and applicable if Tenant shall notify Landlord in writing of
its desire to declare the next occurring anniversary of the First Full
Basic Rent Payment Date as a Calculation Date, (B) in no event shall there
be any reduction in Basic Rent below the amount in effect as of the date
immediately preceding the Calculation Date as a result of the application
of this clause (iv), and (C) in no event shall Landlord be obligated to
disgorge or otherwise repay or reimburse Tenant (or any other party
claiming through Tenant) for any Basic Rent previously paid by Tenant as
of such Calculation Date for any reason (including an inadvertent failure
of Tenant to cause the application of the provisions of this clause (iv)).
(b) CPI Adjustment. As of each Basic Rent Adjustment Date during the
initial Term, whenever the CPI Increase is less than the applicable Adjustment
Cap, the Basic Rent in effect immediately prior to the applicable Basic Rent
Adjustment Date shall be multiplied the applicable CPI Increase, and such
product shall be added to the Basic Rent in effect immediately prior to such
Basic Rent Adjustment Date.
(c) During the Initial Term, notice of the new annual Basic Rent shall be
delivered to Tenant on or before the tenth (10th) day preceding each Basic Rent
Adjustment Date, but any failure to do so by Landlord shall not be or be deemed
to be a waiver by Landlord of Landlord's rights to collect such sums. Tenant
shall pay to Landlord, within ten (10) days after a notice of the new annual
Basic Rent is delivered to Tenant, all amounts due from Tenant, but unpaid,
because the stated amount as set forth above was not delivered to Tenant at
least ten (10) days preceding the Basic Rent Adjustment Date in question.
3. Renewal Term Adjustments to Basic Rent.
(a) During each of the first and second Renewal Terms, Basic Rent shall
not be adjusted until the first (1st) anniversary of the Basic Rent Payment Date
on which the first full monthly installment of Basic Rent during such Renewal
Term shall be due and payable (the "Renewal Term First Basic Rent Payment
Date"). As of the first (1st) anniversary of the Renewal Term First Basic Rent
Payment Date for each Renewal Term and, thereafter, on each subsequent
anniversary date of the Renewal Term First Basic Rent Payment Date during the
applicable Renewal Term, Basic Rent shall be adjusted by increasing the Basic
Rent then in effect by two percent (2%) per annum over the Basic Rent hi effect
for the Lease Year immediately preceding each such anniversary date (each such
date being hereinafter referred to as the "Renewal Term Rent Adjustment Date").
(b) During each of the first and second Renewal Terms, notice of the new
annual Basic Rent shall be delivered to Tenant on or before the tenth (10th) day
preceding each Renewal Term Rent Adjustment Date, but any failure to do so by
Landlord shall not be or be deemed to be
EXHIBIT D-2
a waiver by Landlord of Landlord's rights to collect such sums. Tenant shall pay
to Landlord, within ten (10) days after a notice of the new annual Basic Rent is
delivered to Tenant, all amounts due from Tenant, but unpaid, because the stated
amount as set forth above was not delivered to Tenant at least ten (10) days
preceding the Renewal Term Rent Adjustment Date in question.
4. Definitions.
As used in this Exhibit D and as referred to in the Lease, the following
terms shall have the following meanings:
"Adjustment Cap" shall mean (A) two percent (2%) during the period
commencing on the First Full Basic Rent Payment Date and ending on the fifth
(5th) anniversary of the First Full Basic Rent Payment Date and (B) two and
one-half percent (2.5%) during the period commencing on the sixth (6th)
anniversary of the First Full Basic Rent Payment Date and continuing until the
end of the initial Term.
"Anniversary Month" shall mean, commencing with January, 2006, each
January during the Term of the Lease.
"Comparison Month" shall mean the calendar month which is exactly one year
prior to Anniversary Month.
"CPI" shall mean the index known as United States Department of Labor,
Bureau of Labor Statistics, Consumer Price Index, All Urban Consumers, United
States City Average, All Items, (1982-84=100) or the successor index that most
closely approximates the CPI. If the CPI shall be discontinued with no successor
or comparable successor index, Landlord and Tenant shall attempt to agree upon a
substitute index or formula, but if they are unable to so agree, then the
matter shall be determined by arbitration in accordance with the rules of the
American Arbitration Association then prevailing in New York City. Any decision
or award resulting from such arbitration shall be final and binding upon
Landlord and Tenant and judgment thereon may be entered in any court of
competent jurisdiction. In no event shall the annual Basic Rent be adjusted
downward as a result of the application of any CPI adjustment.
"CPI Increase" shall mean the percentage increase in CPI from the Prior
Year CPI, which percentage increase shall be equal to the fraction, (A) the
numerator of which shall be (x) the CPI in the applicable Anniversary Month(s),
less (y) the Prior Year CPI, and (B) the denominator of which shall be the Prior
Year CPI.
"Prior Year CPI" shall mean the CPI in effect for the Comparison Month.
EXHIBIT D-3
EXHIBIT E
TERMINATION VALUES
Year Termination Amount
---------- ------------------
1 $ 137,228,637
2 137,222,967
3 137,273,257
4 137,323,167
5 137,367,297
6 137,198,517
7 137,268,767
8 136,187,719
9 135,163,902
10 133,948,564
11 132,995,487
12 131,853,949
13 130,757,562
14 129,687,094
15 128,641,547
16 127,502,819
17 126,375,642
18 125,344,854
Thereafter 125,341,824
EXHIBIT D-1
EXHIBIT F
POST-CLOSING OBLIGATIONS
A. Deferred Maintenance; Immediate Repairs, Etc.:
Tenant shall perform the following actions and provide Landlord with
written confirmation, satisfactory to Landlord, of completion of the activities
listed below for the ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (a/k/a ▇▇▇ ▇▇▇▇ ▇▇▇▇) property in
Piscataway, New Jersey. Tenant shall pay all costs associated with these Post
Closing Obligations, including oversight costs, in accordance with provisions of
the Lease:
1. On or before the later to occur of (x) the date that is one (1) year of
the date of this Lease and (y) sixty (60) days after the written request of
Landlord, evidence reasonably satisfactory to Landlord (and Lender, if so
required under the applicable Loan documents) that the Leased Premises is in
full compliance with all applicable zoning laws and ordinances relating to the
minimum number parking spaces (both regular and handicapped) required in light
of the current use and density of the Leased Premises; provided that, if despite
Tenant's commercially reasonable efforts such evidence cannot be obtained within
the time period set forth hereinabove, such time period for Tenant's compliance
with the foregoing obligations shall be tolled during any period that Tenant is
contesting any alleged claim of noncompliance pursuant to and in accordance with
Paragraph 14 of this Lease and such tolling shall continue until a final, non-
appealable decision on such contest is rendered.
2. Within ninety (90) days of the date of this Lease, each of the items of
repair or replacement identified on Schedule F-l annexed hereto as more fully
described in the Property Condition Report performed by RPMS Consulting
Engineers and dated as of January 25, 2005.
3. Within ninety (90) days of the date of this Lease, to the extent not
completed as of the date hereof, each of the items under the headings Priority
#1, Priority #2 and Special Consideration identified on Schedule F-2 annexed
hereto as more fully described in the Loss Prevention Report from Factory Mutual
Insurance Company dated January 8, 2004.
