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EXHIBIT 10.6
AGREEMENT OF LEASE
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This Agreement of Lease is entered into as of the 9th day of January
1997 between the LANDLORD named below and the TENANT named below, as follows:
In consideration of the rents, covenants and conditions hereinafter
reserved and contained, Landlord hereby agrees to lease to Tenant, and Tenant
hereby agrees to hire from Landlord, the Demised Premises described herein.
Landlord and Tenant agree that the terms and conditions of this lease
are as set forth in this Agreement of Lease, and the attached General Terms of
Lease, including, without limitation, the exhibits or riders referred to in the
General Terms of Lease, all of which are incorporated herein and are hereinafter
referred to collectively as the "LEASE". For purposes of this Lease, and any
supplement(s), amendment(s) or modification(s) thereof, the terms listed below
shall have the following meanings:
"LANDLORD": PRINCETON PIKE CORPORATE CENTER ASSOCIATES IV
A NEW JERSEY PARTNERSHIP
ADDRESS: ▇/▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
"TENANT": ▇▇▇▇▇▇ COMMUNICATIONS, INC.
A NEW JERSEY CORPORATION
ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
"BASE RENT" shall mean, for the initial term of this Lease, Base Rent at the
rate of $21.25/rsf which equals $171,168.72 per year payable in equal monthly
installments of $14,264.06 per month due on the first day of each calendar month
in advance in accordance with the General Terms of Lease, except that Tenant's
first month's Base Rent shall be due upon Tenant's execution of this Lease for
the first month of the Phase II occupancy. Tenant shall not be required to pay
other Base Rent prior to the commencement of the Phase II occupancy, but Tenant
shall pay the cost of its Tenant electric during such period of Base Rent
abatement. If the Phase II Commencement Date as defined below is any day other
than the first day of a calendar month, then such Partial Month (as defined in
Section 3.2 of the Lease) shall be added to the Term
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of this Lease and the annual Base Rent for the first Lease Year shall be
increased accordingly.
"BASE YEAR" shall mean the Landlord's fiscal year 1997 (January 1, 1997 through
December 31, 1997) as referred to in Exhibit C to the General Terms of Lease.
"BILLING ADDRESS" shall mean ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
"BUILDING" shall mean the two (2) story plus partial ground floor building
commonly known as Princeton Pike Corporate Center, Building IV, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ and shall include the "COMMON FACILITIES" as defined
below.
"BUILDING HOURS" shall mean Monday through Friday from 8:00 a.m.
to 6:00 p.m. and Saturdays from 9:00 a.m. until 12:00 p.m.
(noon), excluding holidays. Notwithstanding the foregoing, Tenant
shall have 24-hour access to the Demised Premises by means of a
card access system.
"COMMENCEMENT DATE" shall mean the date referred to in Section 3.1 of the
General Terms of Lease, which will occur in two phases: (i) the "PHASE I
OCCUPANCY DATE" shall occur approximately fifteen (15) days following the
execution and delivery of this Lease by Landlord and Tenant and (ii) the "PHASE
II COMMENCEMENT DATE" shall occur upon Landlord's completion of the Tenant
Improvements in accordance with Section 5.1, provided Landlord has given Tenant
a minimum of ten (10) days prior notification of the projected Phase II
Commencement Date. Tenant recognizes that there will be no Certificate or
Temporary Certificate of Occupancy in connection with the Phase I occupancy.
Landlord anticipates the Phase II Commencement Date will be on or about May 15,
1997, subject to Landlord's ability to recapture the space from the interim
tenant. Landlord shall use reasonable efforts to recapture the Phase II space to
provide for an earlier Phase II occupancy of April 1, 1997, but Landlord's
inability to do so shall not affect this Lease or cause this Lease to be void or
voidable. Base Rent for the entire Demised Premises and the Lease Term (as
defined below) shall commence on the Phase II Commencement Date.
The parties acknowledge that Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ ("DRINKER ▇▇▇▇▇▇") is
currently in occupancy of the Phase II space. Landlord has notified Drinker
▇▇▇▇▇▇ that Landlord wishes to cancel its license agreement. Landlord agrees to
diligently proceed to recapture the space to allow delivery by May 15, 1997. If
Landlord is unable to deliver the Phase II space by May 15, 1997, then Landlord
shall provide Tenant with temporary access to
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the space labeled as Unit 4 on the attached space plan ("UNIT 4"). Tenant shall
surrender Unit 4 upon the Phase II Commencement Date in accordance with Article
10 of this Lease.
If Landlord is unable to deliver the Phase II space by September 15, 1997,
Tenant shall have the option to terminate this Lease without penalty upon thirty
(30) days prior written notice to Landlord, and upon the surrender of Phase I in
accordance with the requirements of this Lease at the end of such thirty (30)
days (the "TERMINATION DATE"), neither party shall have any further obligations
to the other under this Lease thereafter. Landlord may void Tenant's election to
terminate by delivery of the Phase II space in accordance with the terms of this
Lease fifteen (15) days prior to the Termination Date.
"COMMON FACILITIES" shall mean the land surrounding the Building the parking lot
and all drives and walkways, all generally as shown on Exhibit A-2 to the
General Terms of Lease, and the lobby, elevator(s), if any, fire stairs, public
hallways, public lavatories, and all other general building facilities that
service all tenants of the Building, including, without limitation,
airconditioning rooms, fan rooms, janitorial closets, electrical closets,
telephone closets, elevator shafts, machine rooms, and flumes, stacks, pipe
shafts and vertical ducts with their enclosing walls.
"DEMISED PREMISES" shall mean a total of 8,055 rentable square feet in the east
wing on the first floor of the Building as shown on Exhibit A-1 which shall be
delivered to the Tenant in two (2) phases: (i) "PHASE I" shall consist of 4,650
rsf and (ii) "PHASE II" shall consist of 3,405 rsf, both as noted on Exhibit
A-1.
"EXPANSION OPTIONS" shall mean Tenant's options to expand into Unit 2 or Unit 3
as shown on Exhibit A-1 as more fully set forth in Article 39 of this Lease in
Exhibit G.
"HVAC OVERTIME RATE" shall mean $55.00 per unit per hour as referred to, and
subject to change as provided in, Section 6.1(b) of the General Terms of Lease.
"LEASE YEAR" shall mean a period of twelve (12) consecutive calendar months the
first of which will begin on the Phase II Commencement Date, provided that if
the Phase II Commencement Date is not the first day of a calendar month the
first Lease Year will consist of the Partial Month referred to in Section 3.2 of
the General Terms of Lease and the next succeeding twelve (12) consecutive
calendar months.
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"MORTGAGEE" shall mean the holder of any mortgage now or hereafter encumbering
the Building (currently Mortgagee is: Connecticut General Life Insurance
Company, c/▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇).
"OPERATING EXPENSES" shall mean real estate taxes, insurance premiums and other
expenses, as referred to in Section 4.3 of, and as more particularly described
in Exhibit C to, the General Terms of Lease. Operating Expenses for the Base
Year (1997) are currently estimated at $6.90/sf. Commencing in Tenant's second
Lease Year, Tenant will pay Tenant's Pro Rata Share of any increases in
Operating Expenses over the Base Year Operating Expenses.
"PROPERTY" shall mean the real property located in the Township of ▇▇▇▇▇▇▇▇,
County of ▇▇▇▇▇▇ and State of New Jersey more particularly described in Exhibit
A to the General Terms of Lease.
"RATED CAPACITY OF ELECTRICAL SERVICE" shall mean electrical service as referred
to in Section 6.1(c) of the General Terms of Lease as limited by Tenant Plans.
"REAL ESTATE BROKER" shall mean Commercial Property Network, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Any commission due to Real Estate Broker shall be paid by
Landlord in accordance with a separate Broker Commission Agreement to be
executed by Landlord and Real Estate Broker.
"SECURITY DEPOSIT" shall mean the sum of $14,264.06 in cash and a Letter of
Credit in the amount of $42,792.18 in a form substantially similar to the form
attached hereto as Exhibit I, as referred to in Article 17 of the General Terms
of Lease, which shall be due and payable upon the execution of this Lease.
Provided Tenant is not in default of this Lease at any time through May 15,
1998, Tenant shall not be required to renew the Letter of Credit beyond July 15,
1998 and within five (5) days of Tenant's request, Landlord will so notify the
issuer of Tenant's Letter of Credit. Landlord shall reevaluate the Security
Deposit issue upon its receipt of Tenant's 1996 audited statement.
"STANDARD INDUSTRIAL CLASSIFICATION ("SIC") NUMBER" shall mean the SIC number
applicable to Tenant's primary business and referred to in Section 2.2 of the
General Terms of Lease which Tenant represents and warrants is [Tenant to
provide].
"TENANT IMPROVEMENTS" shall mean the improvements constructed by Landlord for
Tenant's use and occupancy of the Demised Premises as described in Exhibit D to
the General Terms of Lease.
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Initially, Tenant shall accept Phase I "as is" except that Landlord will repaint
and recarpet in all Phase I areas except those slated for future construction in
connection with the Phase II occupancy. Phase II shall be constructed in
accordance with the 12/5/96 space plan prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Architects and
the "LEASEHOLD IMPROVEMENTS SPECIFICATIONS" as outlined in Exhibit D, Schedule
D-3 of this Lease.
Tenant acknowledges that some of the work to complete the Phase II
occupancy shall involve the specified areas in Phase I and Unit 4, if
applicable, and shall take place during normal business hours. Tenant agrees
that Landlord shall have no liability to Tenant, for loss of business or
otherwise, as a result thereof, nor shall any interruption be deemed to
constitute a partial or total eviction (constructive or otherwise) of Tenant
from the Demised Premises or give rise to any abatement or reduction of any
rentals, charges, payments or other sums reserved under this Lease. Landlord
agrees to use reasonable efforts to minimize the interruption of Tenant's
business, but Tenant recognizes that such work will involve noise and dust and
other such disturbance during business hours.
If it is necessary for Tenant to occupy Unit 4, Tenant shall
do so "as is.'
"TENANT PARKING SPACES" shall be provided on a non-designated basis in common
with other tenants of the Building. Tenant shall be allocated four (4) spaces
per thousand usable square feet in the Building parking lot as set forth in
Article 30 of the General Terms of Lease.
"TENANT PLANS" shall mean the final plans, specifications and working drawings
required to be supplied by Landlord and approved in writing by Tenant for the
construction of the Demised Premises and the Tenant Improvements.
"TENANT PLANS DEADLINE" shall mean the date on or before which Tenant must
deliver written approval to Landlord of the Tenant Plans as referred to in
Exhibit D to the General Terms of Lease, which Landlord and Tenant agree will be
five (5) days after receipt of same from Landlord.
"TENANT'S PRO RATA SHARE", as referred to in Exhibit C to the General Terms of
Lease, shall mean the ratio of (x) the rentable square feet in the Demised
Premises, over (y) the total rentable square feet in the Building, which
Landlord and Tenant agree is 4.44% as of the date hereof which is subject to
change upon a recalculation of the total rentable Building size.
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If any expense is related to any item entirely within the Demised Premises and
for the sole use and benefit of the Tenant, then Tenant shall pay 100% of the
cost of such item, and further provided that if any expense is related to an
item entirely within the premises of another tenant then that tenant shall pay
100% of the cost of such item.
If Landlord determines in its reasonable business judgment that a service or
operating expense relates to less than 100% of the Building and is applicable to
Tenant's Demised Premises, then Tenant's Pro Rata Share shall be the ratio of
(x) the rentable square feet in the Demised Premises over (y) the total rentable
square feet in the Building to which such operating expense or service applies.
"TERM" shall mean the period covering the Phase I occupancy plus a period of
five years from the Phase II Commencement Date plus the Partial Month, if any,
referred to in Section 3.2 of the General Terms of Lease, and will, if the
context requires, include any extension(s) of the initial Term and be subject to
earlier termination as provided in the General Terms of Lease.
"USE" shall mean Tenant's occupancy of the Demised Premises as referred to in
Section 2.1 of the General Terms of Lease for the purpose of general office use
for the marketing and administrative functions of ▇▇▇▇▇▇ Communications, Inc.
and permitted sublessees and assignees only.
Tenant specifically agrees that Tenant, its successors, assignees or subtenants
shall not interfere with or violate any exclusives given by the Landlord to
other tenants, their successors or assignees as of the date of this Agreement or
future exclusives which would not impact Tenant's ability to operate from the
Demised Premises for its permitted Use. ▇▇▇▇ ▇▇▇▇▇▇ has an exclusive in the
Building for companies "whose primary business is a retail stock firm, a
discount brokerage firm, or by a firm or business whose primary operation is the
sale of securities, stock brokerage or primary use is undertaken by any and all
member firms of recognized national security exchanges." Additionally, Office
Concierge has a limited exclusive for executive offices/shared office space
concept in Pike II, III and IV until the year 2001. There are currently no other
exclusives in Pike IV.
Submission of this Lease for examination by or signature of Tenant does not
constitute an offer, reservation of space or option to lease. This Lease will
not be effective or binding upon the parties as a lease or otherwise until
execution and delivery by both Landlord and Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands
and seals, or caused this Lease to be signed by their duly authorized general
partner(s), officers or agents, as of the date and year first above written.
WITNESS: LANDLORD: PRINCETON PIKE
CORPORATE CENTER ASSOCIATES IV
BY: PIKE IV HOLDING, L.L.C.,
General Partner
/s/ Signature Illegible BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President-Leasing
BY: BROOKSTONE INVESTORS,
L.L.C., General Partner
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, Member
TENANT: ▇▇▇▇▇▇ COMMUNICATIONS,
INC.
WITNESS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ BY:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ESQ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Title: Sr. VP Finance
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GENERAL TERMS OF OFFICE LEASE
ATTACHED TO AGREEMENT OF LEASE
BETWEEN:
LANDLORD: Princeton Pike Corporate Center Associates IV
and
TENANT: ▇▇▇▇▇▇ Communications, Inc.
LEASE DATED: January 9, 1997
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GENERAL TERMS OF OFFICE LEASE
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TABLE OF CONTENTS
ARTICLE 1. DEMISED PREMISES 1
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ARTICLE 2. USE 1
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ARTICLE 3. TERM OF LEASE 2
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ARTICLE 4. RENT AND ADDITIONAL RENT 3
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ARTICLE 5. PREPARATION FOR OCCUPANCY; EXCUSABLE
DELAY 4
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ARTICLE 6. UTILITIES AND SERVICES 6
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ARTICLE 7. COMPLIANCE WITH LAWS 9
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ARTICLE 8. EVENTS OF DEFAULT; REMEDIES 11
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ARTICLE 9. CUMULATIVE REMEDIES; WAIVER 15
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ARTICLE 10. SURRENDER OF DEMISED PREMISES 15
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ARTICLE 11. ASSIGNMENT OR SUBLETTING 16
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ARTICLE 12. MAINTENANCE AND REPAIRS; COVENANT 19
AGAINST WASTE; RIGHT OF INSPECTION
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ARTICLE 13. MECHANIC'S LIENS 21
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ARTICLE 14. ALTERATIONS 22
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ARTICLE 15. INSURANCE; WAIVER OF SUBROGATION;
RELEASE (CASUALTY) 25
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ARTICLE 16. QUIET ENJOYMENT 27
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ARTICLE 17. SECURITY DEPOSIT 27
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ARTICLE 18. DAMAGE OR DESTRUCTION 28
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ARTICLE 19. CONDEMNATION 30
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ARTICLE 20. INDEMNIFICATION (LIABILITY) 32
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ARTICLE 21. SELF-HELP 33
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ARTICLE 22. ESTOPPEL CERTIFICATE 33
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ARTICLE 23. SUBORDINATION AND NON-DISTURBANCE 34
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ARTICLE 24. NOTICES 36
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ARTICLE 25. BROKER 36
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ARTICLE 26. SIGNS 37
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ARTICLE 27. HOLDOVER 37
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ARTICLE 28. LIMITATION OF LIABILITY 38
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ARTICLE 29. MODIFICATIONS REQUESTED BY 38
MORTGAGEE
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ARTICLE 30. PARKING 39
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ARTICLE 31. RULES AND REGULATIONS 39
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ARTICLE 32. REGULATION OF COMMON FACILITIES 39
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ARTICLE 33. RIGHT TO RELOCATE 40
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ARTICLE 34. SHORT FORM LEASE 41
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ARTICLE 35. CAPTION 41
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ARTICLE 36. APPLICABILITY TO SUCCESSORS 41
AND ASSIGNS
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ARTICLE 37. ENTIRE AGREEMENT; MODIFICATION 41
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ARTICLE 38. MISCELLANEOUS 42
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Article 39. Option(s) to Expand Ex G
Article 40. Fitness Center Ex G
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EXHIBITS
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A Property Description
- A-1 Building Floor Plan and Demised Premises
Designation
- A-2 Site Plan
B Commencement Date Agreement
C Operating Expenses
D Work Letter
- Schedule ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇'▇ ▇▇▇▇
- ▇▇▇▇▇▇▇▇ ▇-▇ Technical Specifications for Tenant
Improvements and Guidelines for
Tenant's Using Consultants &
Contractors
- Schedule D-3 Tenant Drawings
E Cleaning Specifications
F Rules and Regulations
G Rider to Lease
I Sample Letter of Credit
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ARTICLE 1 DEMISED PREMISES
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SECTION 1.1 Tenant will have the right to use and occupy the Demised
Premises and the right to use in common with other tenants of the Building, and
their invitees, customers and employees, those public areas of the Common
Facilities, all subject to the terms, conditions and limitations hereinafter set
forth. Landlord specifically excepts and reserves for itself the roof, airspace
above the ceiling and below the floor, the interior surfaces of exterior walls
and the exterior portions of the Building, including the loading areas for the
right to install, maintain, use, repair and replace pipes, duct work, conduits,
mechanical systems, antennae, utility lines and wires in the Building, provided
such reservation and rights do not materially impair Tenant's full use and
enjoyment of the Demised Premises.
SECTION 1.2 The use and control of the Common Facilities is reserved to
Landlord and Landlord may at any time, and from time to time, close any Common
Facilities to make repairs or renovations, effect construction, discourage
non-tenant parking and/or access, improve security or reconfigure particular
Common Facilities, and may do such other acts on, in and to the Common
Facilities as in its judgment may be desirable to insure and/or improve the
convenience thereof for Landlord and/or for present or future tenants of the
Building, all without liability to Tenant. Notwithstanding the foregoing, there
will be no change to the Demised Premises or the number of parking spaces and
Tenant will be entitled to reasonable access to the Demised Premises at all
times.
ARTICLE 2 USE
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SECTION 2.1 Tenant will use and occupy the Demised Premises for the Use
specified in the Agreement of Lease only and for no other use. Notwithstanding
the foregoing, Tenant's use of the Demised Premises will at all times be lawful
and will not constitute waste, nuisance or unreasonable annoyance to Landlord or
any other tenant(s) in the Building.
SECTION 2.2 Tenant warrants that it will not do or allow anything which
will cause its SIC number as set forth in the Agreement of Lease (or the SIC
number of any assignee or subtenant) to change and/or to fall within any of the
SIC number(s) to which the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et
seq., ("ISRA") is now or may hereafter be applicable. Tenant further warrants
that it will not use the Demised Premises, or any part thereof, to refine,
produce, store, handle,
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transfer, process or transport "Hazardous Wastes" or "Hazardous Substances" as
such terms are now or may hereafter be defined under any federal, state or local
law or regulation, including, without limitation, N.J.S.A. 58:10-23.11(b)(k) et
seq.; N.J.S.A. 13:1K-6 et seq.; or N.J.S.A. 7:1-3.3 et seq. In the event Tenant
should breach this warranty, Landlord will have, in addition to any other
remedies available, the right to immediately terminate this Lease.
ARTICLE 3 TERM OF LEASE
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SECTION 3.1 The Demised Premises are hereby leased for the Term which
will commence on the Phase II Date Commencement Date. If a temporary or
conditional Certificate of Occupancy is in effect on the Commencement Date,
Landlord agrees to diligently pursue the issuance of a final Certificate of
Occupancy. Notwithstanding the foregoing, should Landlord deliver the Demised
Premises to Tenant prior to the issuance of a Temporary or Permanent Certificate
of Occupancy and Tenant commenced the use therefore for its Permitted Use, then
the Term will commence as of the date of such beneficial occupancy.
SECTION 3.2 If the Commencement Date is any date other than the first
day of a calendar month, the period between the Commencement Date and the last
day of the calendar month during which the Commencement Date occurs (the
"Partial Month") will be added to the Term.
SECTION 3.3 The parties hereto, at the request of either, will execute
a Commencement Date Agreement substantially in the form attached hereto as
Exhibit B.
SECTION 3.4 Tenant's inability or failure to take possession of the
Demised Premises on the Commencement Date will not delay the commencement of the
Term or Tenant's obligation to pay Base Rent, Operating Expenses or any
additional rent or to comply with any of its other obligations hereunder.
SECTION 3.5 If construction of the Building or Demised Premises, or
delivery of possession of the Demised Premises to Tenant, is delayed beyond the
estimated Commencement Date set forth in the Agreement of Lease, regardless of
the reasons for or cause of such delay, this Lease will not be void or voidable
and the Term will commence as provided above. Further, Landlord will not be
liable to Tenant for any expenses or damages whatsoever arising from or relating
to such delay, except as may be expressly provided elsewhere in this Lease.
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ARTICLE 4 RENT AND ADDITIONAL RENT
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SECTION 4.1 Tenant will pay Base Rent and all additional rent without
any setoff, deduction, recoupment or demand whatsoever. Base Rent will be paid
in monthly installments, in advance, on the first day of each calendar month
during the Term in the amount set forth in the Agreement of Lease.
SECTION 4.2 Notwithstanding the foregoing, if the Commencement Date is
not the first day of a calendar month, Base Rent and any additional rent for the
Partial Month will be prorated on a daily basis using the annual Base Rent
divided by three hundred sixty-five (365) days and will be paid on the
Commencement Date (and the total Base Rent accruing for the first Lease Year of
the Term will be the annual Base Rent set forth in the Agreement of Lease plus
the prorated rental for the Partial Month).
