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EXHIBIT 10.3
LEASE COMMENCEMENT DATE AGREEMENT
THIS AGREEMENT made this 25th day of May, 1995 by and between Princeton
Pike Corporate Center Associates IV ("Landlord") and Physicians Healthcare Plan
of New Jersey, Inc. ("Tenant").
W I T N E S S E T H
WHEREAS, Landlord and Tenant entered into an Agreement of Lease dated
May 24, 1995 ("Lease") setting forth the terms of occupancy by Tenant of all or
a portion of a building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇;
and
WHEREAS, the Lease is for an initial term of six (6) years(s) and the
Commencement Date of the Initial term of the Lease has been determined in
accordance with the provisions of Article 3 of the Lease.
NOW, THEREFORE, it is agreed and confirmed by the parties as follows:
1. The Commencement Date of the Initial term of the Lease is
5/25/95 and the termination date of the Initial term of the
Lease is 5/31/01.
2. The date on which the first payment of Base Rent is due from
Tenant is 12/1/95. (to include first Monthly Base Rent payment
and partial Monthly Base Rent for the period 11/25/95 -
11/30/95.)
3. This Agreement is executed by the parties for the purpose of
providing a record of the commencement, termination and Base
Rent commencement dates of the Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first above written.
Attest/Witness: Landlord
Princeton Pike Corporate Center
Associates IV
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------- -------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as agent
Attest/Witness: Tenant
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------- -------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Page 1 of 1
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AGREEMENT OF LEASE
This Agreement of Lease is entered into as of the 24th day of May, 1995
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": PHYSICIAN HEALTHCARE PLAN OF NEW JERSEY INC.
A NEW JERSEY CORPORATION
ADDRESS: TWO ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
"BASE RENT" shall mean, for the initial term of this Lease:
TIME PERIOD RATE/rsf MONTHLY BASE RENT ANNUAL BASE RENT
Lease Year 1 $17.50 $21,875.00* $131,250.00
*Commencing Month 7
Lease Years 2-3 $18.00 $42,079.50 $504,954.00
Lease Years 4-5 $19.00 $44,417.25 $533,007.00
Lease Year 6 $20.00 $46,755.00 $561,060.00
This Base Rent schedule assumes a Demised Premises of 15,000 rsf ("Phase I") for
the first Lease Year and 28,053 rsf ("Phase II") thereafter.
As provided in Article 4 of the General Terms of Lease, provided, however, that
the first full monthly installment of Base Rent due for month 7 of the first
Lease Year will be paid by Tenant upon the signing of this Lease and credited to
Tenant on the Commencement Date (as defined below).
Provided Tenant is not in default of the terms of this Lease, beyond the
applicable cure period, for any time period for which rent is abated or
thereafter, the Tenant's Base Rent and additional rent obligation will be abated
by the Landlord for the first six months of the initial Lease Term.
Notwithstanding the foregoing sentence, Tenant will be required to pay tenant
electric during the six month abatement period.
"BASE YEAR" shall mean the Landlord's fiscal year from January 1, 1995 through
December 31, 1995 as referred to in Exhibit C to the General Terms of Lease.
"BILLING ADDRESS" shall mean the address at which Tenant will be billed which is
the Demised Premises.
"BUILDING" shall mean the two (2) story plus partial ground floor building
constructed on the property 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. Tenant
access outside of the above hours shall be accomplished by means of a card
access system for which Tenant shall not be charged for the first 75 cards.
Thereafter, Tenant shall pay Landlord $10.00 per card that is requested by
Tenant and issued by Landlord.
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"COMMENCEMENT DATE" shall mean the date Landlord receives a Certificate of
Continuing Occupancy ("CCO") which will allow Tenant to occupy its Demised
Premises prior to any Tenant Improvement work being done, which date Landlord
estimates will be May 15, 1995. The Commencement Date for Phase II occupancy
will be one (1) year after Landlord receives a Certificate of Continuing
Occupancy. (See definition for Demised Premises below.)
"COMMON FACILITIES" shall mean the land surrounding the Building, the parking
lot(s) 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,
air-conditioning 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 the space consisting in the aggregate of 28,053
rentable square feet located on the ground floor level as shown on the plan
attached as Exhibit A-1 to the General Terms of Lease. Tenant will initially be
charged Base Rent based on 15,000 rentable square feet.
Tenant acknowledges that some of the work to fitout the Demised Premises shall
take place during normal business hours. Tenant agrees that unless the result of
the negligence or willful misconduct of Landlord, its agents, employees or
contractors, 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, dust and
other such disturbance during business hours. Landlord will give Tenant 48 hours
prior notice of any power or telephone disruptions during the fitout, that can
be reasonably anticipated by Landlord.
"HVAC OVERTIME RATE" shall mean $35.00 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 Commencement Date, provided that if the
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.
"MORTGAGEE" shall mean the holder of any mortgage now or hereafter encumbering
the Building (currently Mortgagee is: Connecticut General Life Insurance
Company, ▇/▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Avenue, White Plains, New York
10602).
"OPERATING EXPENSES" shall mean real estate taxes, payments "in lieu of 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. Commencing with the second Lease Year, Tenant will pay to Landlord as
additional rent Tenant's Pro Rata Share (as defined below) of the Increase in
Building Operating Expenses over the actual Operating Expenses for Tenant's Base
Year. Landlord represents that to the best of Landlord's knowledge as of the
date of this Lease the Base Year Operating Expenses are to be $7.46/rsf.
Landlord agrees that annual Operating Expense escalations on controllable
operating expenses shall be subject to a cumulative cap. Such costs shall not
exceed the lesser of five percent (5%) or the increase in the NY, NJ and CT
consumer price index ("CPI 1982-1984 =100%) from the previous calendar year.
Landlord's management fee shall not exceed five (5%) percent of Tenant's gross
rents including Base Rent and Additional Rent inclusive of management fees and
costs of management personnel.
"PROPERTY" shall mean the real property located in the Township of ▇▇▇▇▇▇▇▇,
County of ▇▇▇▇▇▇ and State of New Jersey, as 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, Inc., Princeton
Gateway, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. Landlord will
pay to Broker a brokerage commission based on a separate agreement between the
parties.
"SECURITY DEPOSIT" shall mean the sum of $50,000.00 in cash as referred to in
Article 17 of the General Terms of Lease, which amount shall be due and payable
upon the execution of this Lease plus an irrevocable letter of credit in the
amount of $250,000.00 covering the period through May 15, 1999.
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"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 6411.
"TENANT ALLOWANCE" shall mean $84,159.00 (i.e. $3.00/rsf) to offset Tenant's
actual reasonable out of pocket expenses for items such as relocation costs,
security systems, telecommunications, wiring, purchase of furniture including
without limitation work stations and other installation and relocation costs.
"TENANT IMPROVEMENTS" shall mean the improvements to the Demised Premises
constructed for Tenant's use and occupancy of same as described in Exhibit D to
the General Terms of Lease. Tenant acknowledges that, except as set forth in
this Lease Tenant will accept the Demised Premises "as is" as of the
Commencement Date. Landlord will provide the Tenant Improvements as set forth in
Exhibit D.
"TENANT PARKING SPACES" shall mean 4.5 unassigned parking spaces per 1,000
usable square feet of Demised Premises.
"TENANT PLANS" shall mean the final plans, specifications and working drawings
required to be supplied by Landlord or Tenant and approved in writing by the
other party for the construction of the Demised Premises and the Tenant
Improvements as defined in Exhibit D to the General Terms of Lease.
"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 15.3% percent based on a total rentable Building
size of 183,342 rentable square feet, which is subject to change upon a
recalculation of the total rentable Building size.
If any operating expense (as defined on Exhibit C) is related to any item
entirely within the Demised Premises and for the sole use and benefit of the
Tenant, then Tenant shall pay one hundred (100%) percent of the cost of such
item and further provided that if any operating expense is related to an item
entirely within the premises of another tenant then that tenant shall pay one
hundred (100%) percent of such cost. In a mixed use Building, Operating Expenses
which benefit solely one class of tenant shall be shared proportionately among
that class of tenant.
