AMENDED AND RESTATED LEASE
BETWEEN
LIBERTY HALL JOINT VENTURE, L.L.C.
AND
NUI CORPORATION
Dated: April 28, 2000
TABLE OF CONTENTS
PAGE
1. Agreement of Lease 1
2. Term 4
3. Rent 4
4. Use and Occupancy 6
5. Maintenance Obligations 7
6. Lessee Property 14
7. Alterations, Additions or Improvements 15
8. Abandonment 16
9. Assignment and Sublease 16
10. Destruction by Fire or Other Casualty 17
11. Condemnation 20
11A Restoration 23
12. Events of Default 25
13. Remedies; Conditional Limitation 26
14. Bankruptcy 29
15. Subordination of Lease 31
16. Right ot Cure Breaches 31
17. Construction Liens 32
18. Right of Entry 32
19. Utilities 33
20. Taxes 34
21. Insurance 36
22. Signs 43
23. [Intentionally Left Blank] 43
24. Estoppel Certificates 43
25. Right to Show Premises 44
26. Waiver of Trial by Jury 44
27. No Other Representations 45
28. Quiet Enjoyment 45
29. Force Majeure 45
30. General Cooperation 45
31. Holding Over 46
32. Memorandum of Lease 46
33. Section Headings 47
34. Applicability to Heirs and Assigns 47
35. [Intentionally Left Blank] 47
36. Notices 48
37. Effect of Waivers 49
38. Authority 49
39. Severability of Provisions 49
40. Governing Law 49
41. Number and Gender 49
42. Assignment of Existing Leases 50
43. Mortgagee's Notice and Opportunity to Cure 50
44. [Intentionally Left Blank] 51
45. Renewal Option 51
46. Right of Second Offer 51
47. Environmental Laws 52
48. Attorney's Fees 56
49. Replacement of 1987 Lease 56
50. Limitation of Lessor's Liability 56
51. Title and Conditions 57
52. Payment of Impositions, Compliance with Legal
Requirements and Insurance Requirements 59
53. Net Lease 60
54. Miscellaneous 61
55. Compliance with Americans with Disabilities Act 65
56. Lender Approval and Modifications 65
Schedule A _ Description of Land
Exhibit A _ Rent Schedule
Exhibit B _ Lessee Improvements and Trade Fixtures
Exhibit C _ Existing Leases
Exhibit D _ Environmental Questionnaire
THIS AMENDED AND RESTATED LEASE (this "Lease"), made as of the 28th
day of April, 2000, by and between LIBERTY HALL JOINT VENTURE, L.L.C.,
a Delaware limited liability company, whose address is 11 Commerce
Drive, Cranford, New Jersey, 07016 (hereinafter called "Lessor"), and
NUI CORPORATION, a New Jersey corporation (and successor by merger on
April 19, 1994, to Elizabethtown Gas Company, now an operating
division of NUI Corporation) whose address is 550 Route 202-206,
Bedminster, New Jersey, 07921 (hereinafter called "Lessee").
WITNESSETH:
Whereas, Liberty Hall Joint Venture, a New Jersey general partnership
(the "Beneficial Owner"), and Lessee are parties to a certain Lease
dated August 17, 1987, as the same has been amended from time to time
by formal amendments and letter agreements by and between Beneficial
Owner and Lessee ("1987 Lease"), for approximately 160,000 gross
rentable square feet of office space in a building located at 1085
Morris Avenue, Union, New Jersey and commonly known as Liberty Hall
Corporate Center One; and
Whereas, Beneficial Owner has conveyed its fee simple interest in the
Premises, together with all of its right, title and interest in the
1987 Lease, to Lessor; and Whereas, Lessor and Lessee desire to amend
and restate the 1987 Lease and replace the terms and conditions of the
1987 Lease in their entirety with this Lease; and
Whereas, by execution and delivery by Lessor and Lessee of this Lease,
Lessor assumes from and after the Commencement Date (hereafter
defined) all obligations as owner of the Premises and as Lessor under
this Lease, and Lessee shall look solely to Lessor for performance of
all obligations of Lessor under this Lease.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the terms and conditions herein set forth, Lessor
and Lessee agree as follows:
1. Agreement of Lease. Lessor hereby leases to Lessee and Lessee
hereby leases from Lessor, for the Term and upon the terms, conditions
and covenants provided below, the "Premises" consisting of,
collectively, all the following:
a. A certain Condominium Unit known as "Corporate Center One Unit" as
described in the Master Deed for Liberty Hall Corporate Center
Condominium, dated March 31,1988, and recorded in the Union County
Register's Office on April 5, 1988 in Deed Book 3546, page 198
("Master Deed"), as amended by (i) First Amendment to Master Deed For
Liberty Hall Corporate Center Condominium, dated August 11, 1989, and
recorded in Deed Book 3608, page 656 ("First Amendment"), (ii) Second
Amendment to Master Deed For Liberty Hall Corporate Center
Condominium, dated May 27, 1992, and recorded in Deed Book 3844, page
335 ("Second Amendment"), Third Amendment to Master Deed For Liberty
Hall Corporate Center Condominium, dated November 13, 1998, and
recorded in Deed Book 4759, page 216 ("Third Amendment"), and Fourth
Amendment to Master Deed for Liberty Hall Corporate Center
Condominium, dated April 4,2000,and recorded or to be hereafter
recorded in the Union County Register's Office ("Fourth Amendment,"
and together with the Master Deed, First Amendment, Second Amendment
and Third Amendment, collectively, the "Master Deed")), such
condominium unit being known and designated as Lot 4.0101 C0101, in
Block 101 on the Tax Maps of the Township of Union, County of Union
and State of New Jersey, and more particularly described on Schedule A
annexed hereto and made a part hereof(hereinafter called the "Land"),
together with a certain office building constructed on the Land
consisting of approximately two hundred thousand (200,000) square feet
and located at 1085 Morris Avenue in Union, New Jersey and commonly
known as Liberty Hall Corporate Center One (hereinafter the
"Building"), together with the existing three-story parking deck
constructed for the use of tenants of the Building adjacent to the
westerly side of the Building (hereinafter the "Parking Deck"), and
together with all other improvements constructed on the Land and
together with all easements, appurtenances, hereditaments, fixtures
and rights and privileges appurtenant hereto;
(b) All rights, title and interests of Lessor, as the owner of
Corporate Center One Unit with respect to the Parking Deck and the
Common Elements (as defined in the Master Deed) appurtenant to such
Condominium Unit including, without limitation, the following: (i) as
and to the extent now or hereafter provided in the Master Deed, the
right, in common with other lessees of present and future buildings
constructed, or to be constructed, on the Property (as such term is
defined in the Master Deed) to use access driveways to public streets
and to park in the parking areas now located or to be located on the
Property, and the exclusive right to use all parking spaces (except
113 parking spaces which are allocated to Corporate Center Two Unit)
in the Parking Deck; (ii) as and to the extent now or hereafter
specifically designated by Lessee (or otherwise allocated to Lessee)
for its exclusive use (A) the exclusive right to use one hundred (100)
contiguous parking spaces in the Parking Deck, and (B) the exclusive
right to use all of the visitor parking lot spaces immediately
adjacent to the easterly side of the Building; and (iii) as and to the
extent now or hereafter set forth in the Master Deed, the use of such
other parking structures (including, without limitation, any
Additional Parking Spaces, as provided in Section 5(c) hereto as may
be constructed on the Property, in common with other lessees of
present and future buildings constructed, or to be constructed, on the
Property pursuant to the Master Deed.
Nothing herein shall be construed as imposing any obligation on Lessor
to provide any improvements or services relating to parking. Lessor
and Lessee agree that they will not, except to the extent required to
comply with any Legal Requirement, permit or cause the access
driveways in, over and through the parking areas and to the public
streets to be blocked or otherwise hindered, so as to restrict or deny
free flow of vehicular traffic in, through and over said access
driveways and parking areas.
In any case where this Lease refers to any agreement, covenant,
undertaking, obligation or liability of Lessee with respect to the
"Premises," the "Premises" shall be deemed to include, in addition to
all land, improvements, rights, title, estates and interests described
in subsections (a) and (b) above of this Section 1, as comprising the
Premises, all demising walls, finishes, systems, equipment apparatus,
fixtures, and improvements of every kind affixed within the Building
(including, without limitation, the property of Lessee referred to in
Section 6 of this Lease) regardless of whether title thereto is vested
in Lessor or in any person other than Lessor (including, without
limitation, any tenant or occupant of the Building).
2. Term.. This Lease shall begin on April 28, 2000 (the "Commencement
Date") and shall continue for a term of twenty-two (22) years from and
after May 1, 2000, ending on April 30, 2022, unless sooner terminated
pursuant to Section 10(c), 11(c), 13 or 14 of this Lease, or unless
extended in accordance with Section 45 of this Lease (the "Term"). The
last day of the scheduled Term of this Lease (meaning the original
scheduled term or, if applicable, any renewal term) is sometimes
referred to in this Lease as the "Expiration Date."
3.Rent.
a. Basic Rent The Lessee shall pay to the Lessor during the Term
annual basic rent ("Basic Rent") in United States Dollars in
accordance with that certain Rent Schedule annexed hereto as Exhibit
"A" and made a part hereof
(b) Payment of Basic Rent. One-twelfth (1/12) of the then applicable
annual Basic Rent shall be payable in advance on the first day of each
calendar month during the Term (each a "Basic Rent Payment Date").
Basic Rent for any month only a part of which occurs during the Term
shall be equitably allocated on a per diem basis. Lessee shall pay
Basic Rent, and any Additional Rent (as defined below) as hereinafter
provided, to Lessor at Lessor's above stated address, or at such other
place or to such other person as Lessor may designate in writing by
company check or by bank wire transfer of immediately available
federal funds before 11:00 A.M., Eastern Time. If requested by the
Lender, the foregoing payments shall be made by wire transfer of
immediately available federal funds before I 1:00 A.M. Eastern Time.
(c) Additional Rent. Lessee shall also be responsible for the payment
at the time and in the manner provided for herein of additional rent
consisting of all other sums of money which shall be due and payable
by Lessee under the terms and conditions of this Lease (such sums are
hereinafter referred to as "Additional Rent"). Additional Rent for any
item only a part of which is equitably allocable to the Term shall be
limited to the portion so allocable to the Term. Lessor shall have the
same remedies for Lessee's default in the payment of Additional Rent
as Lessor has for Lessee's default in the payment of Basic Rent.
Additional Rent shall be billed separately from Basic Rent.
(d) Late Charge. If all or any portion of a monthly installment of
Basic Rent or Additional Rent is paid more than nine (9) days after
its due date hereunder (a "Late Payment"), a late charge (a "Late
Charge") equal to the lesser of four percent (4%) of the Late Payment
or the maximum amount permitted by applicable law shall be due and
payable as part of such Late Payment. In addition, if all or any
portion of a monthly installment of Basic Rent or Additional Rent is
not paid by its due date, Lessee shall pay to Lessor on demand, as
Additional Rent, interest on such overdue installment or portion
thereof from the due date until payment is received at a rate (the
"Overdue Rate"), calculated on the basis of a 360-day year of twelve
equal months, equal to the greater of (i) twelve percent (12%) per
annum or (ii) four percent (4%) per annum over the prime commercial
lending rate announced from time to time by Citibank, N.A., or its
successor (or if no longer in existence, a banking institution
selected by Lessor with a net worth of at least $5,000,000,000) but in
no event greater than the maximum rate permitted by applicable law.
(e) No Set-offs. Lessee's duty to pay Basic Rent and Additional Rent
shall exist without demand for payment. Lessee shall have no right
under any circumstances to withhold or refuse to pay when due all or
any part of Basic or Additional Rent
(f) Accord and Satisfaction. No payinent by Lessee or receipt by
Lessor of a lesser amount than the Basic Rent or Additional Rent
payable hereunder shall be deemed to be other than a payment on
account of the Basic Rent or Additional Rent, nor shall any
endorsement or statement on any check or any letter accompanying any
check for payment for Basic Rent or Additional Rent be deemed an
accord and satisfaction, and Lessor may accept such check or payment
without prejudice to Lessor's right to recover the balance of such
Basic Rent or Additional Rent or pursue any other remedy provided
herein or by law.
(g) Termination. Upon expiration or termination of this Lease, all
obligations of Lessee to pay Basic Rent and Additional Rent as well as
all other obligations of Lessee, shall terminate, except for (a) Basic
Rent, Additional Rent and any other obligations of the Lessee which
have accrued prior to the date of termination or expiration, and (b)
any obligations of the Lessee which expressly survive such termination
or expiration. Nothing herein shall limit any rights or remedies of
Lessor under this Lease upon any default by Lessee.
(h) True Lease. Lessor and Lessee agree that this Lease is a "true
lease" and does not represent a financing arrangement. Each party
shall reflect the transactions evidenced by this Lease in all books,
records and reports in a manner consistent with "true lease" treatment
rather than "financing" treatment.
4. Use and Occupancy. Lessee shall use and occupy the Premises for
general offices or for any other lawful related use, all in keeping
with uses for office buildings of similar quality and age in Northern
New Jersey ("Permitted Use"). Lessee will not occupy or use the
Premises, or permit any portion of the Premises to be occupied or
used, for any business or purpose other than the Permitted Use or for
any use or purpose which is unlawful in part or in whole or deemed to
be disreputable in any manner or extra hazardous on account of fire,
nor permit anything to be done which will in any way increase the rate
of insurance on the Building or contents contained therein. Lessee
will conduct its business and control its agents, employees and
invitees in such a manner as not to create any nuisance, nor interfere
with, annoy or disturb other lessees, if any. Lessee will maintain the
Premises in a clean, healthful and safe condition and will comply with
all Legal Requirements. Lessee will not occupy or use the Premises, or
permit any portion of the Premises to be occupied or used, for any
purpose which would have, or has the potential to have, an adverse
environmental impact on the Premises, Building, Land, Common Elements,
or any other portion of the Property. In no event shall the Premises
be used for any purpose which shall violate any of the provisions of
any Legal Requirement, Insurance Requirement or any Permitted
Encumbrances or any covenants, restrictions or agreements hereafter
created by or consented to by Lessee applicable to the Premises.
Lessee agrees that with respect to the Permitted Encumbrances and any
covenants, restrictions or agreements hereafter created by or
consented to by Lessee, Lessee shall observe, perform and comply with
and carry out the provisions thereof required therein to be observed
and performed by Lessor.