SECTION 4.3 Tenant will pay to Landlord, as additional rent, Tenant's
Pro Rata Share of Operating Expenses, all as more particularly defined and set
forth in Exhibit C. Tenant will pay all charges for electrical power service to
the Demised Premises as provided in Exhibit G.
SECTION 4.4 Any and all charges and costs which Tenant is required to
pay pursuant to this Lease, together with all interest and penalties that may
accrue thereon in the event of Tenant's failure to pay such amounts, and all
damages, costs and expenses which the Landlord may incur by reason of any
default of Tenant or failure on Tenant's part to comply with the terms of this
Lease, will be deemed to be Additional Rent. In the event of nonpayment by
Tenant of any Additional Rent, Landlord will have all of the rights and remedies
with respect thereto which Landlord has for the nonpayment of Base Rent.
SECTION 4.5 In addition to any other remedies provided for herein, for
each installment of Base Rent or payment of Additional Rent that is more than
seven (7) calendar days overdue, then Landlord may charge a one-time "late
charge" of four (4%) percent of the amount(s) so overdue. Tenant acknowledges
that such late charge is fair and reasonable and the late charge assessed
pursuant to this Lease is not interest but constitutes an agreement between
Landlord and Tenant as to the estimated compensation for costs and
administrative expenses incurred by Landlord due to such late payment(s) by
Tenant, the actual amount of which would be extremely difficult to calculate.
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In addition, Landlord may charge Tenant the lesser of eighteen (18%)
percent per year or the maximum percentage allowed by law per year as interest
on such late payment(s) from the due date of any amount(s) so overdue.
The late charge and interest will be in addition to and not in lieu of
any other remedy Landlord may have under the circumstances and in addition to
any reasonable fees and charges of any agents or attorneys Landlord may employ
in the event of a default hereunder, whether authorized herein or by law. Any
such late charge and/or interest, if not previously paid, shall be added to and
become part of the next succeeding payment of Base Rent to be made hereunder and
shall be deemed to constitute Additional Rent.
SECTION 4.6 ACCEPTANCE OF RENT If Landlord shall direct Tenant, in
writing, to pay Base Rent or additional rent and/or other sums due hereunder (i)
to a cash management or "lockbox" account or other depository or (ii) by wire
transfer, then Tenant shall not be in default of Tenant's payment obligations if
and for so long as Tenant shall timely and accurately comply with Landlord's
written instructions in connection with such payments, provided, however, that:
(a) such payments are made in the full amount due without deduction, setoff or
conditional or restriction endorsement and (b) in the event of any payment made
net of a deduction or setoff or by an instrument which contains a conditional or
restriction endorsement (other than "For Deposit Only") such payment shall not
be deemed to have been accepted until ten (10) days after the date on which such
funds shall have actually been deposited in Landlord's account and Landlord
shall be deemed to have accepted such payment if (and only if) within said ten
(10) day period, Landlord shall not have refunded (or attempted to refund) such
payment to Tenant.
Landlord does not currently use either of these methods to collect
rent, but reserves its right to do so at some future time.
ARTICLE 5. PREPARATION FOR OCCUPANCY; EXCUSABLE DELAY
--------- ----------------------------------------------
SECTION 5.1 Landlord or Tenant will construct the Tenant Improvements
within the Demised Premises in accordance with Exhibit D (the "WORK LETTER"). If
performed by Landlord the work will be deemed completed upon the issuance of a
Certificate or Temporary Certificate of Occupancy, notwithstanding the fact that
minor or insubstantial construction, adjustment of equipment and/or fixtures
and/or decoration remains to be performed.
SECTION 5.2 If Landlord is prevented from or delayed in complying with
its obligations set forth in this or any other
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Article of this Lease because of delay(s) (whether affecting Landlord or its
contractors, subcontractors or materialmen) caused by or due to (i) actual or
threatened administrative proceedings or litigation which interfere with
Landlord's ability to begin or complete construction, (ii) delays in obtaining
approval of construction plans, building permits or Certificates or Temporary
Certificates of Occupancy, (iii) strikes or other labor troubles, riots, fire,
acts of God, governmental intervention or regulations, inability to obtain
materials, weather, holding over of tenants, or any other matters which are not
within the reasonable control of Landlord (all of the foregoing hereinafter
referred to collectively as "EXCUSABLE DELAY"), then the schedule set forth
herein, if adversely affected by an Excusable Delay, will be extended by one (1)
day for each day of an Excusable Delay.
SECTION 5.3 If Landlord's ability, when required to do so, to obtain a
building permit or Certificate or Temporary Certificate of Occupancy or to
complete the Tenant Improvements, or deliver possession of all or part of the
Demised Premises is delayed due to any act or omission of Tenant or its agents,
employees, contractors or subcontractors ("TENANT DELAY"), then the Demised
Premises, building permit and/or Certificate or Temporary Certificate of
Occupancy will be deemed to have been completed or obtained, as the case may be,
and possession of the Demised Premises will be deemed to have been delivered to
Tenant, on the date when such event would have occurred but for such Tenant
Delay as same is certified in writing by Landlord's contractor. Such delay shall
include, but not be limited to:
(a) delay due to submission of Tenant Plans after the Tenant
Plans Deadline or delay in giving authorizations or approvals required for the
preparations for or construction of the Tenant Improvements;
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(b) delay due to changes made or requested by or on behalf of
Tenant in the Tenant Plans (notwithstanding Landlord's approval of such
changes);
(c) delay due to any other interference with work in the
Demised Premises or in the Building, or any other act or omission, by Tenant,
its agents, employees, contractors or subcontractors;
(d) delay due to the postponement of any work at
Tenant's request;
(e) delay due to performance of any work in the Demised
Premises by any person or entity employed or retained by or on behalf of Tenant;
(f) delay due to Tenant requesting materials, finishes,
equipment or supplies where delivery or installation is unavailable from
Landlord's or its contractor's ordinary trade sources in such sequence with the
delivery/installation of other equipment, fixture and the like or as is required
under good construction scheduling practice, so as to delay Landlord in
completing the Demised Premises and obtaining a Certificate or Temporary
Certificate of Occupancy as scheduled; and
(g) delay due to Tenant's failure to authorize Landlord to
proceed with the Tenant Improvements or to timely pay to Landlord the amounts
due pursuant to Exhibit D.
SECTION 5.4 If, as a result of any Tenant Delay pursuant to the
provisions of this Article, Landlord sustains any damages or any additional
costs or expenses for labor or material, Tenant will pay to Landlord (in
addition to the rent payable as a result of the establishing of the Commencement
Date as provided in Section 5.3) all such damages, costs and expenses that
Landlord may sustain.
ARTICLE 6 UTILITIES AND SERVICES
--------- ----------------------
SECTION 6.1 Landlord will arrange to have furnished to the Building
and/or Demised Premises, as applicable, the following services, utilities,
supplies and facilities:
(a) Passenger elevator service, if applicable, operated
automatically or manually, provided that Landlord may remove elevators from
service temporarily for purposes of moving freight and/or repair and
maintenance.
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(b) Heat, hot and cold water, year round ventilation, and air
conditioning and heat during the seasons when they are required, as determined
in Landlord's reasonable judgment. Heating, ventilation and air conditioning
("HVAC") will be provided during Building Hours only. Landlord will furnish HVAC
beyond the Building Hours, provided that notice requesting such service is
delivered to Landlord before noon on the business day when such service is
required for that evening, and by noon of the preceding business day when such
service is required on a Saturday, Sunday or holiday. Landlord's charge for
supplying such additional service will be paid by Tenant (for each HVAC zone of
the Demised Premises, if applicable) at the HVAC Overtime Rate, which will be
subject to change by Landlord from time to time on thirty (30) days prior
written notice to Tenant. Landlord will ▇▇▇▇ Tenant for HVAC overtime charges
and will submit with its invoice a tabulation of the hours and the dates in
which the overtime HVAC was furnished. Tenant will reimburse Landlord therefore
(as additional rent) within fifteen (15) days after receipt of Landlord's
invoice.
(c) Reasonably adequate electrical service, provided that
Tenant's use of electrical energy in the Demised Premises will not at any time
exceed the Rated Capacity of Electrical Service applicable to the conductors and
other electrical equipment in or servicing the Demised Premises. In order to
insure that such capacity is not exceeded and to avert possible adverse effect
upon the Building's electrical service, Tenant will not, without Landlord's
prior written consent in each instance, (i) connect any additional fixtures,
appliances or equipment to the electric distribution system other than (a) the
lighting in accordance with the Tenant Plans approved by Landlord and (b)
electric typewriters, word processors, personal computers, calculators, copy
machines, state of the art office equipment and other small office machines, or
(ii) make any alteration or addition to the electric system. Should Landlord
grant such consent, all additional risers or other equipment required therefore
will be provided by Landlord and the charges therefore will be paid by Tenant
upon Landlord's demand. As a condition of granting such consent, Landlord may
require Tenant to pay an increase in the Base Rent in an amount which will
reflect the value to Tenant of the additional service to be furnished by
Landlord, i.e., the potential additional electrical energy to be made available
to Tenant based upon the estimated additional capacity of such additional risers
or other equipment. When the amount of such increase is determined, the parties
will execute a lease amendment to reflect the increase in the amount of Base
Rent which will be effective from the date such additional service is made
available to Tenant.
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(d) Removal of ice and snow from the walks, drives and
parking facilities during Building Hours within a reasonable time after
accumulation thereof.
(e) Maintenance of the Common Facilities and cleaning and
janitorial service for the Demised Premises after 6:00 p.m. Monday through
Friday (excluding holidays), as provided in Exhibit E.
If at any time Tenant's use of any utility service (if any utility is
not directly metered or paid by Tenant to the utility authorized providing such
service) or if Tenant's use of any available Building service exceeds Tenant's
Pro Rata Share of the Building Operating Expenses, Landlord reserves the right
to ▇▇▇▇ Tenant separately for the cost of such service or usage. Such usage will
be calculated at Landlord's option by the use of checkmeters, survey or specific
invoicing by outside vendors.
SECTION 6.2 Tenant expressly agrees that Landlord will not be
responsible for the failure of supply to Tenant of any of the aforesaid or any
other utility or service, nor will Landlord be liable for any damages resulting
from, nor there be any abatement of rent or additional rent as a result of such
failure. Notwithstanding the foregoing, if such failure of supply results from
Landlord's negligence and the Demised Premises thereby becomes untenantable for
fifteen (15) consecutive days after notice from Tenant specifying the basis of
Tenant's claim, then from and after the expiration of said fifteen (15) day
period and until such failure is cured, Tenant's Base Rent will be abated in
such proportion as the usable square footage of the portion of the Demised
Premises which becomes untenantable bears to the total usable square footage of
the Demised Premises, provided, however, that:
(a) Tenant, upon serving upon Landlord any notice pursuant to
this Section 6.2, will also serve a copy of such notice upon the Mortgagee, and
no notice by Tenant to Landlord hereunder will be deemed to have been duly given
unless and until a copy thereof has been so served; and
(b) Mortgagee will have the right to cure such failure, or
cause same to be cured, and Tenant will accept such cure by or at the instance
of Mortgagee as if the same had been made by the Landlord.
SECTION 6.3 Landlord and Tenant will comply with any applicable energy
or water conservation measures, voluntary or mandatory, which may be imposed by
any federal, state, county or municipal governmental agency, including, without
limitation,
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limits on permitted HVAC temperature settings, requirements limiting volume of
consumption or curtailment of Building Hours. The effect of such compliance will
not be deemed an eviction, actual or constructive, or a breach of the provisions
of this Lease which will be suspended, as necessary, for the period(s) during
which such conservation measures are in effect.
SECTION 6.4 Landlord represents that there is telephone service
available in the Building, but Tenant is responsible for bringing such service
to the Demised Premises and for any in-premises setup of telephone service.
Tenant will arrange for and pay for its telephone service directly to the
telephone company.
ARTICLE 7. COMPLIANCE WITH LAWS
---------- --------------------
SECTION 7.1 Tenant will, at its expense, promptly observe and comply or
cause compliance with all laws and ordinances, orders, rules, regulations and
requirements of all federal, state, county or municipal governments, and
appropriate departments, agencies, commissions, boards and offices thereof,
including but not limited to those governing indoor air quality or pollution
standards and the Americans with Disabilities Act ("ADA"), and of the Board of
Fire Underwriters and/or of any other body exercising similar functions, and of
all insurance companies writing policies covering the Building and/or Demised
Premises, or any part thereof, foreseen or unforeseen, ordinary as well as
extraordinary, which relate or pertain to Tenant's use and occupancy of the
Demised Premises, including the conduct of Tenant's business therein, and
whether or not the same (a) involve any change of governmental policy, (b) are
now in force or are hereafter passed, enacted or directed, or (c) require
extraordinary repairs, alterations, equipment or additions or any work (or
changes to such work or any other requirements incidental thereto) of any kind
which may be applicable to, or in and about, the Demised Premises, including,
without limitation, the fixtures and equipment thereof, or the purposes to which
the Demised Premises are put, or manner of use of the Demised Premises at the
commencement or during the Term of this Lease. Tenant will provide copies to
Landlord of any notices with regard to violations of the ADA.
SECTION 7.2 Tenant's obligations as set forth in Section 7.1 will
include, but not be limited to, compliance with any and all laws, orders, rules,
regulations and requirements relating to life safety and environmental control,
conservation or protection, including, without limitation, the Occupational
Safety and Health Act ("OSHA"), the Spill Compensation and Control Act and the
Industrial Site Recovery Act ("ISRA"), with
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respect to the use of and operations at the Demised Premises. Without limitation
of the foregoing, if during the Term the operations of any occupant of the
Demised Premises now or hereafter become subject to the requirements of ISRA,
then upon any event which, if applicable to Tenant, would "trigger" the
applicability of ISRA, Tenant will, at its own expense, take or cause such
occupant to take such action as is required by ISRA. Notwithstanding the
foregoing, in the event Landlord takes any action which would trigger the
applicability of ISRA, Tenant agrees to cooperate with Landlord in obtaining
ISRA approval, including without limitation, (i) executing and delivering any
affidavits, applications or other filings required by the New Jersey Department
of Environmental Protection ("NJDEP"), (ii) allowing inspections and testing of
the Demised Premises and (iii) performing any requirement reasonably requested
by Landlord and necessary for the receipt of the ISRA approval.
SECTION 7.3 In the event that Tenant is not obligated to comply with
Section 7.2 for any reason, including without limitation inapplicability of ISRA
to Tenant or any other occupant of the Demised Premises, then prior to any
assignment or subletting of any portion of the Demised Premises and prior to the
expiration or sooner termination of this Lease or any sublease, Tenant, at its
sole expense, will obtain from the NJDEP and deliver to Landlord a "letter of
non-applicability". Tenant will also provide Landlord with a duplicate original
of the affidavit and any and all other information submitted to the NJDEP in
connection with the request of such letter. Any representation or certification
made by Tenant or such occupant in connection with any request for a letter of
non-applicability shall constitute a representation and warranty by Tenant in
favor of Landlord.
SECTION 7.4 In the event of Tenant's failure to comply fully with this
Article 7 Landlord may, but will not be required to, perform any or all of
Tenant's obligations as aforesaid.
SECTION 7.5 Tenant will defend, indemnify and hold harmless Landlord,
its agents, successors and assigns from and against, and be responsible for
payment of, any and all costs, expenses, claims, fines, penalties and damages
that may, in any manner, arise out of or be imposed because of the failure of
Tenant to comply with the provisions of this Article 7, including the expenses
incurred by Landlord in the exercise of its rights pursuant to Section 7.4, and
all of the foregoing shall be deemed additional rent.
SECTION 7.6 In the event Tenant is required to obtain
ISRA approval and the scheduled expiration or earlier termination
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of the Term of this Lease (collectively, a "LEASE TERMINATION") occurs prior to
obtaining such ISRA approval, Tenant will continue to pay (i) Base Rent at one
and one-half (1.50) times the rate in effect immediately prior to such Lease
Termination and (ii) all additional rent as provided under the Lease, until such
ISRA approval has been obtained, but Tenant will have no further right to occupy
or use the Demised Premises after the Lease Termination. Tenant's obligations
under this Article 7 shall survive termination of the Lease.
ARTICLE 8 EVENTS OF DEFAULT; REMEDIES
--------- ---------------------------
SECTION 8.1 It will be a default hereunder if, at any time after the
date hereof, any one of the following events (herein called an "event of
default") occurs:
(a) if Tenant fails to pay any installment of the Base Rent
or Operating Expenses, or any part thereof, when same is due and payable and
such failure continues for five (5) days after the same is due and payable; or
(b) if Tenant fails to pay any other item of additional rent
or any other charges required to be paid by Tenant hereunder and such failure
continues for ten (10) days after notice thereof from Landlord to Tenant; or
(c) if Tenant fails to perform any of the requirements of
this Lease (other than the payment of money) on the part of Tenant to be
performed or observed and such failure continues for thirty (30) days after
notice thereof from Landlord to Tenant; or
(d) if Tenant allows the Demised Premises to become vacant,
deserted or abandoned for a period of twenty (20) days (the fact that any of
Tenant's property remains in the Demised Premises shall not be evidence that
Tenant has not vacated or abandoned the Demised Premises) or if Tenant fails to
keep the Demised Premises occupied to the extent necessary to maintain fire
insurance coverage; or
(e) if Tenant assigns, mortgages or encumbers this Lease, or
sublets the Demised Premises, or any part thereof, other than as expressly
permitted hereunder; or
(f) if Tenant makes an assignment for the benefit of
its creditors; or
(g) if any petition is filed by or against Tenant in any
court, whether or not pursuant to any statute of the United States or of any
State, in any bankruptcy, reorganization, extension, arrangement or insolvency
proceedings, and with regard to a petition filed against Tenant the same is not
dismissed within forty-five (45) days, provided that during such period Tenant
continues to pay all Base Rent and all additional rent and performs all of its
obligations under this Lease; or
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(h) if, a receiver or trustee is appointed for all or any
substantial portion of Tenant's property, and with regard to a proceeding
brought against Tenant the same is not dismissed in forty-five (45) days,
provided that during such period Tenant continues to pay all Base Rent and all
additional rent and performs all of its obligations under this Lease; or
(i) if a petition or a proceeding is filed or commenced by or
against Tenant for its dissolution or liquidation (other than in connection with
any merger permitted hereunder), or if Tenant's property is taken by any
governmental authority in connection with a dissolution or liquidation, and with
regard to a petition filed or commenced against Tenant the same is not dismissed
within forty-five (45) days, provided that during such period Tenant continues
to pay all Base Rent and all additional rent and performs all of its obligations
under this Lease; or
(j) if a levy under judgment against Tenant is not satisfied
or bonded within thirty (30) days.
SECTION 8.2 Upon the occurrence of any one or more of the
aforementioned events of default, and the expiration of the period of time for
curing the same, if any, Landlord may give to Tenant a notice (hereinafter
called "NOTICE OF TERMINATION") of its intention to end the Term of this Lease
at the expiration of five (5) days from the date of service of such Notice of
Termination. At the expiration of such five (5) days the Term hereof, as well as
all of the right, title and interest of Tenant hereunder, will wholly cease and
expire in the same manner and with the same force and effect as if the date of
expiration of such five (5) day period were the date originally specified herein
for the expiration of the Term, and Tenant will then quit and surrender the
Demised Premises to Landlord, but Tenant will remain liable to Landlord as
hereinafter provided. Notwithstanding the foregoing provisions of this Section
8.2, Landlord will not be required to give any notice of default, and no cure
period shall be applicable to the failure of Tenant to observe or perform any of
its agreements or obligations hereunder, if within any one hundred eighty (180)
day period Tenant has committed two or more defaults hereunder and Landlord has
transmitted to Tenant two or more default notices.
SECTION 8.3 If this Lease is terminated as provided above, Landlord, or
Landlord's agents or servants, may at any time thereafter re-enter the Demised
Premises, remove Tenant, its agents, employees, servants, licensees, permittees
and any subtenants or assignees, and all or any of its or their property, either
by summary dispossess proceedings or by any suitable action or proceeding at
law, without being liable to indictment damages of any nature, and recover and
enjoy the Demised Premises
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together with all additions, alterations and improvements thereto.
SECTION 8.4 In case of any such termination by summary proceedings or
otherwise, Tenant agrees that:
(a) The Base Rent and all additional rent required to be paid
by Tenant hereunder will thereupon become due and be paid up to the time of such
termination or dispossess. Tenant will also pay to Landlord, as additional rent,
all of Landlord's reasonable expenses for attorneys' fees, brokerage
commissions, all costs paid or incurred by Landlord for retaking and
repossessing the Demised Premises (including the removal of persons and property
therefrom), restoring the Demised Premises to good order and condition, altering
and otherwise preparing the same for reletting (without regard to whether such
alterations may be characterized as capital improvements), the unamortized
portion of any rental concessions, Tenant fit-out or abatement (treated as if
amortized over the initial Term hereof) and for all other reasonable costs and
expenses incurred in securing a new tenant or tenants (all of the foregoing
collectively referred to as the "EARLY TERMINATION DAMAGES").
(b) Landlord may, at any time and from time to time, relet
the Demised Premises, in whole or in part, in its own name, for a term or terms
which, at Landlord's option, may be for the remainder of the then current Term
of this Lease, or for any longer or shorter period. Landlord undertakes to use
reasonable efforts to relet the Demised Premises so as to mitigate damages but
will not be required to prefer such reletting to any letting of other vacant
space in the Building.
(c) Tenant will be obligated and agrees to pay to Landlord,
upon demand, and Landlord will be entitled to recover from Tenant, the Early
Termination Damages plus damages in an amount equal to the excess, if any, of
(i) all Base Rent and all additional rent as would have been required to be paid
by Tenant under this Lease for each calendar month had this Lease and the Term
not been so terminated, over (ii) the rents, if any, collected by Landlord in
respect of such calendar month pursuant to any reletting. In no event will
Tenant be entitled to receive any excess of such rents over the sums payable by
Tenant to Landlord hereunder. Said damages will be payable by Tenant to Landlord
in monthly installments in the same manner as Base Rent hereunder, and no suit
or action brought to collect the amount of the deficiency for any month will in
any way prejudice Landlord's right to collect the deficiency for any subsequent
month by a similar proceeding.