If Landlord determines 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 a period of six (6) years from the Commencement Date of Phase
I 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
only.
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.
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: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, MANAGING GENERAL PARTNER
ATTEST/WITNESS: TENANT: PHYSICIAN HEALTHCARE
PLAN OF NEW JERSEY, INC.
/s/ [Illegible] BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
----------------------------- ------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
PRESIDENT AND CHAIRMAN OF THE BOARD
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GENERAL TERMS OF OFFICE LEASE
ATTACHED TO AGREEMENT OF LEASE
BETWEEN:
LANDLORD: PRINCETON PIKE CORPORATE CENTER ASSOCIATES IV
AND
TENANT PHYSICIAN HEALTHCARE PLAN OF NEW JERSEY, INC.
LEASE DATED _____________________________________________
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GENERAL TERMS OF OFFICE LEASE
TABLE OF CONTENTS
ARTICLE 1. DEMISED PREMISES.............................................................................1
ARTICLE 2. USE..........................................................................................1
ARTICLE 3. TERM OF LEASE................................................................................1
ARTICLE 4. RENT AND ADDITIONAL RENT.....................................................................1
ARTICLE 5. PREPARATION FOR OCCUPANCY; EXCUSABLE DELAY...................................................2
ARTICLE 6. UTILITIES AND SERVICES.......................................................................3
ARTICLE 7. COMPLIANCE WITH LAWS.........................................................................4
ARTICLE 8. EVENTS OF DEFAULT; REMEDIES..................................................................4
ARTICLE 9. CUMULATIVE REMEDIES; WAIVER..................................................................6
ARTICLE 10. SURRENDER OF DEMISED PREMISES................................................................6
ARTICLE 11. ASSIGNMENT OR SUBLETTING.....................................................................6
ARTICLE 12. MAINTENANCE AND REPAIRS; COVENANT AGAINST WASTE; RIGHT OF INSPECTION.........................8
ARTICLE 13. MECHANIC'S LIENS.............................................................................8
ARTICLE 14. ALTERATIONS..................................................................................9
ARTICLE 15. INSURANCE; WAIVER OF SUBROGATION; RELEASE...................................................10
ARTICLE 16. QUIET ENJOYMENT.............................................................................11
ARTICLE 17. SECURITY DEPOSIT............................................................................11
ARTICLE 18. DAMAGE OR DESTRUCTION.......................................................................11
ARTICLE 19. CONDEMNATION................................................................................12
ARTICLE 20. INDEMNIFICATION.............................................................................13
ARTICLE 21. SELF-HELP...................................................................................13
ARTICLE 22. ESTOPPEL CERTIFICATE........................................................................13
ARTICLE 23. SUBORDINATION AND NON-DISTURBANCE...........................................................13
ARTICLE 24. NOTICES.....................................................................................14
ARTICLE 25. BROKER......................................................................................14
ARTICLE 26. SIGNS.......................................................................................15
ARTICLE 27. HOLDOVER....................................................................................15
ARTICLE 28. LIMITATION OF LIABILITY.....................................................................15
ARTICLE 29. MODIFICATIONS REQUESTED BY MORTGAGEE........................................................15
ARTICLE 30. PARKING.....................................................................................15
ARTICLE 31. RULES AND REGULATIONS.......................................................................15
ARTICLE 32. REGULATION OF COMMON FACILITIES.............................................................16
ARTICLE 33. RIGHT TO RELOCATION.........................................................................16
ARTICLE 34. SHORT FORM LEASE............................................................................16
ARTICLE 35. CAPTIONS....................................................................................16
ARTICLE 36. APPLICABILITY TO SUCCESSORS AND ASSIGNS.....................................................16
ARTICLE 37. ENTIRE AGREEMENT; MODIFICATION..............................................................16
ARTICLE 38. MISCELLANEOUS...............................................................................16
EXHIBITS
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 Tenants
Using Consultants & Contractors
- Schedule D-3 List of Tenant Drawings
E Cleaning Specifications
F Rules and Regulations
G Rider to Lease
H Form Letter of Credit
I Letter Directing Tenant's Rent Payment to Escrow Agent
J Subordination and Non-Disturbance Agreement
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ARTICLE 1. DEMISED PREMISES
SECTION 1.1 Tenant will have the exclusive 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 (except to the extent
required for Tenant's fitout), 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, with no material impairment to Tenant's use or enjoyment of the Demised
Premises.
ARTICLE 2. USE
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 or nuisance 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, 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. except in de minimis quantities for typical office use. 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. I
ARTICLE 3. TERM OF LEASE
SECTION 3.1 The Demised Premises are hereby leased for the Term which
will commence on the date as set forth in the Agreement of Lease.
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, except
to the extent due to the actions of Landlord, its agents, employees or
contractors.
SECTION 3.5 Intentionally Deleted.
ARTICLE 4. RENT AND ADDITIONAL RENT
SECTION 4.1 Except as set forth herein, 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). Base Rent for any Partial Month will
be calculated by dividing the then annual applicable Base Rent by 365 days.
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
8
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.
In addition, Landlord may charge Tenant the lessor 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, it 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 Tenant acknowledges that as of the date
of execution of this Lease, Landlord has directed Tenant to make Base Rent,
additional rent and/or other sums due and required in accordance with the letter
notice attached hereto as Exhibit I.
ARTICLE 5. PREPARATION FOR OCCUPANCY; EXCUSABLE DELAY
SECTION 5.1 Landlord will construct the Tenant Improvements within the
Demised Premises in accordance with Exhibit D (the "WORK LETTER").
SECTION 5.2 If Landlord is prevented from or delayed in complying with
its obligations set forth in this or any other 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;
(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.
All work done in the Demised Premises by Landlord or Tenant will be
done in accordance with applicable codes. If an event of Tenant Delay occurs or
is anticipated in connection with any work to be done in the Demised Premises
other than the initial fitout, Landlord will furnish Tenant with written notice
identifying the result of such delay and the impact of such delay on the
Schedule.
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:
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(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.
(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 but consistent with the operation of Class A
office building. 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 and will be based upon Landlord's actual cost for supplying HVAC to
Tenant, such actual cost to include: 1) cost to the utility company; 2) cost of
allocation of depreciating the HVAC system and 3) cost of allocation of service
contracts, systems repair and maintenance. 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) 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) lamps, electric typewriters, word processors, personal
computers, calculators, copy machines, state of the art office equipment and
other small office machines, and kitchen equipment, 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.
(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, but without
markup or profit to Landlord. Such usage will be calculated at Landlord's option
by the use of checkmeters, survey or specific invoicing by outside vendors.
Subject to the provisions of Section 6.2, Landlord represents that the
HVAC System is capable of maintaining heat at a minimum of 66(degrees) in the
Demised Premises when the outdoor temperature is 14(degrees) F. and air
conditioning at a minimum of 78(degrees) F. dry bulb and 67(degrees) F. wet bulb
and a 50 percent humidity in the Demised Premises when the outdoor temperature
is 91(degrees) F. dry bulb and 76(degrees) F. wet bulb during summer months.
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
five (5) consecutive days after notice from Tenant specifying the basis of
Tenant's claim, then from and after the expiration of said five (5) 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. Notwithstanding the
foregoing, should such utility failure be due to the negligence of Landlord, its
agents, employees or contractors, the five (5) day time period shall be reduced
to one (1) business day. Landlord will use reasonable efforts to correct any
utility failure promptly.
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, 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
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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 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, it 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") and at Landlord's
expense, (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, its agents, employees and invitees, 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.
