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LEASE AGREEMENT
BETWEEN
THORNALL ASSOCIATES, L.P.,
AS LANDLORD
-AND-
PXRE CORPORATION,
AS TENANT
PREMISES: 399 THORNALL STREET
EDISON, NEW JERSEY
PORTION OF 12TH FLOOR
DATED: NOVEMBER 1,1999
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INDEX
ARTICLE CAPTION PAGE
- ------- ------- ----
1 Demised Premises, Term, Rent ............................... 1
2 Use ........................................................ 3
3 Preparation of the Demised Premises ........................ 4
4 When Demised Premises Ready for Occupancy .................. 5
5 Additional Rent ............................................ 6
6 Subordination, Notice to Mortgagees ........................ 12
7 Quiet Enjoyment ............................................ 13
8 Assignment, Mortgaging, Subletting ......................... 13
9 Compliance with Laws and Requirements of Public
Authorities ................................................ 16
10 Insurance .................................................. 17
11 Rules and Regulations ...................................... 19
12 Tenant's Changes ........................................... 20
13 Tenant's Property .......................................... 22
14 Repairs and Maintenance .................................... 23
15 Electricity ................................................ 23
16 Heating, Ventilation and Air-Conditioning .................. 25
17 Landlord's Other Services .................................. 25
18 Access, Changes in Building Facilities, Name ............... 27
19 Notices of Accidents ....................................... 28
20 Non-Liability and Indemnification .......................... 29
(i)
ARTICLE CAPTION PAGE
- ------- ------- ----
21 Destruction or Damage ........................................ 30
22 Eminent Domain ............................................... 31
23 Surrender .................................................... 33
24 Conditions of Limitation ..................................... 33
25 Re-Entry by Landlord ......................................... 35
26 Damages ...................................................... 36
27 Waivers ...................................................... 38
28 No Other Waivers or Modifications ............................ 38
29 Curing Tenant's Defaults ..................................... 39
30 Broker ....................................................... 40
31 Notices ...................................................... 40
32 Estoppel Certificate ......................................... 40
33 Arbitration .................................................. 41
34 No Other Representations, Construction, Governing Law ........ 42
35 Security ..................................................... 42
36 Parties Bound ................................................ 43
37 Consents ..................................................... 43
38 Mortgage Financing - Tenant Cooperation ...................... 44
39 Environmental Compliance ..................................... 44
40 Holding Over ................................................. 45
41 Certain Definitions & Constructions .......................... 46
(ii)
ARTICLE CAPTION PAGE
- ------- ------- ----
42 Relocation of Tenant ........................... 46
43 Option to Renew ................................ 47
EXHIBIT A - Description of Land
EXHIBIT B - Floor Plan
EXHIBIT C - Separate Workletter
EXHIBIT D - Cleaning and Maintenance Specifications
EXHIBIT E - Rules and Regulations
EXHIBIT F - Definitions
EXHIBIT G - Non Disturbance Agreement
(iii)
LEASE, dated November 1, 1999, between THORNALL ASSOCIATES, L.P., a New
Jersey Limited Partnership, c/o Alfieri Property Management, having its
principal office located at 399 Thornall Street, P.O. Box 2911, Edison, New
Jersey 08818-2911, ("Landlord"), and PXRE CORPORATION, a Delaware Corporation,
having its principal office located at 399 Thornall Street, Edison, New Jersey
08837, ("Tenant").
WITNESSETH:
ARTICLE 1
DEMISED PREMISES, TERM, RENT
1.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building located at 399
Thornall Street, Edison, New Jersey, ("Building") on the parcel of land more
particularly described in Exhibit A ("Land"), for the term hereinafter stated,
for the rents hereinafter reserved and upon and subject to the conditions
(including limitations, restrictions and reservations) and covenants hereinafter
provided. Each party hereby expressly covenants and agrees to observe and
perform all of the conditions and covenants herein contained on its part to be
observed and performed.
1.02. The premises hereby leased to Tenant is a portion of the 12th
floor of the Building, as shown on the floor plans annexed hereto as Exhibit B.
Landlord and Tenant have mutually agreed that the premises leased has a rentable
area of 24,238 square feet which includes Tenant's share of the common area.