Alternatively, Landlord may, at Landlord's sole option,
without notice and without prejudice to any other rights or
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remedies of Landlord hereunder or at law or in equity, recover from Tenant, in
addition to the Early Termination Damages, as liquidated damages for such
default, expiration and/or dispossess, (i) an amount equal to the difference
between the Base Rent and all additional rent reserved in this Lease from the
date of such default to the date of expiration of the Term and (ii) the then
fair market rental value of the Demised Premises for the same period, discounted
to present value at a rate not more than four (4%) percent per annum. Said
damages will become due and payable to Landlord immediately upon such breach of
this Lease and without regard to whether this Lease be terminated or not, and if
this Lease be terminated, without regard to the manner in which it is
terminated.
(d) Suit or suits for the recovery of any and all such
damages, or for any installments thereof, may be brought by Landlord from time
to time at its election, and nothing herein contained will be deemed to require
Landlord to postpone suit until the date the Term would have expired had the
Lease not been terminated as provided herein or under any provision of law or
had Landlord not re-entered into or upon the Demised Premises.
(e) If any statute or rule of law governing Landlord's claim
for damages will limit the amount of such claim capable of being so proved and
allowed, Landlord will be entitled to prove as and for liquidated damages and
have allowed an amount equal to the maximum allowed by or under any such statute
or rule of law.
SECTION 8.5 In connection with any reletting, Landlord, at its option,
may make such alterations, repairs and/or decorations in the Demised Premises as
in its reasonable judgment Landlord considers advisable and necessary, and the
making of such alterations, repairs and/or decorations will not operate or be
construed to release Tenant from liability hereunder.
SECTION 8.6 Tenant, for itself and all claiming through or under
Tenant, including, but not limited to its creditors, upon the termination of
this Lease in accordance with the terms hereof or in the event of reentry or
recovery of possession of the Demised Premises by process of law or otherwise,
hereby waives to the fullest extent permitted by law any right of redemption
provided or permitted by any statute, law or decision now or hereafter in force,
and hereby waives, surrenders and gives up all rights or privileges which it or
they may or might have under and by reason of any present or future law or
decision to redeem the Demised Premises or for a continuation of this Lease
after having been dispossessed or ejected therefrom by process of law.
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ARTICLE 9. CUMULATIVE REMEDIES; WAIVER
---------- ---------------------------
SECTION 9.1 Every term, condition, agreement or provision contained in
this Lease will also be deemed to be a covenant.
SECTION 9.2 In addition to the other remedies provided in this Lease,
Landlord will be entitled to the restraint by injunction of any violation or
attempted or threatened violation of any of the terms or covenants of this
Lease. Landlord's remedies under the terms of this Lease are cumulative and are
not intended to be exclusive of any other remedies to which Landlord may be
lawfully entitled, at law or in equity, in case of any breach by Tenant of any
provision of this Lease.
SECTION 9.3 The failure of Landlord to insist in any one or more cases
upon the strict performance of any of the terms or covenants of this Lease, or
to exercise any option herein contained, will not be construed as a waiver or a
relinquishment for the future of any such term or covenant. No waiver by
Landlord of any term or covenant of this Lease will be deemed to have been made
unless made in writing signed by Landlord.
SECTION 9.4 Neither the payment by Tenant nor acceptance by Landlord of
rent or any other payment, nor the acceptance by Landlord of performance of
anything required by this Lease to be performed, with the knowledge of the
breach of any term or covenant of this Lease, will be deemed a waiver of such
breach or of any of Landlord's rights hereunder. Landlord's acceptance of rent
or any other payment in a lesser amount than is due (regardless of any
endorsement on any check, or any statement in any letter accompanying any such
rent or payment) will not operate or be construed either as an accord and
satisfaction or in any manner other than as payment on account of the earliest
rent or other sums then unpaid.
SECTION 9.5 Tenant waives all right to trial by jury in any proceeding
instituted with respect to this Lease.
ARTICLE 10. SURRENDER OF DEMISED PREMISES
----------- -----------------------------
SECTION 10.1 Tenant will, upon the expiration or earlier termination of
this Lease, quit and surrender the Demised Premises to Landlord, together with
all Tenant Improvements and other alterations (unless Landlord elects otherwise
as hereinafter provided) and replacements thereof then on the Demised Premises,
in good order, condition and repair, except for reasonable wear and tear. Prior
to the expiration or earlier
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termination of this Lease, the Tenant will remove all of its property, equipment
and trade fixtures from the Demised Premises without damage, leaving the Demised
Premises in broom-clean condition. All property not removed by Tenant will be
deemed abandoned by Tenant and Landlord reserves the right to charge the cost of
removal, storage and/or disposal of same to Tenant.
SECTION 10.2 If the Demised Premises is not surrendered at the end of
the Term including a failure to surrender by virtue of failure to comply with
ISRA as referred to in Section 7.6 above, or if the Demised Premises is damaged
or is not in broom-clean condition upon surrender, Tenant will indemnify
Landlord against any loss or liability resulting, including, without limitation
and in addition to any other remedy or claim of Landlord's, any claims made or
sustained by any succeeding tenant founded on the delay condition and/or damage.
SECTION 10.3 Tenant's obligations under this Article 10 will survive
the expiration or earlier termination of this Lease and surrender of the Demised
Premises.
ARTICLE 11. ASSIGNMENT OR SUBLETTING
---------- ------------------------
SECTION 11.1 Tenant will neither assign this Lease, sublet the Demised
Premises or any part thereof nor encumber its interest in this Lease unless it
first complies with this Article 11.
SECTION 11.2 Provided that (a) Mortgagee, in its sole and unreviewable
discretion, consents to the assignment or subletting (including, without
limitation, the assignee or subtenant, as the case may be), (b) Tenant is not
then in breach or default of any of the terms or conditions of the Lease, and
(c) Landlord gives prior written consent to the proposed assignment or
subletting, Tenant will be entitled to sublet the Demised Premises or a portion
thereof, or to assign this Lease, but only in accordance with and subject to the
provisions of this Article 11. Landlord will have the right to withhold its
consent if, in Landlord's sole and unreviewable judgment, the business of the
proposed assignee or subtenant would expose the Demised Premises and/or Building
and/or the occupants of the Building to increased risk of danger or injury,
including environmental contamination.
SECTION 11.3 (a) If Tenant desires to assign this Lease or to sublet
all or part of the Demised Premises, it must, prior to entering into such
assignment or sublease, serve notice upon Landlord of its intention to make such
assignment or subletting ("TENANT'S NOTICE") which notice will contain (i) the
name,
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address and financial information of the proposed assignee or subtenant, (ii)
the full and complete terms and conditions of the assignment or subletting and,
in the case of subletting, the exact space to be sublet, (iii) the amount of
rental and all other consideration to be paid by the subtenant or assignee, (iv)
the nature of the proposed assignee's or subtenant's business and its proposed
use of the Demised Premises, and (v) a copy of plans and, if available,
specifications for any required alterations to the Demised Premises. In the
event that Landlord or Mortgagee requires any additional or supplementary
information, Landlord or Mortgagee will advise Tenant, in writing, within twenty
(20) days of Landlord's receipt of Tenant's Notice and Tenant will supply same
within a reasonable time.
(b) Landlord has the right by giving Tenant notice of its
election to do so ("LANDLORD'S NOTICE") within fourteen (14) days after the
later of receipt of Tenant's Notice or receipt of the requested additional or
supplementary information, if applicable, either (i) to terminate this Lease as
to all or that portion of the Demised Premises which is the subject of the
proposed assignment or sublease, or (ii) to require as a condition to its
consent to an assignment or sublease that Tenant shall pay to Landlord fifty
(50%) percent of the net amount (i.e. after deducting the reasonable broker's
commissions, if any, and other reasonable costs and expenses incurred in
connection with obtaining the assignment or sublease, as the case may be) of (x)
any consideration received by Tenant for the assignment or sublease and (y) the
amount by which the Base Rent, Operating Expenses and other additional rent to
be paid under the sublease or assignment exceed the Base Rent, Operating
Expenses and other additional rent to be paid under this Lease. Such amounts
will be paid to Landlord as and when they are received by Tenant. In the event
of an election by Landlord to terminate this Lease as provided in (i) above,
such termination shall become effective on the commencement date of the proposed
sublease or the effective date of the proposed assignment, as the case may be,
but in no event earlier than thirty (30) days after the giving of Landlord's
Notice, and Base Rent and all additional rent payable by Tenant will be so
adjusted and apportioned as of the date of such termination.
(c) Notwithstanding the foregoing, Tenant's right to make an
assignment or sublease and the effectiveness of any assignment or sublease is
conditional upon (i) there being no uncured default under the Lease as of the
effective date of the assignment or sublease, (ii) Tenant's delivery to
Landlord, in recordable form and within three (3) days after their execution, of
a duplicate original of the assignment or sublease and, in the event of an
assignment, an agreement reasonably acceptable to
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Landlord wherein the assignee assumes and agrees to keep, observe and perform
all of the covenants, conditions and obligations of Tenant under the Lease, and
(iii) upon request by Landlord and as additional rent, Tenant will pay Landlord
a processing fee of Five Hundred ($500.00) Dollars for document review and/or
preparation in connection with the proposed transaction.
SECTION 11.4 If this Lease is assigned, or if the Demised Premises or
any part thereof is sublet or otherwise occupied by anyone other than Tenant,
after default by Tenant, Landlord may collect rent from the assignee, subtenant
or occupant and apply the net amount collected to the amounts due hereunder, but
no such assignment, subletting, occupancy or collection will be deemed a waiver
of this covenant, an acceptance of the assignee, subtenant or occupant as tenant
or a release of Tenant from the further performance of the terms, covenants and
conditions of this Lease.
SECTION 11.5 Notwithstanding any assignment, sublease or other
occupancy, with or without Landlord's consent, Tenant will remain primarily
liable on this Lease unless expressly agreed to by Landlord to the contrary, in
writing. Any violation of any provision of this Lease, whether by act or
omission, by any assignee, subtenant or occupant, will be deemed a violation of
such provision by Tenant, it being the intention of the parties that Tenant will
be liable to Landlord for any and all acts and omissions of any and all
assignees, subtenants or other occupants of the Demised Premises.
SECTION 11.6 Without limiting any of the provision of this Article 11,
if pursuant to the Federal Bankruptcy Code or any similar law having the same
general purpose, (herein the "Code"), Tenant is permitted to assign its interest
in this Lease notwithstanding the restrictions set forth above, Landlord will be
entitled to assurance of future performance by an assignee expressly permitted
under such Code which will be deemed to mean, at a minimum, the deposit of cash
or cash equivalent security in an amount equal to the sum of one (1) year's Base
Rent plus an amount equal to the additional rent for the calendar year preceding
the year in which such assignment is intended to become effective. Such security
will be held by Landlord for the balance of the term, without interest, as
security for the full performance of all Tenant's obligations under this Lease,
and may be applied in the manner specified in Article 17 below.
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ARTICLE 12 MAINTENANCE AND REPAIRS; COVENANT
---------- AGAINST WASTE; RIGHT OF INSPECTION
---------------------------------
SECTION 12.1 Tenant will, at its sole cost and expense, maintain the
Demised Premises and all of its fixtures, systems, equipment and improvements,
in clean, safe, orderly and sanitary condition free of accumulation of dirt and
rubbish. Tenant will not permit or suffer any overloading of the floors of the
Demised Premises and will not do or suffer any waste or injury with respect
thereto. In case of any destruction or damage of any kind whatsoever to the
Demised Premises, or any part thereof, including, without limitation, any glass
and the Tenant Improvements in or at the Demised Premises, Tenant shall repair
said damage or destruction as speedily as possible at Tenant's own cost and
expense, provided, however, that if any such damage or destruction results from
the act, fault or negligence of Landlord, or anyone acting under Landlord, then
it will be the responsibility of Landlord to make the repairs at its expense.
Tenant will also be responsible, at its own cost and expense, to (a) repair
HVAC, electrical or plumbing system(s) ("TENANT SYSTEM") which service only the
Demised Premises and which are specifically installed therein above the base
building standard, (b) maintain throughout the Term an HVAC maintenance
contract, and, if requested by Landlord, a maintenance contract on any other
Tenant Systems, covering any such Tenant System(s) beyond the base building
standard, in such form and with such company as is approved by Landlord, and (c)
furnish for Landlord's installation, and pay Landlord for its installation of,
bulbs, starters and ballasts for lighting fixtures. When used in this Article,
the term "REPAIR(S)" includes replacement(s), restoration(s), addition(s),
improvement(s), alteration(s) and/or renewal(s) when necessary. Prior to making
any repairs, Tenant will notify Landlord of the nature of the damage or
destruction and contractors Tenant intends to employ to effect the repairs. The
provisions and conditions of Article 14 applicable to changes or alterations
(including the condition that Landlord may require that the repairs be performed
by its agents, servants, employees or contractors) will similarly apply to
repairs required to be done by Tenant under this Article. To the extent that
there are any warranties or guaranties applicable to the Demised Premises,
including the fixtures, equipment and systems therein, which would be applicable
to the obligations of Tenant under this Article 12, Landlord will assign said
warranties or guaranties to Tenant.
SECTION 12.2 Landlord will be responsible for and will make all
necessary repairs to the bearing walls, foundation and structural portions of
the roof of the Building, provided,
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however, that if any such repairs result from the act, fault or negligence of
Tenant, such repairs will be made by Landlord at Tenant's expense.
SECTION 12.3 Upon prior reasonable notice (except in case of emergency
when notice will not be required) Tenant will permit Landlord and its authorized
representative to enter the Demised Premises during usual business hours for the
purposes of (i) inspecting the same, (ii) curing any defaults on the part of
Tenant in making any necessary repairs, (iii) performing of any work which may
be necessary to comply with any laws, ordinances, rules, regulations, or
requirements of any public authority, or which may be necessary to prevent waste
or deterioration in connection with the Demised Premises, and (iv) exhibiting
the Demised Premises during the last year of the Term. Nothing in this Section
12.3 imposes any duty upon the part of Landlord to do any such work or to make
any repairs to the Demised Premises of any kind whatsoever, except as
specifically provided herein, and the performance thereof by Landlord will not
constitute a waiver of Tenant's default in failing to perform the same. Landlord
will promptly, after Tenant has given Landlord notice of the necessity
therefore, make all repairs required to be made hereunder by Landlord, provided,
however, that Landlord will not in any event be liable, nor will Tenant be
entitled to any abatement or setoff or deduction from rent, nor will the
obligations of Tenant under this Lease be affected in any manner whatsoever, for
inconvenience, annoyance, disturbance, loss of business or other damage of
Tenant or any other occupant of the Demised Premises, or any part thereof, by
reason of (i) making repairs, the performing of any work on the Demised Premises
or any noise, vibration or other disturbance, (ii) bringing materials, supplies
and equipment into or through the Demised Premises, or (iii) the Demised
Premises being rendered wholly or partially untenantable (collectively
"INCONVENIENCE") because of Landlord's failure to make any repairs required to
be made hereunder by Landlord. Landlord will exercise due diligence not to
interfere with Tenant's business operation, but will not be required to employ
overtime labor to avoid such interference, provided, however, Landlord will
employ overtime labor, at Tenant's expense, if requested to do so by Tenant.
SECTION 12.4 (a) Tenant agrees that Landlord may, at its sole
discretion and at any time or from time to time during the Term, perform
structural and/or non-structural renovation work on, in and/or to the Building
and Common Facilities, any of which work may require access to the same from
within the Demised Premises. Tenant will provide such access at all reasonable
times, upon reasonable notice, for the purpose of performing such work, and
Landlord will incur no liability to Tenant, nor will
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Tenant be entitled to any abatement of rent, on account of any Inconvenience at
the Demised Premises (provided that Tenant is not denied access to said Demised
Premises).
(b) Landlord will use reasonable efforts (which will not
include any obligation to employ labor at overtime rates) to avoid disruption of
Tenant's business during any such entry upon the Demised Premises and agrees to
use overtime labor, if requested by Tenant, at Tenant's expense.
(c) If Tenant commences any action or proceeding seeking
injunctive, declaratory or monetary relief in connection with the rights
reserved to Landlord under this Section, or if Landlord commences any action or
proceeding to obtain access to the Demised Premises in accordance with this
Section, then in either event if Landlord prevails in any such action or
proceeding Tenant will pay to Landlord, as additional rent, a sum equal to all
of Landlord's reasonable legal fees, costs and disbursements in any way related
to or arising out of such action or proceeding.
ARTICLE 13 MECHANIC'S LIENS
---------- ----------------
SECTION 13.1 Tenant will not suffer or permit any Construction Lien
Claim or Notice of Unpaid Balance and Right To File Lien ("LIEN") against the
Demised Premises and/or Property or any part thereof, by reason of any work,
services, material and/or equipment provided, or claimed to have been provided,
for or to Tenant or any contractor and/or subcontractor employed in connection
with any improvement of or to the Demised Premises or any part thereof through
or under Tenant or anyone holding same through or under Tenant. If at any time a
Lien is filed against the Demised Premises and/or Property, Tenant will cause
the same to be discharged of record within thirty (30) days after notice to
Tenant of the filing of same. If Tenant fails to discharge any such Lien within
such period, then, in addition to any other right or remedy of Landlord,
Landlord may elect, but shall not be obligated, either to procure the discharge
of the Lien by bonding or by payment or deposit into court of the amount claimed
to be due, or to compel the prosecution of an action for the foreclosure of such
Lien by the lienor and to pay the amount of the judgment, if any, in favor of
the lienor with interest, costs and allowances. Any amounts paid or deposited by
Landlord for any of the aforesaid purposes, and all legal and other expenses and
disbursements of Landlord, including reasonable counsel fees, in defending any
action or in or about procuring the discharge of such Lien, together with
interest thereon at the rate which Chemical Bank announces as its so called
prime rate or base rate, from time to time, plus five (5%) percent, from the
date of
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payment or deposit, will become due and payable forthwith by Tenant to Landlord,
as additional rent.
SECTION 13.2 Nothing in this Lease will be deemed or construed as the
consent or authorization of Landlord, express or implied, by inference or
otherwise, to any improvement to or any alteration or repair of or to the
Demised Premises or any part thereof, or to Tenant's contracting for or
permitting the providing of any work, services, material and/or equipment, which
might give rise to the right to file any Lien against Landlord's interest in the
Demised Premises or the Property.
ARTICLE 14. ALTERATIONS
----------- -----------
SECTION 14.1 Tenant will not make, cause or permit any alterations,
additions or improvements ("ALTERATIONS") in or to the Demised Premises without
in each instance obtaining Landlord's prior written consent thereto. By way of
illustration but not limitation, Landlord will be entitled to withhold its
consent if the proposed alterations (i) impair or affect the structural
soundness or integrity of the Demised Premises, Building, or any of the systems
or equipment therein, (ii) lessen the present or future value of the Demised
Premises or Building, (iii) change the type of use of the Demised Premises, or
(iv) increase the risk of damage or injury to the Demised Premises, the Building
or the occupants of the Building. Any such consent by Landlord may be upon
condition that the work be performed by Landlord's agents, servants, employees
or contractors and that Tenant furnish to Landlord such evidence of Tenant's
financial ability to assure payment and/or completion as Landlord may reasonably
require. If Landlord so elects and notifies Tenant at the time of Tenant's
request to make such alterations, Tenant will, at its sole cost and expense,
remove any alterations (structural or non-structural) at the expiration or other
termination of this Lease, repair all damage caused by such removal and restore
the Demised Premises to the condition in which they were prior to the
installation of any such alterations. Nothing herein contained will be construed
to restrict Tenant's right to install or to make any changes in Tenant's own
movable trade fixtures or to qualify Landlord's obligation to make structural
replacements as provided in Section 12.2. The provisions of this Article 14 are
subject to the terms and conditions of any mortgage to which this Lease is
subordinate and if the consent of any such mortgagee is required for such work,
such consent will be obtained by Tenant before any such work is commenced. In
that regard, Landlord agrees to reasonably cooperate with Tenant in obtaining
the consent of such mortgagee.
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Plans and specifications for any proposed alterations will be submitted
to Landlord upon the request for its consent together with a reputable
contractor's (which may include a contractor in Tenant's employ) estimate of the
cost thereof. However, such review and consent by Landlord will not be deemed
Landlord's opinion as to acceptability to or compliance with municipal
requirements. Upon completion of the alterations Landlord is to receive one
print and one reproducible copy of the "as-built" construction plans. If
Landlord elects to, and notifies Tenant that it will, require removal of
Alterations upon the expiration or earlier termination of this Lease, then
Landlord shall also have the option to require that Tenant post a security
deposit, letter of credit or other evidence of Tenant's financial ability to so
remove such Alterations.
SECTION 14.2 In making any alteration contemplated by this Article, or
any repair or restoration contemplated by other terms and conditions of this
Lease, the parties will comply with all applicable laws, regulations, ordinances
and orders and procure all requisite permits, all at Tenant's expense. Copies of
all such approvals, authorizations and permits will be delivered to and retained
by Landlord. Each party will, on written request from the other, execute any
documents necessary to be signed on its part in order to obtain any such permit.
All alterations made hereunder will be performed in a first-class, good and
workmanlike manner using new materials at least equivalent in quality to those
used in the construction of the Building. If the alterations are not performed
by Landlord or its agents, employees, servants or contractors, Landlord may
impose a reasonable charge for the supervision and inspection of the
construction of the alterations.
SECTION 14.3 All alterations (other than Tenant's trade fixtures) made
by Tenant will upon termination of this Lease immediately be and become the sole
and absolute property of Landlord and will remain upon and be surrendered with
the Demised Premises unless Landlord has elected as provided in Section 14.1
that such alterations be removed, in which event they will be removed by Tenant
and the Demised Premises restored to its original condition at Tenant's expense
upon or prior to the surrender of possession.
SECTION 14.4 If Landlord, in its absolute discretion, determines that
the performance of any work to be completed by Tenant's contractor(s) interferes
with, delays, hampers or prevents Landlord's contractor(s) from proceeding with
completion of its work in the Building, the Demised Premises, the premises of
any other tenant or the Common Facilities, Tenant will, at the earliest possible
time within twenty-four (24) hours after
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Landlord's determination (which need not be communicated in writing and may be
given orally by Landlord, its agents or contractors, to Tenant, or its agents or
contractors), cause its contractors to cease all work being performed by it or
on its behalf and to withdraw from the Demised Premises and the Building until
further notice from Landlord.