Landlord agrees to indemnify Tenant for any costs, expenses (including
reasonable attorneys' fees), damages or other liabilities incurred by Tenant
arising out of the use, placement, storage or disposal of hazardous or toxic
waste or substances in or on the Property by Landlord, its employees, agents or
invitees. Except for de minimis quantities for typical office use, the term
'hazardous or toxic waste or substances' means any wastes or substances
classified as hazardous or toxic under any applicable federal, state or local
law, statute, rule, regulation or ordinance (including ECRA), as well as any
wastes or hazardous substances excluded from the definition of a 'hazardous
substance' by the last sentence of 42 U.S.c. 9601 (14) and any chemical
substances or mixtures regulated pursuant to 15 U.S.C. 2601 et. seq.
SECTION 7.6 In the event Tenant is required to obtain ISRA approval due
to events related to Tenant's, its agent's or employee's actions or due to its
permitted use and the scheduled expiration or earlier termination 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.
SECTION 7.7 Landlord warrants that as of the Commencement Date of this
Lease, to Landlord's knowledge, the Building and Property is not in violation of
applicable federal, state, county and municipal laws and regulations in effect
as of such date and there are no environmental violations, hazardous wastes or
materials in or around the Building as of the Commencement Date. Landlord will
be responsible for any costs incurred by Tenant due to any non-compliance in
connection with this representation.
If, however, after the commencement Date of the Lease, as a result of
new laws or regulations, it is determined that the Building or Property are in
violation of such new laws or regulations except if due to Tenant's Permitted
Use and/or any action or omission on the part of Tenant, Landlord, or some other
tenant or their agents, employees or 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.
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 falls 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;
Notwithstanding the foregoing, Landlord agrees that it will notice Tenant up to
three (3) times in any Lease Year of any failure to pay an Installment of Base
Rent or Operating Expenses and it will not be an event of default if Tenant pays
such overdue amount within five (5) days of the receipt of such notice; 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 provided, however, if such default shall be of a
nature that it cannot reasonably be cured by Tenant 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 proceeds to cure same thereafter provided that under no circumstances
will such additional time exceed ninety (90) days.
(d) Deleted Intentionally.
(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
(h) if, a receiver or trustee is appointed for all or any
substantial portion of Tenant's property,
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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 for substantially all of Tenant's property at
the Demised Premises or upon the Lease or upon Tenant's leasehold interest
hereunder, 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 four material defaults hereunder and Landlord
has transmitted to Tenant four material 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 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), 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 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, an amount equal to the difference between (i) 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 six (6%) 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
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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 re-entry 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.
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 and Landlord each waive 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 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
damages 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) Tenant is not then in breach or default
of any of the terms or conditions of the Lease after expiration of any
applicable grace periods, and (b) Landlord gives prior written consent to the
proposed assignment or subletting which consent shall not unreasonably withheld
or delayed, 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 reasonable right to
withhold its consent if Tenant's proposal for such subletting or assignment
would violate any restrictive covenant or exclusive uses granted to any other
tenant(s) in the Building or Property or if there is a proposed substantial
deviation from the general character and condition of the Building or Property.
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, address and financial
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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
Mortgages 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) Except for the prospective sublease or assignment by
Tenant to (i) an affiliate, (ii) New Jersey State Medical Underwriters, Inc., or
its affiliates or (iii) for a total of 5,000 r.s.f. or less of the Demised
Premises during this Lease Term, 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 if for all or substantially all of the balance
of the term, or (ii) to require that Tenant shall pay to Landlord fifty (50%)
percent of (x) 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
including without limitation concessions and workletter) of 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 (herein the "Rent Surcharge"). 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, Landlord shall first give Tenant a three (3) day period within which to
provide Landlord written notice of Tenant's withdrawal of the requested
assignment; and thereafter in the absence of such withdrawal 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. Notwithstanding the above, with
respect to affiliates of New Jersey State Medical Underwriters, Inc. Landlord
reserves its right to require that Tenant pay to Landlord the Rent Surcharge as
provided for in this subsection.
(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, 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 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 or such greater amount as is reasonable under the circumstances 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, sublenants or other occupants of the Demised Premises.
SECTION 11.6 For purposes of this Article 11, if Tenant is a
corporation or partnership, any dissolution, merger, consolidation or other
reorganization of such corporation or partnership, or the sale or other transfer
or disposition of a "controlling interest" in the corporate shares or
partnership interests of Tenant, as the case may be, (whether such sale,
transfer or other disposition occurs at one time or at intervals so that, in the
aggregate, such sale, transfer or other disposition of a "controlling interest"
shall have occurred), will be deemed to constitute an assignment of this Lease.
For the purposes of this Article 11, the term "controlling interest" means (a)
as to a tenant which is a corporation the ownership of shares possessing and
having the right to exercise more than fifty (50%) percent of the total combined
voting power of all classes of shares issued, outstanding and entitled to vote
for the election of directors, (whether direct ownership or indirect ownership
through ownership of shares possessing and having the right to exercise more
than fifty (50%) percent of the total combined voting power of all classes of
shares of another corporation or corporations), and (b) as to a tenant which is
a partnership, more than fifty (50%) percent of partnership interest of the
general partners of such partnership (whether direct ownership or indirect
ownership through control of a corporate general partner).
Tenant shall have the right, without Landlord's consent but with prior
reasonable notice to Landlord, to assign this Lease or sublease the Demised
Premises: (a) if the sublease or assignment involves less than 5,000 r.s.f. or
(b) to any parent, subsidiary or affiliate corporation of Tenant, or any
corporation into which Tenant may merge, for any of the then remaining portion
of the unexpired Lease Term or any option period provided: (i) the proposed
assignee is financially qualified or is an otherwise satisfactory credit risk;
(ii) the assignee corporation provides Landlord with financial statements
certified by an office or individual of the assignee demonstrating net assets
equal to or greater than Tenant's; (iii) such assignee has sufficient experience
and continues to operate the business conducted in the 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.
SECTION 11.7 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
solely 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. Landlord will maintain and repair the common
areas and base building HVAC, plumbing and electrical systems through the
Building Operating Expenses as set forth in Exhibit C.
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, 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 which Landlord fails to correct and diligently
pursue to completion within five (5) days notice from Tenant. 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 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 and provided
that there does not occur any material inconvenience which deprives Tenant of
the reasonable ability to perform its usual business operation in the 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 or Landlord commences any action or proceeding
seeking injunctive, declaratory or monetary relief in connection with the rights
reserved under this Section, then the prevailing party in any such action or
proceeding will have the non-prevailing party pay reasonable legal fees costs
and disbursements in an 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
15
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 or bonded over within thirty (30) days after notice to
Tenant of the filing of same. If Tenant fails to discharge or bond over 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
reasonable 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 three (3%) percent, from the date of 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, which
consent shall not be unreasonably withheld or delayed. 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 in any material respect, 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 non-structural alterations 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 non-structural alterations which do not affect any building systems
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.
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 construction plans marked to show
as-built conditions. Landlord will not require Tenant to remove any improvements
which do not require unusual demolition for office fitout demolition. Landlord
and Tenant will agree at time of alteration approval as to what Tenant has to
remove.
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 (not to exceed $50.00 per hour) 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 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 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
16
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. The intent of this section
is to ensure harmonious labor in the Building.
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.
ARTICLE 15. INSURANCE WAIVER OF SUBROGATION; RELEASE
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 as an additional insured, 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/$5,000,000.00 for bodily injury or death and $1,000,000.00 for
property damage or $5,000,000.00 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.
(b) ▇▇▇▇▇▇▇'▇ Compensation and employer's liability in
statutory amounts
(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 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.
SECTION 15.4 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.
Notwithstanding anything in this Lease to the contrary, 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.
Moreover, Tenant expressly waives and releases Landlord from any claim for any
loss or damage to its business, contents, fixtures and/or property to the extent
17
required to be covered by insurance hereunder, whether or not such loss or
damage results from the negligence of Landlord, its agents, officers, employees
and/or invitees. If the release of Landlord as set forth in this section
contravenes any law with respect to exculpatory 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 be 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 Building, which will include, but
not be limited to: fire and casualty at full replacement value of the Building
(all-risk special form or its equivalent); 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 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 Lease. Within sixty
(60) days after the expiration of the Term, Landlord will return the Security
Deposit with any interest thereon 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 within five (5) days of
written 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 diligently undertake to 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 to its initial condition as of the
Commencement Date 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 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.