Said premises, together with all fixtures and equipment which at the
commencement, or during the term of this Lease are thereto attached (except
items not deemed to be included therein and removable by Tenant as provided in
Article 13) constitute the "Demised Premises". Included in the leasing hereby is
Tenant's non-exclusive right, together with other tenants of the Building and of
the building known as 379 Thornall Street, Edison, New Jersey, to use the
lobbies, elevators, sidewalks, public areas, hallways, parking deck, the atrium
area and other public and service areas affecting or serving the Building and
379 Thornall Street.
1.03. The term of this Lease, for which the Demised Premises are
hereby leased, shall commence on a date ("Commencement Date") which shall be (i)
the day on which the Demised Premises are ready for occupancy (as defined in
Article 4) or (ii) the day Tenant, or anyone claiming under or through Tenant,
first occupies the Demised Premises for business, whichever occurs earlier, and
shall end at noon on October 31, 2009, which ending date is hereinafter called
the "Expiration Date", or shall end on such earlier date upon which said term
may expire or be canceled or terminated pursuant to any of the conditions or
covenants of this Lease or pursuant to law. Promptly following the Commencement
Date, the Landlord shall notify Tenant in writing of the Commencement Date and
the Expiration Date as determined in accordance with this Section.
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1.04. The rents reserved under this Lease, for the term thereof,
shall be and consist of:
(a)
PERIOD FIXED RENT MONTHLY RENT ANNUAL RENT
- ------ ---------- ------------ -----------
YEARS 1-5 $24.00 $48,476.00 $581,712.00
YEARS 6 - 10/31/09 $27.90 $56,353.35 $676,240.20
Said rent shall be payable in advance on the first day
of each and every calendar month during the term of this Lease, and
(b) Additional rent consisting of all such other sums of money
as shall become due from and payable by Tenant to Landlord hereunder (for
default in payment of which Landlord shall have the same remedies as for a
default in payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such agent
at such place, as Landlord may designate by notice to Tenant, in lawful money of
the United States of America.
1.05. Tenant shall pay the fixed rent and additional rent herein
reserved promptly as and when the same shall become due and payable, without
demand therefor and without any abatement, deduction or setoff whatsoever.
1.06. If the Commencement Date occurs on a day other than the first
day of a calendar month, the fixed rent for such calendar month shall be
prorated and the balance of the first month's fixed rent theretofore paid shall
be credited against the next monthly installment of fixed rent.
1.07. Late payments of any payment of rent, including monthly rent
or any portion thereof, which is not received within five (5) days after it is
due, will be subject to a late charge equal to five percent (5%) of the unpaid
payment, or $100.00, whichever is greater. This amount is in compensation of
Landlord's additional cost of processing late payments. In addition, any rent
which is not paid when due, including monthly rent, will accrue interest at a
late rate charge of First Union Prime Rate plus 2.5% per annum, as said rate is
reasonably determined by Landlord from published reports, (but in no event in an
amount in excess of the maximum rate allowed by applicable law) from the fifth
(5th) day after it was due until the date on which it is paid in full with
accrued interest. If Tenant is in default of the Lease for failure to pay rent,
in addition to the late charges and interest set forth above, Tenant shall be
charged with all attorney fees in connection with the collection of all sums due
Landlord. Notwithstanding the foregoing, provided Tenant is not in default of
this Lease, Tenant shall have one (1) grace period for each year of the Lease
term where Tenant will not be subject to late charge or interest for any late
payment of rent as set forth above provided Tenant pays the sums due within five
(5) days of written notice therefor.
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1.08. Owner and Broker acknowledge that Owner and Tenant (formerly
known as Phoenix Re Corporation) entered into a lease dated May 9, 1994 (the
"Other Lease") for 24,238 rentable square feet on the 14th floor of the Building
for a term of fifteen (15) years commencing October 27, 1994 and expiring on
October 31, 2009.
1.09.Tenant's Expansion Option for 4,000-6,000 rentable square feet
on November 1, 1999 as more fully set forth in Article 44(a) of the Other Lease
is hereby null and void and of no further force or effect.