To the end that there will be no labor dispute which would interfere
with the construction, completion or operation of the Building or Common
Facilities, or any part of either, including, but not limited to, the Demised
Premises, Tenant agrees that for any work which Tenant performs, whether or not
such work is permitted or required pursuant to the Lease, Tenant will engage the
services of only such contractors and subcontractors as will work in harmony,
and without causing any labor dispute, with each other, with Landlord's
contractors and subcontractors and with the contractors and subcontractors of
all others working in or upon the Building or Common Facilities, or any part of
either, and Tenant shall require its contractors and subcontractors to employ
only such labor as will work in harmony, and without causing labor dispute, with
all other labor then working in or upon the Building or Common Facilities or any
part of either. Furthermore, only those contractors and subcontractors as have
been duly licensed by the authority having jurisdiction over the appropriate
profession and which have been approved in writing by the Landlord may perform
any work for Tenant in or upon the Demised Premises.
SECTION 14.5 Tenant will maintain, or cause Tenant's contractors to
maintain, worker's compensation and comprehensive or commercial general
liability insurance and property damage insurance, all in amounts, and with
companies and on forms reasonably satisfactory to Landlord and on an occurrence
basis. SUCH INSURANCE WILL BE IN EFFECT AT ALL TIMES DURING ANY PERIOD OF SUCH
CONTRACTOR'S ENTRY UPON THE DEMISED PREMISES AND CERTIFICATES OF INSURANCE WILL
BE DELIVERED TO LANDLORD PRIOR TO ANY SUCH ENTRY BY TENANT OR TENANT'S
CONTRACTORS. If required by Landlord, such insurance will name Landlord and
Landlord's contractor and/or construction manager as additional insured(s), and
in all cases will be primary insurance not contributing with other insurance
Landlord or its contractor and/or construction manager may carry. Landlord will
not in any way be liable for any injury, loss, theft or damage which may occur
to any supplies or equipment of, or any decorations or installations made by,
Tenant or Tenant's contractors, the same being at the sole risk of Tenant and
Tenant's contractors.
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ARTICLE 15 INSURANCE; WAIVER OF SUBROGATION;
---------- RELEASE (CASUALTY)
--------------------------------
SECTION 15.1 During the term hereof, Tenant will, at its own cost and
expense, provide and keep in force the following insurance:
(a) Commercial general liability insurance, written on an
occurrence basis, naming Landlord and its agents and employees as additional
insureds, against claims for bodily injury, death or property damage occurring
in or about the Demised Premises, the Building and the Common Facilities
(including, without limitation, bodily injury, death or property damage
resulting directly or indirectly from or in connection with any alteration,
improvement or repair thereof made by or on behalf of Tenant), with limits on an
occurrence basis of not less than $3,000,000.00 for bodily injury or death and
$1,000,000.00 for property damage or combined single limit. Tenant's coverage
must include (i) premises/operations, (ii) independent contractors, and (iii)
broad form contractual liability in support of the indemnity provisions of
Article 20. [To satisfy the liability insurance requirements of this Section
15.1 under a policy of commercial general liability insurance rather than
comprehensive general liability insurance, the Tenant must obtain an endorsement
which applies the aggregate limits separately to the Premises (ISO Endorsement
CG-25-05-11-85, Amendment - Aggregate Limits of Insurance (Per Location) or an
equivalent endorsement satisfactory to Landlord). The certificate of insurance
evidencing such policy must evidence that the limits of the Tenant's liability
insurance required hereunder apply solely to the Demised Premises and not to
other locations.]
(b) ▇▇▇▇▇▇▇'▇ Compensation in statutory amounts and
employer's liability of at least $100,000.00.
(c) Insurance covering its contents and all Tenant
Improvements, from loss or damage from fire and casualty and, as to Tenant
Improvements, such coverage shall be all-risk special form insurance (or its
equivalent) with replacement cost and agreed amount endorsements naming Landlord
as loss payee and Mortgagee under a New York standard non-contributory mortgagee
endorsement as their interests may appear.
(d) Such other insurance as Landlord or any mortgagee may
reasonably require from time to time.
SECTION 15.2 All policies will be obtained by Tenant and copies of same
or, at Landlord's option, certificates evidencing required coverage will be
delivered to Landlord at least ten (10) days prior to the earlier of (i) Tenant,
its contractors, agents, and/or employees entering the Demised Premises or (ii)
the
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Commencement Date, together with a copy, certified to be a true copy by the
insurance company, of the endorsement which adds the Landlord and any other
parties required herein, as additional named insureds. All insurance
certificates must be on standard form ▇▇▇▇▇ 25-S (7/90) or an equivalent form
acceptable to Landlord. All insurance will be written by companies with a Best's
rating of not less than A+, satisfactory to the Landlord and Mortgagee and
authorized to do business in the State of New Jersey. All policies will be for
periods of not less than one (1) year and contain a provision whereby the same
cannot be cancelled or materially altered unless Landlord is given at least
thirty (30) days prior written notice of such cancellation. Tenant will procure
and pay for such insurance from time to time and promptly deliver to Landlord
certificates thereof at least thirty (30) days before the expiration thereof.
All such insurance will be primary insurance not contributing with other
insurance Landlord or its contractor and/or construction manager may carry.
If Tenant is prohibited from entering the Demised Premises due to its
failure to comply with the insurance requirements of this Lease, the
Commencement Date of the Lease or the delivery of the Demised Premises to Tenant
will not be delayed.
SECTION 15.3 If Tenant or its contractor does not procure insurance as
required, Landlord may in accordance with Article 21 of this Lease, cause such
insurance to be issued, and Tenant shall pay to Landlord as additional rent
within ten (10) days of Landlord's request for same the premium for such
insurance and interest plus an administrative fee of Five Hundred ($500.00)
Dollars to compensate Landlord for procuring such insurance.
SECTION 15.4 (Casualty) All policies of insurance to be obtained
pursuant to this Article 15 and all other policies which Landlord or Tenant may
carry which affect, relate or pertain to the Demised Premises, the Building, the
Common Facilities or any of Tenant's contents, the Tenant Improvements, fixtures
and property must include a waiver by the insurer of all rights of subrogation.
Neither Landlord, Tenant, nor any of their respective agents, officers,
employees or invitees will be liable to the other for, and each hereby expressly
releases or waives any claim for loss or damage caused by any risk covered by a
so-called all-risk special form insurance policy (or its equivalent) or a
commercial or comprehensive general liability policy, as applicable, without
regard to whether such coverage is in effect. Such release and waiver shall
include any such risk as to which a party elects to self-insure, in whole or in
part, by virtue of any applicable deductible provisions of any insurance
coverage or otherwise. If the release of Landlord as set forth in this section
contravenes any law with respect to exculpatory
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agreements, the liability of Landlord will not be deemed released but will be
secondary to the other's insurer.
If the payment of an additional premium is required for the inclusion
of such a waiver of subrogation provision, each party shall advise the other of
the amount of any such additional premium and the other party at its election
may, but shall not obligated to, pay the same. If such other party shall not
elect to pay such additional premium, or if it shall not otherwise be possible
to obtain such a waiver of subrogation provision, neither party shall be
required to obtain such a waiver of subrogation provision from its insurer, but
the release provisions of this Section 15.4 shall nonetheless be effective to
the fullest extent possible without resulting in a contravention or breach of
the terms for any applicable insurance policy.
SECTION 15.5 Landlord will obtain any and all insurance coverage in
connection with the use and operation of the Build ing, which will include, but
not be limited to: fire and casualty at full replacement value (all-risk special
form or its equiva lent); comprehensive or commercial general liability
insurance with limits of not less than $3,000,000.00/$5,000,000.00 for personal
injury or death and $1,000,000.00 for property damage or $5,000,000.00 combined
single limit; workmen's compensation at no less than the statutory requirement;
employer's liability; difference in conditions; rent insurance for no less than
one (1) year's annual operating income; business interruption insurance at not
less than $500,000.00; and any and all other insurance, including boiler and
machinery insurance, as Landlord or Mortgagee require to protect adequately the
interest of Landlord against risks afforded by such insurance coverage.
ARTICLE 16 QUIET ENJOYMENT
---------- ---------------
SECTION 16.1 Landlord covenants that so long as this Lease is in effect
and Tenant pays the rents and performs the covenants and conditions contained in
this Lease, Tenant may peacefully hold and enjoy the Demised Premises during the
Term subject, however, to the terms of this Lease.
ARTICLE 17. SECURITY DEPOSIT
----------- ----------------
SECTION 17.1 Simultaneously with the execution of this Lease, Tenant
will deposit with Landlord the Security Deposit (which will not bear interest to
Tenant unless required to do so by any provision of law) as security for
Tenant's faithful and timely payment and performance by Tenant of all of
Tenant's obligations, covenants, conditions and agreements under this
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Lease. Within a reasonable time after the expiration of the Term, after
calculation of adjustments to Tenant's Operating Expenses for the last Lease
Year, Landlord will return the Security Deposit to Tenant, less such portion
thereof as Landlord has utilized to make good any failure by Tenant to comply
with any of Tenant's obligations, covenants, conditions or agreements hereunder.
SECTION 17.2 In the event of any default by Tenant hereunder, Landlord
has the right, but is not obligated, to apply all or any portion of the Security
Deposit to cure each default, in which event Tenant will, upon demand, promptly
deposit with Landlord the amount necessary to restore the Security Deposit to
its original amount.
SECTION 17.3 The Security Deposit will be held by Landlord and may be
commingled with its other funds. In the event of sale or transfer of Landlord's
interest in the Building, Landlord has the right to transfer the Security
Deposit to such purchaser or transferee, in which event Landlord will upon such
transfer, be released from all liability to Tenant for the return of the
Security Deposit. Tenant will look only to the new landlord for the return of
the Security Deposit.
ARTICLE 18. DAMAGE OR DESTRUCTION
----------- ---------------------
SECTION 18.1 In case of any damage to or destruction of the Demised
Premises, or any part hereof, Tenant will promptly give written notice thereof
to Landlord.
SECTION 18.2 If the Building or the Demised Premises is partially or
totally damaged or destroyed by fire or other cause, then, whether or not the
damage or destruction resulted from the fault or neglect of Tenant (and if this
Lease has not been terminated as hereinafter provided in this Article 18),
Landlord will repair the damage and restore and rebuild, the Building and/or the
Demised Premises (which for purposes of this Article 18 shall include the Tenant
Improvements provided the conditions of Section 18.6 are met), at its expense,
with reasonable dispatch after notice to Landlord of the damage or destruction,
provided, however, that Landlord will not be required to repair or replace any
of Tenant's property.
SECTION 18.3 If the Building or the Demised Premises is partially
damaged or partially destroyed by fire or other cause, the rents payable
hereunder will be abated to the extent that the Demised Premises has been
rendered unusable to Tenant in the conduct of its business and for the period
from the date of such
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damage or destruction to the date the damage has been repaired or restored. If
the Demised Premises or a major part thereof has been totally (which shall be
deemed to include substantially) damaged or destroyed or rendered completely
unusable to Tenant in the conduct of its business on account of fire or other
cause, the rents shall completely ▇▇▇▇▇ as of the date of the damage or
destruction and until Landlord repairs, restores and rebuilds the Demised
Premises, provided, however, that if Tenant reoccupies a portion of the Demised
Premises for the conduct of Tenant's business during the time that the
restoration work is taking place and prior to the date that same are made
completely tenantable, rents allocable to such portion will be payable by Tenant
from the date of such occupancy.
SECTION 18.4 In case of any damage or destruction mentioned in this
Article 18, Landlord may terminate this Lease, by notice to Tenant, if the
Demised Premises and/or the Building are not reasonably capable of restoration
within one hundred eighty (180) days. Within thirty (30) days after such fire or
casualty, Landlord will advise Tenant in writing as to whether or not it can
restore the Demised Premises within the one hundred eighty (180) day period
referred to above, and whether or not it elects to terminate this Lease as
provided in this Section 18.4. If Landlord elects not to terminate the Lease,
then Landlord will have two hundred ten (210) days from receipt of Tenant's
notice of such damage to restore the Demised Premises.
SECTION 18.5 Provided that Landlord diligently prosecutes such repair
and restoration, Landlord will have no liability if the time for repair or
restoration extends beyond the two hundred ten (210) day period. During any
period of restoration, Tenant will be responsible for the security of its goods,
fixtures and equipment and will be responsible at its cost and expense to remove
same from the damaged Demised Premises pending restoration if necessary, it
being understood and agreed that Landlord will have no responsibility or
liability with respect thereto if the same remain in the damaged area.
SECTION 18.6 Notwithstanding anything to the contrary contained herein,
Landlord's obligation to repair will not extend to the Tenant Improvements
unless Tenant makes available to Landlord the funds to pay for the cost of such
repairs and Landlord's repairs will not exceed the scope of the work required to
be done by Landlord at the outset of this Lease as set forth in Exhibit D.
Furthermore, should the damage or destruction occur during the last year of the
Term, then notwithstanding any contrary provision contained herein, Landlord
will have the option of not repairing the Demised Premises. Landlord must give
Tenant notice of its election not to repair within thirty (30)
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days of receipt of Tenant's notice of the damage or destruction or such option
will be deemed terminated.
SECTION 18.7 No damages, compensation or claim will be payable by
Landlord for Inconvenience, loss of business or otherwise rising from any repair
or restoration of any portion of the Demised Premises or of the Building
pursuant to this Article. Landlord will use reasonable and diligent efforts to
effect such repair or restoration promptly and in such manner as not to
unreasonably interfere with Tenant's use and occupancy.
SECTION 18.8 Notwithstanding anything to the contrary contained herein,
Landlord's obligations to repair the damage and restore and rebuild the Building
and/or the Demised Premises pursuant to this Article will be contingent upon its
obtaining all necessary approvals from the applicable governmental authorities.
SECTION 18.9 Tenant waives the benefit of N.J.S.A. 46:8-6 and 46:8-7
and agrees that Tenant will not be relieved of the obligations to pay the Base
Rent or any additional rent in case of damage to or destruction of the Building
and/or Demised Premises except as expressly provided in this Lease.
ARTICLE 19. CONDEMNATION
----------- ------------
SECTION 19.1 If, at any time during the Term of this Lease, title to
the whole or materially all of the Building and/or Demised Premises is taken by
the exercise of the right of condemnation or eminent domain (hereinafter
referred to as the "proceedings") or by agreement between Landlord and those
authorized to exercise such right, this Lease will terminate and expire on the
date of such taking, all Base Rent and additional rent provided to be paid by
Tenant will be apportioned and paid to the date of such taking, and the total
award made in such proceedings will be paid to Landlord. For the purpose of this
Article 19, "materially all of the Building and/or Demised Premises" will be
deemed to have been taken if, as a result of the taking, the premises remaining
after such taking are not reasonably usable for Tenant's business purposes. Any
dispute as to whether the premises are reasonably usable for Tenant's business
purposes will be settled by arbitration to be held in New Jersey in accordance
with the rules of the American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's determination in any court having
jurisdiction and the parties consent to the jurisdiction of the Superior Court
New Jersey courts for this purpose.
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SECTION 19.2 If, at any time during the Term of this Lease, title to
less than materially all of the Building and/or Demised Premises is taken as
aforesaid (a "PARTIAL CONDEMNATION"), the entire award will be paid to Landlord,
and Landlord will have the option to (a) restore the Building and/or Demised
Premises to an architecturally and/or functionally complete unit with reasonable
promptness, subject to ordinary delays beyond Landlord's control, provided that
after such restoration the Demised Premises as restored is sufficient to meet
Tenant's needs, or (b) terminate this Lease. Landlord will exercise its option
to cancel by written notice to Tenant to be given not more than forty-five (45)
days from the date of such Partial Condemnation and this Lease will become null
and void ninety (90) days after said notice.
SECTION 19.3 If title to less than materially all of the Building
and/or Demised Premises is taken as aforesaid and this Lease continues, the Base
Rent, and any additional rent will be reduced to an amount equivalent to the
proportionate square footage of the Demised Premises.
SECTION 19.4 Tenant further agrees that if, at any time after the date
hereof, the whole or any part of the Building and/or Demised Premises is taken
or condemned by any competent authority for its temporary use or occupancy
(herein a "TAKING"), this Lease will not terminate by reason thereof and Tenant
will continue to pay, in the manner and at the time herein specified, the full
amount of the Base Rent and all additional rent payable by Tenant hereunder,
and, except only to the extent that Tenant may be prevented from so doing
pursuant to the terms of the order of the condemning authority, to perform and
observe all of the other terms, covenants, conditions and obligations hereof
upon the part of Tenant to be performed and observed, as though such Taking had
not occurred. In the event of any such Taking Tenant will be entitled to receive
the entire amount of any award made for such Taking applicable to the Demised
Premises, whether paid by way of damages, rent or otherwise (except that if the
award is made in a lump sum, the award will be held by the Landlord and paid out
to Tenant in equal monthly installments), except that portion of the award
attributable to or for restoration, if any, which will be held by and belong to
the Landlord, provided, however, if such period of temporary use or occupancy
shall extend beyond the expiration date or termination of this Lease such award
shall be apportioned between Landlord and Tenant as of such date of expiration
or termination of the Term. If the period of temporary use or occupancy ends
during the Term of this Lease, Tenant will, at its sole cost and expense,
restore the Demised Premises as nearly as practicable to the condition of the
same immediately prior to the Taking, and if the period of temporary
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use or occupancy does not end during the Term of this Lease, Landlord will be
entitled to the portion of the award that is attributable to restoration of the
Demised Premises.
SECTION 19.5 Except as expressly provided in the preceding sections of
this Article, Tenant will neither have nor make any claim whatsoever for any
award or payment for the Demised Premises or any part thereof, and in any event
Tenant shall neither have nor make any claim whatsoever for any award or payment
for the value of Tenant's leasehold under this Lease or the value of the
unexpired portion of the Term of this Lease. Nothing herein shall preclude
Tenant from the right to recover for direct loss of its personal property or
trade fixtures or for relocation expenses, if applicable.
ARTICLE 20. INDEMNIFICATION (LIABILITY)
----------- ---------------------------
SECTION 20.1 Tenant covenants and agrees, at its sole cost and expense
and in addition to any other right or remedy of Landlord hereunder, to indemnify
and save harmless Landlord and/or Mortgagee from and against any and all loss,
cost, expense, liability and claims (but excluding any liability arising solely
out of the gross negligence of Landlord or its agents, employees or
contractors), including, without limitation, reasonable attorneys' fees and
court costs, arising from or in connection with (a) Tenant's use, occupancy,
operation and control of the Demised Premises or Common Facilities, (b) the
conduct or management of any work, or any act or omission whatsoever, done in or
on the Demised Premises by or under the direction or at the request of Tenant,
(c) any breach or default on the part of Tenant in the payment of any rent or
performance of any covenant or agreement on the part of Tenant to be performed
pursuant to the terms of this Lease, or (d) any act or negligence of Tenant or
any of its agents, contractors, servants, employees, licensees or invitees.
SECTION 20.2 In the event that any action or proceeding is brought
against Landlord and/or Mortgagee by reason of any claims covered by the
foregoing indemnity, Tenant will, upon notice from Landlord and/or Mortgagee,
resist or defend such action or proceeding by counsel reasonably satisfactory to
Landlord and/or Mortgagee. Landlord and/or Mortgagee will not defend such action
or proceeding so long as Tenant is diligently doing so. Landlord and/or
Mortgagee will give prompt notice to Tenant of any action or proceeding brought
against Landlord and/or Mortgagee by reason of any claims covered by the
foregoing indemnity, together with copies of any documents served on Landlord
and/or Mortgagee in
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connection therewith, and Landlord and/or Mortgagee will not settle any such
claim without Tenant's written consent.
ARTICLE 21. SELF-HELP
----------- ---------
SECTION 21.1 Tenant covenants and agrees that if it at any time fails
to make any payments or perform any act which it is obligated to make or perform
under this Lease, then Landlord may, but will not be obligated to, after
Tenant's time to make any such payment or perform any such act as provided in
this Lease has expired and any required notice has been given, and without
waiving or releasing Tenant from any of its obligations under this Lease, make
any such payment or perform any such act in such manner and to such extent as is
necessary and consistent with Tenant's obligations hereunder. In exercising any
such rights, Landlord may pay or incur costs and expenses, including, without
limitation, reasonable attorneys' fees. Notwithstanding the foregoing, Landlord
may make any such payment or perform any such act before Tenant's time to do so
(as provided in Article 8) has expired, if payment on performance of the same is
necessary or required prior to the expiration of the applicable grace period for
the preservation or protection of the Building and/or Demised Premises.
SECTION 21.2 All sums so paid or incurred in connection with the
performance of any such act by Landlord, together with interest thereon from the
date that the Landlord made such expenditure at the rate which Chemical Bank
announces as its so-called prime rate or base rate, from time to time for the
first month after the making of such expenditure, and thereafter at the rate of
five (5) percentage points above the such prime lending rate or the maximum rate
allowed by law, whichever is less, will be deemed additional rent hereunder and,
except as otherwise in this Lease expressly provided, will be payable to
Landlord on demand or, at the option of Landlord, may be added to any rent then
due or thereafter becoming due under this Lease.
ARTICLE 22 ESTOPPEL CERTIFICATE
---------- --------------------
SECTION 22.1 Each party agrees that at any time and from time to time,
within ten (10) days of the receipt of written request by the other, it will
execute, acknowledge and deliver a statement in writing certifying (i) that this
Lease is unmodified and in full force and effect, or if there have been
modifications that the same is in full force and effect as modified and stating
the modification, (ii) the dates to which the Base Rent and other charges have
been paid and the amount of same, (iii) to the best
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of knowledge of the certifying party whether there are any defaults or rent
abatements or offsets claimed, and (iv) any other reasonable information
including but not limited to the representations set forth in Article 23.
Notwithstanding the foregoing, it is intended that any such statement delivered
pursuant to this Article may be relied upon by any prospective purchaser of the
fee or mortgagee or assignee of any mortgage of the Landlord's interest in the
Building and/or Demised Premises and the statement will contain such other
information as is requested, and be in the form required, by such purchaser,
mortgagee or assignee.