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SECTION 18.4 Upon receipt of notice from Landlord that the Demised
Premises cannot be restored within such 180 day period, Tenant shall have the
right to terminate this lease by written notice to Landlord within ten (10) days
of receipt of Landlord's notice. Failure to Tenant to furnish Landlord such
written notice within ten (10) days shall constitute a waiver of Tenant's right
to terminate. 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 including the costs of Landlord's labor and materials. 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) 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 except that Tenant may
make a separate claim for the unamortized cost of the Tenant improvements and
any other damages under the New Jersey Relocation Assistance Act. 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 as determined by Tenant in its reasonable judgment.
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, except that Tenant may make a separate claim for the unamortized
cost of the Tenant improvements and any other damages under the New Jersey
Relocation Assistance Act, 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 as of date of 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
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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 it the period of temporary 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 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
SECTION 20.1 Subject to the provisions of Article 15, 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 to the extent out of the 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 competent counsel. 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 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 s 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 or 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
three (3) 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 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.
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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 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.
SECTION 23.4 Notwithstanding the above provisions of this Section, a
copy of the required form of Subordination and Non-Disturbance agreement has
been attached hereto as Exhibit J.
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 hand delivered or delivered in
accordance with this Section 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
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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.
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 and Tenant is
not in good faith negotiations with Landlord for an extension or renewal of the
Lease, 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. Provided Landlord files a summary
dispossess action and obtains a judgment against Tenant in connection therewith,
Tenant will pay as Landlord's sole and exclusive remedy twice the Base Rent in
effect upon the expiration of the Term together with twice the additional rent
herein provided.
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; or
(c)
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 and net cash
flow 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. Nothing in this Section shall prevent
Tenant from seeking injunctive relief or from recovering insurance proceeds
under Landlord's insurance policies.
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 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.
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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 and its use and enjoyment of the Demised Premises and parking
will not be materially impaired); 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 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 consistent with Class A
office uses.
ARTICLE 33. RIGHT TO RELOCATE INTENTIONALLY DELETED.
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.
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.
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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.
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 Unless Landlord has previously agreed to be reasonable in
a specific section of this Lease, 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.
(The balance of this page is intentionally left blank)
24
EXHIBIT A
PRINCETON PIKE CORPORATE CENTER, BUILDING IV
DESCRIPTION OF LANDS IN ▇▇▇▇▇▇▇▇ TOWNSHIP, ▇▇▇▇▇▇ COUNTY, NEW JERSEY
BEGINNING at a point in the southerly line of Lenox Drive that is the following
courses and distances from the southeasterly end of the line that serves as a
cut off for vision between the northeasterly line of Lenox Drive and the
southeasterly line of Princeton Pike (33 feet from center line):
a) S 58(degrees)12'17" E, along the northeasterly line of Lenox Drive,
1,613.30 feet to a point; thence
b) Southeasterly, on a curve bearing to the right having a radius of 70.00
feet, a distance of 98.54 feet to the point of BEGINNING, and running
thence:
1) Easterly, along the southerly line of Lenox Drive, on a curve
bearing to the left having a radius of 560.00 feet, a distance
of 694.18 feet to a point; thence
2) S 43(degrees)14'12" E, 74.58 feet to a point; thence
3) N 85(degrees)D23'35 E, 1,028.93 feet to a point; thence
4) S 11(degrees)06'07" E, 853.83 feet to a point; thence
5) S 5(degrees)51'07" E, 62.33 feet to a point in the northerly
line of Interstate 295; thence
6) S 81(degrees)23'04"W, along said line of said Highway, 1.18
feet to a point; thence
7) N 79(degrees)00"16" W, still along same, 139.13 feet to a
point; thence
8) N 71(degrees)25'05" W, still along same, 143.24 feet to a
point; thence
9) N 67(degrees)46'57" W, still along same, 419.84 feet to a
point; thence
10) N 71(degrees)38'12" W, still along same, 414.77 feet to a
point; thence
11) N 79(degrees)54'53" W, still along same, 722.49 feet to a
point; thence
12) N 87(degrees)11'34" W, still along same, 9.43 feet to a point;
thence
13) N 23(degrees)32'58" W, 307.84 feet to a point; thence
14) Northerly, on a curve bearing to the left having a radius of
70.00 feet, a distance of 15.41 feet to the point and place of
BEGINNING.
Containing 21.311 more or less acres.
Subject to easements of record.
▇▇
▇▇▇▇▇▇▇ ▇-▇
[▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Plan and Demised Premises Designation]
26
EXHIBIT A-2
[Site Plan]
27
EXHIBIT B
LEASE COMMENCEMENT DATE AGREEMENT
THIS AGREEMENT made this _____ day of _______ , 19___ by and between
________________________________________ ("Landlord") and
___________________________ ("Tenant").
W I T N E S S E T H
WHEREAS, Landlord and Tenant entered into an Agreement of Lease dated
"Lease") setting forth the terms of occupancy by Tenant of all or a portion of a
building located at __________________ , New Jersey; and
WHEREAS, the Lease is for an initial term of ____(__) years(s) and the
Commencement Date of the Initial term of the Lease has been determined in
accordance with the provisions of Article 3 of the Lease.
NOW, THEREFORE, it is agreed and confirmed by the parties as follows:
1. The Commencement Date of the initial term of the Lease is
_______ and the termination date of the initial term of the
Lease is _________ .
2. The date on which the first payment of Base Rent is due from
Tenant is __________________.
3. This Agreement is executed by the parties for the purpose of
providing a record of the commencement, termination and Base
Rent commencement dates of the Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first above written.
Attest/Witness: Landlord
_______________________________ By: ______________________________
Attest/Witness: Tenant
_______________________________ By: ______________________________
Page 1 of 1
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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) without markup
or profit to Landlord; (ii) installing, operating, maintaining, repairing,
replacing (subject to the provisions of Section 2(b) below) 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)
reasonable and customary insurance 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 five (5%) percent of
Base Rent and Additional Rent; 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 benefited) 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) leasing or other brokerage commissions; (v) tenant
concessions; (vi) legal fees for negotiations of leases or for enforcing tenant
defaults, or legal fees incurred in defending lawsuits not directly related to
the contest or appeal of any item which is otherwise included as an Operating
Expense; or (vii) capital expenditures, except as provided for herein. Operating
Expenses will include the cost of any capital improvement made to the Building
after the date hereof (1) which and to the extent it actually reduces other
Operating Expenses or (2) which is required under a law or regulation that was
not applicable to the Building as of the date of this Lease, the cost thereof to
be amortized in accordance with manufacturer's estimation where applicable or
GAAP if no manufacturer's estimate exists (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 or in the amounts and levels of coverage required
to be maintained by Landlord, 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:
(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. Notwithstanding the above, in no event shall Landlord be entitled to
receive more than the actual Operating Expenses (including real estate taxes)
for such year.
29
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. Landlord
reserves the right to adjust Base Year costs to delete the cost of any items
which are included in Base Year calculations but are subsequently deleted as an
Operating Expense.
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. At such
reasonable time after the end of the Base Year as Landlord may select, Landlord
will deliver to Tenant a statement of the Base Year Operating Expenses. At such
reasonable time 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.
BILLING AND PAYMENT "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 following the end of such fiscal 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 as express terms
of this Lease are overstated, and if 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 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 any overpayment at the lesser of prime plus four (4%)
percent or 18% and pay one-half the 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 or the adjustments required by the Operating Expenses
Statements 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."
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 prior to or subsequent to the Term, shall be apportioned
between Landlord and Tenant as of the beginning or end of the Term, as
applicable based upon the final ▇▇▇▇ for the applicable year, 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.