5. Maintenance Obligations.
(a) Lessee's Obligations With Respect To The Premises. Lessee shall,
at its sole cost and expense, (i) perform all maintenance necessary to
keep the Premises, including the Building and Parking Deck, in good
condition and repair and in a manner consistent with maintenance
practices generally followed by persons maintaining similar buildings
in Northern New Jersey, (ii) make all repairs and replacements
(including any capital expenditures) to the Premises, including the
Building and the Parking Deck, whether or not necessitated by wear,
tear, obsolescence, or casualty, (iii) keep the Premises clean and
free from dirt, rubbish or other obstruction, (iv) comply in all
material respects with all present and future applicable Legal
Requirements, and remove all recorded or filed violations thereof,
regardless of the nature, extent, or cost of the work, (v) use all
reasonable caution to prevent and not commit or suffer waste, damage,
or injury to the Premises, and (vi) maintain the landscaping, and keep
the sidewalks and roadways on the Land in good and safe order and
condition and free of snow and ice. Lessee shall perform its
obligations under this Section 5(a) regardless of whether such
obligation is occasioned by, or is claimed to have been occasioned by,
any design defect, defect in original construction, or any other
defect, act, omission or condition caused, or claimed to have been
caused, by Lessor or its agents, servants, employees, or independent
contractors. Lessee shall have the unrestricted right, at its sole
expense, to retain property managers and service providers necessary
to maintain the Premises, provided that Lessee's retention of any such
property managers or service providers shall in no way diminish
Lessee's obligations hereunder.
(b) Lessee's Obligations With Respect To The Common Elements. Lessee
shall, at its sole cost and expense, (i) perform all maintenance
necessary to keep the Common Elements (as defined in the Master Deed)
in good condition and repair and in a manner consistent with
maintenance practices generally followed by persons maintaining
property in Northern New Jersey similar to the Property, (ii) make all
repairs and replacements (including any capital expenditures) to the
Common Elements, whether or not necessitated by wear, tear,
obsolescence, or casualty, (iii) keep the Common Elements clean and
free from dirt rubbish or other obstruction, (iv) comply in all
material respects with all Legal Requirements relating to the Common
Elements, and remove all recorded or filed violations thereof,
regardless of the nature, extent, or cost of the work, (v) use all
reasonable caution to prevent and not commit or suffer waste, damage,
or injury to the Common Elements, and (vi) maintain the landscaping,
and keep the sidewalks and roadways on or within the Common Elements
in good order and condition and free of snow and ice.
It is the parties intent by this Section 5(b) that the Lessee by this
Lease assumes and shall promptly and faithfully discharge any and all
obligations of the Association (as defined in the Master Deed) with
respect to the maintenance, repair and replacement of the Common
Elements. Lessor agrees to provide to Lessee such documents and other
further assurances to evidence that Lessor and Schering-Plough Real
Estate Co., Inc. ("Schering") have both consented to the delegation by
Lessor in this Section 5(b) concerning the obligations of the
Association to maintain the Common Elements, and that such delegation
is legal and binding.
In addition, Lessor hereby assigns to Lessee the right, so long as no
Event of Default has occurred and is continuing, to receive and
collect all amounts due to Lessor from any other person or entity
under any agreements between Lessor and such parties (including such
rights that exist under the Master Deed) for payment or reimbursement
of those expenses incurred by Lessee to fulfill its obligations under
this Section 5(b).
It is the intent of Lessor and Lessee that since Lessee has assumed
all obligations with respect to the maintenance, repair and
replacement of the Common Elements, that Lessee shall receive all
amounts due and owing to the Association by any person or entity for
the maintenance, repair and replacement of the Common Elements,
provided that except for the assignment referred to above, Lessor
shall have no obligation to take any action to ensure Lessee's receipt
of any such amounts, except that Lessor agrees to cooperate with
Lessee, at Lessee's sole expense, by way of executing any such
documents as Lessee may during the Term reasonably require to
facilitate Lessee's collection of such amounts and to facilitate
Lessee's performance of its obligations under this Section 5(b),
provided the terms of such documents do not impose any burden on
Lessor.
Lessee shall have no obligation to maintain other buildings which may
be or have been constructed on the Property if such buildings are
located on any Unit other than Corporate Center One Unit and do not
comprise part of the Common Elements.
(c) Additional Parking. Lessee acknowledges that, pursuant to this
Lease and the Master Deed, it has the right to the exclusive use of
137 parking spaces in Parking Deck #2 or Parking Area #2 (as defined
in the Master Deed) (hereinafter the "Additional Parking Spaces") if
and when said spaces are constructed adjacent to the easterly side of
the Building by Schering, or its successors or assigns, in accordance
with the terms and conditions of the Master Deed and the Resolutions
adopted by the Union Township Planning Board granting site plan
approval for the Liberty Hall Corporate Center. in addition, in the
event that additional parking spaces are required to be constructed
(either for use by Lessee or to comply with Legal Requirements) prior
to construction of Parking Deck #2 or Parking Area #2, Lessee shall
have the right and obligation under this Lease (subject, however, to
any applicable provisions of the Master Deed), at its sole cost and
expense, to construct up to 137 temporary parking spaces on the
easterly side of the Building (the "Temporary Parking Spaces");
provided, however, that Lessee shall have no obligation under this
Lease under any circumstances to construct raised-level parking, its
only obligation hereunder being to construct surface level parking
spaces.
Lessor shall have no obligation to Lessee to construct or provide the
Additional Parking Spaces, the Temporary Parking Spaces or any other
parking for the Building or otherwise for the use of Lessee.
Lessor shall have no obligation to take any action with respect to any
of the matters described in this Section 5(c), except that Lessor
agrees to cooperate with Lessee, at Lessee's sole expense, by way of
executing any such documents as Lessee may during the Term reasonably
require to facilitate Lessee's performance of its obligations under
this Section 5(c), provided the terms of such documents do not impose
any burden on Lessor.
(d) Lessee's Obligations With Respect to the Association. Lessee
agrees that, during the Term of this Lease, Lessee shall assume, and
hereby does assume, and shall faithfully discharge and perform all
other duties and obligations of Lessor, as owner of the Premises,
under the Master Deed, including but not limited to payment of (i) all
assessments and other charges and expenses which Lessor is or may be
required to pay to the Association (as defined in the Master Deed)
pursuant to the terms and conditions of the Master Deed during the
Term of this Lease, and (ii) all sums which Lessor is or may be
required to pay to the owner of Corporate Center Three Unit (as
defined in the Master Deed) for Lessor's pro rata share of real estate
taxes with respect to Parking Deck #2 or Parking Area #2 (as defined
in the Master Deed). Lessee further covenants and agrees, to the
fullest extent permitted by law, to indemnify, defend and hold
harmless Lessor from and against any claim, loss or damage incurred by
Lessor by reason of Lessee's failure to pay or perform any of Lessor's
obligations to the Association or to the Owner of Corporate Center
Three Unit. Lessor shall in writing appoint a representative of Lessee
(to be designated by Lessee) to serve as Lessor's representative on
the Board of Directors of the Association (the "Board Representative")
for the Term of this Lease, which appointment shall provide that: (i)
Lessee may remove any such Board Representative and upon the removal,
death or resignation of any Board Representative from time to time,
designate a replacement Board Representative; (ii) such Board
Representative shall, upon Lessor's request, provide periodic reports
to Lessor regarding the business and affairs of the Association and
shall otherwise keep Lessor fully informed regarding all significant
matters affecting the Association and the Common Elements, and (iii)
notwithstanding anything contained in the terms of such appointment to
the contrary, such Board Representative shall not agree to any of the
following matters without Lessor's prior written consent: (a) any
amendment to the Master Deed or the By-Laws of the Association; (b)
any material alteration, change, redesign, or reconstruction of the
Common Elements or the Parking Deck; or (c) any material change in the
quality or scope of maintenance performed with respect to the Parking
Deck.
(e) Further Assurances. Lessor and Lessee agree to execute and
deliver such further documents as the other party may reasonably
request in order to effectuate the intent and purpose of this Section
5, it being understood, however, that Lessor shall have no obligation
to take any action to ensure Lessee's exercise of any rights or
performance of any obligations with respect to the matters described
in this Section 5, other than to cooperate with Lessee, at Lessee's
sole expense, by way of executing any such documents as Lessee may
during the Term reasonably require to facilitate Lessee's exercise of
any rights or performance of any obligations with respect to the
matters described in this Section 5, provided the terms of such
documents do not impose any burden on Lessor.
(f) Definitions. As used in this Lease, the terms "Legal Requirement"
or "Legal Requirements" shall mean, as the case may be, any one or
more of all present and future laws, codes, ordinances, orders,
judgments, decrees, injunctions, rules, regulations and requirements,
even if unforeseen or extraordinary, of every duly constituted
governmental authority or agency (but excluding those which by their
terms are not applicable to and do not impose any obligation on
Lessee, Lessor or the Premises or the Common Elements) and all
covenants, restrictions and conditions now of record which may be
applicable to Lessee, Lessor (with respect to the Premises or the
Common Elements) or to A or any part of or interest in Premises or the
Common Elements, or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of the
Premises or the Common Elements, even if compliance therewith (i)
necessitates structural changes or improvements (including changes
required to comply with the "Americans with Disabilities Act") or
results in interference with the use or enjoyment of the Premises or
the Common Elements or (ii) requires Lessee to carry insurance other
than as required by the provisions of this Lease.
As used in this Lease, the terms "Insurance Requirement" or "Insurance
Requirements" shall mean, as the case may be, any one or more of the
terms of each insurance policy required to be carried by Lessee under
this Lease or under any policy carried by Lessor and the requirements
of the issuer of such policy.
As used in this Lease, the term "Impositions" shall mean all taxes of
every kind and nature (including real, ad valorem, personal property,
gross income, Franchise, withholding, profits and gross receipts
taxes) on or with respect to the Premises; all charges and/or taxes
for any easement or agreement maintained for the benefit of the
Premises, all general and special assessments, levies, permits,
inspection and license fees on or with respect to the Premises; all
water and sewer rents and other utility charges on or with respect to
the Premises; all ground rents on or with respect to the Premises; and
all other public charges and/or taxes whether of a Re or different
nature, even if unforeseen or extraordinary, imposed or assessed upon
or with respect to the Premises as a result of or arising in respect
of the occupancy, leasing, use, maintenance, operation, management,
repair or possession thereof, or any activity conducted on the
Premises.
As used in this Lease, the terms "Lender," "lender" and terms of
similar import shall mean any lender which holds a Mortgage. As used
in this Lease, "Mortgage" means any mortgage, deed of trust or similar
security instrument which constitutes or is intended to constitute a
first lien on the Premises and secures a permanent (as opposed to
construction) loan made to Lessor.
(g) Lessor shall not be required to make any repair, whether foreseen
or unforeseen, or to maintain any of the Premises or the Common
Elements in any way, and Lessee hereby expressly waives the right to
require Lessor to make repairs and/or to make repairs at the expense
of the Lessor, which right may be provided for in any law now or
hereafter in effect. Nothing in the preceding sentence shall be deemed
to preclude Lessee from being entitled to insurance proceeds or
condemnation awards pursuant to Sections 10 and 11 of this Lease.
Lessee shall, in all events, make all repairs for which it is
responsible hereunder promptly, and all repairs shall be in a good,
proper and workmanlike manner.
(h) In the event that the Building or any other improvement on the
Land or the Common Elements or Lessee's use thereof shall violate any
Legal Requirements or Insurance Requirements and as a result of such
violation enforcement action is threatened or commenced against
Lessor, Lessee or with respect to the Premises, then Lessee shall,
within thirty (30) days after first acquiring knowledge thereof (or
sooner, if necessary to avoid cancellation of, or other adverse action
with respect to, any insurance policy), either (i) obtain valid and
effective waivers or settlements of all claims, liabilities and
damages resulting from each such violation, whether the same shall
affect Lessor, Lessee or both, or (ii) take such action as shall be
necessary to commence removal of such violation and thereafter
diligently prosecute such action to completion, including, if
necessary, any Alteration. Any such repair or Alteration shall be made
in conformity with the provisions of this Lease.
(i) If Lessee shall be in default under any of the provisions of this
Section 5, Lessor may after fifteen (15) days written notice given to
Lessee and failure of Lessee to cure during said period, but without
notice in the event of an emergency, do whatever is necessary to cure
such default as may be appropriate under the circumstances for the
account of and at the expense of Lessee. In the event of an emergency
Lessor shall notify Lessee of the situation by phone or other
available communication. All sums so paid by Lessor and all reasonable
costs and expenses (including, without limitation, reasonable
attorneys fees and expenses) so incurred shall constitute Additional
Rent payable by Lessee under this Lease and shall be paid by Lessee to
Lessor upon demand.
(j) Lessee shall from time to time replace with other operational
equipment or parts (the "Replacement Equipment") any of the equipment
(the "Replaced Equipment") which shall: have become worn out or
unusable for the purpose for which it is intended; been taken by a
Condemnation as provided in Section 11 (unless Lessee shall have
terminated this Lease pursuant to Section 11(c); or been lost, stolen,
damaged or destroyed as provided in Section 10 (unless Lessee shall
have terminated this Lease pursuant to Section 19(c). Lessee shall
repair at its sole cost and expense all damage to the Premises caused
by the removal of equipment or Replaced Equipment or other personal
property of Lessee or the installation of Replacement Equipment. All
Replacement Equipment shall become the property of Lessor, shall be
free and clear of all liens and rights of others and shall become a
part of the equipment as if originally demised herein.
6. Lessee Property. The improvements and trade fixtures made by Lessee
to the Premises as described in Exhibit B hereto shall remain the
property of Lessee. Not later than the expiration or sooner
termination of this Lease, Lessee shall, at Lessee's expense, remove
(i) all of the aforesaid items of Lessee's property and (ii) all other
items and/or improvements made by Lessee that, by the terms of this
Lease or applicable law, have become the property of Lessor and that
Lessor requests that Lessee remove (which request shall be made at
least six (6) months before the expiration of this Lease (or as soon
as possible in the event of a sooner termination of this Lease in
which case Lessee shall be allowed a reasonable time to remove such
property)). Lessee shall also, within such time, repair all injury
done by or in connection with the installation or removal of said
property and improvements; and surrender the Premises in good
condition, reasonable wear and tear excepted. All other property of
Lessee remaining on the Premises after the expiration or sooner
termination of this Lease shall at Lessor's option be deemed abandoned
and may be removed by Lessor, and Lessee shall reimburse Lessor for
the cost of such removal or Lessor may have any such property stored
at Lessee's risk and expense.
7. Alterations, Additions or Improvements.
(a) Consent Not Reguired. Lessee shall have the right to make any and
all alterations, additions or improvements in, to or about the
Premises (such alterations, additions or improvements are hereinafter
referred to as "Alterations"), whether for its own use or for the use
of any subtenant, except for Major Structural Alterations and
alterations to the exterior facade of the Building.
(b) Major Structural Alterations. Anything to the contrary in Section
7(a) notwithstanding, Lessee shall not, in each case, without Lessor's
prior written consent, which consent shall not be unreasonably
withheld or delayed, (A) make any Alterations to the exterior facade
of the Building, or (B) make any Major Structural Alteration. For
purposes of this Section 7, a "Major Structural Alteration" shall mean
any addition, alteration or improvement to the Premises which involves
(i) the removal, replacement or relocation of any of the structural
support beams of the Building, or (ii) any other additions,
alterations or improvements which would (after the completion thereof)
materially impair the structural integrity of the Building. Lessee
shall not install any equipment of any kind or nature whatsoever which
will or may damage the structural integrity of the Building.