ARTICLE 23 SUBORDINATION AND NON-DISTURBANCE
---------- ---------------------------------
SECTION 23.1 This Lease is and will at all times be subject and
subordinate to (i) the lien of any mortgage(s) on or affecting the Building or
any part thereof, at the date hereof, and (ii) subject to the provisions of
Section 23.2, any mortgage(s) hereafter made affecting the Building or any part
thereof, and all renewals, modifications, consolidations, replacements, or
extensions thereof, irrespective of the time of recording such mortgage(s). The
provisions of this subordination shall be automatic and no further instrument of
subordination will be necessary, but in confirmation of this subordination
Tenant will, at Landlord's request, execute and deliver such further instruments
as may be required by the holder(s) of said mortgage(s).
SECTION 23.2 The subordination to any mortgage(s) hereafter made is
expressly conditioned upon any such mortgagee(s) executing and delivering to
Tenant an agreement, in form for recording, pursuant to which such mortgagee(s)
agrees that the leasehold estate granted to Tenant hereunder and the rights of
Tenant pursuant to this Lease to quiet and peaceful possession of the Demised
Premises will not be terminated, modified, affected or disturbed by any action
which such mortgagee may take to foreclose its mortgage or to enforce its rights
or remedies, nor will Tenant be named a defendant in any foreclosure action, as
long as no event of default has occurred under this Lease (other than events of
default theretofore cured or in the process of being cured as permitted by the
provisions of Article 8 hereof) and as long as Tenant pays the Base Rent and all
additional rent due and performs its obligations hereunder within the applicable
grace periods and without offsets or defenses thereto, except as otherwise
herein expressly set forth.
SECTION 23.3 If any mortgagee or any other person claiming
by or through any mortgagee, or by or through any foreclosure
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proceeding or sale in lieu of foreclosure, succeeds to the rights of Landlord
under this Lease, Tenant will, at the request of such successor or at Landlord's
request, attorn to and recognize such successor as the landlord of Tenant under
this Lease, and Tenant will promptly execute, acknowledge and deliver at any
time any instruments requested by such person to evidence such attornment and/or
confirm Tenant's agreement to attorn. Upon such attornment, this Lease will
continue as a direct lease from such successor landlord to Tenant, upon and
subject to all of the provisions of this Lease for the remainder of the Term,
except that the successor landlord will not be:
(a) liable for any previous act or omission of Landlord under
this Lease or the return of any security deposit unless physically delivered to
successor-landlord;
(b) subject to any offset, defense or counterclaim not
expressly provided for in this Lease which has theretofore accrued to Tenant
against Landlord;
(c) bound by (i) any modification of this Lease after the
date of such mortgage, (ii) any prepayment of more than one (1) month's Base
Rent or additional rent, or (iii) any assignment, surrender, termination,
cancellation, waiver, release, amendment or modification of the Lease, unless
same has been expressly approved in writing by the holder of such mortgage
through or by reason of which the successor landlord shall have succeeded to the
rights of Landlord under this Lease;
(d) bound by any security deposit which Tenant may have paid
to any prior landlord, unless such deposit is in an escrow fund available to
mortgagee, or actually received by Mortgagee;
(e) bound by any provision in the Lease which obligates the
landlord to erect or complete any building or to perform any construction work
or to make any improvements to the Demised Premises or to expand or rehabilitate
any existing improvements or to restore any improvements following any casualty
or taking;
(f) bound by any notice of termination given by Landlord to
Tenant without Mortgagee's written consent thereto; or
(g) personally liable under the Lease and Mortgagee's
liability under the Lease shall be limited to the ownership interest of Lender
in the Demised Premises. Tenant will further agree with Mortgagee that Tenant
will not voluntarily subordinate the Lease to any lien or encumbrance without
Mortgagee's prior written consent.
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ARTICLE 24 NOTICES
---------- -------
SECTION 24.1 Except as expressly provided in this Lease to the
contrary, all notices, demands and requests (other than invoices for Base Rent
or additional rent) which are required to be given by either party to the other
will be in writing and will be sent by United States first-class certified mail,
return receipt requested, addressed (i) to Landlord at its address set forth in
the Agreement of Lease, "Attention: Director of Asset Management", with a copy
to Landlord at its address set forth above, "Attention: Corporate Counsel", and
with a copy to Mortgagee, (ii) to Tenant at the Demised Premises, or (iii) at
such other place as either party may from time to time designate in a written
notice to the other party. Until Tenant takes occupancy of the Demised Premises,
notices to Tenant shall be at Tenant's address as set forth in the Agreement of
Lease.
SECTION 24.2 Any notice given in accordance with the provisions of this
paragraph shall be deemed given when the primary notice is actually delivered or
when proper delivery of the primary notice is refused, without regard to the
date on which any copy is delivered or proper delivery thereof is refused. Any
notice (primary or copy) given to an entity shall be deemed to be delivered on
the date such notice is received or proper delivery is refused by the entity,
without regard to when such notice is delivered by the entity to the individual
to whose attention it is directed and without regard to the fact that proper
delivery is refused by someone other than the individual to whose attention it
is directed. Notices may be given on behalf of any party by such party's
attorney(s).
SECTION 24.3 Either party may, at its option, substitute for service by
United States first-class certified mail, service by Federal Express or similar
overnight courier, provided that such courier obtains and makes available to its
customers written evidence of delivery. Notice given via such courier is deemed
to be given upon receipt or upon refusal to accept delivery, as applicable.
Notices may be given by a party or by an agent or attorney for a party on its
behalf.
ARTICLE 25 BROKER
---------- ------
SECTION 25.1 Landlord and Tenant represent to each other that they
dealt with no broker in connection with this Lease other than the Broker
identified in the Agreement of Lease.
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SECTION 25.2 Tenant agrees that if any claim should be made for
commissions by any broker by reason of any act of Tenant or its representatives,
Tenant will hold Landlord free and harmless from any and all loss, liabilities
and expenses in connection therewith. Landlord will give prompt notice to Tenant
after any such claim is made by any broker. Tenant will have the right to defend
such claim and Landlord will not pay or settle such claim as long as Tenant is
defending same.
SECTION 25.3 Landlord agrees that if any claims should be made for
commissions by any broker by reason of any act of Landlord or its
representatives, Landlord will hold Tenant free and harmless from any and all
loss, liabilities and expenses in connection therewith. Tenant will give prompt
notice to Landlord after any such claim is made by any such broker. Landlord
will have the right to defend such claim and Tenant will not pay or settle such
claim as long as Landlord is defending same.
ARTICLE 26 SIGNS
---------- -----
SECTION 26.1 Tenant will not place any signs on the land, or the
exterior or interior of the Building, or in any window whereby such sign would
be visible from the outside of the Building, except as agreed to in writing by
Landlord. Tenant will obtain, at its sole cost and expense, any and all permits,
licenses or approvals which may be necessary in connection with its sign or
signs.
SECTION 26.2 Landlord will provide a single entry identifying Tenant
and the floor on which the Demised Premises is located on the directory in the
first floor lobby and, if applicable, on any directory Landlord may provide on
the floor on which the Demised Premises is located and/or any directory Landlord
may provide in any elevator(s).
ARTICLE 27. HOLDOVER
----------- --------
SECTION 27.1 If Tenant continues in the occupancy of the Demised
Premises after the expiration or sooner termination of the Term, such occupancy
will be deemed to be a default by Tenant (without the necessity of any notice).
Tenant's occupancy will be deemed a month-to-month tenancy subject to the terms
of the Lease and Tenant will pay twice the Base Rent in effect upon the
expiration of the Term together with twice the additional rent herein provided.
The provisions of this Article will not be construed (i) to relieve Tenant from
liability to Landlord for
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damages resulting from any such holding over, or (ii) as Landlord's consent for
Tenant to holdover.
ARTICLE 28 LIMITATION OF LIABILITY
---------- -----------------------
SECTION 28.1 Notwithstanding any contrary provision contained in this
Lease, neither Landlord, nor any of its officers, directors, principals,
partners, agents or employees will be responsible or liable to the Tenant:
(a) for any damage or injury resulting from acts or omissions
of persons occupying or using any other part of the Building or for any injury
or damage resulting from bursting, stoppage or leakage of water, sprinkler, gas,
sewer or steam pipes; or
(b) for any consequential damages or lost profits, under any
circumstances whatsoever.
Notwithstanding the provisions of this Section, if Landlord is in
default with respect to its obligations hereunder and is thereby or otherwise
determined to be liable to Tenant (whether as a result of negligence, strict
liability, breach of warranty or any other theory or concept of liability),
Landlord will be liable for monetary damages only and as of the date such cause
of action occurs, following a final judgment establishing such default or
liability. In any such event, Tenant will look solely to the equity of Landlord
in the Building for the satisfaction of Tenant's remedies or Landlord's
liability and it is expressly understood and agreed that Landlord's liability
under the terms, covenants, warranties and obligations of this Lease or
otherwise, will in no event exceed the loss of its equity in the Building, or
extend personally to any principal, partner or officer, director, agent or
employee, as applicable, of Landlord.
ARTICLE 29. MODIFICATIONS REQUESTED BY MORTGAGEE
----------- ------------------------------------
SECTION 29.1 Tenant hereby agrees that if any lender to the Landlord
proposing to make a mortgage on Landlord's interest in the Building and/or
Demised Premises requires, as a condition to making any loan to be secured by
such mortgage, that Tenant agrees to modifications to this Lease, or that Tenant
supply financial statements and/or other information, then Tenant agrees that it
will enter into an agreement with Landlord making such modifications as are
requested by such lender and will supply such financial statements and other
information as are requested by such lender. Under no circumstances will Tenant
be required to agree to any modification which changes the Demised Premises,
increases the Base Rent or any additional rent, abridges or enlarges the Term,
or requires the expenditure of funds by Tenant
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which Tenant is not obligated to expend pursuant to the existing terms of this
Lease. Tenant will execute such modification or supply such information within
ten (10) days after Landlord's request. In the event of Tenant's refusal,
Landlord will have the right, among other remedies, to cancel and terminate this
Lease.
ARTICLE 30. PARKING
----------- -------
SECTION 30.1 Subject to terms hereof, Tenant will have the right to use
the Tenant Parking Spaces in the parking lot(s) of the Building located as shown
on Exhibit A-2. Any and all references to parking "area(s)" in the Lease
including all Exhibits shall be deemed to mean parking "lot(s)".
ARTICLE 31. RULES AND REGULATIONS
----------- ---------------------
SECTION 31.1 Tenant, its agents, employees, contractors, licensees and
invitees, will at all times abide by and observe the Rules and Regulations
attached hereto as Exhibit F. In addition, Tenant, its agents, employees,
contractors, licensees and invitees will abide by and observe such modified or
new rules or regulations as may be promulgated from time to time by Landlord for
the operation and maintenance of the Building and Common Facilities, provided,
however, that a copy of same are sent to Tenant and that the same are in
conformity with common practice and usage in similar buildings and are not
inconsistent with the provisions of this Lease. Nothing contained in this Lease
will be construed to impose upon Landlord any duty or obligation to enforce such
Rules and Regulations, or the terms, conditions or covenants contained in any
other lease, as against any other tenant, and Landlord will not be liable to
Tenant for violation of the same by any other tenant, its employees, agents,
contractors, licensees or invitees. If there is any inconsistency between this
Lease and the Rules and Regulations set forth in Exhibit F, the terms of this
Lease will govern.
ARTICLE 32. REGULATION OF COMMON FACILITIES
----------- -------------------------------
SECTION 32.1 The Common Facilities are at all times subject to the
exclusive control and management of Landlord. Landlord will have the right to
change the areas, locations and arrangements of parking areas, lobbies and other
Common Facilities (provided that Tenant will have reasonable access to the
Demised Premises); to enter into, modify and terminate easements and other
agreements pertaining to the use and maintenance of the parking areas and other
Common Facilities; to
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restrict parking by tenants, their officers, agents, and employees to employee
parking areas; to construct surface or elevated parking areas and facilities; to
establish and change the level of parking surfaces; to close all or any portion
of the parking areas or other Common Facilities to such extent as may, in the
opinion of Landlord, be necessary to prevent a dedication thereof or the accrual
of any rights to any person or to the public therein; to close temporarily any
or all portions of the said areas or facilities to discourage non-tenant
parking; and to do and perform such other acts in and to the Common Facilities
as, in the exercise of good business judgment, Landlord may determine to be
advisable.
SECTION 32.2 Landlord reserves any and all rights not expressly granted
to Tenant hereunder, including, but not limited to, the following rights which
are reserved to Landlord for its purpose in operating the Building: (a) the
exclusive right to the use of the name of the Building, except that Tenant may
use the name of the Building as its business address and for no other purpose;
(b) the right to change the name or address of the Building, without incurring
any liability to Tenant for so doing; (c) the right to install and maintain a
sign or signs on the exterior of the Building or on the Common Facilities; (d)
the exclusive right to use or dispose of the use of the roof of the Building;
(e) the right to limit the space on the directory of the Building to be allotted
to Tenant; and (f) the right to grant to anyone the right to conduct any
particular business or undertaking in the Building.
ARTICLE 33. RIGHT TO RELOCATE
----------- -----------------
SECTION 33.1 From time to time or at any time during the Term, and on
not less than thirty (30) days notice to Tenant, Landlord will have the right to
move the Tenant out of the Demised Premises and into substantially similar space
of at least equal area, in the Building, or a comparable building owned by
Landlord, or any of its affiliates, in the complex in which the Building is
located, if applicable. In such event Landlord will remove, relocate and
reinstall Tenant's equipment, furniture and fixtures and redecorate the new
space similar to the old space, all of which shall be done at Landlord's sole
cost and expense, whereupon this Lease shall continue in full force and effect
and shall apply to the new space as though this Lease had originally been for
such new space for the balance of the Term.
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ARTICLE 34 SHORT FORM LEASE
---------- ----------------
SECTION 34.1 The parties will, at the request of either one, execute
duplicate originals of an instrument in recordable form which will constitute a
short form of lease, setting forth a description of the Demised Premises, the
Term of this Lease and any other portions hereof, except the rent provisions,
that either party may reasonably request.
ARTICLE 35 CAPTIONS
---------- --------
SECTION 35.1 The captions in this Lease are for convenience and
reference only, and in no way define, limit or describe the scope or intent of
this Lease and are in no way to affect the interpretation or construction of
this Lease.
ARTICLE 36 APPLICABILITY TO SUCCESSORS AND ASSIGNS
---------- ---------------------------------------
SECTION 36.1 The provisions of this Lease will be binding upon and
inure to the benefit of Landlord and Tenant, and their respective heirs,
successors, legal representatives and assigns, but nothing herein will grant to
Tenant the right to assign this Lease other than pursuant to the provisions
hereof. It is understood that the term "Landlord" as used in this Lease means
only the owner, a mortgagee in possession, or a term lessee of the Building, so
that in the event of any sale of the Building or of any term lease thereof, or
if a mortgagee takes possession of the Building, the Landlord named herein will
be and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder accruing thereafter, and it will be deemed, without further
agreement, that the purchaser, the term lessee of the Building, or the mortgagee
in possession has assumed and agreed to carry out any and all covenants and
obligations of landlord hereunder accruing from and after the date of transfer,
lease or possession, as applicable.
ARTICLE 37 ENTIRE AGREEMENT; MODIFICATION
---------- ------------------------------
SECTION 37.1 This Lease (i) constitutes the entire and only agreement
between the parties relating to the subject matter hereof, (ii) cancels and
supersedes any prior agreements or discussions between the parties or their
representatives, and (iii) may not be modified except by an instrument in
writing which is signed by both parties.
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ARTICLE 38 MISCELLANEOUS
---------- -------------
SECTION 38.1 The terms, covenants, conditions, provisions and
agreements of this Lease are deemed to be severable. If any clause or provision
herein contained is adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable law or regulation, it
will not affect the validity of any other clause or provision herein, but such
other clauses or provisions will remain in full force and effect. In addition,
Landlord may pursue the relief or remedy sought in any invalid clause, by
conforming such clause with the provisions of the statute or regulation as if
the particular provisions of the applicable statute or regulation were set forth
herein at length.
SECTION 38.2 This Lease is not to be strictly construed against either
Landlord or Tenant. No remedy or election given by any provision in this Lease
is deemed exclusive unless so indicated, but each, wherever possible, is
cumulative with all other remedies in law or at equity.
SECTION 38.3 All obligations of Tenant which by their nature involve
performance in any particular, or which cannot be ascertained to have been fully
performed until after the end of the Term, will survive the expiration or sooner
termination of this Lease.
SECTION 38.4 With respect to any provision of this Lease which
provides, or is held to provide, that Landlord may withhold or delay any consent
or any approval or exercise its judgment or discretion, Tenant in no event will
be entitled to make, and Tenant hereby waives, any claim for damages, directly
or by way of setoff, counterclaim or defense, based upon any claim or assertion
by Tenant that Landlord has unreasonably withheld or unreasonably delayed any
consent or approval or unreasonably exercised its judgment or discretion.
SECTION 38.5 This Lease is to be interpreted, governed by and enforced
in accordance with the substantive laws of the State in which the Property is
located without regard to choice of laws concepts.
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EXHIBIT C
---------
OPERATING EXPENSES
------------------
1. Commencing with the second Lease Year, and for each Lease Year thereafter,
Tenant will pay to Landlord Tenant's Pro Rata Share of the amount by which (x)
the "OPERATING EXPENSES" (as hereinafter defined) during each fiscal year of
Landlord exceed (y) the Operating Expenses for the Base Year. Payment will be
made as provided below.
2. (a) "OPERATING EXPENSES" are defined as Real Estate Taxes (as defined below)
and any and all costs and expenses incurred by Landlord relating or pertaining
to the Building and/or Demised Premises and deemed by Landlord to be reasonable,
appropriate and for the best interests of the Demised Premises and Building,
including, but not limited to, the cost of: (i) gas, oil, electricity, steam,
water and other utilities (excluding tenants' electricity); (ii) installing,
operating, maintaining, repairing, replacing any part or parts of, and/or
providing Common Facilities utilities, services, lighting, mechanical and
electrical equipment, (including heating, ventilation and air-conditioning
equipment) and similar items which are or will be utilized to provide services
and utilities; (iii) maintenance, repair, lighting, cleaning, painting,
striping, decorating, policing, management, superintendence and security; (iv)
insurance of any nature maintained by Landlord including any deductible feature;
(v) removal of snow, ice and debris, regulation of traffic, inspection of
machinery and equipment and personal property taxes and other charges incurred
in connection with such machinery and equipment; (vi) replacement of paving
curbs, walkways, planters and maintaining any lawn and/or plantings; (vii) a
reasonable management fee not to exceed similar fees charged by other
first-class office parks or office buildings in the area (as is applicable); and
(viii) any and all other expenses paid by the Landlord in the operation,
maintenance and repair of the Building (including the equipment and systems
therein) or the park in which the Building is located, if applicable, (pro rated
as required among all buildings benefitted) except as otherwise expressly
excluded herein.
(b) Operating Expenses will not include: (i) any expenses for which the
Landlord is reimbursed or indemnified (either by an insurer, condemnor, tenant
or otherwise); (ii) interest or amortization payments on any mortgage or
mortgages, and rental under any ground or underlying lease or leases; (iii) the
cost of any work or services performed for or facilities furnished to a tenant
at the tenant's cost; (iv) any capital expenditure, or amortized portion
thereof, other than those described in this
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Paragraph 2 (b); (v) expenditures for any leasehold improvement which is made in
connection with the preparation of any portion of the Building for occupancy by
a new tenant or which is not made generally to or for the benefit of the Demised
Premises and other leased premises or generally to the Building or the Common
Facilities; (vi) to the extent the Landlord actually receives proceeds of
property and casualty insurance policies on the Building, other improvements on
the Property or the Common Facilities, expenditures for repairs or replacements
occasioned by fire or other casualty to the Building or the Common Facilities;
(vii) expenditures for repairs, replacements or rebuilding occasioned by
condemnation; (viii) expenditures for costs, including advertising and leasing
commissions, incurred in connection with efforts to lease portions of the
Building and to procure new tenants for the Building; (ix) legal fees and
expenses incurred in enforcing any of Landlord's rights or remedies against
tenants of other leased premises; (x) expenditures for the salaries and benefits
of the executive officers, if any, of the Landlord; and (xi) depreciation (as
that term is used in accounting sense in the context of generally applied real
estate accounting practice) of the Building, the Common Facilities and any other
improvement on the Property. Operating Expenses will include the cost of any
capital improvement made to the Building after the date hereof which reduces
other Operating Expenses or is required under a law or regulation that was not
applicable to the Building at the time the Building was constructed, the cost
thereof to be amortized over a reasonable period (not to exceed ten (10) years)
together with interest on the unamortized balance at the rate being paid by
Landlord for funds borrowed for the purposes of constructing said capital
improvements (or the rate at which Landlord then customarily borrows funds for
similar expenditures if no funds were so borrowed). Operating Expenses shall
also include capital expenses necessitated by casualties to the extent that they
are not covered by insurance, including any deductible feature of any insurance
carried by Landlord with respect thereto.
(c) Real Estate Taxes are defined as the annual real estate taxes,
payments "in lieu" of real estate taxes, assessments (whether general or special
and including all assessments for public improvements or benefits) or other
rents, rates and charges, excises, levies, license fees, permit fees, inspection
fees and other authorization fees and charges, in each case whether general or
special, which are levied or assessed against the Building, and/or the Demised
Premises. Real Estate Taxes will not include income, franchise, inheritance or
foreign ownership or foreign control taxes (but Tenant will at all times be
responsible for any taxes levied, assessed or imposed upon its property),
provided, however, that:
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(i) if at any time after the date of this Lease the method of
taxation of real estate prevailing at the date of this Lease (other than a
change from "in lieu" payment and ad valorem assessment) is altered and there is
levied, assessed or imposed on Landlord in substitution, in whole or in part,
for the present general real estate, a corporation franchise tax or any other
tax, however denominated and by whatever taxing authority (including, but not
limited to, any municipal, county, state or federal authority) which shall be
measured by or based in whole or in part upon the Demised Premises, or the value
thereof, or the revenues or rents derived therefrom, then all such taxes, or the
part thereof so measured or based, shall be deemed to be included within the
phrase "REAL ESTATE TAXES" used herein but only to the extent to which such
taxes are substituted for the present general Real Estate Taxes; and
(ii) if the Real Estate Taxes applicable to the Base Year are, at
any time, reduced as a result of tax appeal, reassessment, or any other reason,
then for purposes of this Lease such reduced taxes will be the Base Year Real
Estate Taxes, and Tenant will pay to Landlord, within thirty (30) days of its
receipt of notification of the reduced Base Year Real Estate Taxes, any amounts
due as a result of such reduction in the Base Year Real Estate Taxes. Similarly,
if the Real Estate Taxes for any year of the Term after the Base Year are
reduced as a result of tax appeal, reassessment or any other reason, Tenant's
Pro Rata Share of the excess of such Real Estate Taxes over the Base Year Real
Estate Taxes will include in any subsequent year's reduced taxes the cost and
expenses, including attorneys' fees, associated with such reduction, if any.