30
EXHIBIT D
WORK LETTER
Except as set forth in the Agreement of Lease, Tenant agrees to accept the
Demised Premises "as is" at the Commencement Date. Landlord will proceed with
construction of the Tenant Improvements as set forth in the Agreement of Lease.
I. LANDLORD'S WORK AND TENANT'S WORK
LANDLORD'S WORK AT LANDLORD'S COST
Schedule D-1, attached hereto, includes a description of design
specifications which are part of the "BASE BUILDING" and are to be provided by
Landlord in connection with the initial construction of the Building.
Landlord will provide a occupancy of the Demised Premises to Tenant
based upon the Architectural Space Plan dated April 26,1995 prepared by ICI (see
attached Schedule D-3). This work will include the following:
- Required demolition to accommodate the work stations indicated in the
plan.
- Necessary carpet repairs/replacement in areas affected by demolition.
Prior to the commencement of Landlord's Work, Tenant may elect to
require that Landlord replace the carpet with a 26 ounce Philadelphia
carpet (equity line) or similar in areas affected by the demolition of
partitions.
- Construction of a training room to accommodate 30 people; Landlord's
work includes installation of a large whiteboard and an allowance of
$5,000 for an accordion door.
- Repaint throughout the premises; make necessary wall covering repairs.
- Installation of a partition wall and two entrance doors in order to
segregate the executive area;
- HVAC and sprinkler modifications.
- Installation of 15 new receptacles and allowance for electric
energizing of tenant supplied work stations.
- Necessary ceiling, drywall and electric repairs.
Prior to Tenant's occupancy, the existing telephone and computer system will be
removed, however, all supporting cabling will remain. Tenant will be responsible
for arranging for telephone and/or telecommunications service and security
system, if desired, in its own name.
TENANT'S WORK AT TENANT'S COST
All other Tenant Improvements required by Tenant will be Tenant's Work at
Tenant's sole cost and expense.
II. REPAIRS AND CORRECTIONS
In connection with its Landlord's Work, Landlord agrees to repair and correct
any work or materials installed by it or its contractor in the Demised Premises
which prove defective as a result of faulty materials, equipment or workmanship
which 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 material 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.
III. 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 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 sixty (60) 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
material which Landlord agrees to repair and correct under Section III above,
but only if such defective work or
31
material could not reasonably be observed within said twenty (20) day period.
IV. ACCESS DURING CONSTRUCTION
Should Tenant choose to perform work with its own contractors while Landlord is
also performing work within or around the Demised Premises, Tenant work except
for Tenant's installation of telephones will not commence until the Landlord has
completed its work, unless otherwise permitted by Landlord in its sole
discretion. Any approval to commence work in the Demised Premises is conditioned
upon Tenant's workmen and mechanics working in harmony and not interfering with
the labor employed by Landlord and/or Landlord's contractors or by any other
tenant(s) or its (their) contractor(s).
TENANT PLANS
1. TENANT PLANS. Tenant, or Landlord at Tenant's request, will prepare any
needed plans for the Demised Premises (the "Tenant Plans") in accordance with
Schedule D-2 attached hereto. 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 Premises, showing amount, location and type, and
including a list of heat producing equipment and machinery,
specifying manufacturer and type of equipment/machinery,
number of units and electrical wattage per unit; and
e. Any requested modifications or changes to Base Building
design.
All Tenant Plans are expressly subject to Landlord's approval, and must receive
municipal approvals for building permit.
2. PERMIT FEES
a. Unless Landlord does the work or Landlord notifies Tenant to
the contrary, Tenant's contractor must administer all filings
for any permits or other filing requirements of the
municipality for work planned within the Premises.
b. Tenant will be responsible for paying all municipal fees
connected with securing required permits or approval for any
Tenant Work. Tenant shall also be responsible for providing
Landlord with properly signed and sealed sub tradefiling
documents.
c. 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.
Except for any work which does not require permitting from the municipality, 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).
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
32
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.
If Landlord requires any changes pursuant to the preceding paragraph, Tenant
shall cause its architect to change the Tenant Plans in accordance with
Landlord's reasonable requirements and promptly resubmit them to Landlord,
indicating thereon the revision date and listing every change made to the
previous submission of the Tenant Plans. These changes and resubmissions shall
continue until the Tenant Plans have been approved by Landlord, such approval
not to be unreasonably withheld or delayed. Promptly after approval by Landlord
of such Tenant Plans, four (4) copies thereof signed by Tenant will be delivered
to Landlord for signature, whereupon two (2) fully executed copies shall be
delivered to Tenant.
The Tenant Plans as approved by Landlord shall be final and shall not be changed
by Tenant without Landlord's prior approval.
4. CONSTRUCTION OF TENANT WORK
If any work in the Demised Premises is not performed by Landlord, Tenant agrees
that all work will conform to the Guidelines.
Landlord reserves the right to approve Tenant's choice of contractor and all
work to be performed in the Demised Premises will be in accordance with the
provisions and requirements of the Lease including but not limited to Articles
14, 15 Exhibit D and Guidelines. Tenant will be responsible for obtaining the
final Certificate of Occupancy for the Demised Premises in connection with the
Tenant Work.
All construction documents shall be available to Landlord for inspection during
construction.
5. MATERIALS AND WORKMANSHIP
All work performed in the Demised Premises 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 or any
subsequent Alterations.
6. REPRODUCIBLE COPIES
Upon completion of any Tenant Improvements or Alterations, Tenant will provide
to Landlord one (1) print and one (1) reproducible copy of the as-built
Alterations Plans, including without limitation, plumbing, electrical, HVAC and
architectural plans.
7. CODE ENFORCEMENT REQUIREMENTS
Any requirements of the local code enforcement officers applicable to arising
from the construction of the Alterations or the nature, location, layout or
installation of Tenant's furniture and/or trade fixtures, i.e., are the sole
responsibility of Tenant.
33
SCHEDULE D-1
PRINCETON PIKE CORPORATE CENTER
BUILDINGS I, II, III, 1V
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 applicable
at the time of construction.
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.
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.
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.
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.
34
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 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.
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.
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.
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.
35
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 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 exit 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 include specifications as
required and locate sources, distance and tie-in
locations, and include riser diagrams.
8. All of 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 a
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., 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.
C. MUNICIPAL REQUIREMENTS:
1. All plans must be filed with the Township of
▇▇▇▇▇▇▇▇. 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.
36
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 to assure conformance to the plans and
specifications. The maximum number of inspections
will be determined by work 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 load which is revised and sent
to Landlord for its approval. Inspection time will
include travel to and from the Landlord's office in
Lawrenceville, NJ. The rate for any inspections is
$60.00 per hour, which rate may be changed based on
Landlord's costs.
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 (▇▇▇) ▇▇▇-▇▇▇▇ 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.
4. SHOULD TENANT IGNORE ANY OF THE CRITERIA DESCRIBED HEREIN OR
IN ANY SECTION OR EXHIBIT OF THE LEASE (SPECIFICALLY INCLUDING
BUT NOT LIMITED TO EXHIBIT C) 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 (10) 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 contractors or
subcontractors and as otherwise set for the in the Lease.
37
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 as set forth in
Exhibit D, 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.
38
SCHEDULE D-3
[Proposed Space Plan for Physicians HealthCare]
39
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, terrazo 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.
15. Strip and recondition resilient floor 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 four (4) times per year.
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 Tenants, 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 an 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
40
equipment or articles. All sales 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 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 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.
41
EXHIBIT G
RIDER TO LEASE BETWEEN PRINCETON PIKE CORPORATE CENTER ASSOCIATES IV
("LANDLORD") AND PHYSICIANS HEALTH CARE OF NEW JERSEY ("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 4. BASE RENT AND ADDITIONAL RENT
SECTION 4.3 The Demised Premises is currently separately metered for electric
usage. Tenant will pay all charges for electric usage directly to Landlord based
on a checkmeter to the Demised Premises.
ARTICLE 5. PREPARATION FOR OCCUPANCY; EXCUSABLE DELAY
SECTION 5.1 Add the following to the end of this Section: "Tenant acknowledges
that all fitup work will be done after Tenant takes possession of the Demised
Premises under a CCO as set forth in the Agreement of Lease."