1.10. Tenant acknowledges that there is currently a tenant of the
Building occupying the Demised Premises. Tenant acknowledges that Landlord's
obligation hereunder to deliver the Demised Premises is conditioned upon
Landlord entering into satisfactory arrangements such tenant to vacate the
Demised Premises. Upon the execution hereof, Landlord agrees to diligently
proceed towards entering into such an arrangement with the tenant occupying the
Demised Premises. If Landlord is unable to enter into an arrangement
satisfactory to Landlord, as Landlord solely determines, for such tenant to
vacate the Demised Premises, this Lease shall be null and void and of no further
force or effect.
ARTICLE 2
USE
2.01. Tenant shall use and occupy the Demised Premises for executive
and general offices for the transaction of Tenant's business including ancillary
uses consistent with first class office building uses and permitted by law and
for no other purpose.
2.02. The use of the Demised Premises for the purposes specified in
Section 2.01 shall not include, and Tenant shall not use or permit the use of
the Demised Premises or any part thereof, for:
(a) A school of any kind other than for the training of
Tenant's employees;
(b) An employment agency; or
(c) An office for any governmental or quasi governmental
bureau, department, agency, foreign or domestic, including any autonomous
governmental corporation or diplomatic or trade mission;
(d) Any telemarketing activities or other direct selling
activities; or
(e) Any use, including executive and general office use, which
results in a density of a population of more than one person for every 200
rentable square feet.
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2.03. Tenant shall obtain and maintain any governmental license or
permit, other than a Certificate of Occupancy and any other permits in
connection with Landlord's Work, which shall be required for the proper and
lawful conduct of Tenant's business in the Demised Premises, or any part
thereof. Tenant shall at all times comply with the terms and conditions of each
such license or permit.
2.04. Tenant shall not at any time use or occupy, or do or permit
anything to be done in the Demised Premises, in violation of the Certificate of
Occupancy (or other similar municipal ordinance) governing the use and
occupation of the Demised Premises or for the Building.
2.05. Landlord represents that it shall continue to maintain the
Building as presently used as a first class office building, including such
other ancillary uses as are presently permitted under applicable zoning
ordinances, as well as those uses which are presently lawfully utilized in the
atrium or in the Building known as 379 Thornall Street, Edison, New Jersey.
Landlord shall comply with all licenses and permits required of it to maintain
and operate the Demised Premises and the Building and the atrium area. Landlord
represents that there are existing Certificates of Occupancy to allow occupancy
for the purposes presently used in the Building and the atrium area. Landlord
further represents that Tenant's use, as described in this Article 2, is
permitted under the zoning ordinances, but such occupancy is subject to
compliance with applicable codes respecting the completion of the Demised
Premises.
ARTICLE 3
PREPARATION OF THE DEMISED PREMISES
3.01. The Demised Premises shall be completed and prepared for
Tenant's occupancy in the manner, and subject to the terms, conditions and
covenants, set forth in Exhibit C. The facilities, materials, and work so to be
furnished, installed, and performed in the Demised Premises by Landlord at its
expense are hereinafter and in Exhibit C referred to as "Landlord's Work". Such
other installations, materials, and work which may be undertaken by or for the
account of Tenant to equip, decorate, and furnish the Demised Premises for
Tenant's occupancy, commonly called finishing trades work, are hereinafter and
in Exhibit C called "Tenant's Finish Work."
3.02. Landlord and Tenant acknowledge that Tenant shall be obligated
to restore the Demised Premises by the end of the term, including such renewals
thereto, or at any earlier expiration date. For purposes of this Lease, and
specifically without limitation, for purposes of Article 3, Article 13 and
specifically without limitation, Section 13.02, and Article 23, references to
"restoration" or to the obligation of Tenant "to restore", shall mean the
demolition of all of Landlord's Work and Tenant's Finish Work and of all work
thereafter performed by or on behalf of Tenant in connection with Tenant Changes
such that the Demised Premises are delivered to Landlord in the same manner and
in the same condition as existed prior to Landlord's Work or Tenant's Finish
Work as set forth in Exhibit C. If there are any changes to the base Building
systems as a result of Landlord's Work, Tenant's Finish Work or the installation
of the stairway between the 12th and 14th floor, Tenant shall be required to
restore
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such base Building systems to their condition prior to the performance of
Landlord's Work, Tenant's Finish Work or the installation of the stairway.