3. If during the Base Year or any subsequent fiscal year of Landlord
less than ninety-five (95%) percent of the Building is occupied for the whole of
such year, those Operating Expenses which are affected by variations in
occupancy levels will, for the Base Year or subsequent fiscal year of Landlord,
as the case may be, be adjusted by Landlord in the calculation of Operating
Expenses so as to approximate the sum which would have been reasonably incurred
for ninety-five (95%) percent occupancy for the whole of such year. Such
adjustment(s) will be made with the intent to more equitably reflect the
expenses associated with Tenant's occupancy (by way of example but not limited
to such expenses as non-common area utilities, non-common area trash removal,
and non-common area janitorial services) and will reflect the weighted average
for the Base Year or any subsequent year occupancy, but will not include an
adjustment to insurance expense. Additionally, Landlord reserves the right to
adjust Base Year costs to delete the cost of any items which are included in
Base Year calculations which are subsequently deleted as an
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Operating Expense or to adjust the Base Year Operating Expenses total to reflect
any subsequent change which significantly reduces any line item(s) of Operating
Expenses in subsequent years, such as a reduction in Real Estate Taxes due to a
successful tax appeal, which would artificially affect the overall cost of
Operating Expenses for such year.
BILLING & PAYMENT
-----------------
The amounts required to be paid by Tenant pursuant hereto shall be paid by
Tenant in monthly installments commencing with the second Lease Year in such
amounts as are estimated by Landlord from time to time. Not later than one
hundred eighty (180) days after the end of the Base Year, Landlord will deliver
to Tenant a statement of the Base Year Operating Expenses. Not later than one
hundred eighty (180) days after the end of each subsequent fiscal year as
Landlord may reasonably select, Landlord will deliver to Tenant a statement of
the Operating Expenses for such fiscal year and the excess of same, if any, over
the total Base Year Operating Expenses. Tenant agrees to pay to Landlord and
Landlord agrees to credit to Tenant, or pay to Tenant if the Term has expired,
as applicable, within thirty (30) days of receipt of such statement, such amount
as may be necessary to effect proper adjustment for payment of Operating
Expenses. Failure of Landlord to provide any statement called for hereunder
within the time prescribed will not relieve Tenant from its obligations
hereunder.
RIGHT TO AUDIT
--------------
Tenant shall have the right, upon thirty (30) days' prior notice in
writing to Landlord, to audit the records of the Landlord at Landlord's office
as to the Operating Expenses of the Building for any fiscal year for which
additional rent is paid by Tenant for an increase in Operating Expenses, but
only within six (6) months of receipt of the Operating Expenses for such year.
Such audit shall be performed during Landlord's usual business hours at
Landlord's principal office and without interference with the conduct of
Landlord's business.
If the Tenant shall contend that the expenses that are included in such
written statement Landlord furnished to Tenant (i) as Operating Expenses are not
Operating Expenses in accordance with the express terms of this Lease, or (ii)
as operating expenses which are not Building Operating Expenses but rather are
furnished for Tenant alone or for Tenant and a limited number of other tenants,
making the proportionate share of such
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cost for Tenant different from Tenant's Pro Rata Share of Building Operating
Expenses in accordance with the Agreement of Lease have been incorrectly
prorated, and if such matter is not satisfactorily settled between Landlord and
Tenant within sixty (60) days after the completion of Tenant's audit, the
accountant of the Landlord and the accountant of the Tenant shall mutually
select a disinterested accountant, who shall be a certified public accountant
licensed by the State of New Jersey, who shall determine whether such expenses
are or are not Operating Expenses of the Building, or in the case of Subsection
(ii) above, shall determine Tenant's proportionate share for in accordance with
the express terms of this Lease, which determination shall be binding upon both
parties. In the event such accountants are unable to agree upon a third
accountant, either party may apply to the New Jersey Superior Court for the
appointment of a third accountant. The decision of the third accountant shall be
binding. Landlord shall reimburse Tenant and pay the reasonable expenses of the
third accountant only if the Operating Expenses set forth in the statement of
Operating Expenses Landlord furnished to Tenant were more than five (5%) percent
greater than the amount determined by the third accountant to be in accordance
with the express terms of the Lease. Pending resolution of the issue, Tenant
shall continue to make monthly estimated payments of the adjustments required by
the Operating Expense Statement as provided herein, subject to retroactive
adjustment upon final determination of the third accountant.
Failure of Tenant to request such audit in the allotted time period shall
be deemed a waiver of this right by Tenant.
If Operating Expenses paid by Tenant are greater or less than the actual
expenses as determined by the disinterested accountant, then Landlord shall
reimburse or credit Tenant for such overage or Tenant shall make payment for
such shortfall to the Landlord, as is applicable, within thirty (30) days in
accordance with the Billing and Payment paragraph above
APPORTIONMENT; SURVIVAL
-----------------------
Any Operating Expenses, whether or not a lien upon the Building and/or
Demised Premises, which accrue on an annual basis but relate in part to a period
subsequent or prior to the Term, shall be equitably apportioned by Landlord it
being intended that Tenant will pay its pro rata share of only that portion of
the Operating Expenses as is allocable to the Term of this Lease. Tenant's
obligation to pay Occupancy Expenses, as provided above, accruing during the
Term will survive the expiration or earlier termination of this Lease.
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EXHIBIT D
---------
WORK LETTER
-----------
The purpose of this Work Letter is to set forth the rights and obligations
of Landlord and Tenant with respect to space planning, specifications and
engineering and final construction drawings for the construction and
installation of Tenant Improvements (as defined below) in the Demised Premises.
It is the Intention of the parties that Tenant shall have reasonable freedom to
design the Tenant Improvements to meet its requirements consistent with
applicable building codes and sound architectural, engineering and construction
practices in first-class office buildings, provided that Tenant's design meets
the requirements of Schedule D-2 Guidelines for Tenants Retaining Consultants
and Contractors attached hereto.
Landlord and Tenant assume that the performance of the work provided for
herein will proceed generally as follows:
1. LANDLORD'S WORK AND TENANT'S WORK
---------------------------------
Landlord will deliver the Demised Premises in accordance with the Space
Plan prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Architects and the Leasehold Improvement
Specifications (Schedule D-3). Such work will be completed in two (2) phases:
(i) prior to Tenant's occupancy of Phase I, Landlord shall repaint and recarpet
all Phase I areas except those slated for construction in conjunction with the
Phase II requirement and (ii) upon Landlord's recapture of the remaining portion
of the Demised Premises, Landlord will complete all leasehold improvements for
the Phase II occupancy ("LANDLORD'S WORK"). All Landlord's Work shall be
completed in Building standard finishes, except that Landlord shall provide
upgraded carpet in the Conference Room, Reception Area, and four (4) Executive
Offices to be designated by Tenant. Landlord shall also install vinyl wall
covering and paracube light fixtures in the designated Executive Offices. An
allowance of $6.50 per linear yard will be provided to Tenant for the
installation of such vinyl wall covering in the areas designated above.
Building standard carpeting is either a Philadelphia "Volunteer" (level
loop) or "Impact III" (cut pile). The upgraded carpet will be a Philadelphia
"▇▇▇▇▇ Hall" or "Riverbend."
It is currently Landlord's intention to allow the existing
entrance door to the lobby (i.e. Door A on Exhibit A-1) to serve
as the entrance to Tenant's Phase I space. However, Landlord may
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decide to commence construction of the common corridor delineated on Exhibit
A-1, in which event Landlord will construct a temporary entrance door located
generally as indicated on Exhibit A-1 as Door B.
At Tenant's election and at Tenant's sole cost, Landlord will install an
HVAC unit to service an area as designated by Tenant. Payment for such HVAC unit
will be due in two (2) installments: (i) 50% upon Tenant's authorization to
proceed with such installation and (ii) 50% upon completed installation.
All other work desired to complete the Demised Premises and/or any work
beyond the scope of work anticipated as Landlord's Work above, if any, shall be
deemed "TENANT'S WORK" at Tenant's sole cost and expense, payable within thirty
(30) days of receipt of an invoice from Landlord, if Landlord does such work on
Tenant's behalf.
2. TENANT IMPROVEMENTS AND TENANT PLANS
------------------------------------
Landlord shall provide complete architectural drawings, working drawings
and specifications (collectively, together with any approved changes or
modifications to any plans theretofore submitted or approved, being hereinafter
referred to as the "TENANT PLANS") for the construction and/or installation of
the Tenant Improvements. The Tenant Plans shall include the following:
(i) Partition layout (i.e. space plan or floor layout), architectural details,
door schedules, finish schedules, plumbing fixtures, power receptacles.
(ii) Reflected ceiling plan, lighting locations, emergency egress lighting and
exit signs, sprinkler head locations.
Tenant also agrees to furnish to Landlord for its approval the following
information and/or drawings, as applicable:
a. Location and extent of floor loading in excess of building standard;
b. Any special air-conditioning needs by location, and general
description of need;
c. Location and description of special plumbing requirements;
d. Estimated total electrical load, including lighting, for the entire
Demised Premises showing amount, location and type, and including a
listing of heat producing equipment and machinery, specifying
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manufacturer and type of equipment/machinery, number of units and
electrical wattage per unit; and
e. Any requested modifications or changes to the Base Building design.
Tenant covenants and agrees to deliver approval of any Tenant Plans and
the information and drawings listed above to Landlord by the Tenant Plans
Deadline. All Tenant Plans shall be stamped and sealed by an architect licensed
in the State of New Jersey. Tenant acknowledges that if Tenant requests Landlord
do the work to construct any Tenant Improvements, the specifications for the
construction and for the systems serving the Demised Premises will be based upon
the information, drawings and other special requirements provided by Tenant.
3. APPROVAL BY LANDLORD
--------------------
Tenant Plans shall be subject to Landlord's prior written approval.
Landlord agrees that it will not unreasonably withhold its approval of the
Tenant Plans, provided, however, that Landlord will have sole and absolute
discretion to approve or disapprove any element(s) of the Tenant Plans that will
(i) be visible from the exterior of the Demised Premises or Building, or (ii)
involve or may affect any structural or exterior element of the Building or any
area or element of any Common Facility or delay completion of the Demised
Premises or Building, or (iii) increase the cost of construction or of insurance
or taxes on the Building, or (iv) require unusual expense to readapt the Demised
Premises or Building to normal use on lease termination or increase the cost of
construction or of insurance or taxes on the Building, unless Tenant first gives
assurance reasonably acceptable to Landlord for payment of such Tenant Plans,
changes or modifications by Landlord will not constitute approval of any delays
caused by Tenant or in implementing the work shown on such plans and shall not
be deemed a waiver of any rights or remedies that may arise as a result of such
delays.
4. MATERIALS AND WORKMANSHIP
-------------------------
All work performed in connection with the construction of the Tenant
Improvements shall be performed in a good and workmanlike manner and in
accordance with all applicable laws and regulations and in substantial
conformance with the final approved Tenant Plans. Due diligence shall be
exercised in completing the Tenant Improvements.
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5. REPAIRS AND CORRECTIONS
-----------------------
Landlord agrees to repair and correct any work or materials installed by
Landlord or its contractor in the Demised Premises which prove defective as a
result of faulty materials, equipment or workmanship and that appear within one
(1) year after the Commencement Date, provided Tenant shall have given written
notice thereof to Landlord within said one (1) year period. Notwithstanding the
foregoing, Landlord shall not be responsible to repair or correct any defective
work or materials installed by Tenant or any contractor other than Landlord's
contractor, or any work or materials that prove defective or are modified or
damaged as a result of any act or omission of Tenant or any of its employees,
agents, contractors, invitees, licensees or subtenants.
6. POSSESSION BY TENANT
--------------------
The taking of possession of the Demised Premises or any part thereof by
Tenant shall constitute an acknowledgment by Tenant that the Demised Premises
are in good condition and that all work and materials provided by Landlord are
satisfactory, except (i) as to any defects or incomplete work that are described
in a written notice given by Tenant to Landlord no later than ten (10) days
after Tenant commences occupancy of the Demised Premises, and (ii) as to any
equipment that is used seasonally, if Tenant takes possession of the Demised
Premises during a season when such equipment is not in use, and (iii) as to any
defective work or materials which Landlord agrees to repair and correct under
paragraph 6 above, but only if such defective work or material could not
reasonably be observed within said ten (10) day period. Landlord agrees to
correct and complete those defects and incomplete items described in such notice
which Landlord confirms are, in fact, defects or incomplete items.
7. ACCESS DURING CONSTRUCTION
--------------------------
If Landlord is performing the construction of the Tenant Improvements,
Landlord will permit Tenant and its agents to enter the Demised Premises prior
to the Commencement Date so that Tenant may perform through its own contractors
such work and decorations as Tenant may desire, and (which Landlord has
previously approved), at the same time the Landlord's contractors are working in
the Demised Premises. The foregoing license to enter prior to the Commencement
Date is conditioned upon Tenant's workmen and mechanics working in harmony and
not interfering with
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the labor employed by Landlord and/or Landlord's contractors of the Lease except
as to the covenant to pay rent. Landlord shall not be liable in any way for any
injury, loss or damage which may occur to any of Tenant's decorations or
installations made prior to the Commencement Date, the same being solely at
Tenant's risk.
8. REPRODUCIBLE COPIES
-------------------
Upon completion of the Tenant Improvements, Tenant will provide to
Landlord one (1) print and one (1) reproducible copy of the as-built Tenant
Plans, including without limitation, plumbing, electrical, HVAC and
architectural plans.
9. CODE ENFORCEMENT REQUIREMENTS
-----------------------------
Any requirements of the local code enforcement officers applicable to or
arising from the nature, location, layout or installation of Tenant's furniture
and/or trade fixtures, i.e., not required by virtue of the layout of the Tenant
Improvements as shown on the Tenant Plans or the design of the Building, shall
be the sole responsibility of ▇▇▇▇▇▇.
▇
▇▇
▇▇▇▇▇▇▇▇ ▇-▇
------------
PRINCETON PIKE CORPORATE CENTER
-------------------------------
BUILDINGS I, II, III, IV
------------------------
BASE BUILDING - LANDLORD'S WORK
-------------------------------
1. GENERAL CONSTRUCTION
--------------------
Base Building is designed in accordance with Use Group Classification "B"
(Business Use) & Type "2C" construction classification of the BOCA Code.
Construction is structural steel frame with poured concrete floor decks.
Exterior walls are constructed of precast concrete panels with insulated
interior drywall wall construction in Demised Premises. Base Building is
fully sprinklered.
Floors are designed to sustain a live load of 100 pounds per square foot,
including partition allowance of 20 pounds per square foot.
2. TOILET FACILITIES
-----------------
Each floor is provided with one (1) men's & one (1) women's toilet room,
each furnished with fixtures in accordance with the New Jersey Uniform
Construction Code ("NJUCC") and
municipal ordinance.
3. DRINKING FOUNTAIN
-----------------
Water coolers are provided on each floor in accordance with the NJUCC.
4. ELEVATORS
---------
Base Building is provided with two (2) hydraulic passenger elevators with
a capacity of 3,000 lbs. each. One (1) service elevator is also provided.
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5. PARKING
-------
Parking is provided for four (4) cars per 1,000 square feet of usable
area, as indicated on Exhibit A-2 to the General Terms of Lease.
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SCHEDULE D-2
------------
CONSTRUCTION & FINISH
---------------------
SPECIFICATIONS FOR TENANT IMPROVEMENTS
--------------------------------------
1. FLOOR COVERING
--------------
Colors, designs and specifications for carpet, floor tile and base shall
be as specified by Tenant and approved by Landlord. Carpet shall be 28 oz.
face weight, 100% nylon face fiber.
2. PARTITIONS
----------
Demising partitions shall be 3-5/8" steel studs 24" O.C. with 5/8" gypsum
board, fire rated where required, up to underside of structural slab above
and having full height sounds attenuation insulation.
Interior partitions shall be 3-5/8" steel studs 24" O.C. with 5/8" gypsum
board each side and extend to underside of finished ceiling. Drywall edge
at ceiling shall be finished with spackle bead.
Partitions (permanent or moveable) terminating at the building exterior
wall shall meet either a mullion of window or a column and accommodate
heating elements, window shades and other building systems as required.
3. PAINTING AND STAINING
---------------------
Interior wall surfaces of gypsum board shall receive one (1) prime coat
and one (1) finish coat of latex egg shell finish, colors to be selected
by Tenant from building standard color chart. Pittsburgh paint or approved
equal shall be used as building standard color chart.
Exposed interior ferrous metal surfaces including piping duct work and
mechanical equipment shall receive one (1) coat of alkyd enamel primer and
one (1) finish coat of alkyd enamel.
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Metal doors, door bucks, and other metal surfaces not having shop finish
shall receive one (1) prime coat of alkyd enamel primer and one (1) finish
coat of alkyd enamel.
All wood doors shall be finished with one (1) coat sanding sealer and one
(1) coat clear polyurethane.
Interior wall surfaces receiving wall coverings shall be painted with one
(1) coat of semigloss latex paint.
4. DOORS
-----
Entrance door and buck to Tenant's space: Buck shall be 16 gauge "knocked
down" hollow metal primed and ready for painting. Door shall be full
height solid core, oak veneer, 3'-0"x8'-0"x1'-3/4".
Interior doors and bucks: All bucks shall be 16 gauge "knocked down"
hollow metal primed and ready for painting. All doors shall be solid core
wood veneer, 3'-0"x7'- 0"x1'3/4". Emergency exit doors will be as required
by code.
5. HARDWARE
--------
Finish hardware to be medium duty commercial type, manufacturer & model as
approved by Landlord. All interior doors shall be provided with lever
handle latch sets. All doors to be equipped with hardware in accordance
with applicable codes, including NJUCC Barrier-Free Subcode. Hardware
shall also include door stops and silencers.
Tenant entrance doors shall be provided with a lock set and door closer,
in accordance with applicable codes for egress. All locks shall be keyed
to the building master keying system.
Rod for coat closet shall be 1" diameter chrome finished metal.
6. CEILING
-------
Ceiling shall be white 2'x4'x5/8" acoustical ceiling tiles in an exposed
white grid system suspended at a ceiling height of approximately 9'-0"
above finished floor. Exceptions to the ceiling height shall be made to
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accommodate piping, mechanical ducts and shafts, and other obstructions
located above the ceiling.
7. WINDOW BLINDS
-------------
Perimeter window blinds shall be horizontal narrow slat window blinds,
Bali Mfg., Style #620, Color #006 - "Raw Umber".
8. ELECTRICAL SYSTEMS
------------------
Tenant's Demised Premises shall be provided with electrical service in
accordance with applicable codes. Demised Premises shall be serviced by
designated meter for which Tenant shall establish an account with
servicing utility company. Service shall be made available from the
Building's common electrical room. Tenant shall provide the required space
within the Demised Premises for installation of wall mounted electrical
panels, floor mounted transformers and other required electrical
equipment.
9. LIGHTING FIXTURES
-----------------
Standard fixtures shall be 2'x4' lighting fixtures with 4-40 watt
fluorescent lamps to provide a minimum of 60 foot candles. Fixtures shall
be with E type, energy saving ballast and provide plenum air return
function. Emergency egress lighting shall be provided by the use of
standard fixtures with emergency battery back-up power, as required by
code.
10. COMMUNICATION SYSTEMS
---------------------
Tenant shall be responsible for providing and installing at its expense
communication systems including, but not limited to, telephone, fiber
optics, computers, intercom systems, and audio visual systems. Wiring
installed systems above finished ceilings shall be approved for plenum
installation. Tenant shall provide required area(s) within Demised
Premises for communication systems equipment.
Access to the Demised Premises through the Building's core by servicing
utility shall be coordinated with and approved by Landlord.
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11. PLUMBING
--------
Existing wet columns are provided which Tenant may tap for private
facilities at Tenant's expense. Water heater(s) shall be provided and
installed at Tenant's expense. Tenant shall provide required area within
the Demised Premises for the installation of water heater(s).
12. HVAC
----
Tenant's Demised Premises shall be provided with a variable air volume
cooling system with an economizer cycle. The air conditioning system shall
be designed to maintain within normal tolerances for a first-class office
building an inside space condition of 78 degrees F, dry bulb, and 67
degrees F, wet bulb, and a fifty (50%) percent humidity with outdoor
temperature of 91 degrees F, dry bulb and 76 degrees F, wet bulb during
summer months. During the winter heating season a continuous perimeter
baseboard radiation system and solar heat gain sensors will be capable of
maintaining a minimum temperature of 72 degrees F, with normal anticipated
occupancy when the outside temperature is 9 degrees F.
One (1) variable air volume box terminal (controlled by one (1)
thermostat) is existing approximately every 1,000 square feet of net
useable floor area.
13. FIRE PROTECTION
---------------
The sprinkler system has been designed in accordance with applicable
building codes.
Any additional requirement for sprinkler system service (adds, relocates,
deletions) made necessary by the Tenant's usage of the Demised Premises
will be at the Tenant's cost.
Portable dry chemical fire extinguishers to be provided as required by
code, by Tenant.
Heat and smoke detection systems shall be provided as required by codes,
by Tenant.
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14. IDENTIFICATION
--------------
Tenant identification shall be provided by Landlord at Tenant's cost on
lobby directory as well as at entrance door to Demised Premises, subject
to approval by Landlord.