B. Environmental Conditions:
Tenant shall perform the following actions and provide Landlord with
written confirmation, satisfactory to Landlord, of completion of the activities
listed below for the ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (a/k/a ▇▇▇ ▇▇▇▇ ▇▇▇▇) property in
Piscataway, New Jersey. Tenant shall pay all costs associated with these Post
Closing Obligations, including oversight costs, in accordance with provisions of
the Lease (As used hereinbelow, the term "Closing Date" shall mean the date of
this Lease):
1. Former Heating Oil Underground Storage Tank ("UST") - Within sixty (60)
days of the Closing Date, Tenant shall provide Landlord with documentation,
satisfactory to Landlord, regarding the removal of the former 3,000-gallon
heating oil UST and the results of any historical sampling indicating that no
release from the former UST occurred. If Tenant is unable to provide
satisfactory documentation, then within ninety (90) days of the Closing Date,
Tenant shall cause an environmental consulting firm acceptable to Landlord to
take at lease two subsurface soil samples in the area of the former heating oil
UST to confirm that no release from the UST occurred. The samples shall be
collected from a depth which is sufficient to detect any release from the former
UST and the soil samples shall be sampled for parameters which are regulated by
the State of New Jersey in connection with petroleum product releases and also
for
ADDENDA-1
any additional parameters which are specific to the nature of the substances
formerly stored in the UST.
2. Adjacent Leaking Underground Storage Tank ("LUST") Site - Within ninety
(90) days of the Closing Date, Tenant shall have engaged an environmental
consulting firm acceptable to Landlord to conduct a file review of relevant
environmental agency files to obtain additional documentation on the LUST site
abutting the property to the south (4 ▇▇▇▇▇▇ ▇▇▇▇) and shall provide Landlord
with a written report summarizing the results of that file review.
3. Oil/Water Separator - Within one hundred twenty (120) days of the
Closing Date, Tenant will arrange for the removal of the oil/water separator
located in the area of the large drain to the west of the maintenance garage
aboveground storage tank ("AST") and shall conduct subsurface soil sampling in
the area of the former oil/water separator to determine whether any releases to
the environment have occurred. In the alternative, Tenant may conduct subsurface
soil sampling outside the physical boundary of the oil/water separator to
determine whether any release to the environment has occurred; shall remove all
contents from the oil/water separator and steam clean (or equivalent cleaning
process) the interior of the oil/water separator and shall then fill the
oil/water separator with concrete. If the results of subsurface sampling
document that a release to the environment from the oil/water separator has
occurred, Tenant shall use its best efforts to promptly remediate such release
to the New Jersey cleanup standards which are consistent with the current use of
the property.
4. Repair of Aboveground Storage Tank ("AST") Secondary Containment -
Within ninety (90) days of the Closing Date, weather permitting, Tenant shall
have repaired the compromised secondary containment surrounding the 2,000-gallon
heating oil AST located to the west of the maintenance garage. The secondary
containment shall be sufficient to contain 110% of the liquid contents of the
tank in the event of a complete release from the tank.
5. Repair of Fitting and/or Piping on Maintenance Garage Boiler Unit -
Within thirty (30) days of the Closing Date, Tenant shall have either repaired
the fitting on the product line adjacent to the boiler unit in the maintenance
garage or shall have repaired the piping line itself to prevent continued
petroleum leaks from the fitting.
6. Removal of Impacted Soils - Within one hundred twenty (120) days of the
Closing Date, Tenant shall have removed all impacted soils in the vicinity of
the former 1,000-gallon leaded gasoline UST and shall have conducted
confirmatory soil sampling to confirm that any residual contamination levels are
below applicable New Jersey cleanup standards applicable to the current use of
the property.
7. Unlabeled Drums of Freon-Within thirty (30) days of the Closing Date,
Tenant shall have placed appropriate labeling on the unlabeled drums of Freon
located within the mechanical room of Building RRC-3.
ADDENDA-2
8. Notices: Copies of all written documentation and any other
correspondence related to the Post Closing obligations of Tenant shall be sent
to Landlord either via electronic delivery or overnight mail to:
▇▇▇▇ ▇▇▇▇▇ LLP TELC (NJ) QRS 16-30, INC.
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. c/o W. P. ▇▇▇▇▇ & Co., LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Asset Management Department
(▇▇▇) ▇▇▇-▇▇▇▇ telephone ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ fax ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ telephone
(▇▇▇) ▇▇▇-▇▇▇▇ fax
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
ADDENDA-3
SHEDULE F-1
DATE: January 20, 2005
RPMS PROJECT NO.: 4089
PROJECT NAME: Telcordia ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇: ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇: Piscataway, New Jersey
ID No. ITEM QTY. UNIT UNIT COST TOTAL COST
------ ------------------------------------------------- ---- ---- ----------- -----------
1 Refinish soffit reveal 980 LF $ 1.27 $ 1,245
2 Refinish exterior walls 300 SF $ 1.45 $ 435
3 Repair concrete block dock fndn. 48 SF $ 20.43 $ 981
4 Repoint concrete block 1185 SF $ 1.22 $ 1,446
5 Repair loose cement parge 1185 SF $ 2.05 $ 2,429
6 Repaint patched wall areas 1185 SF $ 1.45 $ 1,718
7 Replace overhead door 1 EA $ 3,355.00 $ 3,355
8 Replace exterior door assembly 1 EA $ 1,212.10 $ 1,212
9 Reailgn overhead doors 3 EA $ 195.00 $ 585
10 Refinish bridge soffit access doors 12 EA $ 42.50 $ 510
11 Repair spalled precast conc. Panel LS $ 2,000
12 Examine bridge soffit plenums LS $ 1,500
13 Install new 1.275 MBTU/HR boiler in RRC-5 1 EA $ 17,600.00 $ 17,600
14 Replace double doors LS $ 150
15 Refinish toilet room floor and walls LS $ 400
16 Scrape, clean and paint oil circuit breaker I-191 LS $ 5,000
17 Investigate & repair oil leak on Transformer #1 LS $ 3,000
18 Investigate & repair oil leak on Transformer #2 LS $ 3,000
19 Repair oil leak on transformer OC1 -7 LS $ 9,000
20 Replace damaged light pole LS $ 800
-----------
TOTAL $ 56,365.54
===========
ADDENDA-4
SCHEDULE F-2
ADDENDA - 2
FACTORY MUTUAL INSURANCE COMPANY [FM GLOBAL LOGO]
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
FAX :(▇▇▇)▇▇▇-▇▇▇▇
Mailing Address: ▇.▇. ▇▇▇ ▇▇▇▇ - ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
January 08, 2004
IN REPLY REFER TO:
Account No. 1-17989
Mr. John Rofulowitz Index No. 31791 66
Science Applications International
Raritan River Software Systems Center
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Subject: LOSS PREVENTION REPORT dated December 5, 2003
Dear Mr. Rofulowitz:
Enclosed is the loss prevention report confirming FM Global's focused loss
prevention visit to the subject location to conduct a re-inspection for fire
and associated perils. We are working together with ▇▇▇▇▇▇▇ ▇▇▇▇▇ of your
Corporate Risk Management (858-826-4801) to maintain a high level of property
loss prevention at this facility. The following are our suggestions for the
recommendations listed on the report:
PRIORITY#1 (Low Cost Recommendations) The following recommendations are
relatively low cost. We suggest they be completed within 60 days:
- ▇▇-▇▇-▇▇▇: All sprinkler control valves in ▇▇▇▇. ▇ should be locked
in the open position.