Notwithstanding Lessor's consent to any Major Structural Alteration or
to any Alteration to the exterior facade of the Building, Lessor shall
have the right to require that Lessee, upon the expiration or earlier
termination of this Lease, remove any Major Structural Alteration or
any Alteration to the exterior facade of the Building and/or restore
the Building to the condition existing prior to the Major Structural
Alteration or any Alteration to the exterior facade of the Building.
8. Abandonment. Lessee shall not, without first obtaining the written
consent of Lessor, which consent shall not be unreasonably withheld or
delayed, abandon the Premises or allow the Premises to become vacant
or deserted during the Term, provided, however, that the Premises may
be vacant or deserted if reasonably adequate security and maintenance
is maintained and the windows are not boarded up. Notwithstanding any
such abandonment or vacancy (whether with or without Lessor's
consent), Lessee shall remain fully obligated under this Lease to pay
all Basic Rent and Additional Rent as and when due and to perform all
of its other covenants and obligations hereunder.
9. Assignment and Sublease.
(a) Provided no Event of Default shall have occurred and be
continuing, and subject to all provisions of this Section 9, Lessee
may assign its interest in this Lease (but may not mortgage or
otherwise hypothecate its interest in this Lease), and may sublet the
Premises in whole or in part, from time to time, without the consent
of Lessor.
(b) Each sublease of the Premises or any part thereof shall be subject
and subordinate to the provisions of this Lease. No assignment or
sublease shall affect or reduce any of the obligations of Lessee
hereunder, and all such obligations shall continue in full force and
effect as obligations of a principal and not as obligations of a
guarantor, as if no assignment or sublease had been made.
Notwithstanding any assignment or subletting, Lessee shall continue to
remain liable and responsible for the payment of Basic Rent and
Additional Rent and the performance of all its other obligations under
this Lease. No assignment or sublease shall impose any new
obligations on Lessor under this Lease or increase any existing
obligations of Lessor under this Lease. Lessee agrees that in the case
of an assignment of this Lease (including, without limitation, any
assignment as a part of or in connection with any sale or transfer of
all or substantially all of the assets of Lessee), Lessee shall,
within fifteen (15) days after the execution and delivery of any such
assignment, deliver to Lessor (i) a duplicate original of such
assignment in recordable form, (ii) an agreement executed and
acknowledged by the assignee in recordable form wherein the assignee
shall have unconditionally assumed and agreed to observe and perform
all of the terms and provisions of this Lease on the part of the
Lessee to be observed and performed from and after the date of such
assignment, and (iii) a reaffirmation by Lessee that, notwithstanding
the aforesaid assignment and assumption, Lessee shall continue to
remain liable and responsible for the payment of Basic Rent and
Additional Rent and the performance of all its other obligations under
this Lease, all of which documents shall be in form and substance
acceptable to Lessor and any Lender (collectively, the "Assignment
Documents"). In the case of a sublease, Lessee shall, within fifteen
(15) days after the execution and delivery of such sublease, deliver
to Lessor a duplicate original of such sublease.
(c) Upon the occurrence of an Event of Default under this Lease,
Lessor shall have the right to collect and enjoy all rents and other
sums of money payable under any sublease of any of the Premises, and
Lessee hereby irrevocably and unconditionally assigns such rents and
money to Lessor, which assignment may be exercised upon and after (but
not before) the occurrence of an Event of Default.
10. Destruction by Fire or Other Casualty.
(a) Casualty, Notice, Claim Adjustment. As used in this Lease, the
term "Casualty" shall mean any fire or other casualty affecting the
Premises or the Common Elements or any part thereof which occurs
during the Term of this Lease. In the event of any Casualty, Lessee
shall give Lessor immediate notice thereof Provided no Event of
Default shall have occurred and be continuing hereunder, Lessee shall
adjust, collect and compromise any and all claims under policies
maintained by Lessee hereunder, with the consent of Lender and Lessor,
not to be unreasonably withheld or delayed, and Lessor and Lender
shall have the right to join with Lessee therein.
(b) Duly to Restore. In the event of any Casualty (whether or not
insured) resulting in damage to the Premises or the Common Elements or
any part thereof (any and all aforesaid improvements so damaged being
referred to herein as, collectively, the "Casualty-Affected
Improvements"), unless this Lease shall have been terminated as
provided in Section 10(c) hereof, Lessee shall Restore (hereafter
defined) the Casualty- Affected Improvements as hereafter provided,
the Term shall continue and there shall be no abatement or reduction
of Basic Rent, Additional Rent or any other sums payable by Lessee
hereunder. If the estimated cost of restoration (hereafter defined) is
$250,000.00 (the "Base Amount") or less, and if Lessee's corporate
and/or senior debt securities at such time are rated at least BBB by
Standard & Poor's rating service (the "Minimum Rating") all proceeds
of any insurance required under Section 21 (a) of this Lease shall be
paid to Lessee. If the estimated cost of Restoration exceeds the Base
Amount or Lessee's corporate and/or senior debt securities are rated
lower than the Minimum Rating, all such proceeds shall be paid over to
a Trustee which shall be either a federally insured bank or other
financial institution selected by Lessor and Lessee and reasonably
satisfactory to Lender, or, to Lender itself if Lender so requires (as
applicable, the "Trustee"). Each insurer is hereby authorized and
directed to make payment under said policies directly to such Trustee
instead of to Lessor and Lessee jointly; and Lessee and Lessor each
hereby appoints such Trustee as its attorney-in-fact to endorse any
draft therefor for the purposes set forth in this Lease after approval
by Lessee of such Trustee, if Trustee is other than Lender. The entire
proceeds of any insurance payments less any actual and reasonable
expenses incurred by Lessor in collecting such proceeds (the "Net
Proceeds") shall be retained by the Trustee and, promptly after such
Casualty, Lessee, as required in Section 11A, shall commence and
diligently continue to perform the Restoration to the Casualty-
Affected Improvements. Upon payment to the Trustee of such Net
Proceeds, the Trustee shall, to the extent available, make the Net
Proceeds available to Lessee for Restoration, in accordance with the
provisions of Section I IA. Lessee shall, whether or not the Net
Proceeds are sufficient for the purpose, promptly repair or replace
the Casualty-Affected Improvements and equipment in accordance with
the provisions of Section 11A and the Net Proceeds of such loss shall
thereupon be payable to Lessee, subject to the provisions of Section
11A hereof Regardless of whether or not this Lease is terminated
pursuant to Section 10(c) hereof, in the event that any Casualty shall
occur at such time as Lessee shall not have maintained insurance in
accordance with the terms herein, Lessee shall pay to the Trustee the
amount of the proceeds that would have been payable had such required
insurance been in effect (the "Lessee Insurance Payment"), provided
nothing herein shall be construed as entitling Lessee to "self-insure"
any risk for which Lessee is required to provide insurance under
Section 21 of this Lease.
(c) Right to Terminate. Notwithstanding anything to the contrary in
this Section 10, if the Building shall be damaged or destroyed in any
Casualty so that the cost of restoration of the Building exceeds fifty
percent (50%) of the replacement value of the Building, as reasonably
determined by Lessor and Lessee, which damage or destruction even
after restoration of the Building would, in Lessee's reasonable
business judgment, be substantially and materially adverse to the
business operations of Lessee at the Premises, Lessee may, within
sixty (60) days after the Casualty, give notice to Lessor terminating
this Lease as of a date specified in such notice, which date shall be
a date not less than thirty (30) days from the date of such notice. In
such event, this Lease shall be deemed to terminate on the date
specified in such notice and Lessee shall surrender possession of the
Premises to Lessor on or before such date and shall pay all Basic
Rent, Additional Rent and other charges accrued under this Lease to
and including such termination date. Any notice by Lessee electing to
terminate this Lease as a result of any Casualty as aforesaid must be
given within sixty (60) days after the Casualty or within ten (10)
days after Lessee's receipt of an estimate setting forth the cost to
restore the Building, whichever shall occur later, to be effective.
(d) Waiver of Subrogation. In the event of a Casualty, each party
hereby releases the other from any and all liability to the other or
anyone claiming through or under them in connection with all losses
covered by any insurance policy carried by or for either or both of
the parties, whether for its negligence or that of its servants,
agents, employees, officers, directors, contractors, or otherwise.
11. Condemnation.
(a) Notice, Award, Etc. As used in this Lease, the term "Condemnation"
means any taking of all or any portion of the Premises or the Common
Elements or any part thereof which occurs during the Term of this
Lease in or by condemnation or other eminent domain proceedings
pursuant to any law, general or special, or by reason of any agreement
with any condemnor in settlement of or under threat of any such
condemnation or other eminent domain proceedings or by any other
means, or any defacto condemnation or any Requisition. Any and all
aforesaid improvements or equipment damaged or lost as a result of any
Condemnation are referred to in this Lease as, collectively, the
"Condemnation- Affected Improvements". For the purposes of this Lease,
"Net Award" means the award payable to Lessor by reason of a
Condemnation, less any reasonable expenses incurred by Lessor in
collecting such award. Lessee, promptly after obtaining knowledge of
the institution of any proceeding for Condemnation, shall notify
Lessor thereof and Lessor shall be entitled to participate in any
Condemnation proceeding. Lessor, promptly after obtaining knowledge of
the institution of any proceeding for Condemnation, shall notify
Lessee thereof and Lessee shall have the right to participate in such
proceedings. Subject to the provisions of this Section 11 and Section
11A, Lessee hereby irrevocably assigns to Lender or to Lessor, in that
order, any award or payment in respect of any Condemnation of Lessor's
interest in the Premises, except that (except as hereinafter provided)
nothing in this Lease shall be deemed to assign to Lessor or Lender
any award relating to the value of the leasehold interest created by
this Lease or any award or payment on account of the trade fixtures,
moving expenses and out-of-pocket expenses incidental to the move, if
available, to the extent Lessee shall have a right to make a separate
claim therefor against the condemnor, it being agreed, however, that
Lessee shall in no event be entitled to any payment (i) that reduces
the award to which Lessor is or would be entitled for the Condemnation
of Lessor's interest in the Premises, or (ii) in respect of the
leasehold interest created by this Lease if lessee elects to terminate
this Lease pursuant to Section 11(c) hereof (provided this clause (ii)
shall not be construed as depriving Lessee from receiving any award to
which Lessee is entitled under this Section 11(a) by reason of such
award relating to Lessee's trade fixtures, moving expenses and out-of-
pocket expenses incidental to the move). Except with respect to an
award or payment to which Lessee is entitled pursuant to the
provisions of this Section 11, no agreement with any condemnor in
settlement of or under threat of any Condemnation shall be made by
either Lessor or Lessee without the written consent of the other, and
of Lender, if the Premises are then subject to a Mortgage.
(b) Duly to Restore. In the event of any Condemnation (regardless of
the size of any award therefor) resulting in damage to or loss of the
Premises or the Common Elements or any part thereof, unless this Lease
shall have been terminated as provided in Section 11(c) hereof, Lessee
shall Restore the Condemnation-Affected Improvements as hereafter
provided, the Term shall continue and there shall be no abatement or
reduction of Basic Rent, Additional Rent or any other sums payable by
Lessee hereunder. In the event of a Condemnation which does not result
in a termination of this Lease pursuant to Section 11(c), the Net
Award of such shall be retained by Lessor and Lender and Lessor and
Lender shall, to the extent received, make that portion of the Net
Award equal to the cost of Restoration (the "Restoration Award")
available to Lessee for Restoration, in accordance with the provisions
of Section 11A, and promptly after such Condemnation, Lessee shall
commence and diligently continue to Restore the Condemnation-Affected
Improvements. Promptly after completion of the Restoration, and
provided no Event of default has occurred and is continuing, the
balance of the Net Award shall be paid to Lessee.
(c) Right to Terminate. If (1) the entire Premises or the Building, or
(2) at least twenty percent (20%) of the Building or the Parking Deck,
or (3) all means of ingress, egress or access to the Premises, in any
case the loss of which even after Restoration would, in Lessee's
reasonable business judgment, be substantially and materially adverse
to the business operations of Lessee at the Premises, shall be subject
of a Condemnation (other than a Requisition) by a duty constituted
entity having jurisdiction, Lessee may, within sixty (60) days after
its receipt of notice of the Condemnation, give notice to Lessor
terminating this Lease as of a date specified in such notice, which
date shall be a date not less than thirty (30) days from the date of
such notice by Lessee. In such event, this Lease shall be deemed to
terminate on the date specified in such notice and Lessee shall
surrender possession of the Premises to Lessor on or before such date
and shall pay all Basic Rent, Additional Rent and other charges
accrued under this Lease to and including such termination date. Any
notice by Lessee electing to terminate this Lease as a result of any
Condemnation as aforesaid must be given within sixty (60) days after
Lessee receives notice of the Condemnation to be effective.
(d) Requisition. In the event of any temporary Condemnation or
confiscation of the use or occupancy of the Premises by any
governmental authority, civil or military, whether pursuant to an
agreement with such governmental authority in settlement of or under
threat of any such temporary Condemnation or confiscation, or
otherwise (collectively a "Requisition" of the Premises), the Term
shall continue and there shall be no abatement or reduction of Basic
Rent, Additional Rent or any other sums payable by Lessee hereunder.
Lessor shall apply the Net Award of such Requisition, to the extent
available, to the installments of Basic Rent, Additional Rent or other
sums payable by Lessee hereunder thereafter payable and Lessee shall
pay any balance remaining thereafter. Upon the expiration of the Term,
any portion of such Net Award which shall not have been previously
credited to Lessee on account of the Basic Rent and Additional Rent
shall be retained by Lessor.
11A. Restoration. As used in this Lease, the terms "Restore" and
"Restoration" mean the restoration (whether by repair or replacement)
of all Casualty-Affected Improvements or Condemnation-Affected
Improvements, whichever is applicable, so as to be returned as nearly
as reasonably possible to their value, condition and character
immediately prior to such Casualty or Condemnation, using materials of
like kind and quality and in accordance with all applicable building
codes, and otherwise in accordance with the provisions of this Lease,
including but not limited to the provisions of Sections 5, 7 and this
Section 11A. Net Proceeds, Restoration Award and Lessee Insurance
Payment (the aggregate of which being herein defined as the
"Restoration Fund") shall be disbursed by the Trustee in accordance
with the following conditions:
(a) If the cost of Restoration is estimated to exceed the Base Amount,
prior to commencement of the Restoration the architects, general
contractor(s), and plans and specifications for the Restoration shall
be approved by Lessor, which approval shall not be unreasonably
withheld or delayed; and which approval shall be granted to the extent
that the plans and specifications depict a Restoration which is
substantially similar to the improvements and equipment which existed
prior to the occurrence of the Casualty or Condemnation, whichever is
applicable.