Landlord agrees that Tenant shall have the right, but shall be under no
obligation, to request Landlord to restore the Demised Premises upon written
notice to such effect given not later than sixty (60) days prior to the
expiration of the term. If Tenant requests Landlord to restore the Demised
Premises as aforesaid, then Tenant's restoration obligation shall be limited to
payment of such demolition costs as are specific to Tenant's then constructed
Demised Premises based upon the then applicable labor costs, as may be
escalated, and upon the then applicable garbage hauling costs, as may be
escalated, and the quantities so involved so reduced at Landlord's discretion.
3.03. Landlord agrees at its sole cost to modify the common area
lobby of the 12th floor to a first class condition consistent with Landlord's
Building standard lobbies, such renovation to be performed along with Landlord's
Work.
ARTICLE 4
WHEN DEMISED PREMISES READY FOR OCCUPANCY
4.01. The Demised Premises shall be deemed ready for occupancy on
the earliest date on which all of the following conditions have been met:
(a) A Certificate of Occupancy (temporary or final) has been
issued by the applicable governmental authorities, permitting Tenant's use of
the Demised Premises for the purposes for which the same have been leased.
(b) Landlord's Work, and so much of Tenant's Finish Work as
Landlord shall have undertaken in accordance with Exhibit C or by separate
letter agreement, in the Demised Premises have been substantially completed, and
same shall be so deemed notwithstanding the fact that minor or insubstantial
details of construction, mechanical adjustment, or decoration or special Finish
Work requested by Tenant, such as cabinetry remain to be performed, the
non-completion of which does not materially interfere with Tenant's use of the
Demised Premises.
(c) Reasonable means of access and facilities necessary to
Tenant's use and occupancy of the Demised Premises, including corridors,
elevators and stairways, and heating ventilating, air conditioning, sanitary,
water, and electrical facilities, have been installed and are in good operating
order and available to Tenant.
4.02. If making the Demised Premises ready for occupancy shall be
delayed by any act or omission of Tenant or any of its employees, agents or
contractors or any failure (not due to any act or omission of Landlord or any of
its employees, agents or contractors) to plan or execute Tenant's Finish Work
diligently or by reason of Tenant's failure to submit Tenant's plans and
specifications in the manner set forth in this Lease, the Demised Premises shall
be deemed ready for occupancy on the date when they would have been ready but
for such delay. In order for there to be deemed a delay in Landlord's Work,
Landlord shall within twenty-four (24) hours of the inception of such delay
advise Tenant that a tenant delay has occurred.
5
4.03. It shall be conclusively presumed that Landlord's Work has
been satisfactorily completed (except for latent defects) as of the Commencement
Date, unless within ninety (90) days after such date Tenant shall give Landlord
notice specifying the respects in which the Demised Premises were not in
satisfactory condition.
4.04. Tenant shall have the right to present Landlord with a written
list of incomplete or defective Landlord's Work or Tenant's Finish Work (the
"Punch List") provided however that Tenant shall provide such Punch List within
ninety (90) days from when Tenant shall have taken actual possession of the
Demised Premises (or any portion thereof) based on inspection with
representatives of Tenant and Landlord present. Landlord shall proceed
diligently to complete all such Punch List items within thirty (30) days after
receipt of Tenant's Punch List and such additional time as may be reasonably
required because of the nature of the defect, unavailability of materials or
supplies or other reasons not subject to Landlord's control.
ARTICLE 5
ADDITIONAL RENT
5.01. For the purpose of Sections 5.01 through 5.03.
(a) "Taxes" shall mean real estate taxes, special and
extraordinary assessments and governmental levies against the Land and Building
of which the Demised Premises (but excluding therefrom that portion of the real
estate taxes directly attributable to improvements made by other tenants in the
Building beyond Landlord's allowances) are a part provided, however, if at any
time during the term of this Lease the method of taxation prevailing at the date
of this Lease shall be altered so that in lieu of or as a substitute for any or
all of the above there shall be assessed, levied or imposed (i) a tax,
assessment, levy, imposition or charge based on the income or rents received
from the Building whether or not wholly or partially as a capital levy or
otherwise; or (ii) a tax, assessment, levy, imposition or charge measured by or
based in whole or in part upon all or any part of the Land and/or Building and
imposed upon Landlord; or (iii) a license fee measured by the rents; or (iv) any
other tax, assessment, levy, imposition, charge or license fee however described
or imposed except as may otherwise be provided herein, then all such taxes,
assessments, levies, impositions, charges or license fees or the part thereof so
measured or based shall be included in the definition of "Taxes." Such
determination of Taxes shall be computed as if Landlord owns no assets other
than the Building and had no income other than from the Building. All Taxes
imposed as special assessments shall be paid in installments whenever permitted
or whenever payment of such installments is financially beneficial to tenants.