- ▇▇-▇▇-▇▇▇: Weekly visual and monthly physical inspections should be
conducted for all sprinkler control valves.
- ▇▇-▇▇-▇▇▇: All sprinkler flow alarms should be tested on a monthly
frequency.
PRIORITY#2 (Moderate Cost Recommendations) The following recommendations will
require a moderate cost to complete. We suggest they be investigated for
completion within 90 days and be completed within six months.
- ▇▇-▇▇-▇▇▇: Automatic sprinklers should be provided in the ▇▇▇▇. ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇.
- ▇▇-▇▇-▇▇▇: Automatic Sprinklers should be provided in the Turbine
Generator Room.
PRIORITY#3(Advisory Recommendations) The following recommendations are
considered advisory and do not require immediate action. Although they do not
require immediate action, they are valid recommendations that would improve
property loss prevention at this facility.
- ▇▇-▇▇-▇▇▇: Plans for new construction, renovation, repairs, changes
in fire protection, etc. should be submitted to FM Global Plan
Review prior to the commencement of work.
1
SAIC
1/8/04
31797.66
Pg. 2
SPECIAL CONSIDERATION The following recommendations do not fit into the priority
classes listed above and need special consideration:
- ▇▇-▇▇-▇▇▇ B.D.F: Automatic sprinklers should be installed in the
following areas:
- Building 3 Engine Room 3D-107 and the cafeteria cooler boxes.
- UPS Building attached to ▇▇▇▇. ▇.
- Building 4 Mechanical Room and Penthouse.
These items were originally presented as loss prevention recommendations in
1986. Since that time, sprinkler protection has been added in several other
areas of this complex.
These items rise a significant hazard to both life safety, and property
protection at your facility. Your corporate Risk Management Department has
requested that we solicit a response from you within 60 days confirming action
taken to eliminate the hazard under recommendation 86-10-00).
If you have any questions or comments, please call me at ▇▇▇-▇▇▇-▇▇▇▇. I am also
available to discuss potential alternatives to the recommendations.
Very truly yours,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Account Engineer
FM Global, Los Angeles
office: ▇▇▇-▇▇▇-▇▇▇▇
email :▇▇▇▇▇, ▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Ec: ▇▇▇▇▇▇▇ ▇▇▇▇▇, SAIC, ▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇.▇▇▇▇.▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, Marah, Inc., ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Follow Up 3/6/04
▇.▇▇▇▇▇▇/▇. ▇▇▇▇▇▇▇-FM Global
Index
2
Part B. PROVIDE AUTOMATIC SPRINKLERS IN BUILDING ▇▇.▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇-▇▇▇ AND THE CAFETERIA COOLER BOXES.
"KEY EXPOSURE"
STATUS According to Mr. John Rofulowitz. the recommendation
will be studied for possible completion.
Part D. PROVIDE AUTOMATIC SPRINKLERS IN THE UPS BUILDING (NOW
USED FOR STORAGE) ATTACHED TO BUILDING NO. 5.
"KEY EXPOSURE"
STATUS According to Mr. John Rofulowitz, the recommendation will
be studied for possible completion.
Part F. PROVIDE SPRINKLERS IN BUILDING NO.4 MECHANICAL ROOM AND
PENTHOUSE.
"KEY EXPOSURE"
STATUS According to Mr. John Rofulowitz.the recommendation will
be studied for possible completion.
▇▇-▇▇-▇▇▇ PROVIDE AUTOMATIC SPRINKLERS IN THE FREIGHT ELEVATOR
EQUIPMENT ROOM IN BUILDING NO.4.
"KEY EXPOSURE"
THE HAZARD Having adequate sprinkler protection will
ensure that if the unthinkable happens, your business
will suffer only a limited interruption. Sprinkler
protection not only minimizes fire damage, but also
water and smoke damage, and allows for quick resumption
of normal operations,Promptly restarting operations will
help you retain your customers and market share.
STATUS Mr. John Rofulowitz, Fire Safety Specialist, stated that
this is a corporate decision.
▇▇-▇▇-▇▇▇ PROVIDE AUTOMATIC SPRINKLERS IN THE TURBINE GENERATOR
ROOM.
"KEY EXPOSURE" Automatic sprinkler protection should be provided in the
Turbine Generator Room, at main roof level and below
the grated metal mezzanine in Building No. 3.
Index: 031791.66-04 [FM GLOBAL LOGO]
Account: 01-17989
Order ID: 0000582842-13
3
\
▇▇-▇▇-▇▇▇ THE HAZARD A sprinkler system is the best defense against fire,
(continued) Sprinklers are tried and tested and have proven to be
the most practical and reliable means of controlling a
fire. Sprinkler protection minimizes not only the fire
damage, but also water and smoke damage, and allows
for quick resumption of normal operations. Extending the
automatic sprinkler system into this area will ensure
a adequate protection is provided.
TECHNICAL DETAIL Automatic sprinklers should be 165 deg.F below the
mezzanine and 286 deg.F above. This installation
should be capable of providing 0.20. gpm/sq.ft over the
entire room area (approximately 2,400 sq.ft)on both
levels concurrently , allowing 250 gpm for hose streams.
A standard wet pipe system should be used, and
sprinklers below the mezzanine should be equipped with
water ▇▇▇▇▇▇▇.
STATUS Mr. John Rofulowitz stated that there are plans to
remove the existing generator and replace it with a new
generator. Sprinklers will most likely be installed
as a part of this project. Expected completion date is
unknown.
▇▇-▇▇-▇▇▇ ALL SPRINKLERS CONTROL VALUES IN BUILDING NO. 4 SHOULD
BE LOCKED IN THE FULLY OPEN POSITION.
All fire service control values larger than 1-1/2 in or
controlling more than five sprinklers should be secured
in the fully-open position with locks and chains. Locks
and chains should be sturdy and resistant to
breakage except by heavy bolt cutters. Keys should be
distributed to personnel directly responsible for the
protection.
THE HAZARD FM Global loss experience shows that fires occurring
where the sprinkler protection is disabled can cause
severe fire damage and even collapse of an entire
building. Where sprinklers are fully operational, fire damage is
usually limited to a few hundred square feet.
Securing each valve open with a lock and chain helps
ensure the sprinkler valves will be open and protection
systems will operate at their full capacity during a
fire emergency.
STATUS According to Mr. John Rofulowitz, the recommendation
will be completed by May 2004.
Index: 031791066-04 [FM GLOBAL LOGO]
Account: 01-17989
Order ID: 0000582842-13
4
▇▇-▇▇-▇▇▇ IMPROVE THE EXISTING VALUE SUPERVISION PROGRAM INSPECTION
FREQUENCIES.