SECTION 5.3 Add the following to the beginning of this Section: "When
applicable,."
ARTICLE 6. UTILITIES AND SERVICES
ADD THE FOLLOWING NEW SUBSECTION:
SECTION 6.1(f) If the Atrium cafeteria is closed for a period greater than sixty
(60) days, Landlord will provide Tenant with an area on the courtyard level to
accommodate customary plumbing and refrigeration for Tenant's kitchen needs.
ARTICLE 17. SECURITY DEPOSIT
ADD THE FOLLOWING NEW SUBSECTION:
"SECTION 17.4 LETTER OF CREDIT
A. Within ten (10) business days after the delivery to Tenant of a
fully executed copy of this Lease and receipt by Tenant of the executed
Subordination and Non-Disturbance Agreement described in Section 23, the Tenant
will deposit with Landlord a Letter of Credit ("LC"), in the amount of Two
Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars. The LC will constitute
part of the Security Deposit required pursuant to Article 17 in addition to
$50,000.00 cash, subject to all of the following terms and conditions (in
addition to and not in lieu of the provisions of Article 17 which shall apply to
the LC, as applicable, and to any monies received by Landlord as a result of a
draw on the LC):
(i) The LC will be irrevocable and unconditional for a term
through May 15, 1999 unless Landlord receives not less than sixty (60) days
notice of non-renewal;
(ii) The LC will be issued by an established and recognized
banking institution approved by Landlord and in the form attached hereto as
Exhibit H; and
(iii) Any monies paid to Landlord by the issuer of the LC will
be retained by Landlord as the requisite Security Deposit, subject to
disposition in accordance with the provisions of Article 17 of this Lease; and
(iv) Except as set forth in Section 17.1, in the event that
Landlord receives notice that the LC will not be renewed, Landlord will notify
Tenant of such event and Tenant will, not later than thirty (30) days prior to
the scheduled expiration of the expiring LC, deliver to Landlord a replacement
LC, complying with all of the terms and conditions set forth herein and
effective commencing on the first business day after the date of expiration of
the expiring LC. Tenant's failure to deliver a replacement LC as set forth
herein will, notwithstanding any other provision of this Lease to the contrary,
including, without limitation, the provisions of Section 8.1, constitute an
uncured event of default under this Lease giving Landlord the right to
immediately draw upon the expiring LC. If Landlord draws on the expiring LC,
Landlord will pay to Tenant all sums received as a result of such drawing as, if
and when Tenant delivers to Landlord a replacement LC complying with the terms
hereof.
(v) Tenant's failure to fully, completely and punctually
comply with the above requirements, TIME BEING SPECIFICALLY AND EXPRESSLY HEREBY
MADE OF THE ESSENCE, will constitute a material default.
42
ARTICLE 21. SELF-HELP
ADD THE FOLLOWING NEW SUBSECTION:
SECTION 21.3 "If Landlord defaults in the performance of its obligations under
this Lease and if such Landlord's default materially and adversely affects
Tenant's use and occupancy of the Demised Premises for the operation of Tenant's
business therein or if Landlord fails to pay taxes or assessments, or if such
failure continues for a period exceeding thirty (30) days or such additional
reasonable time if any obligation of Landlord cannot be completed within such
thirty (30) days after notice thereof to Landlord and the expiration of any
applicable grace period, Tenant shall have the right, upon written notice to
Landlord and its Mortgagee, supported by written estimates of cost of any work,
to expend any reasonable sums in the correction or curing of Landlord's failure
to perform, and if Tenant performs any such obligation of Landlord, Landlord
agrees that it will pay to Tenant the reasonable costs thereof, and if Landlord
shall fall to make such payment within five (5) days after Tenant's written
request therefor, then Tenant shall have the right to deduct such sums from the
next payment of Base Rent payable under this Lease. This remedy shall be in
addition to any other remedies available to Tenant pursuant to this Lease or
provided by law. In no event will Tenant's payments or costs hereunder become a
lien against the Demised Premises, Building or Property."
ARTICLE 23. SUBORDINATION AND NON-DISTURBANCE
SECTION 23.1 Add the following to the end of this Section: "Landlord will obtain
a Subordination and Non-Disturbance Agreement for Tenant with Landlord's
Mortgagee in form reasonably satisfactory to Tenant, which form is attached
hereto as Exhibit J."
ARTICLE 26. SIGNAGE
SECTION 26.2 Add the following to the end of this Section: "Tenant's name will
be displayed on the existing exterior ground mounted tenant directory sign which
is located near the front center of the Building facing Interstates 95 and 295.
In addition, Tenant's name will be displayed on Building standard signage
directly adjacent to its suite entrance off the elevator lobby. The rear
entrance to the Demised Premises will also contain signage identifying Tenant
similar to the current signage for DKM."
ARTICLE 39. RIGHT TO INSTALL SATELLITE DISH
SECTION 39.1 Tenant shall have the right to install a satellite dish on the roof
of the Building at Tenant's sole cost and expense, subject to compliance with
the following conditions:
a) Six weeks before Tenant intends to commence the installation work,
Tenant shall supply Landlord with a listing of all equipment to be
installed on the roof including, without limitation, general
description of the equipment, name of manufacturer, model number or
other manner of identifying the equipment, specifications for the
equipment including, without limitation, size, weight and electrical
power requirements, working drawings for all cable installation whether
on the roof or elsewhere in the Building, name and address of the
contractor who will install the equipment and cabling on Tenant's
behalf and the manner in which the equipment is to be affixed to the
roof including, without limitation, plans and specifications which will
indicate the determination of a qualified engineer as to whether or not
additional structural reinforcement is required and the location of the
installation. Landlord reserves the right (i) to approve the contractor
selected by Tenant and (ii) to specify the color and finish of the
equipment to be installed so that same will be in keeping with the
aesthetics of the Building provided such colors can be obtained by
Tenant.
b) The information supplied by Tenant as set forth in Subsection a) shall
be subject to Landlord's review and approval which approval shall not
be unreasonably withheld or delayed. Landlord reserves the right to
have such information reviewed by Landlord's engineer in which event
Tenant shall pay the reasonable costs and expenses of such review.
c) Tenant shall be responsible for compliance with all applicable laws,
ordinances and regulations in connection with such installation,
including, without limitation, compliance with local zoning codes,
building codes and Federal Communications Commission permits if
required. PRIOR TO THE COMMENCEMENT OF THE INSTALLATION WORK Tenant
shall deliver to Landlord a copy of the building permit and other
certificates or approvals and such other evidence of such compliance as
may be reasonably required by landlord. Landlord makes no warranties or
representation that Tenant's roof installation can be made in
compliance with local ordinance and Tenant relies solely on its
independent investigation in this regard. Landlord will cooperate with
Tenant at Tenant's sole expense in obtaining any required permits.
43
d) The installation and removal of the equipment shall in all respects be
subject to the conditions of this Lease including but not limited to
Articles 10 and 14. If the installation of the satellite dish is not
done by Landlord, Landlord may supervise and/or inspect such
installation and charge a fee to compensate Landlord for the cost of
such supervision and/or inspection. In addition, Tenant's installation
must be in accordance with Landlord's roof warranty which may require
inspection by the company which installed the roof of the Building. If
Tenant's installation will result in any penetration of the roof,
Tenant must complete the attached certificate. Tenant shall furnish
Landlord with as-built drawings upon completion.
e) Landlord shall have the right with thirty days written notice to
Tenant, to require Tenant to remove or relocate its equipment, at
Landlord's sole expense. Landlord shall make a reasonable effort to
provide to Tenant an adequate relocation space. Failure to do so shall
not be considered a constructive eviction on Landlord's part or a
denial of any essential services to Tenant.
f) Tenant's access to the roof to install, maintain or remove the
equipment shall be subject to the rules and regulations of the Building
and shall only be provided on forty-eight (48) hours advance written
notice to Landlord so that Landlord's representative(s) may be present
at the time such access is provided. In the event of an emergency,
Tenant will not be required to give prior notice, but Tenant shall give
subsequent notice to Landlord. Landlord and its representatives shall
have the same rights to inspect Tenant's satellite dish and television
antenna as provided in Article 12.3 of this Lease.
g) Tenant agrees to the extent reasonably possible to connect the
satellite dish to its meter servicing the Demised Premises. In the
event the satellite cannot be connected to the same meter as the
Demised Premises, Tenant agrees to the installation of a separate
electrical meter or submeter to monitor the electrical uses of Tenant's
equipment and agrees to pay to Landlord, upon demand, the charges of
the utility company for such electrical services to Tenant's equipment.