(b) At the time any disbursement is otherwise required, no Event of
Default shall exist and no construction liens shall have been filed
and remain undischarged or unbonded.
(c) Disbursements shall be made from time to time in an amount not
exceeding the hard and soft cost of the work and costs incurred since
the last disbursement upon receipt of (1) satisfactory evidence,
including architects' certificates of the stage of completion, of the
estimated cost of completion and of performance of the work to date in
a good and workmanlike manner in accordance with the contracts, plans
and specifications, (2) partial releases of liens, and (3) other
reasonable evidence of cost and payment so that Lessor can verify that
the amounts disbursed from time to time are represented by work that
is completed in place or delivered to the site and free and clear of
construction lien claims.
(d) Each request for disbursement shall be accompanied by a
certificate of Lessee describing the work, materials or other costs or
expenses, for which payment is requested, stating the cost incurred in
connection therewith and stating that Lessee has not previously
received payment for such work or expense and the certificate to be
delivered by Lessee upon completion of the work shall, in addition,
state that the work has been substantially completed and complies with
the applicable requirements of this Lease.
(e) The Trustee may retain ten percent (10%) of the Restoration Fund
until the Restoration is substantially complete.
(f) The Restoration Fund shall be kept in one or more separate
interest- bearing accounts by the Trustee or by Lender and, if the
Restoration Fund exceeds $3,000,000.00, then the Restoration Fund
shall be kept in one or more separate interest-bearing accounts at a
financial institution selected by Lessor with a net worth of at least
$5,000,000,000.
(g) At all times the undisbursed balance of the Restoration Fund held
by Trustee plus any funds contributed thereto by Lessee, at its
option, shall be not less than the cost of completing the Restoration,
free and clear of all liens.
(h) In addition, prior to commencement of Restoration and at any time
during Restoration, if the estimated cost of restoration, as
reasonably determined by Lessor, exceeds the amount of the Restoration
Fund available for such Restoration (the amount of any such excess, a
"Restoration Fund Shortfall"), then, either (i) the amount of such
Restoration Fund Shortfall shall be paid by Lessee to the Trustee to
be added to the Restoration Fund, or (ii) Lessee shall fund the amount
of such Restoration Fund Shortfall at its own expense until the
remaining Restoration Fund is sufficient for the completion of the
Restoration; provided that, if at the time any Restoration Fund
Shortfall exists, (x) Lessee shall be in default in the payment of any
Basic Rent or Additional Rent, or (y) any of the circumstances
described in clauses (v) through (viii), inclusive, of Section 12
shall exist, then Lessee shall pay the amount of such Restoration Fund
Shortfall to the Trustee as provided in clause (i) of this Section
11A(h). Any sum in the Restoration Fund which remains in the
Restoration Fund upon the completion of Restoration shall be paid to
Lessee. For purposes of determining the source of funds with respect
to the disposition of funds remaining after the completion of
Restoration, the Net Proceeds or the Restoration Award shall be deemed
to be disbursed prior to any amount added by Lessee.
12. Events of Default The occurrence of any one or more of the
following events (any such event being specified herein as a "failure"
or "default") shall constitute an Event of Default under this Lease:
(i) a failure by Lessee to make (regardless of the pendency of any
bankruptcy, reorganization, receivership, insolvency or other
proceedings, in law, in equity or before any administrative tribunal
which had or might have the effect of preventing Lessee from complying
with the provisions of this Lease) any payment of Basic Rent or
Additional Rent which continues unremedied for a period of ten (10)
days after notice thereof is sent by Lessor or Lessor's agent to
Lessee , (ii) failure by Lessee to perform, observe or comply with any
provision of this Lease relating to Insurance Requirements which
continues unremedied for a period of five (5) days after written
notice thereof is given by Lessor or Lender or Lender's designee;
(iii) [intentionally omitted]; (iv) failure by Lessee to perform and
observe, or a violation or breach of, any other provision in this
Lease and such default shall continue for a period of thirty (30) days
after the earlier of the date a Responsible Officer of Lessee
(hereafter defined) acquires actual knowledge thereof or the date
written notice thereof is given by Lessor or Lender or Lender's
designee to Lessee, or if such default is of such a nature that it
cannot reasonably be cured within such period of thirty (30) days,
such period shall be extended for such longer time as is reasonably
necessary provided that Lessee has commenced to cure such default
within said period of thirty (30) days and is actively, diligently and
in good faith proceeding with continuity to remedy such default; (v)
Lessee shall (A) voluntarily be adjudicated a bankrupt or insolvent,
(B) voluntary consent to the appointment of a receiver or trustee for
itself or for any of the Premises, (C) voluntarily file a petition
seeking relief under the bankruptcy or other similar laws of the
United States, any state or any jurisdiction, or (D) voluntarily file
a general assignment for the benefit of creditors; (vi) a court shall
enter an order, judgment or decree appointing, with the voluntary
consent of Lessee, a receiver or trustee for Lessee or for the
Premises or approving a petition filed against Lessee or Lessee's
obligations hereunder which seeks relief under the bankruptcy or other
similar laws of the United States or any State, and such order,
judgment or decree shall remain in force, undischarged or unstayed,
ninety (90) days after it is entered; (vii) Lessee shall in any
insolvency proceedings be liquidated or dissolved or shall voluntarily
commence proceedings towards its dissolution; (viii) the estate or
interest of Lessee in the Premises shall be levied upon or attached in
any proceeding and such estate or interest is about to be sold or
transferred or such process shall not be vacated or discharged within
ninety (90) days after such levy or attachment; (ix) any Mortgage
shall lose its status as a first lien on the Premises as a result of
any action by Lessee; or (x) Lessee shall be in breach of any material
representation made by it in this Lease or in any estoppel certificate
or other written instrument delivered by it under or in connection
with this Lease.
13. Remedies, Conditional Limitation. This Lease and the term and
estate hereby granted are subject to the limitation that whenever an
Event of Default shall have occurred and be continuing Lessor shall
have the right at its election at any time thereafter to exercise any
one or more or all, and in any order, of the remedies hereinafter set
forth, it being expressly understood that no remedy herein conferred
is intended to be exclusive of any other remedy but each and every
remedy shall be in addition to every other remedy given herein or now
or hereafter existing at law or in equity or by statute:
(a) Lessor may take all steps to protect and enforce the rights of
Lessor or obligations of Lessee hereunder, whether by action, suit or
proceeding at law or in equity (for the specific performance of any
provision of this Lease, or in aid of the execution of any power
herein granted, or for the enforcement of any other appropriate legal
or equitable remedy) or otherwise as Lessor shall deem most advisable
to protect and enforce any of its rights or the obligations of Lessee
hereunder;
(b) Lessor may terminate this Lease by giving a written termination
notice to Lessee specifying a date not less than ten (10) days (or
such shorter period as may be allowed by applicable law) after the
date of such notice on which the term of this Lease shall terminate
and on such date the term of this Lease and the estate hereby granted
shall expire and terminate by limitation and all rights of Lessee
under this Lease shall cease on the termination date so specified;
(c) Lessor, whether or not this Lease shall have been terminated as
provided above, shall have the right to terminate Lessee's right to
possession under this Lease and to re-enter and take possession of the
Premises by giving a written notice to Lessee to quit and surrender
possession on a date not less than ten (10) days (or such shorter
period as may be allowed by applicable law) after the date of such
notice whereupon the right of Lessee to the possession of the Premises
shall cease and terminate on such date, and Lessor shall have the
immediate and continuing right then and at any time and from time to
time thereafter without further notice, to re-enter upon and take
possession of the Premises or any part thereof with or without legal
proceedings (summary or otherwise) and to remove all persons and
property therefrom as Lessor may elect to do. Should Lessor elect to
re-enter as herein provided or should Lessor take possession pursuant
to legal proceedings or pursuant to any notice provided for by law or
upon termination of this Lease or termination of Lessee's right to
possession as provided herein or otherwise as permitted by law, then
neither Lessee nor any person claiming through or under Lessee shall
be entitled to possession or to remain in possession of the Premises,
or any part thereof, but shall forthwith quit and surrender the
Premises to Lessor;
(d) In any case where Lessor has recovered possession of the Premises
by reason of Lessee's default, Lessor may, at Lessor's option, occupy
the Premises or cause the Premises to be redecorated, altered,
divided, or otherwise changed or prepared for reletting, and may relet
the Premises or any part thereof as agent of Lessee or otherwise, for
a term or terms to expire prior to, at the same time as, or subsequent
to, the Expiration Date, at Lessor's option, and receive the rent
therefor. Rent so received shall be applied first to the payment of
such reasonable expenses as Lessor may have incurred in connection
with the recovery of possession, redecorating, altering, dividing, or
otherwise changing or preparing for reletting, and the reletting,
including brokerage and reasonable attorneys' fees, and then to the
payment of damages in amounts equal to the rent hereunder and to the
costs and expenses of performance of the other covenants of lessee as
herein provided. Lessee agrees, in any such case, to pay to Lessor
damages equal to the Basic Rent and Additional Rent and other sums
herein agreed to be paid by Lessee, less the net proceeds of the
reletting, if any, as ascertained from time to time, and the same
shall be payable by Lessee on the several rent days above specified.
Lessee shall not be entitled to any surplus accruing as a result of
any such reletting. In reletting the Premises as aforesaid, Lessor may
grant rent concessions, and Lessee shall not be credited therewith. No
such relenting shall constitute a surrender and acceptance or be
deemed evidence thereof If Lessor elects, pursuant hereto, actually to
occupy and use the Premises or any part thereof during any part of the
balance of the Term, there shall be allowed against Lessee's
obligation for rent or damages as herein defined, during the period of
Lessor's occupancy, the reasonable value of such occupancy (not to
exceed, however, the Basic and Additional Rent reserved herein for the
period of occupancy) as if an amount equal to such value were the net
proceeds of a reletting and such occupancy shall not be construed as a
release of Lessee's liability hereunder but the provisions of this
Section 13 governing the application of the proceeds of a reletting
shall apply as if an amount equal to the reasonable value of Lessor's
occupancy were the net proceeds of reletting; and
(e) Alternatively, in any case where Lessor has recovered possession
of the Premises by reason of Lessee's default, Lessor may at Lessor's
option, and at any time thereafter, and without notice or other action
by Lessor, and without prejudice to any other rights or remedies it
might have hereunder or at law or equity, become entitled to recover
from Lessee, as damages for such breach, in addition to such other
sums herein agreed to be paid by Lessee (except such sums as are in
lieu of the Basic Rent and Additional Rent payable hereunder), to the
date of re-entry, expiration and/or dispossess, an amount equal to the
difference between the Basic Rent and Additional Rent reserved in this
Lease from the date of such default to the Expiration Date and the
then-fair and reasonable rental value of the Premises for the same
period. Said damages shall become due and payable to Lessor
immediately upon such breach of this Lease and without regard to
whether this Lease is terminated, and if this Lease is terminated,
without regard to the manner in which it is terminated. In the
computation of such damages, the difference between any installments
of basic Rent and Additional Rent thereafter becoming due and the fair
and reasonable rental value of the Premises for the period for which
such installment was payable shall be discounted to the date of such
default at the rate of six percent (6%) per annum.
To the extent permitted by law, Lessee hereby waives all right of
redemption to which Lessee or any person under Lessee might be
entitled by any law now or hereafter in force.
14. Bankruptcy.
(a) Right To Terminate. If Lessee shall make an assignment for the
benefit of creditors, or shall file a voluntary petition under any
bankruptcy or insolvency law, or an involuntary petition alleging an
act of bankruptcy or insolvency is filed against Lessee, or if a
petition shall be filed by or against Lessee seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future federal
bankruptcy act or any other present or future applicable federal,
state or other statute or law, or Lessee shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of
all or any substantial part of its properties, or if a permanent or
temporary receiver of Lessee of or for the property of Lessee shall be
appointed, or if Lessee shall plead bankruptcy or insolvency as a
defense in any action or proceeding, Lessor may, by notice to Lessee
terminate this Lease on the later of (a) any time within a reasonable
time period after receipt by Lessor of notice of the occurrence of any
such event, or (b) sixty (60) days after any such event occurs without
the acquiescence of Lessee and remains unstayed or undischarged during
such sixty (60) day period. In the event Lessor gives such a notice of
termination to Lessee, the Term shall expire on the date set forth in
such notice (which date shall be not less than fifteen (I 5) days from
the giving of such notice), and on such date this Lease shall
terminate with the same effect as if that day were the Expiration
Date, but Lessee shall remain liable for damages as provided herein.
(b) Reorganization. Notwithstanding anything to the contrary contained
herein, if a petition for reorganization shall be filed by or against
Lessee, Lessor may not cancel or terminate this Lease so long as an
Event of Default shall not have occurred, provided this Lease shall
not have been disaffirmed by Lessee or by any legally appointed
representative of Lessee.
(c) Bankruptcy Security. In the event of (i) Lessee's insolvency, (ii)
the filing of a petition by or against Lessee under Federal bankruptcy
laws or other laws for the relief of debtors, or (iii) an assignment
of this Lease pursuant to such bankruptcy laws, then in such event
Lessor may require Lessee or Lessee's assignee, as the case may be
(who are hereinafter collectively called "Lessee") to deposit security
in an amount equal to three (3) months Basic Rent and Additional Rent
(such Additional Rent to be calculated on the basis of the immediately
proceeding three-month period) to assure Lessee's performance of all
its obligations under this Lease. The failure of Lessee to deposit
such security within (15) business days after Lessor's demand shall
constitute an Event of Default under this Lease. This deposit shall be
held by Lessor for the balance of the Term, without interest, as
security for the full performance of all of Lessee's obligations under
the Lease. If Lessor applies any part of said deposit to cure any
default of Lessee, Lessee shall within fifteen (15) business days of
lessor's demand, deposit with Lessor the amount so applied so that
Lessor shall have the full deposit on hand at all times during the
Tenn. If at the end of the Term, Lessee is not in default under the
Lease, the security deposit or any balance of it shall be returned to
Lessee without interest. If the Premises are sold, Lessor will
transfer the security to the purchaser of the Premises and will notify
Lessee of such transfer. Upon giving such notice, Lessor shall be
discharged from any future obligation in relation to the security
deposit. Any security deposit made hereunder shall not be mortgaged,
assigned or encumbered by Lessee without Lessor's written consent.
15. Subordination Of Lease. This Lease shall, at Lessor's option, or
at the option of any holder of any Mortgage, be subject and
subordinate to any Mortgage which may now or hereafter affect the
Land, the Building, the Parking Deck, the Premises or any part
thereof, and also to all renewals, modifications, consolidations and
replacements of said Mortgage, provided, however, that this Lease
shall not be so subordinated unless and until a fully executed
subordination, non-disturbance and attornment agreement ("SNDA") in
form and substance reasonably satisfactory to Lessee is entered into
between Lessee and any such Lender whose loan is secured by such
Mortgage but provided, however, that Lessee agrees to accept in such
SNDA any terms or conditions which may reasonably be required by such
Lender, provided such terms and conditions do not in any manner
increase Lessee's financial obligations or otherwise materially
increase Lessee's obligations or decrease Lessee's rights hereunder.