Improve the existing value supervision program to
virually inspect all sprinkler control valves on a
weekly basis (currently monthly) and physically try all
non-indicating sprinkler control valves on monthly basis
(currently semi-annually).
THE HAZARD An automatic sprinkler protection system is the best
defense against, fire, Small fires, which are capable of
being controlled, grow into large uncontrollable fires as
a result of improperly impaired fire protection Systems.
FM Global has experienced many losses at fully protected
facilities where the fire protection systems were
improperly impaired. In many of these losses, the impaired
systems were maintained out-of-service longer than
necessary. Frequent documented inspection and supervision
of sprinkler control valves will help ensure the sprinkler
system is operational in the event of fire. All of the
valves are electrically supervised, but electronic
supervision is not considered reliable enough to
substitute for weekly recorded inspections.
STATUS According to Mr. John Rofulowitz, the recommendation will
be studied for possible completion.
▇▇-▇▇-▇▇▇ IMPROVE THE EXISTING ALARM SUPERVISION PROGRAM
FREQUENCIES.
All sprinkler system waterflow, alarms should be tested
atleast monthly (currently quarterly) by flowing water
through the Inspector's Test Connections.
THE HAZARD Frequent testing of the sprinkler waterflow alarms is
needed to ensure that the alarm equipment remains in good
working condition and the sprinkler piping is free of
obstructions. The results of the tests should be
recorded,reviewed by management and retained on file for
prompt correction of noted deficiencies.
STATUS According to Mr. John Rofulowitz, the recommendation will
be studied for possible completion.
▇▇-▇▇-▇▇▇ SUBMIT PLANS TO FM GLOBAL FOR REVIEW.
Plans and specifications for any new construction, roofing
or roof repairs, changes in fire protection, installation
of gas-fired equipment, or occupancy changes should be
forwarded to FM Global for review and comment prior to the
start of the work.
Index: 031791-66-04 [FM GLOBAL LOGO]
Account: 01-17989
Order ID: 0000582842-13
5
▇▇-▇▇-▇▇▇ THE HAZARD Local code requirements may or may not cover needed
(continued) property conservation issues as they pertain to
construction, automatic protection etc. This may cause
buildings or occupancies at the facility to be subject to
severe damage during an emerfency leading to extensive
downtime to everyday operations.
STATUS The final conference did not focus on this
recommendations.
risk reduction Recommendations that have been completed or otherwise
removed are summarized in this section. HUMAN ELEMENT
RECOMMENDATIONS that have been completed often do not have
an associated loss estimate since they usually serve to
lower. The frequency and/or severity of a loss. For this
reason. We quantify them by counting the number of such
items that have been completed .
The "counts" of recommendations referenced in this section
include each part of multi-part recommendations except in
cases where each part represents optional ways to address
a single hazard. IN such cases, the recommendation is only
counted once.
physical No physical recommendations have been completed or removed
since our last evaluation.
recommendations
PHYSICAL RISK REDUCTION HISTORY
(COUNT OF RECOMMENDATIONS)
[BAR GRAPH]
Index: 03179166-04 [FM GLOBAL LOGO]
Account: 01-17989
Order ID: 0000582842-13
6
Human Element Recommendations
The following HUMAN ELEMENT recommendations have been completed or removed as a
result of this evaluation:
REC REMOVAL
NUMBER RECOMMENDATION SYNOPSIS METHOD
--------- -------------------------------------------------- ---------
▇▇-▇▇-▇▇▇ Lock all fire protection valves in Building No. 6. Completed
05 Dec 03
▇▇-▇▇-▇▇▇ Remove misc. storage and improve housekeeping in Completed
Building No. 4computer rooms. 05 Dec 03
HUMAN ELEMENT RISK REDUCTION
(COUNT OF RECOMMENDATIONS)
[PIE CHART]
HUMAN ELEMENT RISK REDUCTION HISTORY
(COUNT OF RECOMMENDATIONS)
[BAR GRAPH]
Index: 03179166-04 [FM GLOBAL LOGO]
Account: 01-17989
Order ID: 0000582842-13
7
EXHIBIT G
DESCRIPTION OF RELEASE PARCELS
ADDENDA-3
[RELEASE PANEL A]
[PLAN]
[RELEASE PANEL B]
[PLAN]
[GROUND LEASE PANEL]
[PLAN]
EXHIBIT H
FORM OF GUARANTY
EXECUTION COPY
SUBORDINATE GUARANTY AND SURETYSHIP AGREEMENT
THIS SUBORDINATE GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty"),
dated as of the day of_____, 2005, made by each of the entities executing this
Guaranty as a guarantor on the signature pages hereof (each, a "Guarantor" and
collectively the "Guarantors"), to TELC (NJ) QRS 16-30, INC., a Delaware
corporation ("Landlord").
WITNESSETH:
WHEREAS, Landlord, as lessor, has entered into a
Lease Agreement of even
date herewith (the "Lease"), in which Landlord leased to TELCORDIA TECHNOLOGIES,
INC., a Delaware corporation ("Tenant"), certain premises situate in Piscataway
(the "Leased Premises");
WHEREAS, each Guarantor is a wholly owned subsidiary of Tenant; and
WHEREAS, the execution and delivery by each Guarantor of this Guaranty is
a material inducement to Landlord to execute the Lease, and each Guarantor
expects to derive financial benefit from the Lease.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged by each
Guarantor, and intending to be legally bound, each Guarantor hereby covenants
and agrees as follows:
ARTICLE I
GUARANTEE
Section 1.01 Guaranteed Obligations. Each Guarantor hereby jointly and
severally absolutely unconditionally and irrevocably guarantees to and becomes
surety for Landlord and its successors and assigns for the due, punctual and
full payment, performance and observance of, and covenants with Landlord to
duly, punctually and fully pay and perform, the following (collectively, the
"Guaranteed Obligations"):
(a) the full and timely payment of all Rent and all other amounts
due or to become due to Landlord from Tenant under the Lease or any other
agreement or instrument executed in connection therewith, including without
limitation the Seller/Lessee's Certificate of even date therewith in favor of
Landlord, whether now existing or hereafter arising, contracted or incurred
(collectively, the "Monetary Obligations"); and
(b) all covenants, agreements, terms, obligations and conditions,
undertakings and duties contained in the Lease to be observed, performed by or
imposed upon Tenant under the Lease, whether now existing or hereafter arising,
contracted or incurred but excluding any of the foregoing constituting Monetary
Obligations (collectively, the "Performance Obligations"),
as and when such payment, performance or observance shall become due (whether by
acceleration or otherwise) in accordance with the terms of the Lease, which
terms are incorporated herein by reference. The Guaranteed Obligations shall not
be affected by the Tenant's voluntary or involuntary bankruptcy, assignment for
the benefit of creditors, reorganization or similar proceeding affecting the
Tenant. If for any reason any Monetary
-1-
Obligation shall not be paid promptly when due, each Guarantor shall,
immediately upon demand, pay the same to Landlord when due under the terms of
the Lease. If for any reason Tenant shall fail to perform or observe any
Performance Obligation, each Guarantor shall, immediately upon demand, but
subject to Section 1.05, perform and observe the same or cause the same to be
performed or observed. If, by reason of any bankruptcy, insolvency or similar
laws affecting the rights of creditors, Landlord shall be prohibited from
exercising any of Landlord's rights and remedies, including, but not limited to,
enforcement of the terms of the Lease against the Tenant, then as to each
Guarantor such prohibition shall be of no force and effect, and Landlord shall
have the right to make demand upon, and receive payment and/or performance from
each Guarantor of all Guaranteed obligations and such Guarantor's obligation in
this respect shall be primary and not secondary, but in each case subject to
Section 1.05. Each Guarantor acknowledges and agrees that the Monetary
Obligations include, without limitation, Rent and other sums accruing and/or
becoming due under the Lease following the commencement by or against Tenant of
any action under the United States Bankruptcy Code or other similar statute. The
Guarantors shall pay or cause to be paid any Monetary Obligations if and when
due under the terms of this Guaranty to Landlord at the address and in the
manner set forth in the Lease or at such other address as Landlord shall notify
Guarantors in writing.