The cost and expense of installation of the meter shall be the
responsibility of the Tenant.
h) In the event that Tenant desires to replace upgrade or otherwise modify
its equipment, such replacement, upgrading or modification shall be
subject to all the terms and conditions of this Article.
i) Tenant's use of the roof space for its equipment shall be nonexclusive
and Tenant acknowledges that Landlord may, from time to time, grant to
other tenants the right to make similar use of other areas of the roof.
Landlord agrees to make reasonable efforts to provide that the
equipment or installations of such other tenants will not interfere
with the installation made by Tenant pursuant to this paragraph.
However, Landlord will not be required to relocate any HVAC, electrical
or other equipment and structures of the Building. Tenant shall take
such actions as may reasonably be required in order to prevent
interference by Tenant's equipment with other communications equipment
installed on the roof by any other tenant or by Landlord.
j) In connection with Tenant's installation, Tenant shall use only
shielded cable/plenum rated to prevent interference with other Building
or tenant communication systems, use cable which complies with
applicable local fire and building codes and provide appropriate
identification for Tenant's cabling at all points where such cable is
accessible.
k) Tenant agrees to have its satellite dish included under its current
policy of insurance for the Demised Premises. Tenant shall indemnity
and save Landlord harmless from any and all cost, expense, claim,
injury or liability in any way arising or relating to the installation,
operation or removal of Tenant's equipment or cabling through the
Building, including, without limitation, expenses related to damage to
the roof of the Building, and claims, injury or damages of any other
tenants in the Building or the office park, their employees, agents and
invitees except to the extent that same results from negligent acts or
omissions of Landlord, its employees, agents and invitees.
l) In the event that any of Tenant's installations are to be made through
space occupied by other tenants in the Building, Tenant shall be
responsible to obtain, in advance of such installation, and to provide
to Landlord in advance of such installation, written waivers or
consents of such other tenants to the installation. Landlord covenants
to assist Tenant at Tenant's sole expense in obtaining such waivers or
consents.
- END OF RIDER -
44
EXHIBIT H
[LETTERHEAD OF ISSUING BANK]
[Name of Landlord)
▇/▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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 and expiring at
our main office, [BANK'S ADDRESS], on May 15, 1999.
Funds under this Irrevocable Letter of Credit are available to you upon receipt
of (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 and (ii) a copy of the above certificate has been delivered
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, prior to
delivery us and (b) the original of this Irrevocable Letter of Credit.
If we receive such certificate on or before the close of business on the
expiration date of this Letter of Credit, we will forthwith honor the request.
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 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 transferable 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
F24
45
EXHIBIT I
FORM OF TENANT LETTER
Gentlemen,
We hereby authorize and direct you to pay the rent and other amounts due us
under the referenced lease directly to:
Connecticut General Life Insurance company
▇/▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇.
▇.▇. ▇▇▇ ▇▇▇
One North ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Please direct any Inquiries to the undersigned.
Very truly yours,
46
EXHIBIT J
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Tenant Name: ___________________________
Trade Name: ____________________________
Room/Unit No.: _________________________
THIS AGREEMENT is dated the ___________ day of _______________,
19_____, and is made by and among CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
having an address c/o CIGNA Investments, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Real Estate Investment Services S-319
("Mortgagee"), _____________________________________________, d/b/a
________________________________________________________, having an address of
_______________________________________________________________ ("Tenant"), and
________________________________________________________, having an address of
___________________________________________________________________ (Landlord).
A. Tenant has entered into a lease ("Lease") dated
_______________, 19______ with __________________________ as lessor
("Landlord"), covering the premises known as ________________________ (the
"Premises") within the property known as ______, more particularly described as
shown on Exhibit A, attached hereto (the "Real Property").
B. Mortgagee has agreed to make or has made a mortgage loan in
the amount of $ ___________ to Landlord, secured by a mortgage of the Real
Property (the "Mortgage"), and the parties desire to set forth their agreement
herein.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. The Lease and all extensions, renewals, replacements
or modifications thereof are and shall be subject and subordinate to the
Mortgage and all terms and conditions thereof insofar as it affects the Real
Property of which the Premises form a part, and to all renewals, modifications,
consolidations, replacements and extensions thereof, to the full extent of
amounts secured thereby and interest thereon.
2. Tenant shall attorn to and recognize any purchaser at
a foreclosure sale under the Mortgage, any transferee who acquires the Premises
by deed in lieu of foreclosure, and the successor and assigns of such
purchaser(s), as its landlord for the unexpired balance (and any extensions, if
exercised) of the term of the Lease on the same terms and conditions set forth
in the Lease.
3. If it becomes necessary to foreclose the Mortgage,
Mortgagee shall neither terminate the Lease nor join Tenant in summary or
foreclosure proceedings so long as Tenant is not in default under any of the
terms, covenants, or conditions of the Lease.
4. If Mortgage succeeds to the interest of Landlord
under the Lease, Mortgagee shall not be:
a. liable for any act or omission of any prior
landlord (including Landlord);
Page 1
47
b. liable for the return of any security
deposit unless such deposit has been delivered to Mortgagee by Landlord or is in
an escrow fund available to Mortgagee;
c. subject to any offsets or defenses that
Tenant might have against any prior landlord (including Landlord);
d. bound by any rent or additional rent that
Tenant might have paid for more than the current month to any prior landlord
(including Landlord);
e. bound by any amendment, modification, or
termination of the Lease without Mortgagee's consent;
f. personally liable under the Lease,
Mortgagee's liability thereunder being limited to its interest in the Real
Property; or
g. bound by any notice of termination given by
Landlord to Tenant without Mortgagee's prior written consent thereto.
5. This Agreement shall be binding on and shall inure to
the benefit of the parties hereto and their successors and assigns.
6. Tenant shall give Mortgagee, by certified mail,
return receipt requested, or by commercial overnight delivery service, a copy of
any notice of default served on Landlord, at Mortgagee's address set forth above
or at such other address as to which Tenant has been notified in writing. If
Landlord shall have failed to cure such default within the time provided for in
the Lease, then Mortgagee shall have an additional ten (10) days within which to
cure any default capable of being cured by the payment of money and an
additional thirty (30) days within which to cure any other default or if such
default cannot be cured within that time, then such additional time as may be
necessary to cure such default shall be granted if within such thirty (30) days
Mortgagee has commenced and is diligently pursuing the remedies necessary to
cure such default (including, but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event the Lease shall
not be terminated while such remedies are being so diligently pursued.
7. Landlord has agreed under the Mortgage and other loan
documents that rentals payable under the Lease shall be paid directly by Tenant
to Mortgagee upon default by Landlord under the Mortgage. After receipt of
notice from Mortgagee to Tenant, at the address set forth above or at such other
address as to which Mortgage has been notified in writing, that rentals under
the Lease should be paid to Mortgagee, Tenant shall pay to Mortgagee, or at the
direction of the Mortgagee, all monies due or to become due to Landlord under
the Lease. Tenant shall have no responsibility to ascertain whether such demand
by Mortgagee is permitted under the Mortgage, or to inquire into the existence
of default. Landlord hereby waives any right, claim, or demand it may now or
hereafter have against Tenant by reason of such payment to Mortgagee, and any
such payment shall discharge the obligations of Tenant to make such payment to
landlord.