Upon the execution of such an SNDA between Lessee and any such Lender,
if not included within such SNDA, Lessee will execute and deliver any
instruments confirming such subordination of this Lease as may
reasonably be desired by the said Lender. Lessor and Lessee agree, at
the sole expense of Lessee, to use commercially reasonable efforts to
obtain an SNDA in form and substance reasonably satisfactory to Lessee
from the holder of any existing Mortgage as soon as practicable after
the execution of this Lease.
16. Right To Cure Breaches. Lessee covenants and agrees that if it
shall at any time fail to make any payment or perform any act which it
is obligated to make or perform under this Lease, then Lessor may, but
shall not be obligated to, make any such payment or perform any such
act, after the time to make any such payment or perform any such act
has expired (including any applicable notice and cure provisions). In
exercising any such rights, Lessor may pay necessary and incidental
costs and expenses, employ counsel and incur and pay reasonable
attorneys' fees. Notwithstanding the foregoing, Lessor may make any
such payment or perform any such act before the time to do so has
expired, if the same is necessary or required for the preservation or
protection of the Premises or the contents thereof. All sums so paid
by Lessor and all necessary and incidental costs and expenses in
connection with the performance of any such act by Lessor shall be
deemed Additional Rent hereunder and shall be payable to Lessor on
demand, and Lessee covenants to pay any such sum or sums as aforesaid.
The exercise by Lessor of the above remedies shall not be a waiver of
any other rights of such party hereunder. Except in the case of
emergencies, Lessor will give fifteen (15) days' written notice of its
intention to pay or do such acts as hereinabove set forth.
17. Construction Liens. Lessee shall, within thirty (30) days after
notice from Lessor, or Lessee's otherwise acquiring actual notice
thereof if earlier, discharge or satisfy by bonding or otherwise any
construction liens for materials or labor claimed to have been
furnished to the Premises on Lessee's behalf.
18. Right of Entry. Lessor or any Lender may enter the Premises at any
reasonable time on reasonable notice to Lessee and accompanied by a
representative of Lessee (except that no notice need by given in case
of emergency) only for the purposes of viewing the Premises or making
such repairs or replacements in, to, or about the Premises that Lessee
has failed to so make in accordance with the terms of this Lease.
Notwithstanding the above, Lessor acknowledges the necessity of
security in the conduct of Lessee's business and agrees that the
access of Lessor and Lessor's agents and designees to any areas of the
Premises deemed by Lessee to require security shall be only at such
times, and subject to such requirements of Lessee, as are reasonable
under the circumstances (except that these requirements shall not
apply in case of emergency). Lessee agrees that provided that Lessor
uses commercially reasonable efforts not to interfere with Lessee's or
any sublessee's business, Lessee shall not make any claim against
Lessor for interruption to its or any sublessee's business, however
occurring, including but not limited to that arising from the
negligence of Lessor or its agents, servants or invitees, or from
defects, errors or omissions in the construction or design of the
Building or the Parking Deck. In the event of any such entry by Lessor
or any Lender following the occurrence and during the continuance of
any Event of Default, all reasonable costs and expenses incurred by
Lessor and/or Lender in connection with such entry shall be payable on
demand by Lessee and constitute Additional Rent under this Lease.
19. Utilities. Lessee acknowledges that Lessor has previously arranged
for gas, water and sewer services to be supplied to the Premises and
has caused electricity to be supplied for the operation of all
Building systems and Common Elements, as well as for lighting of the
Parking Deck, access roadways and other exterior areas of the
Premises, and that all such facilities, hook-ups and services are
satisfactory to Lessee. Lessor has provided an electric meter or
meters serving only the Premises and Lessee shall pay all charges with
respect to consumption of electricity in the Premises directly to the
electric utility. Lessee shall provide telephone service to the
Premises and Lessor and Lessee shall cooperate, at Lessee's sole
expense, in permitting fiber-optic communication lines and facilities
to be provided to the Premises provided the permitting and
installation thereof imposes no burden on Lessor. Lessee shall also
pay (directly to the applicable utility provider) all charges for all
other utilities supplied to the Premises. Lessee shall defend,
indemnify and hold Lessor harmless from and reimburse Lessor for all
liability, damages, costs, fees, expenses, penalties and charges
(including, but not limited to, attorneys' fees and disbursements)
incurred in connection with any utility services or telephone services
metered or provided directly to Lessee hereunder. Lessor shall provide
no utilities or other building services of any kind to the Premises,
all of which shall be Lessee's responsibility. Lessor shall in no
event be liable for any interruption or failure of utility services on
the Premises for any cause whatsoever.
20. Taxes.
(a) During the Term, Lessee shall pay directly to the appropriate
governmental authority any and all taxes, assessments, general and
special, ordinary as well as extraordinary, charges, levies, and
impositions, including, but not limited to, water and sewer rents and
charges (collectively hereinafter the "Taxes") presently or hereafter
in effect, which are or may be made liens upon or against the Land,
the Building and the Parking Deck and which are allocable to the Term.
Lessee shall pay such amounts when due and payable before any fine,
penalty, interest or cost is incurred thereon or becomes due or is
imposed by laws for the nonpayment of such Taxes. Lessor agrees to
promptly assign to Lessee its right to receive payment of Taxes for
all or any portion of the Premises from any third party. If any Taxes
are levied, assessed, or imposed on the Land, the Building, the
Parking Deck or any other portion of the Premises or on the income or
rents derived therefrom as a substitute, in whole or in part, for the
current ad valorem real estate tax, Lessee shall pay the same,
measured however, as though the Premises were the sole asset of
Lessor. In the event that the holder of any Mortgage requires Lessor
to create an escrow account for payment of Taxes, Lessee's obligations
under this Section 20 shall be met by paying to Lessor the amount it
otherwise would have to pay to governmental authorities under this
Section 20 sufficiently in advance in order that Lessor may satisfy
the requirements of its Lender. In furtherance of the foregoing,
Lessee agrees to create an escrow account for such payment with Lessor
in the event that Lessor's Lender shall require the same.
Notwithstanding the foregoing, Lessee shall not be obligated to pay
any federal, state or local income, revenue or excise tax or any
inheritance, estate, succession, transfer or gift tax or any capital
stock, corporate franchise or excess profits tax that may be levied,
imposed or assessed against Lessor, though the failure to pay the same
may result in the placing of a lien upon the Land, the Building or the
Parking Deck.
(b) Fiscal Period. If any Taxes are assessed or collected on a basis
of a fiscal period, a portion of which includes the Term and the
remainder of which occurs prior to or after the Term, then the Taxes
payable for such fiscal period shall be equitably apportioned between
Lessor and Lessee.
(c) Receipts. Lessee shall endeavor to arrange for all bills for Taxes
which Lessee is required to pay in accordance with this Section 20 to
be sent directly to Lessee by the applicable Tax authority. If such
arrangements are not made, Lessor shall promptly forward to Lessee all
bills for Taxes which Lessee is required to pay directly in accordance
with this Section 20. Upon request by Lessor, Lessee shall provide to
Lessor satisfactory evidence of payment of such Taxes.
(d) Contests. Lessee shall have the right, subject to any requirements
in any Mortgage, after notice to Lessor, to contest or review the
amount or validity, in whole or in part of any Taxes by appropriate
proceedings diligently conducted in good faith in its or Lessor's
name, or in the names of both, before any tribunal having
jurisdiction, or in such other manner as it may deem suitable (which,
if instituted, Lessee shall conduct at its own expense, and free of
any expense to Lessor) provided that, if the contested items shall not
have been paid before the last day for paying the same without penalty
and prior to instituting any such proceeding, Lessee shall promptly
pay such items under protest. If, prior to or during the pendency of
any such contest, Lessor or its Lender shall reasonably so request,
Lessee shall deliver to Lessor security in the form of a surety bond,
cash, letter of credit or other security, reasonably satisfactory to
Lessor, of its ability to pay such contested Taxes, together with any
and all interest, penalties or other charges which may have accrued
thereon.
Lessor shall cooperate with Lessee, and if required or desirable
shall, at Lessee's sole cost and expense, join in any proceeding
initiated by Lessee and referred to above. Lessor shall not incur or
be subjected to any liability, or be responsible for the payment of
any costs, fees, expenses or charges in connection with any such
proceedings, and Lessee agrees to indemnify, defend and hold Lessor
harmless from and reimburse Lessor for any such liability, damages,
costs, fees, expenses, penalties and charges.
Notwithstanding the foregoing, Lessor may, if it shall so desire, seek
a reduction of the assessed valuation of the Land, Building or Parking
Deck for the purpose of reducing Taxes thereon and, in such event,
Lessor shall so notify Lessee.
If there shall be any Tax refund as a result of any proceeding
initiated pursuant to this Section 20(d), then the refund shall be
applied as follows: (i) first, to reimburse the party or parties for
its expenses and fees in connection with the proceeding resulting in
the refund, (ii) second, to Lessee, if the Tax refund relates to a
fiscal year falling entirely within the Term, or equitable apportioned
between Lessee and Lessor if the Tax refund relates to a fiscal year
in which the Term commences or ends.
(e) Conditions Of Contest Lessee's right to contest the validity and
amount of any Taxes payable by Lessee shall be specifically subject to
the following conditions: (i) the exercise of such right shall not
result in the violation of the terms of any Mortgage; (ii) the
exercise of such right shall be permitted by law, and shall not result
in a forfeiture or in criminal liability to Lessor; and (iii) such
additional conditions as are provided under Section 52(d) of this
Lease.
21. Insurance.
(a) Required Insurance.
(i) Lessee, at its sole cost, shall procure, provide and maintain in
force for Lessor's benefit, Lessee's benefit and the benefit of any
Lender at all times during the Term an "All Risk" insurance policy
insuring the Premises and the Common Elements against loss or damage
by fire and other casualties covered by "All Risk" coverage,
including, but not limited to, fire, the extended coverages,
vandalism, malicious mischief, earth movement, flood, sprinkler
leakage, and collapse, which policy shall contain terms and conditions
and amounts adequate to provide for the actual full replacement cost
of the Premises, including the Building, Building improvements, the
Parking Deck and the other improvements on the Land, including
foundations, excavations, grading, and backfilling with materials of
like kind and quality, and in accordance with the building and/or
zoning codes, ordinances, and laws in effect at the time of the
rebuilding and in any event in an amount not less than the amount
required by the holder of any Mortgage on the Building. The policy
shall contain no provision for coinsurance.
(ii) Lessee, at its sole cost, shall procure, provide and maintain,
for Lessor's benefit, business interruption insurance, including rent
loss insurance covering the loss of rental income and other continuing
costs to the Lessor (e.g., Taxes, utilities and other costs of the
Premises) for a period of twenty-four (24) months and such additional
length of time to restore all of the operations at the Premises
(including reletting of the Building) to the same condition that would
have existed had no loss occurred. The policy shall contain no
provision for coinsurance.
(iii) Lessee, at its sole cost, shall also procure, provide and
maintain in force for the benefit of Lessee, Lessor and any Lender,
contractual and comprehensive general public liability insurance
against liability arising out of or connected with the operation, use,
maintenance, condition, possession, leasing, or control of the
Premises, including, but not limited to, contractual liability in
connection with the indemnification of Lessor with coverage of at
least $5,000,000 per person and per occurrence for bodily injury, at
least $5,000,000 per occurrence for property damage and an aggregate
limit of at least $10,000,000. Such comprehensive general liability
insurance policy(ies) shall be written on an occurrence basis and
shall include coverage for all court costs and attorneys fees and
expenses. To the extent any policy procured by Lessee under this
Section 21(a) contains a deductible, Lessee hereby agrees to
indemnify, defend and hold Lessor harmless from any claims, damages or
expenses (including, but not limited to, reasonable attorney's fees)
which would have been covered by such insurance if it had no
deductible. Notwithstanding anything herein to the contrary, so long
as both (A) Lessee's corporate and/or senior debt securities are rated
at least BBB by Standard & Poor's rating service, and (B) Lessee
maintains a tangible net worth, as determined in accordance with
generally accepted accounting principles, of not less than $
100,000,000.00, the insurance policies required by this Section
21(a)(iii) may contain a deductible of up to $200,000.00, provided
that, if at any time either (X) Lessee's corporate and/or senior debt
securities are rated lower than BBB by Standard & Poor's rating
service (or such rating has been withdrawn or Lessee's corporate
and/or senior debts securities are otherwise not rated), or (Y) Lessee
fails to maintain a tangible net worth, as determined in accordance
with generally accepted accounting principles, of at least
$100,000,000.00, the deductible under the insurance policies required
by this Section 21(a)(iii) may not exceed $50,000.00. Such insurance
policies may contain only such exclusions as Lessor and any Lender
shall approve; and any such exclusions approved in writing by Lessor
and any Lender at the time of closing on the Mortgage loan from such
Lender shall be deemed approved by Lessor and Lender for the term of
such Mortgage loan.
(iv) Lessee, at its sole cost, shall also procure and maintain (or
cause its contractors to procure and maintain) worker's compensation
insurance covering all persons employed by Lessee and such contractors
at or with respect to the Premises in connection with any work done on
or about any of the Premises for which claims for death or bodily
injury could be asserted against Lessor, Lessee or the Premises.
(v) Lessee, at its sole cost, shall also: (A) procure and maintain
broad form boiler and machinery insurance (including coverage for
explosion) covering all boilers and other pressure vessels, machinery,
and equipment located in or about the Building in an amount not less
than the actual replacement cost of the Building and equipment
(excluding footings and foundations and other parts of the
improvements which are not insurable); (B) procure and maintain or
cause its contractor to procure and maintain completed value builder's
risk insurance when the estimated cost of Alterations to be performed
by Lessee in any one instance exceeds either (x) the Base Amount if
Lessee's debt securities have a rating lower than the Minimum Rating,
or (y) $25,000.00 if Lessee's corporate and/or senior debt securities
have a rating lower than the Minimum Rating, and Lessee or its
contractor shall obtain worker's compensation insurance or other
adequate insurance coverage covering all persons employed in
connection with such work, whether by Lessee, its contractors or
subcontractors and with respect to whom death or bodily injury claims
could be asserted against Lessor; (C) pay for all costs associated
with Lessor's procuring for Lender "Special Risk Insurance" as
required by any Lender to cover the contingencies set forth in Section
10(c) and 11(c) of this Lease, (D) procure and maintain environmental
liability insurance and remediation coverage for the Premises in such
amounts and upon such terms and conditions (including coverage for
third party acts) as are reasonably determined by Lessee and
reasonably approved by Lessor and any Lender, and (E) procure and
maintain such additional and/or other insurance with respect to the
improvements located on the Land and in such amounts as at the time is
customarily carried by prudent owners or tenants with respect to
improvements similar in character, location and use and occupancy to
such improvements. All insurance required herein shall be subject to
the reasonable review and approval by Lessor and Lender, provided,
that, so long as the insurance carried by Lessee otherwise complies
with all requirements of this Section 21 (subject to such departures
therefrom, if any, as are approved in writing by any Lender at the
time of closing on the Mortgage loan from such Lender) such insurance
carried by Lessee shall be deemed approved by Lessor and Lender for
the term of such Mortgage loan. Anything contained in this Section 21
to the contrary notwithstanding, any and all insurance which Lessee is
obligated to carry pursuant to this Section 2 1 (a) may be carried
under a "blanket" policy or policies covering other properties or
liabilities of Lessee, provided that such "blanket" policy or policies
otherwise comply with the provisions of this Section 21. such policy
of blanket insurance either shall specify therein, or Lessee shall at
Lessor's request furnish Lessor with a written statement from the
insurer under such policy so specifying, the amount of the total
insurance allocated to the Premises, which amount shall not be less
than the amount required pursuant to this Section 2 1.