Section 1.02 Guarantee Unconditional. Subject to the provisions of Section
1.05 of this Guaranty, the obligations of each Guarantor hereunder are
continuing, absolute and unconditional, irrespective of any circumstance
whatsoever which might otherwise constitute a legal or equitable discharge or
defense of a guarantor or surety. Without limiting the generality of the
foregoing, the obligations of each Guarantor hereunder shall remain in full
force and effect without regard to, and shall not be released, discharged,
abated, impaired or in any way affected by any of the following, all of which
may be given or done without notice to, or consent of, any Guarantor:
(a) any amendment, modification, extension, renewal or supplement to
the Lease or any termination of the Lease or any interest therein;
(b) any assumption by any party of Tenant's or any other party's
obligations under, or Tenant's or any other party's assignment of any of its
interest in, the Lease;
(c) any exercise or nonexercise of or delay in exercising any right,
remedy, power or privilege under or in respect of this Guaranty or the Lease or
pursuant to applicable law (even if any such right, remedy, power or privilege
shall be lost thereby), including, without limitation, any so-called self-help
remedies, or any waiver, consent, compromise, settlement, indulgence or other
action or inaction in respect thereof;
(d) any change in the financial condition of Tenant, the voluntary
or involuntary liquidation, dissolution, sale of all or substantially all of the
assets, marshalling of assets and liabilities, receivership, conservatorship,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting Landlord, Tenant or any Guarantor or any of their assets or any
impairment, modification, release or limitation of liability of Landlord, Tenant
or any Guarantor or their respective estates in bankruptcy or of any remedy for
the enforcement of such liability resulting from the operation of any present or
future provision of the United States Bankruptcy Code or other similar statute
or from the decision of any court;
(e) any extension of time for payment or performance of the
Guaranteed Obligations or any part thereof;
(f) the genuineness, invalidity or unenforceability of all or any
portion or provision of the Lease;
-2-
(g) any defense that may arise by reason of the failure of Landlord
to file or enforce a claim against the estate of Tenant in any bankruptcy or
other proceeding;
(h) the release or discharge of or accord and satisfaction with of
Tenant or any other person or entity from performance or observance of any of
the agreements, covenants, terms or conditions contained in the Lease by
operation of law or otherwise;
(i) the failure of Landlord to keep any Guarantor advised of
Tenant's financial condition, regardless of the existence of any duty to do so;
(j) any assignment by Landlord of all of Landlord's right, title and
interest in, to and under the Lease and/or this Guaranty as collateral security
for any Loan;
(k) any present or future law or order of any government (de jure or
de facto) or of any agency thereof purporting to reduce, amend or otherwise
affect the Guaranteed Obligations or any or all of the obligations, covenants or
agreements of Tenant under the Lease (except by payment in full of all
Guaranteed Obligations) or any Guarantor under this Guaranty (except by payment
in full of all Guaranteed Obligations);
(l) the default or failure of any Guarantor fully to perform any of
its obligations set forth in this Guaranty;
(m) any actual, purported or attempted sale, assignment or other
transfer by Landlord of the Lease or the Leased Premises or any part thereof or
of any of its rights, interests or obligations thereunder;
(n) any merger or consolidation of Tenant into or with any other
entity, or any sale, lease, transfer or other disposition of any or all of
Tenant's assets or any sale, transfer or other disposition of any or all of the
shares of capital stock or other securities of Tenant or any affiliate of Tenant
to any other person or entity;
(o) Tenant's failure to obtain, protect, preserve or enforce any
rights in or to the Lease or the Leased Premises or any interest therein against
any party or the invalidity or unenforeeability of any such rights; or
(p) any other event, action, omission or circumstances which might
in any manner or to any extent impose any risk to any Guarantor or which might
otherwise constitute a legal or equitable release or discharge of a guarantor or
surety.
No setoff, claim, reduction or diminution of any obligation, or any defense of
any kind or nature which Tenant or any Guarantor now has or hereafter may have
against Landlord shall be available hereunder to any Guarantor against Landlord.
Section 1.03 No Notice or Duty to Exhaust Remedies. (a) Each Guarantor
hereby waives notice of any default in the payment or non-performance of any of
the Guaranteed Obligations (except as expressly required hereunder), diligence,
presentment, demand, protest and all notices of any kind. Each Guarantor agrees
that liability under this Guaranty shall be primary and hereby waives any
requirement that Landlord exhaust any right or remedy, or proceed first or at
any time, against Tenant or any other guarantor of, or any security for, any of
the Guaranteed Obligations. Each Guarantor hereby waives notice of any
acceptance of this Guaranty and all matters and rights which may be raised in
avoidance of, or in defense against, any action to enforce the obligations of
any Guarantor hereunder. Each Guarantor hereby waives any and all suretyship
defenses or defenses in the nature thereof without in any manner limiting
-3-
any other provision of this Guaranty. This Guaranty constitutes an agreement of
suretyship as well as of guaranty, and Landlord may pursue its rights and
remedies under this Guaranty and under the Lease in whatever order, or
collectively, and shall be entitled to payment and performance hereunder
notwithstanding any action taken by Landlord or inaction by Landlord to enforce
any of its rights or remedies against any other guarantor, person, entity or
property whatsoever. This Guaranty is a guaranty of payment and performance and
not merely of collection.
(b) Landlord may pursue its rights and remedies under this Guaranty
notwithstanding any other guarantor of or security for the Guaranteed
Obligations or any part thereof. Each Guarantor authorizes Landlord, at its sole
option, without notice or demand and without affecting the liability of any
Guarantor under this Guaranty, to terminate the Lease, either in whole or in
part, in accordance with its terms.
(c) Each default on any of the Guaranteed Obligations shall give
rise to a separate cause of action and separate suits may be brought hereunder
as each cause of action arises or, at the option of Landlord any and all causes
of action which arise prior to or after any suit is commenced hereunder may be
included in such suit.