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\ SCHEDULE D-2
------------
GUIDELINES FOR TENANTS RETAINING CONSULTANTS
AND CONTRACTORS
If Tenant elects to not retain Landlord's architect(s)/engineer(s) or
construction management services for construction, alterations, modifications,
or other changes within the Demised Premises, Tenant must adhere to criteria and
guidelines as follows:
I. BEFORE CONSTRUCTION
A. FLOOR PLANS:
-----------
1. All floor plans must be submitted at 1/4" scale or 1/8" scale only.
Indicate key plan with egress indicated and north arrow and show partition
layout (i.e. space plan or floor layout).
2. Architectural plans must show architectural details, door schedules,
finish schedules, plumbing fixtures, all finishes and specifications and
comply with proper handicapped and other code criteria including but not
limited to exist signs and sprinkler head locations.
3. Reflected ceiling plan must show light fixture placements, emergency
egress lighting, and all architectural features. Indicate all finishes and
specify same.
4. Plans must include finish specifications, i.e., paint, carpet, wall cover,
baseboard, etc. (Window blinds are building standard, not subject to
Tenant choice.) Plans must delineate between new construction vs. existing
conditions.
5. Electrical floor plans must show all receptacles, panels, light switches,
fixture placements and switching. Indicate all circuitry as required. Show
location of source for service tie-in, if required (indicate distance and
include riser diagram).
6. Indicate in detail any cabinetry work. Details are required showing all
finishes.
7. Mechanical floor plans must show duct layout, size connection details,
sprinkler lines, and other mechanical conditions proposed and existing.
Mechanical plans must
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include specifications as required and locate sources, distance and tie-in
locations, and include riser diagrams.
8. All of the Tenant Plans must be signed, stamped and sealed by the
appropriate design professional licensed in the State of New Jersey (i.e.,
architectural plans by licensed architect and structural or mechanical
plans by the appropriate engineer).
9. All plans and construction specifications are subject to Landlord's
written approval, which may be withheld at Landlord's sole discretion.
Reasons for Landlord to withhold approval include, but are not limited to
(i) such work proposed is not consistent with other existing or planned
improvements in building; (ii) such work will overburden existing or
planned building systems; and (iii) lack of any of the above noted
information.
B. GENERAL CONSTRUCTION GUIDELINES
-------------------------------
1. General contractor and subcontractors must be approved by Landlord in
writing prior to construction commencement. Landlord reserves the
exclusive right to disapprove Tenant's general contractor or
subcontractors. Landlord will supply Tenant with list of acceptable
contractors upon request.
2. General contractor and subcontractors must use labor that will perform in
harmony with other trades working in the region. At no time may Tenant
work interfere with Landlord's or other tenant's work or normal operations
of the Building.
3. Certificates of Insurance naming Landlord, DKM Properties Corp., ▇▇▇▇ &
Wentworth Corporate Services, Inc. and their agents and employees as
additional insureds must be submitted to Landlord prior to Tenant's entry
upon the Premises, including delivery of any materials to Premises, or
construction commencement with coverage for commercial general liability,
and property damage in the amounts required in the Lease. Landlord
reserves the right to dictate limits of coverage.
4. Copies of any notification by the municipality of additional requirements
in connection with permit approval must be delivered to Landlord.
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C. MUNICIPAL REQUIREMENTS
----------------------
1. All plans must be filed with the municipality having jurisdiction over the
Building. Plans must be signed and sealed by the appropriate design
professional licensed in the State of New Jersey (i.e., architectural
plans by licensed architect and structural or mechanical plans by the
appropriate engineer).
2. Tenant will be responsible for paying all municipal fees connected with
securing required permits or approval. Tenant shall also be responsible
for providing Landlord with properly signed and sealed sub trade filing
documents.
3. No work will be allowed to start without the issuance of the proper
authorization or permits, from the appropriate municipal officials. Once
secured, the permit must be prominently posted at the work site, along
with the plans.
D. FEES:
----
1. If Landlord is submitting plans on behalf of Tenant, Tenant must submit a
non-refundable deposit payable to Landlord in the amount of Five Hundred
($500.00) Dollars with submission of plans and specifications. The deposit
will be used to offset Landlord's costs associated with filing of the
Tenant Plans on behalf of the Tenant.
2. Should Tenant Plans not conform to the criteria outlined in Section A
(Floor Plans), Landlord is not obligated to correct Tenant Plans or
otherwise modify them to so conform. Landlord will return same to Tenant
for resubmission.
3. Tenant shall be responsible for paying all municipal fees connected with
securing the permit or other municipal approval necessary to proceed with
the proposed work.
4. If Landlord is not doing the work, Landlord will inspect the work to
assure conformance to the plans and specifications. The maximum number of
inspections will be determined by mutual agreement between the Landlord
and Tenant based on the scope of improvements and as a condition for the
Landlord's approval of the proposed project. If subsequent to such
agreement between the Landlord and the Tenant, the concept of Tenant's
plan or the scope of Tenant's work changes, then the agreed upon schedule
of inspections will be subject to similar revision based on the scope of
work
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load which is revised and sent to Landlord for its approval. Inspection
time will include travel to and from the Landlord's office in Princeton,
NJ. The rate for all inspections is currently $60.00 per hour, which rate
may change from time to time.
E. COST ESTIMATING:
---------------
1. Landlord reserves the right to bid on the Tenant's Work, subject to the
following:
a. While every effort is made to promptly furnish cost estimates for
the Tenant work, it must be understood that the speed and accuracy
of the Landlord's estimates will reflect the quality and
completeness of the Tenant's documents.
b. With proper preparation of documents as outlined herein, Tenant
should anticipate completed estimates within approximately seven (7)
business days from the submission of a properly completed bid
package to Landlord.
II. DURING CONSTRUCTION
1. Tenant's contractors will be subject to the same rules and regulations as
imposed on Landlord's contractors, relative to work hours, elevator use,
cartage removal, protection, and other customary procedures as
appropriate. Tenant may contact Landlord's Chief Engineer at (609)
799-7400 with questions or details on such rules and regulations.
2. Should Tenant choose to perform work with its own contractors while the
Landlord is also performing work within or around the Premises, Tenant
work will not commence until the Landlord has completed its work, unless
otherwise permitted by Landlord, in its sole discretion.
3. Tenant must adhere to the same guidelines outlined herein when processing
change orders or scope modifications. No construction for change orders
will be allowed to proceed without Landlord's written approval. Landlord's
time spent interfacing with the municipality in order to process scope
modifications or change orders with the municipality, will be billed to
the Tenant at the rate of One Hundred Fifteen ($115.00) Dollars per hour
per employee of Landlord.
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4. SHOULD TENANT IGNORE ANY OF THE CRITERIA DESCRIBED HEREIN OR IN ANY
SECTION OR EXHIBIT OF THE LEASE AND PERFORM OR CAUSE TO BE PERFORMED ANY
CONSTRUCTION NOT IN ACCORDANCE WITH TENANT PLANS APPROVED BY LANDLORD,
TENANT WILL BE REQUIRED TO DISASSEMBLE ALL SUCH CONSTRUCTION AND RETURN
THE DEMISED PREMISES TO ITS FORMER CONDITION AT TENANT'S SOLE COST. IF
TENANT DOES NOT DISASSEMBLE SUCH CONSTRUCTION AND RETURN THE SITE TO ITS
FORMER CONDITION AFTER TEN DAYS WRITTEN NOTICE TO TENANT FROM LANDLORD,
LANDLORD IS AUTHORIZED BY TENANT TO PERFORM SAME AT TENANT'S SOLE COST,
AND TENANT SHALL REIMBURSE LANDLORD PROMPTLY FOR ALL COSTS.
5. Tenant or its contractor must submit written notification and receive
written approval from Landlord for any type of shutdown on the electrical,
mechanical or sprinkler system, as our security system monitors both the
sprinklers and fire protection systems. Landlord reserves the right to
require that Tenant use Landlord's contractor for any work involving the
shutdown of such systems. In addition, it should be noted that any
conditions which are discovered as a result of the modifications to
existing systems made by Tenant are the full responsibility of Tenant to
repair at its sole cost. For example, if pressure testing of the sprinkler
system is required due to Tenant Improvements or Changes by Tenant and
such testing reveals leaks, Tenant will be responsible at its sole cost,
to bring the system back into the code through the repair of any such
leaks. This work shall be at no cost to Landlord or any of its affiliates.
6. Landlord must be notified in writing of all scheduled work, in order that
Landlord may notify, at our sole discretion, any neighboring tenants of
such activity.
7. For any work performed on Building roof system, or other systems under a
manufacturer's warranty, the work must be performed by the original
contractor. The company which is the approved roof system applicator will
be furnished upon request.
III. AFTER CONSTRUCTION
1. All contractors and subcontractors completing work must provide Landlord
with proper Release of Liens form(s) and Tenant's Certification as
attached to the Lease (or furnished by Landlord) for each billing period
and, most importantly, at the completion of Tenant work. Tenant agrees to
indemnify and save Landlord harmless from and against any and all damages
sustained as a result of any liens filed by
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contractors or subcontractors and as otherwise set forth in the Lease.
2. A one (1) year warranty is required on materials and workmanship of all
work per Tenant Plans.
3. Within ten (10) days of completion of any Tenant work performed by
Tenant's contractors, Tenant shall submit to Landlord two (2) sets of
as-built drawings, showing all improvements or alterations to the Demised
Premises. Such as-built drawings shall include all change orders occurring
during the course of construction and provide all pertinent specifications
for such construction work.
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SCHEDULE D-3
Page 1 of 2
[EXHIBIT NOT SHOWN]
79
LEASEHOLD IMPROVEMENTS SPECIFICATIONS
Landlord will provide Leasehold Improvements in accordance with the space plans
prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Architects, dated 12/5/96 (see Exhibit A-1). The
contemplated work will include the following:
1. New wall framing to be 25 gauge, 3 5/8" metal studs @ 24"oc with one layer
of 5/8" gypsum board on each side. Office walls/interior walls will be
constructed to the underside of the ceiling grid.
2. When consistent with the space plan, existing walls/doors will be
maintained.
3. Six (6) existing built-in workstations will be maintained; seven (7)
matching workstations will be installed.
4. The existing ceiling grid will remain and be altered to satisfy the new
layout. 2'x4' fissured ceiling tiles will be installed to match existing.
NOTE: The existing ceiling will be delivered in clean condition with no
discolored or broken tiles.
5. New doors will be 3'x7' solid core birch and will be painted with two (2)
coats of semi-glass enamel. Frames are hollow metal knock down which will
be painted to match the doors.
6. Carpet in general offices will be either a Philadelphia "Volunteer" (level
loop) or "Impact III" (cut pile), color as selected by Tenant, with a 4"
vinyl core base to match. An upgraded carpet, Philadelphia "▇▇▇▇▇ ▇▇▇▇" or
"Riverbend" will be installed in the Conference Room, Reception Area, and
four (4) Executive Offices, to be designated by Tenant.
7. Landlord will install vinyl wall covering and paracube light fixtures in
the four (4) designated Executive Offices. An allowance of $6.50 per
lineal yard will be provided to Tenant for the installation of vinyl wall
covering in the areas designated above.
8. All lighting will be 2'x4' fluorescent fixtures with prismatic lenses (1
light/75 rsf).
9. Walls will be painted with two (2) coats latex flat paint as selected by
Tenant (one color throughout).
10. The Kitchenette area will include a sink, with +5 linear feet of base
cabinets.
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EXHIBIT E
---------
CLEANING SPECIFICATIONS
-----------------------
GENERAL (FIVE NIGHTS PER WEEK):
------------------------------
1. Sweep, dry mop or vacuum all floor areas of resilient tile, wood or
carpet, as applicable, and remove matter such as gum and tar which has
adhered to the floor.
2. Empty all waste receptacles, removing waste to a designated central
location and properly store for disposal.
3. Empty and wet wipe all ash trays.
4. Clean all cigarette urns.
5. Clean and sanitize all water fountains and coolers.
6. Clean entry door glass and sidelight, if any, and wipe metal trim.
7. Secure doors and windows and leave on designated night lights.
8. Clean elevators nightly, including walls, ceilings, saddles and doors.
9. Maintain janitor's closets and clean related equipment.
10. Damp mop all non-resilient floors such as concrete, terrazzo and ceramic
tile.
PERIODICALLY (AS NOTED):
-----------------------
11. Dust office furniture, window ▇▇▇▇▇ and all other surfaces up to 84" high
(weekly spot clean as needed).
12. Remove fingermarks from woodwork, walls and partitions.
13. Spot wash interior partition glass and door glass to remove smudge marks
weekly.
14. High dust partitions, pipes, vents and moldings once per month.
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15. Strip and recondition resilient floors areas using buffable non-slip type
floor finish two (2) times a year.
16. Dust all venetian blinds three (3) times a year or as needed.
17. Vacuum all ceiling and wall air supply and exhaust diffusers and grills
four (4) times per year.
18. Clean interior and exterior windows periodically.
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EXHIBIT F
---------
RULES AND REGULATIONS
---------------------
1. Tenant will not obstruct or permit its employees, agents, invitees or
licensees to obstruct, in any way, the sidewalks, entry passages, corridors,
halls, stairways or elevators of the Building, or use the same in any way other
than as a means of passage to and from the Demised Premises; bring in, store,
test or use any materials in the Building which could cause a fire or an
explosion or produce any fumes or vapor; smoke in any elevator, stairwell or any
designated "no smoking" area; throw substances of any kind out of windows or
doors, or down the stairs, halls or passages of the Building; sit on or place
anything upon the window ▇▇▇▇▇; or clean the windows.
2. Waterclosets and urinals shall not be used for any purpose other than those
for which they were constructed and no sweepings, rubbish, ashes, newspaper or
any other substances of any kind will be thrown into them. Waste and excessive
or unusual use of water is prohibited.
3. The windows, doors, partitions and lights which reflect or admit light into
the halls or other places of the Building will not be obstructed. NO SIGNS,
ADVERTISEMENTS OR NOTICES WILL BE INSCRIBED, PAINTED, AFFIXED OR DISPLAYED IN,
ON, UPON OR BEHIND ANY WINDOWS, except as may be required by law or agreed upon
in writing by Landlord. Except as expressly provided in the Lease, no sign,
advertisement or notice will be inscribed, painted or affixed on any doors,
partitions or other part of the inside or outside of the Building, without the
prior written consent of the Landlord.
4. No contract of any kind with any supplier of towels, water, ice, toilet
articles, waxing, rug shampooing, venetian blind washing, furniture polishing,
lamp servicing, cleaning of electrical fixtures, removal of waste paper, rubbish
or garbage, or other like service will be entered into by Tenant, nor will any
vending machine of any kind be installed in the Demised Premises, without the
prior written consent of Landlord.
5. When electric wiring of any kind is introduced, it will be done only by
contractors approved by Landlord and must be connected as approved by Landlord.
No stringing or cutting of wires will be allowed.
6. Landlord has the right to approve or proscribe the weight, size and position
of all safes and other bulky or heavy equipment
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or articles. All safes or other heavy equipment or articles will stand on a base
of such size as is designated by Landlord. All freight, including furniture and
equipment, brought into the Building by Tenant and the time of moving the same
in and out of the Building, will be done under the supervision of Landlord.
Landlord will not be responsible for loss of or damage to any such equipment or
freight from any cause and any damage done to the Building by moving or
maintaining any such equipment or freight will be repaired at the expense of the
Tenant. Landlord reserves the right to inspect all freight to be brought into
the Building and to exclude from the Building all freight which violates any of
these Rules and Regulations or the Lease of which these Rules and Regulations
are a part.
7. No machinery of any kind or articles of unusual size or weight will be
allowed in the Building without the prior written consent of Landlord. Business
machines and mechanical equipment will be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Landlord's judgement, to absorb and
prevent vibration, noise and annoyance to other tenants.
8. No additional or different lock or locks will be placed by Tenant on any door
without the prior written consent of Landlord, which shall not be unreasonably
withheld. Two (2) keys will initially be furnished to Tenant by Landlord and two
(2) additional keys will be supplied to Tenant by Landlord upon request, without
charge. Any additional keys requested by Tenant will be paid for by Tenant.
Tenant, its agents and employees, will not have any duplicate key made. Any and
all keys to doors and washrooms will be returned to Landlord on or before the
termination of the Lease. In the event of a loss of any keys, Tenant will pay
Landlord the cost thereof and, if applicable, the costs of replacing the locks
related thereto.
9. Except as is expressly provided in the Lease to the contrary, Tenant will not
employ any person or person for the purpose of cleaning the Demised Premises
without the prior written consent of Landlord. Landlord will not be responsible
to Tenant for any loss of property from the Demised Premises, or for any damage
done to the Demised Premises or the effects of Tenant by cleaners employed by
Tenant or any of its employees, or by any other person or any other cause
however occurring.
10. No bicycles, vehicles or animals of any kind will be brought into or kept in
or about the Demised Premises other than in areas which are specifically
designated for such purpose, if any.
11. The requirements of Tenant will be attended to only upon application at the
office of Landlord. Employees of Landlord will
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not perform, or be requested by Tenant to perform, any work for Tenant or do
anything outside of their regular duties, unless under special instructions from
Landlord.
12. The Demised Premises will not be used for lodging or sleeping purposes and
cooking therein is prohibited. Tenant will not use the Demised Premises or
permit the Demised Premises to be used for the sale of food or beverages.
13. Tenant will not conduct, or permit any other person to conduct, any auction
upon the Demised Premises; manufacture or store goods, wares or merchandise upon
the Demised Premises, without the prior written approval of Landlord, except the
storage of usual supplies and inventory to be used by Tenant in the conduct of
its business; permit the Demised Premises to be used for gambling; make or
permit to be made any unusual noises or any musical instrument, radio,
television or recorded or wired music to be played in such a manner as to
disturb or annoy other tenants; or permit any unusual odors to be produced upon
the Demised Premises.
14. No awning or other projections will be attached to the outside walls of the
Building. No curtains, blinds, shades or screens will be attached to or hung in,
or used in connection with any window or door of the Demised Premises, without
the prior written consent of Landlord and any such curtains, blinds and shades
must be of a quality, type, design and color, and attached in a manner approved
by Landlord.
15. Canvassing, soliciting and peddling in the Building are prohibited, and
Tenant will cooperate to prevent the same.
16. All deliveries and loading and unloading of goods or freight will be done in
the areas and through the entrances designated for such purposes by the
Landlord. Timing will be reviewed with Landlord and mutually agreed upon by
Landlord and Tenant. Neither Tenant or others will use any hand trucks or
similar moving devices except those equipped with rubber tires and side guards.
No hand trucks or similar moving devices will be allowed in passenger elevators.
17. Tenant will have the right in common with Landlord and other tenants of the
Building and their employees and invitees to use the parking area(s) and/or
parking garage, if any, provided by Landlord for the parking of passenger
automobiles, other than parking spaces specifically identified as allocated to
others by Landlord. Landlord may issue parking permits (which Tenant will
require all of its employees to display in or on their vehicles), install a gate
system or impose any other system Landlord deems
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necessary for the use of the parking area(s). The Tenant and the Tenant's
employees will park their vehicles only in those portions of the parking area
designated for that purpose by Landlord. TENANT AGREES THAT IT AND ITS EMPLOYEES
AND INVITEES WILL NOT PARK THEIR AUTOMOBILES IN PARKING SPACES ALLOCATED FOR
VISITORS OR RESERVED TO OTHERS BY LANDLORD AND WILL COMPLY WITH SUCH RULES AND
REGULATIONS FOR USE OF THE PARKING AREA(S) AS LANDLORD MAY FROM TIME TO TIME
PRESCRIBE. VIOLATION OF THE REGULATION MAY RESULT IN VEHICLE(S) BEING TOWED AT
THE EXPENSE OF THE OWNER/OPERATOR OF SUCH VEHICLE(S). Landlord is not
responsible for any damage or theft of any vehicle in the parking area(s) and
will not be required to keep parking spaces clear of unauthorized vehicles or to
otherwise supervise the use of the parking area(s). Landlord reserves the right
to change any existing or future parking area, roads or driveways, to make any
repairs or alterations deemed necessary to any parking area, road and/or
driveway and to temporarily revoke or modify the parking rights granted to
Tenant hereunder.
18. Before closing and leaving the Demised Premises, Tenant will ensure that all
entrance doors have been locked.
19. Landlord has the right to prohibit any advertising by Tenant which in
Landlord's reasonable opinion tends to impair the reputation of the Building
(and/or park in which the Building is located) or its desirability as a building
for offices, and upon written notice from Landlord, Tenant will refrain from or
discontinue such advertising.
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EXHIBIT G
RIDER TO LEASE BETWEEN PRINCETON PIKE CORPORATE CENTER ASSOCIATES IV
("LANDLORD") AND ▇▇▇▇▇▇ COMMUNICATIONS, INC. ("TENANT")
Notwithstanding the provisions of the above-captioned Lease between
Landlord and Tenant, the following provisions are incorporated into and made a
part of the Lease, and if inconsistent with any of the provisions of the Lease,
the provisions of this Rider shall govern:
ARTICLE 3, TERM OF LEASE
SECTION 3.1 In line 40 after "will commence on the" insert "Phase II
Commencement Date."
Delete the remainder of sentence 1 and all of sentence 2.
SECTIONS 3.1, 3.2, 3.3, 3.4 AND 3.5 All references to "Commencement Date" in
this Lease shall be deemed to mean the Phase II Commencement Date.
SECTION 3.5 Add the following to the beginning of this Section:
"Except as specifically set forth in the Agreement of Lease."
ARTICLE 4. RENT AND ADDITIONAL RENT
SECTION 4.2 In lines 1 and 3 before "Commencement Date" and "Phase II."
SECTION 4.3 Add the following to the end of this Section: "At Landlord's option
and depending on availability, Tenant's electrical usage will be determined by
direct meter, checkmeter or survey.
If a direct meter is installed, Tenant will arrange for its electric service in
the Demised Premises and pay all charges for its Tenant electric directly to the
utility company which provides the service. Should Landlord elect to determined
Tenant's electric usage by checkmeter (E-mon meter), then Tenant will pay the
cost of its Tenant electric to Landlord on a monthly basis as additional rent.