(b) Insured Parties. The insurance required by this Section 21 shall
be written by companies having a claims paying ability rating by
Standard & Poor's of not less than A, and all such companies shall be
licensed to do insurance business in the State of New Jersey, or
otherwise agreed to by Lessor and Lender. The insurance policies (i)
shall contain no provisions for coinsurance, (ii) shall (except for
the worker's compensation insurance referred to in this Section 21)
name Lessor and Lessee as named insureds (except for the Special Risk
Insurance which shall designate Lender as the named insured), (iii)
shall name any Lender as mortgagee and loss payee on all property
insurance policies and shall name Lender as an additional named
insured on all liability insurance policies, and (iv) provide a waiver
of subrogation endorsement for the benefit of Lender and Lessor. If
said insurance or any part thereof shall expire, be withdrawn, become
void by breach of any condition thereof by Lessee or become void or
unsafe by reason of the failure or impairment of the capital of any
insurer, Lessee shall immediately obtain new or additional insurance
reasonably satisfactory to Lessor and Lender. All insurance policies
shall contain an effective waiver by the insurer of all claims for
insurance premiums against any loss payees, additional insureds, and
named insureds other than Lessee.
Each insurance policy referred to in Section 21(a) hereof shall
contain standard non-contributory mortgagee clauses in favor of any
Lender. Each policy shall provide that it may not be canceled or
modified except after thirty (30) days prior notice to Lessor and any
Lender. Each policy shall also provide (to the extent such can be
obtained) that any losses otherwise payable thereunder shall be
payable notwithstanding (i) any act or omission of Lessor or Lessee
which might, absent such provision, result in a forfeiture of all or a
part of such insurance payment, or (ii) the occupation or use of any
of the Premises for purposes more hazardous than permitted by the
provisions of such policy.
Lessee shall pay as they become due all premiums for the insurance
required by this Section 21, shall renew or replace each policy, and
shall deliver to Lessor and Lender a certificate, endorsement or other
evidence (reasonably satisfactory to Lender and Lessor) of the
existing policy and such renewal or replacement policies at least
thirty (30) days prior to the expiration date of each policy. Upon
Lessor's request, Lessee shall also deliver to Lessor true copies of
all insurance policies, including renewal and replacement policies.
Each such policy shall provide that it shall not expire until the
Lessor and Lender shall receive a notice from the insurer to the
effect that a policy will expire on a date which shall be thirty (30)
days following the date of the receipt by Lessor and Lender of such
notice. In the event of Lessee's failure to comply with any of the
foregoing requirements of this Section 21 within five (5) days of the
giving of written notice by Lessor to Lessee, Lessor shall be entitled
to procure such insurance. Any sums expended by Lessor in procuring
such insurance shall be Additional Rent and shall be repaid by Lessee.
(c) Insurance Proceeds. All proceeds payable under the required
insurance described in Section 21(a)(i) above shall, subject to and in
accordance with the provisions of Sections 10 and 11A, be applied
toward the Restoration of the Premises, including the Building,
Building improvements or the Parking Deck, as the case may be, unless
this Lease shall be terminated in accordance with the terms of Section
10(c) and/or Section 11(c), if applicable, in which case such
proceeds, subject to the rights of the holder of the Mortgage, shall,
without set- off or deduction by Lessee, be paid to Lessor upon the
termination of this Lease. In the event that such proceeds have not
been paid or assigned to Lessor by the date of termination of this
Lease, Lessor as attorney-in-fact for Lessee may direct that any
proceeds being held in trust be paid to Lessor immediately, and/or may
execute and deliver to the insurance company holding such proceeds an
assignment of such proceeds to Lessor. Lessee hereby appoints Lessor,
as Lessee's attorney-in-fact for the purposes provided for herein. All
insurance proceeds payable under the policy referred to in Section 21
(a)(ii) shall be payable to Lessor, provided that, so long as this
Lease shall not have been terminated, and, throughout the period with
respect to which proceeds under such policy have been paid to Lessor,
Lessee shall have paid all Basic Rent and Additional Rent when due
under this Lease, Lessor shall reimburse to Lessee (or if such
proceeds have been paid to Lender, cause Lender to reimburse to
Lessee) all proceeds of such insurance up to the amount of such Basic
Rent and Additional Rent paid by Lessee.
(d) Notice. Each policy of insurance required by this Section 21 shall
provide that it may not be canceled, modified or amended except upon
thirty (30) days' prior written notice to Lessor, Lessee and to any
Lender named in such policy. Lessee shall deliver to Lessor, at the
commencement of the term of each policy, a certificate or endorsement
of insurance evidencing the insurance coverage required to be obtained
by Lessee under this Lease.
(e) Indemnification. Except to the extent Lessor's gross negligence or
willful misconduct was in whole or in part a proximate cause of any
loss, injury or damage, Lessee agrees, to the fullest extent permitted
by law, to defend, indemnify and hold Lessor and Lender harmless from
and reimburse Lessor and Lender for all liability, damage, costs,
fees, expenses, penalties and charges (including, but not limited to,
reasonable attorneys' fees and disbursements), causes of action,
suits, claims, demand or judgments of whatever nature incurred or
instituted in connection with the use or operation of the Premises or
in any way connected with (i) any accident, loss, injury or damage
whatsoever caused by or to any person (including, but not limited to,
Lessee, its servants, employees, agents, invitee and licensees) or
property arising out of or resulting from Lessee's occupancy,
possession, use, management, repair or control of the Premises, (ii)
any breach of this Lease by Lessee, (iii) any act or omission of
Lessee, its servants, employees, agents, invitee, licensees or of any
person on the preniises with Lessee's consent, occurring in or on the
Premises, or (iv) any contest or proceeding brought by Lessee.
Specifically excepted from Lessee's indemnification hereunder are
liability, claims and expenses arising out of the breach of any
covenant of this Lease on the part of Lessor to be performed.
22.Signs. Lessee shall have the right to install signs in the lobby of
the Building and on the Premises and Lessee may construct and maintain
sips containing the name of Lessee and any subtenant on the Building
and on the Land, provided however that all such signs shall be placed
in such locations and shall be of such design as to make their
placement and design consistent with similarly situated office
buildings.
23. [Intentionally Left Blank]
24. Estoppel Certificates. Each party agrees that, upon not less than
fifteen (15) days' prior written request, it shall execute,
acknowledge and deliver to the other party or its designee a written
statement certifying: (i) that this Lease is unmodified and is in full
force and effect (or if there have been modifications, the specifics
thereof and that the Lease is in full force and effect as modified);
(ii) the dates to which the Basic Rent and Additional Rent have been
paid; (iii) the amount of all Basic Rent and Additional Rent paid in
advance, if any; and (iv) that there are no defaults under the Lease
(or, if there are, specifying the same in reasonable detail). It is
intended, insofar as Lessor is concerned, that any statement delivered
pursuant to this Section 24 may be relied upon by a prospective
purchaser of Lessor's interest, Lender and any assignee of any
Mortgage. It is intended, insofar as Lessee is concerned, that any
statement delivered pursuant to this Section 24 may be relied upon by
a prospective subtenant, assignee or creditor of Lessee. The foregoing
obligation shall be deemed a substantial obligation of Lessee or
Lessor, the breach of which shall give Lessor or Lessee all remedies
provided for by law.
25. Right To Show Premises. Lessor may show the Premises to
prospective purchasers and lenders, and, during the thirty-six (36)
months prior to the end of the Term and during any period following
and during the continuance of any Event of Default, to prospective
tenants, during business hours on reasonable notice to Lessee and when
accompanied by a representative of Lessee. Notwithstanding the above,
Lessor acknowledges the necessity of security in the conduct of
Lessee's business and agrees that the access of Lessor and Lessor's
agents and designees to any areas of the Premises deemed by Lessee to
require security shall be only at such times, and subject to such
requirements of Lessee, as are reasonable under the circumstances.
26. Waiver Of Trial By Jury. Lessor and Lessee hereby waive trial by
jury in any action or proceeding brought by either party against the
other on any matters whatsoever arising out of or in any way connected
with this Lease, the relationship of Lessor and Lessee, Lessee's use
or occupancy of the Premises, and/or any claim of injury or damage,
and emergency, or statutory remedy; provided, however, that nothing
herein shall preclude a jury trial in actions where a jury is demanded
by right by third parties and severance of claims between Lessor and
Lessee is not available under the court rules. Lessee further agrees
that Lessee will not interpose any counterclaim or right to set-off in
any summary proceeding for eviction based in whole or in part on the
nonpayment of Basic Rent or Additional Rent or in any other proceeding
between Lessor and Lessee.
27. No Other Representations. No representations or promises shall be
binding on the parties hereto except those representations and
promises contained herein.
28. Quiet Enjoyment. Lessor covenants that if and so long as, Lessee
pays the Basic Rent and Additional Rent as herein provided, and
performs the covenants hereof, Lessor shall do nothing to affect
Lessee's right to peaceably and quietly have, hold and enjoy the
Premises for the Term herein mentioned, subject to the provisions of
this Lease.
29. Force Majeure. Lessor shall not be liable to Lessee and Lessee
shall not be liable to Lessor and neither party shall be in default
under this Lease by reason of delays in the performance of any
covenant, condition or obligation under this Lease which is caused
solely by present or future governmental regulations, restrictions,
strikes, lockouts, shortages or unavailability of materials or labor,
or for any other reason whether or not similar to the foregoing, which
is beyond the reasonable control of either Lessor or Lessee, as the
case may be ("Force Majeure"). Notwithstanding the foregoing, the
parties agree that an event of Force Majeure will not excuse, reduce,
delay or otherwise affect Lessee's obligations (i) to pay Basic Rent
and any Additional Rent hereunder or to comply with the provisions of
Section 21 hereof, or (ii) to perform any other obligation under this
Lease to the extent such delay could (A) expose Lessor or Lender to
any civil or criminal liability, penalty or sanction or (B) result in
any decrease in the value of the Premises or in defeasance of Lessor's
or Lender's interest in the Premises, for which Lessee has not made
provisions reasonably acceptable to Lessor and Lender.
30. General Cooperation. In addition to the foregoing provisions, each
party covenants and agrees that it will execute, acknowledge and
deliver all documents and other instruments, as may reasonably be
required by the other party in order to fully carry out and effectuate
the terms of this Lease, provided that such shall be done at the sole
cost of Lessee and no such document or instrument shall impose any
material burden on Lessor.
31. Holding Over. If Lessee holds over in the Premises beyond the
expiration or sooner termination of this Lease, Lessee shall become a
tenant from month-to- month at 150% of Basic Rent for the first thirty
(30) days after the expiration or sooner termination of this Lease and
at 200% of Basic Rent thereafter, in either case plus all Additional
Rent, and upon all the other terms and conditions of this Lease.
Lessee shall continue to be a month-to-month tenant until such tenancy
shall be terminated by Lessor or until such possession shall cease.
Nothing contained in this Lease shall be construed as a consent by
Lessor to the occupancy or possession by Lessee of the Premises beyond
the Expiration Date or earlier termination of this Lease and Lessor
shall be entitled to the benefit of all legal remedies that may now be
in effect or may subsequently be enacted for summary possession of the
Premises.
32. Memorandum of Lease. At any time during the Term and within thirty
(30) days after written request therefor from either party, Lessor and
Lessee will execute, acknowledge and deliver a memorandum of this
Lease for recording which shall constitute a short form of this Lease
and shall set forth a description of the Premises, the Term, and any
other provisions which either party may request, except the rental
provisions contained in Section 3 and in the Rent Schedule attached
hereto as Exhibit A. Upon the expiration or sooner termination of Ns
Lease, Lessee shall execute, acknowledge and deliver to Lessor such
documents and other instruments as may be reasonably required by
Lessor, each in a form suitable for recording, to evidence the
termination of this Lease and of any and all rights of Lessee
hereunder. If such documents or other instruments are not delivered to
Lessor within thirty (30) days of the expiration or sooner termination
of this Lease, Lessee agrees that Lessor may apply immediately, at
Lessee's sole cost and expense, in a summary action (or an action
brought by order to show cause, or any other form of action Lessor
elects to interpose) to any court of competent jurisdiction for an
order (a) compelling Lessee to specifically perform its obligations
under this Section 32, (b) declaring that the Lessee's rights under
this Lease are terminated, (e) authorizing the recording of a
certified true copy of such order in the Union County Clerk's Office
for the purpose of giving notice of the termination of such rights,
and (d) awarding Lessor's reasonable attorney's fees and costs and
other proper relief. Lessor agrees that in any such action service of
process may be made upon it in the manner provided for the giving of
notice under this Lease.
33. Section Headings. The Section headings in this Lease and position
of its provisions are intended for convenience only and shall not be
taken into consideration in any construction or interpretation of this
Lease or any of its provisions.
34. Applicability to Heirs and Assigns. The Provisions of this Lease
shall apply to, bind and inure to the benefit of Lessor and Lessee,
and their respective successors and permitted assigns. In the event
Lessor shall sell or transfer its entire interest in the Premises or
if a Lender shall take possession of the Premises, then and in either
such event the Lessor shall be released from any and all obligations
it has hereunder which arise after the date of such sale or transfer
or taking of possession by such Lender. Subject to any limitations on
the liability and obligations of any Lender, its successors and
assigns under the terms of an SNDA, any such purchaser, transferee or
Lender in possession shall, without further covenant or agreement, be
bound by and assume and discharge any and all of the obligations and
liabilities of the Lessor hereunder which arise after the date of such
sale, transfer or possession.
35. [Intentionally left blank]
36. Notices. Any notice by either party to the other shall be in
writing and shall be deemed to have been duly given only if sent by
registered mail or certified mail in a postpaid envelope or by private
overnight delivery service addressed to the Lessor at the address as
set forth above and to Lessee at the address set forth above, marked
to the attention of the Corporate Secretary, with a copy to the
parties' respective attorneys addressed as follows:
To Lessor's Attomey: Alan G. Trembulak, Esq.
Woods & Trembulak
11 Commerce Drive
Cranford, NJ 07016
To Lessee's Attorney: Charles F. Gergel, Esq.