Section 1.04 Subrogation. Notwithstanding any payments made or obligations
performed by any Guarantor by reason of this Guaranty (including but not limited
to application of funds on account of such payments or obligations), each
Guarantor hereby defers until one (1) year and one (1) day following the date on
which all Monetary Obligations have been paid in full in cash and the Senior
Indebtedness shall have been paid in full in cash, any and all rights it may
have, at any time, whether arising directly or indirectly, by operation of law,
contract or otherwise, to assert any claim against Tenant or any other Guarantor
or any other person or entity or against any direct or indirect security on
account of payments made or obligations performed under or pursuant to this
Guaranty, including without limitation any and all rights of subrogation,
reimbursement, exoneration, contribution or indemnity, and any and all rights
that would result in any Guarantor being deemed a "creditor" under the United
States Bankruptcy Code of Tenant or any other Guarantor or any other person or
entity. If any payment shall be paid to any Guarantor on account of any
subrogation rights prior to such payment in full in cash of all Monetary
Obligations and the Senior Indebtedness shall have been paid in full in cash,
each and every amount so paid shall immediately be paid to Landlord to be
credited and applied upon any of the Guaranteed Obligations, whether or not then
due and payable. Every claim or demand which any Guarantor may have against
Tenant or any other Guarantor arising from or in connection with any payment or
performance of any Guaranteed Obligations shall be fully subordinated to all
Guaranteed Obligations to the same extent that the claims of the Guarantors
against Tenant and/or any other Guarantor are subordinated to the Senior
Indebtedness (as defined below).
Section 1.05 Subordination to Senior Indebtedness.
(a) Notwithstanding any provision contained in this Guaranty to the
contrary, all indebtedness, liabilities and obligations evidenced hereby or
arising under this Guaranty in respect of the Guaranteed Obligations
(hereinbelow referred to as the "Junior Indebtedness") shall be subordinated and
subject in right of prior payment in full in cash of the Senior Indebtedness to
the extent and in the manner set forth below in this Section 1.05. For the
purpose hereof, the term "Senior Indebtedness" shall mean all monetary
obligations of whatever nature (including principal, interest, premium, fees,
commissions, expense reimbursement, indemnities and reimbursement obligations in
respect of drawn and undrawn letters of credit) of the Guarantors as guarantor,
issuer, borrower or otherwise (i) under that certain Credit Agreement, to be
dated on or about March __, 2005, among the Tenant, the Lenders parties thereto,
Deutsche Bank Trust Company Americas and ▇▇▇▇▇▇ Commercial Paper Inc., as Co-
-4-
Documentation Agents, Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as Syndication
Agent, and JPMorgan Chase Bank, N.A., as Administrative Agent (unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement as defined below) including
any related notes, letters of credit, guarantees, collateral documents, cash
management agreements and arrangements, interest rate and currency hedging
agreements and arrangements of any kind, instruments and agreements executed in
connection therein, and, in each case, as amended, restated, supplemented,
modified, renewed, increased, extended, replaced, refinanced or refunded from
time to time in one or more agreements or indentures (in each case with the same
or new lenders or investors), including any agreement extending the maturity
thereof or otherwise restructuring all or any portion of the indebtedness
thereunder or increasing the amount loaned or issued thereunder or altering the
maturity thereof (the foregoing, collectively, as amended, restated,
supplemented, modified, renewed, increased, extended, replaced, refinanced or
refunded from time to time, in one or more agreements, the "Credit Agreement");
(ii) under the senior subordinated notes described in the Offering Memorandum
dated as of February_____, 2005, and any other capital market bonds, notes or
debentures, letters of credit and related guarantees, cash management
obligations and interest rate and currency hedging agreements and arrangements
of any kind issued from time to time (the foregoing, collectively, as amended,
restated, supplemented, modified, renewed, increased, extended, replaced,
refinanced or refunded from time to time in one or more agreements or
indentures, each a "Capital Market Security"); and (iii) any other indebtedness
("Other Senior Indebtedness") for borrowed money, notes, letters of credit,
bonds and debentures payable to a bank, insurer or other institutional type
lender and properly classified by Tenant as Senior Indebtedness at the time
incurred; provided that, Other Senior Indebtedness shall not, in any event,
include: (1) any trade payables (or unsecured obligations in connection
therewith), (2) tax obligations of Tenant or any Guarantor, (3) any preferred
shares of any Guarantor or of Tenant, (4) any indebtedness resulting from a
conversion of equity interests in Tenant or any Guarantor to debt from and after
the date of this Guaranty, or (5) any other indebtedness for borrowed money
from, through, or on behalf of, (x) any officer, director or principal of any
Guarantor or of Tenant (or any family member of any such officer or director or
trust for the benefit of such person and/or their family), (y) Tenant, or any
other affiliate or subsidiary of Tenant that is not a Guarantor, or (z) any
person, if such indebtedness is convertible to equity at the option of any
Guarantor or Tenant (as opposed to the option of the holder of such
indebtedness). Senior Indebtedness shall include any interest payable in respect
of any of the foregoing obligations described in clauses (i) through (iii) above
subsequent to the commencement of any proceeding against or with respect to the
Guarantors under any chapter of the Bankruptcy Code, 11 U.S.C. section 101 et
seq. (the "Bankruptcy Code"), whether or not such interest would be an allowed
claim in such proceeding.
(b) Unless and until the Senior Indebtedness shall have been paid in full
in cash, (i) no payment or distribution, whether in cash, property or
securities, in respect of the Junior Indebtedness (whether by scheduled payment,
prepayment, redemption, purchase, defeasance or otherwise) shall be made by any
Guarantor with respect to any Junior Indebtedness, and (ii) the holders of the
Junior Indebtedness shall not seek, file, or join in any action, petition or
proceeding for the purpose of commencing an involuntary bankruptcy or insolvency
proceeding against any Guarantor under the Bankruptcy Code or any applicable
state insolvency law. Unless and until the payment obligations under the loans
incurred in connection with Tenant's principal Credit Agreement (as determined
in good faith by Tenant) have been accelerated or the payment obligations in
connection with Tenant's principal Capital Market Securities have been
accelerated, the holders of the Junior Indebtedness shall refrain from declaring
any Junior Indebtedness to be immediately due and payable, or joining with any
other person in any such declaration, or otherwise taking any action against any
Guarantor to enforce or collect to attempt any Junior Indebtedness, including,
without limitation, commencing any legal action (including any proceeding for
the liquidation, dissolution, or other winding up of any
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Guarantor) against any Guarantor or making any demand for payment of any Junior
Indebtedness; provided that nothing herein shall prevent such holder of the
Junior Indebted ness of notifying each or any Guarantor of the existence of a
subordinate obligation hereunder in accordance with Section 3.01(b) hereof. Any
payment or distribution to (or recovery made by) or for the benefit of the
holders of the Junior Indebtedness shall be paid over to the holders of the
Senior Indebtedness in accordance with Section 1.05(d).