8. Tenant declares, agrees and acknowledges that
Mortgagee, in making disbursements pursuant to any agreement relating to the
Loan, is under no obligation or duty to, nor has Mortgagee represented that it
will, see to the application of such proceeds by the person or persons to whom
Mortgagee disburses such proceeds, and any application or use of such proceeds
for purposes other than those provided for in such agreement shall not defeat
the subordination herein made in whole or in part.
Page 2
48
IN WITNESS WHEREOF, the parties hereto have executed these presents as
of the day and year first above written.
Mortgagee: ___________________________ ________________________ Date
By: __________________________________
Its: _________________________________
Tenant: ______________________________ Date _______________________
By: __________________________________
Its: _________________________________
Landlord: ____________________________ Date _______________________
By: __________________________________
Its: _________________________________
Page 3
49
[CORPORATION]
[STATE OR COMMONWEALTH OF ___________________ ]
:ss.
[COUNTY OF __________________________________ ]
On this, the ________ day of __________________________, before me,
notary public, the undersigned officer, personally appears
__________________________________, who acknowledged himself to be the
______________________________________ of ___________________________________,
a corporation, and the foregoing instrument for the purposes therein contained,
by signing the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal the day
and year aforesaid.
__________________________________
Notary Public
My Commission Expires
50
[PARTNERSHIP]
[STATE OF ]
:ss.
[COUNTY OF ]
On this _______ day of ___________________________ in the year ________
before me, ____________________________________, a Notary Public of said State,
duly commissioned and sworn, personally appeared ____________________________,
known to me (or proved to me on the oath of _____________________________) to
be a general partner of a limited partnership that executed the within
instrument, and acknowledged to me that such partnership executed the same.
___________________________________
Notary Public in and for said State
51
[CII ON BEHALF OF CGLIC]
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
On this _______ of _____________________, 19____, personally appeared
____________________________ who acknowledged himself to be the
_______________________________ of CIGNA Investments, Inc., a corporation, duly
authorized to sign on behalf of _________________________, a corporation, and
that he, being authorized so to do, executed the foregoing instrument for the
purposes therein contained by signing the name of the corporation.
IN WITNESS WHEREOF, I hereunto set my hand.
____________________________________
Notary Public
My Commission Expires:
52
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
THIS ASSUMPTION OF LEASE (this "Assumption") dated as of
2/11/97 by PHYSICIAN HEALTHCARE PLAN OF NEW JERSEY INC., a New Jersey
corporation having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("PHP") to NJ STATE MEDICAL UNDERWRITERS, a New Jersey corporation having an
office at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("ASSIGNEE").
WITNESSETH
For valuable consideration, the receipt and adequacy of which
are hereby expressly acknowledged, PHP and ASSIGNEE agree that:
1. ASSIGNMENT AND DELIVERY OF THE PREMISES. PHP assigns to
ASSIGNEE, effective as of 10/1/96 (the "Effective Date"), all of PHP's
right, title and interest and ASSIGNEE assumes and agrees to perform each and
every obligation of PHP under the lease dated May 24, 1995 between Princeton
Pike Corporate Center Associates IV, a New Jersey partnership (the "Landlord")
and PHP (the "Lease"), with respect to the 28,053 rsf of office space (the
"Premises") located at ground floor level of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ (the "Building"). ASSIGNEE acknowledges delivery of the Premises as
of the Effective Date. ASSIGNEE will provide Landlord with a replacement cash
Security Deposit in the amount of $150,000.00 and upon receipt of such deposit
Landlord agrees that the PHP Letter of Credit may be terminated and Landlord
shall return the $50,000.00 PHP Security Deposit to PHP.
As additional security for Landlord's agreement to this Assignment, the Lease
shall be guaranteed by The Medical Inter-Insurance Exchange ("Guarantor"), a New
Jersey corporation having an office at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ using the Guaranty form attached hereto as Exhibit A.
2. PARTIAL SUBLEASE. Landlord acknowledges that ASSIGNEE can
sublease approximately 9,351 rsf of the Premises to PHP for its continued use at
the same rates and under the same conditions contained in the Lease, but that
ASSIGNEE will be primarily responsible under the Lease for all payments of rent.
Landlord's acknowledge of such sublease is not intended to create privity
between Landlord and PHP with regard to such sublease or any of the
responsibilities of Tenant under the Lease and Landlord will look to ASSIGNEE
only for all obligations of Tenant under the Lease.
3. ENTIRE AGREEMENT. This Assumption embodies the entire
agreement of PHP and ASSIGNEE with respect to the subject matter of this
Assumption, and it supersedes any prior agreements, whether written or oral,
with respect to the subject matter of this Assumption. There are no agreements
or understandings which are not set forth in this Assumption. This Assumption
may be modified only by a written instrument duly executed by PHP and ASSIGNEE
and consented to in writing by Landlord.
Page 1 of 2
53
4. BINDING EFFECT. The terms and provisions of this Assumption
will inure to the benefit of, and will be binding upon, the successors, assigns,
personal representatives, heirs, devisees, and legatees of PHP and ASSIGNEE. PHP
and ASSIGNEE have executed this Assumption on the respective dates set forth
beneath their signatures below. Any agent or other person executing this
Assignment and Assumption Agreement on behalf of either party represents and
warrants to the other and to Landlord that he or she has full power and
authority to execute this agreement on such party's behalf.
5. GOVERNING LAW. This Assumption shall be construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties have executed this Assignment
as of the dates listed below.
Attest: PHYSICIANS HEALTHCARE PLAN OF NEW JERSEY
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------- ---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: A Notary Public of New Jersey Title: ACTING CEO
(Seal) My Commission Expires August 3, 2000 Date: 3/18/97
Attest: NJ MEDICAL UNDERWRITERS
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /S/ ▇ ▇ ▇▇▇▇▇▇▇▇
--------------------------------------------- -----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: A Notary Public of New Jersey Title: President & CEO
(Seal) My Commission Expires August 3, 2000 Date: 3/19/97
In acknowledgment of guaranty obligations set forth in Paragraph 1 of this
agreement:
Attest: THE MEDICAL INTER-INSURANCE EXCHANGE
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /S/ ▇ ▇ ▇▇▇▇▇▇▇▇
--------------------------------------------- --------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: A Notary Public of New Jersey Title: President & CEO
(Seal) My Commission Expires August 3, 2000 Date: 3/19/97
LANDLORD'S CONSENT
Provided PHP becomes current in all of its Lease rental obligations prior to the
Effective Date of the Assumption Agreement, Landlord hereby consents to this
Assumption Agreement as of the 2nd day of APRIL , 1997 and further agrees that
PHYSICIANS HEALTHCARE PLAN OF NEW JERSEY, a New Jersey corporation is hereby
released from the obligations of the Lease which are assumed by NJ MEDICAL
UNDERWRITERS, A New Jersey corporation and guaranteed by THE MEDICAL
INTER-OFFICE EXCHANGE, a New Jersey corporation ("Guarantor") pursuant to the
Page 2 of 2
54
above Assumption of Lease Agreement, provided that ASSIGNEE provides a cash
Security Deposit in accordance with the provisions of Article 17 of the Lease of
$150,000. Landlord agrees that upon Landlord's receipt of the $150,000 Security
Deposit from ASSIGNEE, PHP may then terminate its Letter of Credit and Landlord
shall return the $50,000.00 cash PHP Security Deposit. Landlord also consents to
the Sublease as set forth in Paragraph 2 above, but Landlord shall collect all
rentals from ASSIGNEE and ASSIGNEE shall remain primarily liable under the
Lease.
PRINCETON PIKE CORPORATE CENTER
ASSOCIATES IV
ATTEST: BY: PIKE IV HOLDING, L.L.C., a New
Jersey limited liability company
By: DKM Properties Corp., attorney-in-fact
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Asst. Secty. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President - Leasing
Page 3 of 2