Cullen and Dykman
177 Montague Street
Brooklyn, NY 11201
or, at such other address as Lessor or Lessor, or their respective
attorneys, as the case may be, may designate in writing. Notice shall
be deemed delivered upon the third (3rd) day after the mailing thereof
or if by overnight express delivery, the day after the delivery of
such notice to the overnight express delivery company, prepaid for
next day delivery.
If any Lender shall have advised Lessee by notice in the manner
aforesaid that it Is the holder of a Mortgage and states in said
notice its address for the receipt of Notices, then simultaneously
with the giving of any notice by Lessee to Lessor, Lessee shall send a
copy of such notice to Lender in the manner aforesaid. Any notice may
be given on behalf of any party by its counsel.
37. Effect of Waivers. No failure by either party to insist upon the
strict performance of any covenant, agreement, term or condition of
this Lease, or to exercise any right or remedy consequent upon a
breach thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such
breach or of such covenant, agreement, term or condition. No consent
or waiver, express or implied, by either party to or of any breach of
any covenant, condition or duty of the other party shall be construed
as a consent or waiver to or of any other breach of the same or any
other covenant, condition or duty, unless in writing signed by the
party so consenting or waiving.
38. Authority. Each party represents that the person executing and
delivering this Lease has been duly authorized and that the execution
and delivery of this Lease by such party does not and shall not
violate any provision of any by-law, agreement, order, judgment,
governmental regulation or any other obligation to which such party is
a party or is subject.
39. Severability of Provisions. If any term or provision of this Lease
or the application thereof to any party or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Lease or the
application of such term or provision to parties or circumstances
other than those with respect to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
40. Governing Law. This Lease and the performance thereof shall be
governed and construed in accordance with the laws of the State of New
Jersey, without application of conflicts of law principles.
41. Number and Gender. The terms "Lessor" and "Lessee" wherever used
herein shall be applicable to one or more persons, as the case may be,
and singular shall include the plural and neuter shall include the
masculine and/or feminine, and if there be more than one, the
obligation thereof shall be joint and several.
42. Assignment of Existing Leases. Lessee acknowledges that portions
of the Premises demised under this Lease were heretofore demised by
Beneficial Owner to others under the leases referred to in Exhibit C
attached hereto (the "Existing Leases"), copies of which have been
reviewed by Lessee, and that Beneficial Owner entered into a certain
Shared Tenant Services Agreement, dated as of January 11, 2000,
between Beneficial Owner and Broadband Office, Inc. (the "Broadband
Agreement"), a copy of which has been reviewed by Lessee. Simultaneous
with the execution of this Lease, Beneficial Owner, Lessor and Lessee
have executed the following agreements: (a) an Assignment and
Assumption Agreement pursuant to which Beneficial Owner and Lessor
have transferred and assigned to Lessee, and Lessee has assumed, all
of Beneficial Owner's and Lessor's rights, duties and obligations
under the Broadband Agreement; and (b) an Assignment and Assumption
Agreement pursuant to which Beneficial Owner and Lessor have
transferred and assigned to Lessee, and Lessee has assumed, all of
Beneficial Owner's and Lessor's rights, duties and obligations under
the Existing Leases. Lessee hereby agrees to honor and faithfully
perform all of Beneficial Owner's and Lessor's duties and obligations
under the Existing Leases and the Broadband Agreement from and after
the Commencement Date, and Lessee agrees to indemnify, defend and hold
Beneficial Owner and Lessor harmless from and against any and all
claims, liabilities, losses, damages, costs and expenses incurred in
connection with or arising under the obligations of Beneficial Owner
and Lessor under the Existing Leases and the Broadband Agreement from
and after the Commencement Date of this Lease. Lessee's rights under
this Lease are, as to those portions of the Premises demised under the
Existing Leases, subject to the tenants' rights under the Existing
Leases.
43. Mortgagee's Notice and Opportunity to Cure. Lessee agrees to give
any Lender with whom it has entered into an SNDA, by certified mail,
return receipt requested, a copy of any notice of default served upon
Lessor. Lessee further agrees that, if Lessor shall have failed to
cure such default within the time provided for in this Lease, then the
Lender shall have such additional time as is provided in such SNDA
within which to cure such default.
44. [Intentionally Left Blank]
45. Renewal Option. Lessee is hereby granted the following options to
extend the Term of this Lease: (A) a first option ("First Renewal
Option"), exercisable at any time prior to the date which is thirty
(30) months before the then expiration of the Term, to extend the Term
of this Lease for an additional ten (10) year period (the "First
Renewal Term"); and (B) a second option ("Second Renewal Option"),
exercisable at any time prior to the date which is twenty-four (24)
months before the expiration of the First Renewal Term, to extend the
Term of this Lease for an additional ten (IO) year period (the "Second
Renewal Term"). All of the terms and conditions of this Lease shall
remain in effect during any renewal term, except that the Basic Rent
payable during the renewal term shall be as set forth on Exhibit A
hereto. It shall be a condition of the exercise of the options set
forth in this Section 45, that at the time of the exercise of said
option, Lessee shall not be in default under this Lease beyond any
applicable grace period.
46. Right of Second Offer. Lessor hereby grants Lessee a right of
second offer for the purchase of Corporate Center One Unit
(hereinafter referred to as the ("Unit"). In the event that Lessor
shall desire to market or offer for sale the Unit to a third party
(other than to any entity controlled by Lessor or either of its
partners or their principals or members of their immediate family or
trusts created for their benefit), Lessor shall promptly so advise
Lessee in writing setting forth the purchase price and the other terms
and conditions of the proposed sale which Lessor would be willing to
offer to a third party, including: (a) the total amount of the
purchase price; (b) the amount of the deposit required; (c) the form
of payment of the deposit and the purchase price, and (d) the date and
place of transfer of title. Lessee shall have twenty (20) days after
its receipt of Lessor's written offer to advise Lessor if it desires
to purchase the Unit on the terms and conditions set forth in Lessor's
offer. If Lessee elects to accept Lessor's offer, and if Schering has
not exercised its prior right to purchase the Unit pursuant to its
Right of First Offer, Lessor and Lessee shall enter into a formal
contract of sale on the terms set forth in Lessor's offer. In the
event, however, that within the aforesaid twenty (20) day period
Lessee fails to accept or elects not to accept Lessor's offer, the
offer shall be deemed rejected and Lessor shall be free to sell the
Unit for a period of one (1) year from the date of Lessor's written
offer (any contract of sale entered into during the one (1) year
period regardless of closing date set forth therein shall be deemed a
sale within the one (1) year period provided for herein) for a
purchase price not less than 95% of the purchase price set forth in
Lessor's offer and such other terms and conditions acceptable to
Lessor without any further obligation to Lessee under this Right of
Second Offer, provided, however, Lessee's Right of Second Offer shall
be reinstated following the expiration of such one (1) year period if
Lessor shall fail to sell the Unit within said one (1) year period.
Notwithstanding anything to the contrary contained herein, the Right
of Second Offer provided for herein shall be null and void and of no
force and effect upon judicial foreclosure or the granting of a deed
in lieu of foreclosure. This Right of Second Offer is subject and
subordinate to the Right of First Offer previously granted by
Beneficial Owner to Schering.
47. Environmental Laws.
(a) Compliance with Environmental Laws. Lessee shall, at Lessee's own
expense, promptly comply with each and every Legal Requirement now or
hereafter existing related in any way to environmental matters
(collectively, "Environmental Laws"), applicable to the Premises,
Lessee, Lessee's operations at the Premises, or all of them. As used
herein, "Contaminant" shall mean, without limitation, any regulated
substance, toxic substance hazardous substance, hazardous waste,
pollution, pollutant, irritant or contaminant, as defined or referred
to in the New Jersey Environmental Rights Act, N.J.S.A. 2A:35A-1 et
seq.; the New Jersey Spill Compensation and Control Act, N.J.S.A.
58:10-23.11 et seq.; the New Jersey Air Pollution Control Act,
N.J.S.A. 26:2C-1 et seq.; the Hazardous Substances Discharge, Reports
and Notices Act, N.J. S.A. 13:1 K-15 et seq.; the Industrial Site
Recovery Act, N.J. S.A. 13:1K-6 et seq. ("ISRA"); the New Jersey
Underground Storage of Hazardous Substances Act, N.J.S.A. 58:10A-21 et
seq., and the federal underground storage tank law (Subtitle 1) of
Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et
seq. the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
6901 et seq.; the Comprehensive Environmental Response, Compensation
and Liability Act, as amended, 42 U.S.C. 6901 et seq.; the Water
Pollution and Control Act, 33 U.S.C. 1251 et seq. together with any
amendments to any of the foregoing, any regulations promulgated under
any of the foregoing and all substitutions under any of the foregoing,
as well as words of similar purport or meaning referred to in any
other applicable Environmental Law, including, without limitation,
radon, lead, asbestos, polychlorinated biphenyls, urea-formaldehyde
and petroleum products and petroleum derivatives. If any Environmental
Law defines any of these terms more broadly than another, the broader
definition shall apply.
(b) ISRA Compliance. Lessee shall, at Lessee's own expense, comply
with ISRA and the regulations promulgated thereunder and any amending
and successor legislation and regulations.
(c) Information to Lessor. At no expense to Lessor, Lessee shall
promptly provide all information and sign all documents reasonably
requested by Lessor with respect to compliance with Environmental
Laws.
(d) Lessor, Lender Audit. Lessee shall permit Lessor, Lender and
their representatives access to the Premises, from time to time, to
conduct an environmental assessment, investigation and sampling. (e)
Lessee's Remediation. Should any assessment, investigation or sampling
reveal the existence of any spill, discharge or placement of
Contaminants in, on, under, or about or migrating from or onto the
Premises, the Building or the Land, as the result of the action or
omission of Lessee or a "Lessee Responsible Party", then, in addition
to being in default under this Lease and Lessor having all rights
available to Lessor under this Lease and by law by reason of such
default, Lessee shall, at Lessee's own expense, in accordance with
Environmental Laws, undertake all action required by Lessor and any
governmental authority to remediate such condition, including without
limitation, promptly obtaining and delivering to Lessor an
unconditional No Further Action Letter or its equivalent issued in
accordance with all Legal Requirements. For purposes of this Section
47, the term "Lessee's Responsible Party" shall mean any officer,
director, employee, agent, licensee, assignee, sublessee or invitee of
Lessee. Lessee's remedial action shall meet those standards and
protocols established by the applicable governmental authority for
soil, surface water, groundwater and drinking water. Promptly upon
completion of all required investigatory and remedial activities,
Lessee shall, at Lessee's own expense, to Lessor's satisfaction,
restore the affected areas of the Premises, the Building or the Land,
as the case may be, from any damage or condition caused by the
investigatory or remedial work.
(f) Environmental Questionnaire. Lessee shall, from time to time, but
no more frequently than once each calendar year, upon Lessor's
request, fill out and complete the environmental questionnaire
attached hereto as Exhibit C (which questionnaire may be revised by
Lessor from time to time in its reasonable discretion) with respect to
Contaminants upon the Premises and within the Building, as a result of
the activities of Lessee or any Lessee Responsible Party.
(g) Environmental Documents and Conditions. For purposes of this
Section 47, the term "Environmental Documents" shall mean all
environmental documentation concerning the Building or the Land, of
which the Premises is a part, or its environs, in the possession or
under the control of Lessee, including, without limitation, plans,
reports, correspondence and' submissions. During the term of this
Lease, promptly upon receipt by Lessee or its agents, Lessee shall
deliver to Lessor all Environmental Documents concerning or generated
by or on behalf of Lessee, whether currently or hereafter existing. In
addition, Lessee shall promptly notify Lessor of any environmental
condition of which Lessee has knowledge, which may exist in, on,
under, or about, or may be migrating from or onto the Building or the
Land.
(h) Lessor's Right to Perform Lessee's Obligations. Notwithstanding
anything to the contrary set forth in this Lease, in the event,
pursuant to this Lease, Lessee is required to undertake any sampling,
assessment, investigation or remediation with respect to the Premises,
the Building or the Land, as the case may be, then, at Lessor's
discretion, Lessor shall have the right, upon notice to Lessee, from
time to time, to perform such activities at Lessee's expense, and all
sums reasonably incurred by Lessor shall be paid by Lessee to Lessor,
upon demand, as Additional Rent.
(i) Indemnity. Lessee agrees, to the fullest extent permitted by law,
to indemnify, defend and hold harmless Lessor, Lender and their
respective officers, directors, shareholders, employees and personal
or legal representatives from and against any and all claims,
liabilities, losses, damages, penalties and costs, foreseen or
unforeseen, including, without limitation, counsel, engineering and
other professional or expert fees, which an indemnified party may
incur resulting directly or indirectly, wholly or partly from Lessee's
actions or omissions with regard to Lessee's obligations under this
Section 47.
(j) Survival. This Section 47 shall survive the expiration or earlier
termination of this Lease. Without limiting any other rights or
remedies of Lessor under this Lease, Lessee's failure to abide by the
terms of this Section 47 shall be restrainable or enforceable, as the
case may be, by injunction.
48. Attorney's Fees. In addition to any other rights and remedies
hereunder, in the event of any default by Lessee or Lessor under this
Lease, the defaulting party shall reimburse the other party for all
attorneys' fees and costs reasonably incurred by the other party in
enforcing its rights under this Lease or in exercising any rights and
remedies available to it under this Lease or otherwise.
Notwithstanding the foregoing, no sum payable by Lessor to Lessee
under this Section 48 will be payable or recoverable from any rent or
sums pledged or assigned (or intended to have been pledged or
assigned) by Lessor to Lender, Lessee's right to recover such sums
from Lessor being subordinate to the rights of Lender, such sums only
being recoverable after payment to Lender in full of all principal,
interest and other sums secured by its Mortgage.
49. Replacement of 1987 Lease. As of the Commencement Date, all terms
and conditions of the 1987 Lease shall be replaced in their entirety
by the terms and conditions of this Lease. Notwithstanding the
foregoing, (i) neither Beneficial Owner nor Lessee, by executing and
delivering this Lease, waives its rights to any claim it may have
against the other under the 1987 Lease which accrued prior to the
execution and delivery of this Lease, Lessee acknowledging and
agreeing, however, that it shall have no rights or claims whatsoever
against Lessor with respect to any matter other than Lessor's rights
and obligations arising under this Lease following the Commencement
Date, and (ii) for purposes only of allocations among Lessee and
subtenants of Lessee under subleases created by Lessee under the 1987
Lease, the definition of the term "operating expenses" used in the
1987 Lease shall be deemed to survive replacement of the 1987 Lease
(provided the foregoing shall in no way diminish, limit or otherwise
affect Lessee's obligations under this Lease).