(c) Upon any payment or distribution of assets of any kind or character,
whether in cash, property or securities, to creditors upon any dissolution or
winding up or total or partial liquidation or reorganization of any Guarantor,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all Senior Indebtedness of the Guarantors shall first be paid
in full in cash before any payment or distribution is made with respect to the
Junior Indebtedness; and upon any such acceleration, declaration of acceleration
or dissolution or winding up or liquidation reorganization or proceeding, any
payment or distribution of assets of any kind or character, whether in cash,
property or securities, to which the holders of Junior Indebtedness would be
entitled except for the provisions hereof, shall be paid by the Guarantors or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, or by the holders of Junior Indebtedness if
received by them, directly to the holders of Senior Indebtedness or their
representatives to the extent necessary to pay all Senior Indebtedness in full
in cash, after giving effect to any concurrent prepayment or distribution to or
for the benefit of the holders of Senior Indebtedness, before any payment or
distribution is made to the holders of Junior Indebtedness. In furtherance of
the foregoing, but not by way of limitation thereof, in the event that any
Guarantor shall file or have filed against it a petition under any chapter of
the Bankruptcy Code or be adjudicated a bankrupt thereunder, with the result
that such Guarantor is excused from the obligation to pay all or any part of the
interest otherwise payable in respect of any Senior Indebtedness during the
period subsequent to the commencement of any such proceedings under the
Bankruptcy Code, each holder of Junior Indebtedness by its acceptance hereof
does hereby agree that all or such part of such interest, as the case may be,
shall be payable out of, and to that extent diminish and be at the expense of,
reorganization dividends or other distributions in respect of such Junior
Indebtedness.
(d) In the event that any payment or distribution of any kind or
character, whether in cash, property or securities, not permitted by the
foregoing provisions of this Section 1.05 shall be received by any holder of any
Junior Indebtedness from any Guarantor, such payment or distribution shall be
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of the Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been issued or under
which such instruments are pledged or issued, as their respective interests may
appear, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in cash in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
(e) The provisions hereof are solely for the purpose of defining the
relative rights of the holders of Senior Indebtedness on the one hand and the
holders of the Junior Indebtedness on the other hand, and nothing herein shall
impair, as between the Guarantors and Landlord, the obligations of the
Guarantors under this Guaranty which are unconditional and absolute
(f) The holders of Senior Indebtedness under clauses (i) and (ii) of
Section 1.05(a) above shall be entitled to rely (and shall be deemed
conclusively to have relied) upon the terms and conditions of this Guaranty and
no amendment, modification or supplement of this
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Guaranty shall be permitted, or effective and/or binding upon such holders,
unless same shall be consented to in writing by such holders in advance.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations and Warranties. The representations and
warranties made by each Guarantor in that certain Guarantor's Certificate of
even date herewith made by each Guarantor in favor of Landlord are hereby
incorporated by reference herein (with all related definitions). Each Guarantor
hereby represents and warrants to Landlord as provided therein.
Section 2.03 Notice of Certain Events. Promptly upon becoming aware
thereof, Guarantors (or any one of them) shall give Landlord notice of (i) any
"event of default" (or equivalent event) by Tenant under all or any portion of
the Senior indebtedness, or (ii) any claims by any holders of the Senior
Indebtedness for non-payment against any Guarantor under any guaranty thereof.
ARTICLE III
EVENTS OF DEFAULT
Section 3.01 (a) Events of Default. The occurrence of any one or more of
the following shall constitute an "Event of Default" under this Guaranty:
(i) a failure by any Guarantor to make any payment of any Monetary
Obligation, regardless of the reason for such failure;
(ii) a failure by any Guarantor duly to perform and observe, or a
violation or breach of, any other provision hereof not otherwise specifically
mentioned in this Section 3.01 and such failure continues for thirty (30) days
after notice from Landlord thereof; or
(iii) any material representation or warranty made by any Guarantor
herein or in any certificate, demand or request made pursuant hereto proves to
be untrue or incorrect, in any material respect, on the date made.
(b) Notwithstanding the occurrence of any one or more of the
foregoing Events of Default and Landlord's notice to any Guarantor of the
existence of a claim against any Guarantor, Landlord's right and ability to
commence any action against, recover any sums from, or to otherwise exercise or
enforce any remedies, or attempt to collect any damages hereunder for any
Guaranteed Obligations shall be subject to the terms and limitations of Section
1.05 hereof.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Effect Of Bankruptcy Proceedings. This Guaranty shall
continue to be effective, or be automatically reinstated, as the case may be, if
at any time payment, in whole or in part, of any of the Guaranteed Obligations
is rescinded or must otherwise be restored or returned by Landlord as a
preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency
or similar law, all as though such payment had not been made. Each Guarantor
hereby agrees to indemnify Landlord against, and to save and hold Landlord
harmless from any required return by Landlord, or recovery from Landlord, of any
such payment because of its being deemed preferential under applicable
bankruptcy, receivership or insolvency laws, or for any other reason. If an
Event of Default at any time shall have occurred and be continuing or
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exist and declaration of default or acceleration under or with respect to the
Lease shall at such time be prevented by reason of the pendency against Tenant
of a case or proceeding under any bankruptcy or insolvency law, each Guarantor
agrees that, for purposes of this Guaranty and its obligations hereunder, the
Lease shall be deemed to have been declared in default or accelerated with the
same effect as if the Lease had been declared in default and accelerated in
accordance with the terms thereof, and each Guarantor shall, subject to Section
1.05, forthwith pay and perform the Guaranteed Obligations in full without
further notice or demand.
Section 4.02 Further Assurances. From time to time upon the request of
Landlord, each Guarantor shall promptly and duly execute, acknowledge and
deliver any and all such further instruments and documents as Landlord may deem
necessary or desirable to confirm this Guaranty, to carry out the purpose and
intent hereof or to enable Landlord to enforce any of its rights hereunder.
Section 4.03 Amendments, Waivers, Etc. This Guaranty cannot be amended,
modified, waived, changed, discharged or terminated except by an instrument in
writing signed by the party against whom enforcement of such amendment,
modification, waiver, change, discharge or termination is sought.
Section 4.04 No Implied Waiver: Cumulative Remedies. No course of dealing
and no delay or failure of Landlord in exercising any right, power or privilege
under this Guaranty or the Lease shall affect any other or future exercise
thereof or exercise of any other right, power or privilege; nor shall any single
or partial exercise of any such right, power or privilege or any abandonment or
discontinuance of steps to enforce such a right, power or privilege preclude any
further exercise thereof or of any other right, power or privilege. The rights
and remedies of Landlord under this Guaranty are cumulative and not exclusive of
any rights or remedies which Landlord would otherwise have under the Lease, at
law or in equity.
Section 4.05 Notices. All notices, requests, demands, directions and other
communications (collectively "notices") under the provisions of this Guaranty
shall be in writing (including telexed communication) unless otherwise expressly
permitted hereunder and shall be sent by first-class or first-class express
mail, or by telex with confirmation in writing mailed first-class, in all cases
with charges prepaid, and any such properly given notice shall be effective when
received. All notices shall be sent to the applicable party addressed, if to
Landlord, at the address set forth in the Lease with a copy to ▇▇▇▇ ▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: Real
Estate Dept. Chairman, and, if to any Guarantor c/o Tenant at the Leased
Premises, Attention: Chief Financial Officer, with a copy to ▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq., or in accordance with the last unrevoked written direction
from such party to the other party.