Landlord may, at its option, ▇▇▇▇ Tenant periodically for electrical usage on an
"estimated" basis and adjust periodically based on actual meter readings. In no
event will the estimated ▇▇▇▇▇▇▇▇ to Tenant exceed the average actual charges
for the immediately preceding billing period by more than ten (10%) percent.
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Should Landlord choose to determine Tenant's electric charges by survey, Tenant
shall pay as additional rent the charges for electrical services for the Demised
Premises which charges shall be determined by survey of electrical use as
provided below. Pending completion of the electrical survey Tenant shall pay to
Landlord One and 25/100 ($1.25) Dollars per square foot as the estimated annual
charge for electricity. Such payment shall be made in equal monthly installments
payable in advance on the first day of the month. Upon completion of the
electrical survey (or resurvey, if applicable) as provided for below, the
electrical charges shall be recalculated and (i) in case of underpayment, Tenant
shall pay any additional amounts due to Landlord within thirty (30) days of a
▇▇▇▇ for same from Landlord or (ii) in the case of overpayment, Landlord shall
credit to Tenant (or pay to Tenant if the Term of the Lease has ended) the
amount of such overpayment within thirty (30) days. Proportionate sums shall be
payable for periods of less than a full month if the Term commences or ends on
any day other than the first or last day of the month.
Landlord shall select an independent consultant(s) as Landlord deems necessary
to make a survey of the electric power demand of the electric lighting fixtures
and the electric equipment used by Tenant at the Demised Premises and to
determine the Tenant's average monthly electric consumption at the Demised
Premises.
The average monthly electrical consumption determined as set forth above shall
be multiplied by the then-applicable charges/rates of the utility company
providing electrical service to the Building in order to determine Tenant's
monthly payment to Landlord. Landlord may, at its option, revise the monthly
payment from time to time as the electrical charges/rates of the utility company
are altered or may continue to ▇▇▇▇ at the current rate, in which event Landlord
shall, within one hundred twenty (120) days or such other reasonable period as
Landlord may determine after the close of Landlord's fiscal year, provide to
Tenant a statement of the electrical service charges computed at the actual
charges/rates of the utility company and the amount paid on account thereof by
Tenant. Tenant agrees to pay to Landlord within thirty (30) days of such
statement any amount which may be due to Landlord and Landlord agrees to credit
the Tenant (or to pay to Tenant if the Term of this Lease has ended) within said
thirty (30) days, the amount of any overpayment by Tenant. Failure of Landlord
to provide the statement provided herein within the time set forth above shall
not relieve Tenant from its obligations hereunder.
The cost of the first such electrical survey shall be paid by the Landlord.
Landlord may, at its option, resurvey the Tenant's
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electrical usage not more often than every twelve (12) months. Notwithstanding
the foregoing, if Tenant increases or changes the type of electrical equipment
used at the Demised Premises, or in the event of any change to the size of the
Demised Premises or Tenant's use thereof, whether or not such change is
contemplated herein, Landlord may resurvey Tenant's electrical usage. If any
such resurvey results in a determination that Tenant's electrical usage has
increased in excess of ten (10%) percent over the previous survey determination,
the cost of the resurvey shall be paid by Tenant. In all other cases, the cost
of any resurvey shall be paid by Landlord.
In the event that Tenant shall dispute the determination of the consultant
selected by Landlord, Tenant shall have the right to retain, at Tenant's sole
cost and expense, its own consultant(s) as Tenant deems necessary to verify the
determinations made by Landlord's consultant(s). If there is less than ten (10%)
percent variance between the determinations made by the consultant(s), the
determination of the Landlord's consultant(s) shall be binding. If there is more
than a ten (10%) percent variance and the consultants are unable to agree on a
determination of usage, then the amount to be paid by Tenant shall be determined
by a third consultant, selected jointly by Landlord's and Tenant's consultants.
In the event such consultants are unable to agree on a third consultant, either
party may apply to the New Jersey Superior Court for the appointment of such
third consultant. The decision of the third consultant shall be binding and
Landlord and Tenant shall each pay one-half (1/2) of the fees and expenses of
the third consultant and the costs, including the combined reasonable attorney
fees of both parties, of any court action for appointment of same, if
applicable. Pending resolution of the issue, Tenant shall continue to make
monthly payments to Landlord as provided above, subject to retroactive
adjustment upon final determination of the consultants."
ARTICLE 5. PREPARATION FOR OCCUPANCY; EXCUSABLE DELAY
SECTION 5.2 Add the following to the end of this Section: "Notwithstanding the
foregoing,
Excusable Delay shall not be applicable to Tenant's right to terminate if
Landlord has not delivered the Phase II space by September 15, 1997."
SECTION 5.3(B) Add the following to the end of this Subsection; "Landlord will
advise Tenant in writing if any such change will result in an event of Tenant
Delay."
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SECTION 5.3(D) In line 5 after "Tenant's" add "written." Add the following to
the end of this Section: "Tenant agrees that any request for postponement shall
be made in writing."
ARTICLE 6. UTILITIES AND SERVICE
Add the following Section 6.1 (f): "Fiber optics are available in the Building
first floor electric closet."
ARTICLE 7. COMPLIANCE WITH LAWS
SECTION 7.1 Add the following to the end of this Section: "Landlord warrants
that as of the Commencement Date of this Lease, to the best of Landlord's
knowledge, the Building and Property comply with all applicable federal, state,
county and municipal laws and regulations. Landlord, at its sole cost, shall be
responsible for any compliance with such existing laws, rules and regulations.
If, however, after Commencement Date of the Lease, as a result of new laws or
regulations or modifications to existing laws or regulations, it is determined
that the Building or Property are in violation of such new or modified laws or
regulations, and such violation is not due to the actions or negligence of
Tenant or Landlord or another tenant, or its agents, employees and invitees,
Landlord will cause the Building and Property to comply and the costs thereof
will be allocated in accordance with the provisions of Exhibit C of this Lease.
Notwithstanding the foregoing, with regard to the Americans with Disabilities
Act (the "ADA"), Landlord represents only that the Common Facilities of the
Building comply with the current requirements for a "commercial facility"
existing prior to July, 1992, up to the lease line of the Demised Premises.
Landlord makes no specific representations with regard to the individualized
needs of Tenant's employees or invitees in the Demised Premises and is not
responsible for any non-compliance with the ADA in any way related to the
configuration or installation of Tenant's furniture systems and/or any design
elements of the Demised Premises.
Tenant's Use of the Demised Premises as defined in the Agreement of Lease is in
compliance with the zoning regulations of ▇▇▇▇▇▇▇▇ Township.
SECTION 7.3 In line 51 after "Demised Premises" add "other than a permitted
assignment/subletting."
In line 53 after "'letter of non-applicability'" add "upon the request of
Landlord."
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ARTICLE 8. EVENTS OF DEFAULT; REMEDIES
SECTION 8.1(C) Add the following to the end of this subsection in line 11:
"provided, however, if such default shall be of a nature that it cannot
reasonably be cured within such thirty (30) day period, Tenant shall have such
additional time as shall be reasonably necessary, provided Tenant promptly
commences a cure within said thirty (30) day period and diligently and
continuously proceeds to cure same thereafter."
ARTICLE 10. SURRENDER OF DEMISED PREMISES
SECTION 10.1 In line 72 after "reasonable wear and tear" add "and damage due to
insured casualty."
SECTION 10.2 In line 5 after "claims made or" delete "damages" and insert in
lieu thereof "out of pocket damages actually."
ARTICLE 11. ASSIGNMENT OR SUBLETTING
SECTION 11.3(C)(III) In lines 59 and 60, delete "or such greater amount as is
reasonable under the circumstances."
SECTION 11.6 Delete this Section and insert the following in lieu thereof:
"Provided Tenant is not in default of this Lease beyond any applicable cure
period, Tenant shall have the right, without Landlord's consent but with prior
Tenant notice to Landlord in accordance with Section 11.3(c), to assign this
Lease (or to sublet the Demised Premises or any part thereof) to any parent,
subsidiary or affiliate or successor-in-interest by acquisition or merger for
any of the then remaining portion of the unexpired Lease Term or any option
period without Landlord's consent provided: (i) the proposed assignee is
financially qualified or is an otherwise satisfactory credit risk with net worth
not less than Tenant's; and (ii) the assignee corporation provides Landlord with
financial statements certified by an officer or individual of the assignee for
such net assets; and (iii) such assignee has sufficient experience and continues
to operate the business conducted in the Demised Premises in the same manner and
for the same Use as Tenant pursuant to the provisions of the Lease.
An affiliate is defined as any corporation which controls or is controlled by
the parent corporation of Tenant which shall then control the affiliate and any
corporation which is a member with Tenant in a relationship of joint venture,
partnership or other form of business association; the term "control" means,
with respect to a corporation, the ownership of stock possessing, or the right
to exercise, at least fifty (50%) percent of the total
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combined voting power of all classes of the controlled corporation, issued,
outstanding and entitled to vote for the election of directors, whether such
ownership be direct ownership or indirect ownership through control of another
corporation or corporations."
ARTICLE 12. MAINTENANCE AND REPAIRS; COVENANT
AGAINST WASTE; RIGHT OF INSPECTION
SECTION 12.1 In line 33 delete "solely." In line 34 after "at its expense" add
"to the extent of Landlord's act, fault or negligence."
In line 37 after "maintenance contract" add "relating to Tenant Systems."
SECTION 12.2 Add the following to the end of this Section: "to the extent of
Tenant's act, fault or negligence."
SECTION 15. INSURANCE; WAIVER OF SUBROGATION; RELEASE (CASUALTY)
SECTION 15.1(A) In line 56, delete "/$5,000,000.00." In line 57, delete
"$5,000,000.00 and insert in lieu thereof "$3,000,000.00."
SECTION 15.4 In line 32-34 delete the sentence which begins with "Moreover,
Tenant" and insert the following in lieu thereof "Moreover, Tenant and Landlord
expressly waive and release the other party from any claim for any loss or
damage to its business, contents, fixtures, and/or property, whether or not such
loss or damage results from the negligence of such other party, its agents,
officers, employees and/or invitees for events of casualty to the extent of the
insurance required to be carried under this Lease."
ARTICLE 17. SECURITY DEPOSIT
SECTION 17.1 Add the following to the end of this Section: "If Tenant's bank
does not renew the Letter of Credit as required by Exhibit I at least forty (45)
days prior to the expiration date for the Letter of Credit (unless Landlord has
agreed in writing that the Letter of Credit need not be renewed as allowed by
the Agreement of Lease), and if Tenant has not provided a cash replacement or
another Letter of Credit within ten (10) days of such renewal date then such
failure shall constitute a default under this Lease with no applicable cure
period and shall entitle Landlord to draw the full amount of the Letter of
Credit prior to the expiration of the forty-five (45) day period."
ARTICLE 18. DAMAGE OR DESTRUCTION
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SECTION 18.4 In line 30 after "by notice to Tenant" add "within thirty (30) days
after the damage.
In line 34 after "Section 18.4" insert "Upon receipt of notice from Landlord
that the Demised Premises cannot be restored within such one hundred eighty
(180) day period, Tenant shall have the right to terminate the Lease by
providing written notice to the Landlord within twenty (20) days of receipt of
Landlord's notice. Failure of Tenant to give Landlord notice of its election to
terminate shall constitute a waiver of Tenant's right to terminate."
SECTION 18.5 Add the following to the end of the first sentence in line 39: "If
the repair of restoration of the Demised Premises is not completed within two
hundred ten (210) days, except for Tenant Delay or Excusable Delay, then Tenant
shall thereafter have the option to terminate this Lease on sixty (60) days
prior written notice to Landlord, but Landlord may void Tenant's election to
terminate by delivery of the restored Demised Premises within such sixty (60)
days."
SECTION 18.6 Add the following to the end of this Section: "If the damage occurs
in the last year of the Term and involves fifty (50%) percent or more of the
Demised Premises, then Tenant shall also have the option to terminate this
Lease, by notice to Landlord within thirty (30) days of the event."
ARTICLE 20. INDEMNIFICATION (LIABILITY)
SECTION 20.1 In line 51 after "Common Facilities" add "to the extent not caused
by Landlord's negligence or intentional act(s)."
ARTICLE 26. SIGNS
SECTION 26.2 Add the following to the end of this Section: The name of
Professional Detailing Network will also be displayed on the exterior
ground-mounted Tenant Directory sign located near the front center of the
Building facing Interstate 295/95, on the East Wing Tenant identification sign
and on Building standard signage directly adjacent to its suite entrance.
Landlord will provide building-standard signage as indicated herein at no cost
to Tenant."
ARTICLE 28. LIMITATION OF LIABILITY
SECTION 28.1(C) Delete this Subsection in its entirety in line 75.
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ARTICLE 33. RIGHT TO RELOCATE
SECTION 33.1 In line 74 after "furniture and fixtures" add "including reasonable
expenses to relocate telephone, cabling, fiber optics, computer room (and
related HVAC) and computer network in a manner to maintain Tenant's operations
at its then current level and other reasonable expenses such as stationery and
business cards."
ARTICLE 38. MISCELLANEOUS
SECTION 38.4 Add the following to the beginning of this Section: "Except where
Landlord has specifically agreed to be reasonable."
ARTICLE 39. OPTION(S) TO EXPAND
SECTION 39.1 Provided that Tenant is not in default of the Lease beyond any
applicable cure period or in circumstances which with notice or passage of time
or both would constitute an event of default under the Lease on Tenant's part,
Tenant shall have the following options:
EXPANSION OPTION FOR UNIT 2. Tenant shall have the option to lease the
adjacent 4,100 rsf identified as "Unit 2" on Exhibit A- 1 under the same terms
and conditions as Phase I and Phase II of the Demised Premises until the earlier
of: (a) tenant's notice to Landlord that it will not require expansion space or
(b) ninety (90) days following the Phase II Commencement Date. If Tenant has not
elected to lease Unit 2 during the ninety (90) day period, Tenant will have the
Right of First Refusal on Unit 2.
RIGHT OF FIRST REFUSAL FOR UNIT 2. If Tenant fails to lease ▇▇▇▇ ▇ under
Expansion Option 1 above and if Landlord has a prospective Tenant for ▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇ shall give Tenant written notice ("OFFER NOTICE"). After Tenant has
received the Offer Notice, Tenant shall then have five (5) business days TIME
BEING OF THE ESSENCE within which to elect to Lease Unit 2 at the rate of
$21.25/sf for a Term to run co-terminus with the initial Demised Premises, with
a similar Tenant Improvement Allowance. If Landlord and Tenant are unable to
come to sign a written agreement of Tenant's intention to lease the Unit 2 space
(which may be in the form of a Letter of Intent) within such five (5) business
days or if a mutually acceptable Lease amendment incorporating Unit 2 is not
executed within fifteen (15) days of Tenant's election, TIME IS OF THE ESSENCE,
which time period(s) may be extended by a mutual agreement among the parties,
Landlord shall be entitled to enter into a lease for Unit 2 with a third
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party and Tenant's Right of First Refusal with regard to such space shall
terminate.
RIGHT OF FIRST REFUSAL FOR UNIT 3. Commencing upon Tenant's election to
lease Unit 2 under the Expansion Option set forth above prior to or within the
ninety (90) day period following the Phase II Commencement Date, then, subject
to any rights extended to other tenants in the Building (whether or not such
tenants have possession of their premises) following execution of this Lease but
prior to Tenant's election to lease Unit 2, Tenant shall have the Right of First
Refusal to lease the 5,300 rsf space designated as "Unit 3" on Exhibit A-1. If
Landlord has a prospective Tenant for ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ shall give Tenant written
notice ("OFFER NOTICE"). After Tenant has received the Offer Notice, Tenant
shall then have five (5) business days TIME BEING OF THE ESSENCE within which to
elect to Lease ▇▇▇▇ ▇. If Tenant agrees lease Unit 3 within ninety (90) days of
its election to lease ▇▇▇▇ ▇, ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ added to the Demised Premises at
the rate of $21.25/sf for a Term to run co-terminus with the initial Demised
Premises, with a similar Tenant Improvement Allowance. After the ninety (90) day
period, Unit 3 shall be leased under market conditions rates and terms. If
Landlord and Tenant are unable to come to sign a written agreement of Tenant's
intention to lease the Unit 3 space (which may be in the form of a Letter of
Intent) within five (5) business days of the Offer Notice or if a mutually
acceptable Lease amendment incorporating Unit 3 is not executed within fifteen
(15) days, TIME IS OF THE ESSENCE, which time period(s) may be extended by a
mutual agreement among the parties, Landlord shall be entitled to enter into a
lease for Unit 3 with a third party and Tenant's Right of First Refusal for Unit
3 shall terminate.
SECTION 39.2 These expansion options shall be personal to Tenant and shall not
be assignable or transferrable by Tenant with or without any permitted
assignment or transfer under this Lease.
ARTICLE 40. FITNESS CENTER
Landlord will provide and operate or cause to be operated a fitness center
("FITNESS CENTER"), as a common facility, to be utilized by the employees of (i)
Tenant, (ii) other tenants of the Building and (iii) the tenants of the other
current and future buildings in the Princeton Pike Corporate Center (the "OFFICE
PARK"), which fitness center is located as shown on Schedule G-1, attached
hereto and made a part hereof. However, Landlord does not intend and will not be
obligated to staff the Fitness Center. Landlord agrees to obtain and maintain
all of the appropriate insurance for the Fitness Center, including without
limitation comprehensive general liability insurance, and to
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maintain the Fitness Center in a good, safe, clean manner, befitting a health
club in a first-class office building. All costs and expenses relating to the
Fitness Center shall be deemed Building Operating Expenses; provided, however,
that the Landlord shall be required to charge and collect from the tenants of
other buildings in the Office Park who use all or any part of the Fitness Center
an annual fee, which fee shall be set and collected by the Landlord. Landlord
shall use reasonable efforts to make sure that said annual fees cover a
proportionate cost of operating the Fitness Center, (including without
limitation, insuring, maintaining and providing heating, air- conditioning,
ventilating, and hot and cold water to the Fitness Center), so that the tenants
of other buildings in the Office Park who use the Fitness Center are paying
their share of Operating Expenses relating to the Fitness Center by paying said
annual fees while the employees of the Tenant and other tenants of the Building
pay their share of the Operating Expenses relating to the Fitness Center by
having the Tenant and other tenants of the Building pay their proportionate
share of the Building Operating Expenses. All of said annual fees shall be
directly applied to reduce the Operating Expenses associated with the Fitness
Center, and thus reduce the Operating Expenses of which Tenant must pay a share.
Landlord shall review, and if appropriate, due to any changes in the Operating
Expenses of the Health Club, adjust the annual fees charged to tenants of other
buildings in the Office Park or their employees at least once per year. In no
event shall any employee of the Tenant be required to pay any fee to use the
Fitness Center other than a minimal fee to cover the cost of any keys or card
access system providing access to the Fitness Center and/or women's locker room
or any voluntary fee to register for aerobics or similar classes. Anyone using
the Fitness Center shall be required to execute such release and waiver forms as
Landlord shall deem necessary to ensure that Landlord and any other party shall
be released and exonerated from any and all liability or responsibility with
respect to any damage, injury or the like arising from or relating to the use or
existence of the Fitness Center. No use of the Fitness Center shall be permitted
without the execution of such forms.
- END OF RIDER -
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GROUND FLOOR PLAN
97
EXHIBIT I
---------
[LETTERHEAD OF ISSUING BANK]
Princeton Pike Corporate Center Associates IV
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇/▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Services, Inc.
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
At the request of our customer, [NAME OF TENANT], we hereby establish our
Irrevocable Letter of Credit No. _____, in your favor in the amount of U.S. ($ )
Dollars effective upon the date hereof with an initial expiration date of July
15, 1998 at our main office, [BANK'S ADDRESS], on [NOT LESS THAN ONE (1) YEAR].
It is a condition of this Irrevocable Letter of Credit that it shall be
automatically renewed for successive periods of one (1) year from the present to
any future expiration date(s) as required by the terms of the Lease, unless at
least forty-five (45) days prior to such expiration date, we notify you in
writing, by certified mail, return receipt requested, that we do not elect to
renew or unless notified by you that the Letter of Credit need not be renewed
pursuant to the terms of the lease.
Funds under this Irrevocable Letter of Credit are available to you against your
sight draft drawn on us accompanied by (a) a certificate of an officer/general
partner of the Landlord stating that (i) an uncured default or defaults
exist(s), and that all applicable cure periods have passed and the Landlord has
given all applicable Notices pursuant to a certain Lease Agreement dated between
you, as Landlord, and [NAME OF TENANT], as Tenant, and specifying and describing
such default or defaults or Tenant's failure to submit a satisfactory
replacement letter of Credit in the event the issuing bank hereunder elects/not
renew the Letter of Credit pursuant to Paragraph 2 above and (ii) a copy of the
above certificate has been mailed to Tenant at the Demised Premises, or if
Tenant no longer occupies the Demised Premises, then at such location as is
specified under the Lease, and (b) the original of this Irrevocable Letter of
Credit.
If we receive such certificate and your draft on or before the close of business
on the expiration date of this Letter of Credit, we will forthwith honor the
draft.
This Irrevocable Letter of Credit sets forth in full the terms of our
undertaking and such undertaking shall not in any way be modified, amended or
amplified by reference to any document or
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instrument referred to herein or in which this Irrevocable Letter of Credit may
be referred to or to which this Irrevocable Letter of Credit relates and any
such reference shall not be deemed to incorporate herein by reference any
document or instrument. This Irrevocable Letter of Credit is transferrable by
you on one (1) occasion to a subsequent owner of record of title to the real
property at which the Demised Premises is located upon presentation of (i) your
certification of transfer of title, (ii) a copy of the recorded deed vesting
title in such subsequent owner and (iii) the original of this Irrevocable Letter
of Credit.
This Irrevocable Letter of Credit is subject to applicable provisions of the
Uniform Customs and Practice for Documentary Credits (1983 Revision),
International Chamber of Commerce Publication No. 400, which shall in all
respects be deemed a part hereof as fully as if incorporated herein.
Drawings under this Irrevocable Letter of Credit cannot be effected before
Very truly yours,
ISSUING BANK
AUTHORIZED SIGNATURE
2