50. Limitation on Lessor's Liability. Notwithstanding anything to the
contrary herein, Lessee agrees that the partners and/or members of the
Lessor shall have no personal liability with respect to a breach by
Lessor of any of the terins and conditions of this Lease. In addition,
Lessee agrees that in the event of any such breach of any of the terms
or conditions of this Lease by Lessor, Lessor's liability for such
breach shall be limited to the value of Lessor's equity interest in
the Premises, and Lessee shall look solely to such equity interest of
Lessor for the satisfaction of any claim or judgment which Lessee may
have or obtain against Lessor as a result of such breach.
51. Title and Condition.
(i) The Premises are demised and let subject to the following: (A)
Impositions (as defined herein), Legal Requirements, any matters
consented to by Lessee, those covenants, restrictions, reservations,
liens, conditions, encroachments, easements, encumbrances and other
matters of title that affect the Premises as of the date of the Lease
(including, without limitation, the Master Deed) or which arise due to
the acts or omissions of Lessee, or due to the acts or omissions of
Lessor with Lessee's consent, after the date hereof (collectively the
"Permitted Encumbrances"), (B) all Legal Requirements and Insurance
Requirements, including any existing violation of any thereof, and (C)
the condition of the Premises as they exist as of the date of this
Lease; all without representation or warranty by Lessor, it being
understood and agreed, however, that the recital of the Permitted
Encumbrances herein shall not be construed as a revival of any thereof
which for any reason may have expired.
(ii) Lessor has not made and will not make any inspection of any of
the premises, and Lessor leases and will lease and Lessee takes and
will take the premises "as is", and Lessee acknowledges that Lessor
(whether acting as Lessor hereunder or in any other capacity) has not
made and will not make, nor shall Lessor be deemed to have made, any
warranty or representation, express or implied, with respect to any of
the premises, including any warranty or representation as to its
fitness for use or purpose, design or condition for any particular use
or purpose, as to the quality of the material or workmanship therein,
latent or patent, as to Lessor's title thereto, or as to value,
compliance with specifications, location, use, condition,
merchantability, quality, description, durability or operation, it
being agreed that all risks incident thereto are to be borne by
Lessee. Lessee acknowledges that the premises are of its selection
and to its specifications, and that the premises have been inspected
by lessee and are satisfactory to it. In the event of any defect or
deficiency in any of the premises of any nature, whether patent or
latent, Lessor shall not have any responsibility or liability with
respect thereto or for any incidental or consequential damages
(including strict liability in tort). The provisions of this section
have been negotiated, and the foregoing provisions are intended to be
a complete exclusion and negation of any warranties by Lessor, express
or implied, with respect to any of the premises, arising pursuant to
the uniform commercial code or any other law now or hereafter in
effect or otherwise.
(iii) Lessee acknowledges and agrees that Lessee has examined the
title to the Premises prior to the execution and delivery of this
Lease (including, without limitation, the Master Deed and all other
recorded documents, and documents referred to in recorded documents,
governing the Liberty Hall Corporate Center Condominium) and has found
such title to be satisfactory for the purposes contemplated by this
Lease.
52. Payment of Impositions, Compliance with Legal Requirements and
Insurance Requirements.
(a) Lessee shall pay and discharge before the imposition of any fine,
lien, interest or penalty may be added thereto for late payment
thereof, as Additional Rent, all other amounts and obligations which
Lessee assumes or agrees to pay or discharge pursuant to this Lease,
together with every fine, penalty, interest and cost which may be
added by the party to whom such payment is due for nonpayment or late
payment thereof. In the event of any failure by Lessee to pay or
discharge any of the foregoing, Lessor shall have all rights, powers
and remedies provided herein, by law or otherwise, in the event of
nonpayment of Basic Rent.
(b) Lessee shall promptly comply with and conform to (in all material
respects) all of the Legal Requirements and insurance Requirements.
Lessee shall promptly upon written reasonable request of Lessor
provide evidence of such compliance.
(c) Lessee shall not, directly or indirectly, create or permit to be
created or to remain, and shall promptly discharge, any lien on the
Premises, on the Basic Rent, Additional Rent or on any other sums
payable by Lessee under this Lease, other than the Permitted
Encumbrances and any Mortgage, lien, encumbrance or other charge
created by or resulting from any act or omission by Lessor or those
claiming by, through or under Lessor (except Lessee). Notice is hereby
given that Lessor shall not be liable for any labor, services or
materials furnished or to be furnished to Lessee, or to anyone holding
any of the Premises through or under Lessee, and that no construction
or other liens for any such labor, services or materials shall attach
to or affect the interest of Lessor in and to any of the Premises.
(d) In no event shall Lessee pursue any contest with respect to any
Imposition, Legal Requirement, lien, or violation, referred to above
in such manner that exposes Lessor or Lender to (i) criminal
liability, penalty or sanction, (ii) any civil liability, penalty or
sanction for which Lessee has not made provisions reasonably
acceptable to Lessor and Lender or (iii) defeasance of its interest in
the Premises.
(e) Lessee agrees that each such contest shall be promptly and
diligently prosecuted to a final conclusion, except that Lessee shall
have the right to attempt to settle or compromise such contest through
negotiations. Lessee shall pay and save Lender and Lessor harmless
against any and all losses, judgments, decrees and costs (including
all attorneys' fees and expenses) in connection with any such contest
and shall, promptly after the final determination of such contest,
fully pay and discharge the amounts which shall be levied, assessed,
charged or imposed or be determined to be payable therein or in
connection therewith, together with all penalties, fines, interest,
costs and expenses thereof or in connection therewith, and perform all
acts the performance of which shall be ordered or decreed as a result
thereof (f) Nothing in this Lease and no action or inaction by Lessor
shall be deemed or construed to mean that Lessor has granted to Lessee
any right, power or permission to do any act or to make any agreement
which may create, give rise to, or be the foundation for, any right,
title, interest or lien in or upon the estate of Lessor in any of the
Premises.
53. Net Lease.
(a) This is a net Lease and Basic Rent, Additional Rent and all other
sums payable hereunder by Lessee shall be paid without notice, demand,
setoff, counterclaim, recoupment, abatement, suspension, deferment,
diminution, deduction, reduction or defense.
(b) Lessee agrees that it shall remain obligated under this Lease in
accordance with its provisions and that it shall not take any action
to terminate, rescind or avoid this Lease, notwithstanding (i) the
bankruptcy, insolvency, reorganization, composition, readjustment,
liquidation, dissolution, winding-up or other proceeding affecting
Lessor, (ii) the exercise of any remedy, including foreclosure, under
any Mortgage, or (iii) any action with respect to this Lease
(including the disaffirmance hereof) which may be taken by Lessor
under the Federal Bankruptcy Code or by any trustee, receiver or
liquidator of Lessor or by any court under the Federal Bankruptcy Code
or otherwise.
(c) Except as expressly provided in Sections 10(c) and 11(c) Of this
Lease, (i) Lessee shall not have any right to terminate this Lease for
any reason whatsoever during the Term, and (ii) Lessee shall not for
any reason whatsoever be entitled to any setoff, counterclaim,
recoupment, abatement, suspension, deferment, diminution, deduction,
reduction or defense of or to Basic Rent, Additional Rent or any other
sums payable under this Lease.
(d) This Lease is the absolute and unconditional obligation of Lessee.
Lessee waives all rights which are not expressly stated in this Lease
but which may now or hereafter otherwise be conferred by law (i) to
quit, terminate or surrender this Lease or any of the Premises, (ii)
to any setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense of or to Basic
Rent, Additional Rent or any other sums payable under this Lease, and
(iii) for any statutory lien or offset right against Lessor or its
property.
54. Miscellaneous.
(a) No Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the Premises or
any part thereof by reason of the fact that the same person may
acquire or hold, directly or indirectly, this Lease or the leasehold
estate hereby created or any interest in this Lease or in such
leasehold estate as well as the fee estate in the Premises or any
interest in such fee estate. No such merger shall occur unless and
until all persons (including, without limitation, any Lender) having
any interest in this Lease or the leasehold estate created hereby, and
the fee estate in or ownership of the Premises sought to be merged,
shall join in a written instrument effecting such merger and shall
duly record the same.
(b) No Representations. Neither Lessor nor Lessor's agents have made
any representations or promises with respect to the Premises, the
Building or the Land.
(c) Corporate Authority. Lessee does hereby represent and warrant (i)
that Lessee is a duly authorized and existing corporation, in good
standing and qualified to do business in the State of New Jersey, (ii)
that Lessee has fall right and authority to execute, deliver and
perform this Lease, (iii) that Lessee's execution, delivery and
performance of this Lease has been approved by all necessary corporate
action on Lessee's part, (iv) that all permits, consents and approvals
(if any) required of any governmental or quasi-governmental agency,
bureau, regulatory body or other authority for Lessee's execution,
delivery and performance of this Lease have been obtained and remain
in full force and effect, and (v) that each of the persons signing on
behalf of Lessee is duly authorized to do so.
(d) No Usury, Etc. The intention of the parties being to conform
strictly to the applicable usury and other laws restricting amounts
payable by a debtor to a creditor or a lessee to a lessor, whenever
any provision herein provides for payment by Lessee to Lessor of
interest or any other monies at a rate or in an amount in excess of
the legal rate or amount permitted to be charged or paid, such rate or
amount herein provided to be paid shall be deemed reduced to such
legal rate or amount.
(e) Performance of Obligations. Subject to the terms of this Lease,
any act which Lessor is permitted to perform under this Lease may be
performed at any time and from time to time by Lessor or any person or
entity designated by Lessor. Any act which Lessee is required to
perform under this Lease shall be performed at Lessee's sole cost and
expense by Lessee or any person or entity designated by Lessee.
(f) Surrender of Premises. At the expiration or sooner termination of
this Lease, Lessee shall promptly quit and surrender the Premises in
broom-clean condition reasonable wear and tear excepted, and shall
deliver all keys and combinations to locks, safes and vaults to
Lessor. Before surrendering said Premises, Lessee shall remove (i) all
of its improvements and trade fixtures described on Exhibit B hereto,
(ii) its signs, and (iii) and other property and items required to be
removed by Lessee under Section 6 of this Lease, and will repair any
damage caused thereby. Lessee's obligations under this Section 54(f)
shall survive the expiration of the Term. If Lessee fails to remove
its property upon the expiration or sooner termination of this Lease,
the said property shall, at Lessor's option, be deemed abandoned and
shall become the property of Lessor and Lessee shall be liable to
Lessor for all costs incurred by Lessor related to such property. No
act or thing done by Lessor or its agents during the Term shall be
deemed an acceptance of a surrender of the Premises, and no agreement
to accept a surrender of the Premises shall be valid unless the same
be made in writing and signed by Lessor.
(g) Lessor Consent. Lessee acknowledges that so long as any Mortgage
exists, no consent of or approval of Lessor shall be effective without
the prior written consent of Lender, and that Lender, in Lender's sole
and absolute discretion, may withhold or condition in anyway its
consent to any consent, approval, waiver, extension, forbearance or
other act by Lessor (including, without limitation, any amendment or
modification of this Lease or of any document executed by Lessee in
connection herewith or of the Master Deed) which would or could,
directly or indirectly, (i) diminish the amount or delay the time for
payment of any Basic Rent, Additional Rent or other sum payable under
this Lease, (ii) alter in any way the absolute and unconditional
nature of Lessee's obligations under this Lease or diminish, defer,
suspend, delay the time for performance, waive or otherwise affect in
any way any such obligations, (iii) result in any termination of this
Lease prior to the end of its scheduled Term, (iv) adversely affect
the value of the Premises, (v) adversely affect in any way any rights,
remedies, powers or benefits of Lessor under this Lease, (vi)
adversely affect in any way any rights, remedies, powers, benefits or
estate of Lessor as the owner of the Corporate Center One Unit of the
Liberty Hall Corporate Center Condominium, (vii) adversely affect any
of the rights of Lender under the Mortgage or any other document
relating to the loan secured thereby, or (viii) otherwise, in Lender's
judgment, materially diminish any of the rights of Lessor under this
Lease. Notwithstanding anything above to the contrary, Lender's
consent shall not be required with respect to any extension of this
Lease beyond its scheduled Term or to the provisions of this Lease
applicable during any renewal term, provided, that, the provisions of
any such extension do not directly or indirectly affect any of the
provisions of this Lease or the rights or obligations of the parties
in effect during the scheduled Term hereof, and further provided that
Lessor and Lessee shall provide Lender a copy of any instrument
intended to effect any extension of this Lease prior to its execution
by Lessor and Lessee.
(h) Statements. If and so long as Lessee is a public company, Lessee
shall submit to Lessor and/or such other person or entity as Lessor
may designate, when filed with the Securities and Exchange Commission,
copies of each Form 10Q and 10K filed by Lessee during the Term. If at
any time Lessee is not a public company, Lessee shall submit to Lessor
and/or such other person or entity as Lessor may designate (a) such
financial statements of Lessee which are reasonably requested by
Lessor, and (b) annual audited financial reports, and quarterly
audited or unaudited financial reports, of lessee within one hundred
twenty (120) days following the close of each fiscal year (in the case
of annual reports), and within forty-five days following the close of
each fiscal quarter (in the case of quarterly reports).
(i) Responsible Officer of Lessee. As used in this Lease, the term
"Responsible Officer of Lessee" means any of the following: (i) the
head of any operating division or business unit of Lessee who is
charged with overall supervisory responsibility for the administration
of this Lease and/or for the maintenance, management and operation of
the Premises; or (ii) any person occupying the position of Chairman,
President, Chief Executive Officer, Chief0perating Officer, Chief
Financial Officer, Chief Administrative Officer, General Counsel,
Secretary, Senior Vice President and/or Vice President of Lessee.
55. Compliance with Americans with Disabilities Act. Notwithstanding
anything contained herein to the contrary, Lessee shall be responsible
for all repairs, replacements, maintenance and liabilities with
respect to any improvements made to the Premises by Lessee and any
such repairs, replacements, maintenance and improvements shall comply
with the Americans with Disabilities Act. In addition, Lessee shall
be responsible for, and shall indemnify Lessor with respect to, any
costs and expenses in connection with the Premises being in compliance
with the Americans with Disabilities Act.
56. Lender Approval and Modifications. Lessor and Lessee agree to
modify this Lease to accommodate any Lender's reasonable requests,
provided that doing so will no impose any additional obligation upon
Lessee.
In Witness Whereof, the parties have hereunto set their hands an
dseals the day and year first above written.
Liberty Hall Joint Venture, L.L.C.
A Delaware Limited Liability Company
By: Liberty Hall Joint Venture, its Member
By: Cali Liberty Associates, its General Partner
By: /s/ Brant B. Cali
Title: General Partner
NUI Corporation
A New Jersey Corporation
By: /s/ James R. Van Horn
Title: Chief Administrative Officer,
General Counsel & Secretary
Acknowledgement and Consent
The undersigned executes below for the sole purpose of acknowledging
and consenting to this Amended and Restated Lease the day and ear
first above written.
Liberty Hall Joint Venture
A New Jersey General Partnership
By: Cali Liberty Hall Assocites
Its General Partner
By: /s/ Brant B. Cali
Title: General Partner