Section 4.06 Expenses. Each Guarantor agrees to pay or cause to be paid
and to save Landlord harmless against liability for the payment of all
reasonable out-of-pocket expenses, including fees and expenses of counsel for
Landlord, incurred by Landlord from time to time arising in connection with
Landlord's enforcement or preservation of rights under this Guaranty or the
Lease, including but not limited to such expenses as may be incurred by Landlord
in connection with any default by any Guarantor of any of its obligations
hereunder or by Tenant of any of its obligations under the Lease.
Section 4.07 Survival. All obligations of each Guarantor to make payments
to or indemnify Landlord shall survive the payment and performance in full of
the Guaranteed Obligations.
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Section 4.08 Severability. If any term or provision of this Guaranty or
the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Guaranty, or the application of
such term or provision to persons or cirumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Guaranty shall be valid and enforceable to the fullest extent
permitted by law.
Section 4.09 Counterparts. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
Section 4.10 Governing Law. This Guaranty was negotiated in
New York, and
accepted by Landlord in the State of
New York, which State the parties agree has
a substantial relationship to the parties and to the underlying transaction
embodied hereby, and in all respects, including, without limiting the generality
of the foregoing, matters of construction, validity and performance, this
Guaranty and the obligations arising hereunder shall be governed by, and
construed in accordance with, the laws of the State of
New York applicable to
contract made and performed in such State and any applicable law of the United
States of America. To the fullest extent permitted by law, each Guarantor hereby
unconditionally and irrevocably waives any claim to assert that the law of any
other jurisdiction governs this Guaranty, and the Guaranty shall be governed by
and construed in accordance with the laws of the State of
New York pursuant to.
section 5-1401 of the
New York General Obligations Law.
Section 4.11 Successors and Assigns; Joint and Several. This Guaranty
shall bind each Guarantor and its successors and assigns, and shall inure to the
benefit of Landlord and its successors and assigns. The obligations and
liabilities of each Guarantor under this Guaranty shall be joint and several. As
used in this Guaranty, the singular shall include the plural and vice-versa.
Section 4.12 Incorporation of Recitals: Definitions. The recitals set
forth on page 1 of this Guaranty are hereby specifically incorporated into the
operative terms of this Guaranty as if fully set forth. Terms not otherwise
specifically defined herein shall have the meanings set forth in the Lease.
Section 4.13 Rights of Lender. Each Guarantor acknowledges that the rights
of Landlord under this Guaranty may be assigned to Lender and upon such
assignment Lender shall have all of the rights and benefits and obligations of
Landlord hereunder if such Lender succeeds to the interest of Landlord under the
Lease.
Section 4.14. Release. Notwithstanding any provision hereof to the
contrary, the obligations of each applicable Guarantor under this Guaranty shall
cease to be effective immediately upon notice to Landlord upon the earliest to
occur of the following dates:
(a) The date of the payment in full satisfaction of all Guaranteed
Obligations (but subject to the provisions of Section 4.01 and 4.l4(c)).
(b) The date (hat such Guarantor is released and discharged (other
than in any bankruptcy or insolvency proceeding) from its obligations as a
guarantor under all guaranties of the Senior Indebtedness under Tenant's
principal Credit Agreement and Capital Market Security (as determined in good
faith by Tenant) for any reason, except: (i) a release granted as consideration,
in whole or in part, for a partial pay-down of Senior Indebtedness either under
Tenant's principal Credit Agreement or principal Capital Market Security (as
determined in good faith by Tenant), unless such release is in connection with a
bona fide sale of such Guarantor to a third party and the consideration paid for
such sale inures (directly or indirectly)
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to the financial benefit of Tenant or any other Guarantor hereunder), (ii) a
release in connection with a refinancing or replacement of any Senior
Indebtedness if such new Senior Indebtedness is itself guaranteed by such
Guarantor, and (iii) a release in connection with the addition of a substitute
or replacement guarantor as a guarantor of any Senior Indebtedness, unless such
replacement guarantor is a Guarantor hereunder. Upon notice of any such release
(and, if requested, evidence thereof) provided to Landlord shall confirm such
release but the failure to do so shall not affect such release.
(c) The date on which the Tenant's obligations under its Credit
Agreement or under its long term unsecured noncredit enhanced debt are rated at
least BBB+ (or equivalent) by Standard & Poor's Ratings Services ("S&P") (or any
successor thereto) or Baal (or equivalent) by ▇▇▇▇▇'▇ Investor's Services, Inc.
(or any successor thereto) ("▇▇▇▇▇'▇") or the equivalent ratings (or if neither
▇▇▇▇▇'▇ nor S&P cease to rate such indebtedness of Tenant (collectively, the
"Credit Rating Threshold"), from any other "nationally recognized statistical
ratings organization" within the meaning of Rule 15c3(c)(2)(vi)(F) of the
Securities Exchange Act of 1934, as amended or replaced, as selected by Tenant
as a replacement rating agency. Notwithstanding the foregoing, if, any time
after a release of any or all of the Guarantors under this subsection (c),
Tenant's long term unsecured noncredit enhanced debt rating shall fall below the
Credit Rating Threshold then the obligations of each Guarantor not previously
released pursuant to subsection 4.14(b) above shall be automatically reinstated
without the need for any notice or action of the part of Landlord or such
Guarantors, provided however, that upon the request of Landlord, each Guarantor
shall execute a ratification and confirmation of the reinstatement and
continuing effectiveness of this Guaranty.
[SIGNATURES ON THE FOLLOWING PAGES]
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Subordinate Guaranty and Suretyship Agreement as of the date first above
written.
GUARANTORS:
ATTEST: DATABASE SERVICE MANAGEMENT, INC., a Delaware
corporation
By: _________________________ By: __________________________________________
Name: _______________________ Name: ________________________________________
Title: ______________________ Title: _______________________________________
TELCORDIA TECHNOLOGIES INTERNATIONAL, INC.,
a Delaware corporation
By: _________________________ By: __________________________________________
Name: _______________________ Name: ________________________________________
Title: ______________________ Title: _______________________________________
GRANITE SYSTEMS, INC., a Delaware corporation
By: _________________________ By: __________________________________________
Name: _______________________ Name: ________________________________________
Title: ______________________ Title: _______________________________________
GRANITE SYSTEMS HOLDING COMPANY, INC., a Delaware
corporation
By:__________________________ By:___________________________________________
Name:________________________ Name:_________________________________________
Title:_______________________ Title:________________________________________
MEDITERRANEAN VENTURES, LLC, a Delaware limited
liability company
By:__________________________ By:___________________________________________
Name:________________________ Name:_________________________________________
Title:_______________________ Title:________________________________________
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▇▇▇▇▇ HOLDINGS, LLC, a Delaware limited liability
company
By: __________________________ By: ___________________________________________
Name: ________________________ Name: _________________________________________
Title: _______________________ Title: ________________________________________
MESA SOLUTIONS, INC., a Delaware corporation
By: __________________________ By: ___________________________________________
Name: ________________________ Name: _________________________________________
Title: _______________________ Title: ________________________________________
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