Excluded from the definition of Taxes shall be late interest or penalties
payable as a result of Landlord's late payment of Taxes, Landlord's inheritance
estate, gift and income and transfer taxes.
(b) "Base Taxes" shall mean the assessed valuation of the Land
and Building, assuming the Building was 100% occupied, multiplied by the tax
rate for the Tax Year 2000.
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(c) "Tax Year" shall mean each calendar year for which Taxes
are levied by any governmental authority.
(d) "Operational Year" shall mean each calendar year
commencing with calendar year 2001.
(e) "Tenant's Proportionate Share of Increase" shall mean
7.97% of the increase in Taxes in any Operational Year in excess of the Base
Taxes. Tenant's Proportionate Share of Increase for the first Operational Year
shall be prorated to reflect the actual occupancy by Tenant for said Operational
Year. With respect to the calculation of Tenant's Proportionate Share, in the
event the rentable square footage of the Building is physically increased or
decreased, the Tenant's Proportionate Share shall equally be adjusted based upon
the total rentable square footage of the Building as may be adjusted as compared
to Tenant's rentable square footage.
(f) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase in Taxes for the projected Operational Year
divided by twelve (12) and payable monthly by Tenant to Landlord as additional
rent.
5.02. Commencing with the first Operational Year and thereafter,
Tenant shall pay to Landlord as additional rent for the then Operational Year,
Tenant's Projected Share of Increase in Taxes in equal monthly installments,
which payment shall be made along with the fixed rent.
5.03. After the expiration of each Operational Year, Landlord shall
furnish to Tenant a written statement of the Taxes incurred for such Operational
Year as well as Tenant's Proportionate Share of Increase, if any. If the
statement furnished by Landlord to Tenant pursuant to this Section at the end of
the then Operational Year shall indicate that Tenant's Projected Share of
Increase exceeded Tenant's Proportionate Share of Increase, Landlord shall
either forthwith pay the amount of excess directly to Tenant concurrently with
the statement or, if the excess is less than $1,000.00, credit same against
Tenant's next monthly installment of rent. If such statement furnished by
Landlord to Tenant shall indicate that the Tenant's Proportionate Share of
Increase exceeded Tenant's Projected Share of Increase for the then Operational
Year, Tenant shall forthwith pay the amount of such excess to Landlord within
thirty (30) days of Tenant's receipt of Landlord's statement.
5.04. As used in Sections 5.04 through 5.06:
(a) "Operating Expenses" shall mean any or all expenses
incurred by Landlord in connection with the operation of the Land and Building
of which the Demised Premises are a part, as determined in accordance with sound
management practices in accordance with accounting principals generally used in
the commercial real estate industry consistently applied, including all expenses
incurred as a result of Landlord's compliance with any of its obligations
hereunder other than Landlord's Work and such expenses shall include: (i)
salaries, wages, medical, surgical and general welfare benefits, (including
group life insurance) and
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pension payments of employees of Landlord, but only to the extent the services
of such employees are rendered with respect to the operation and maintenance of
the Building; (ii) social security, unemployment, and payroll taxes, workers'
compensation, disability coverage, uniforms, and dry cleaning for the employees
referred to in Subsection (i); (iii) the cost for the Building and common areas
of all charges for oil, gas, common and public service area electricity
(including, but not limited to, fuel cost adjustments), steam, heat,
ventilation, air-conditioning, heating, and water including any taxes on any
such utilities, but excluding from Operating Expenses the Landlord's cost,
including taxes thereon, of electric energy, other than for heating and
air-conditioning, furnished to the Demised Premises (which electric energy so
furnished shall be paid for by Tenant pursuant to the provisions of Article 15
hereof); (iv) the cost of all premiums and charges for the following insurances:
rent, casualty, liability, fidelity and war risk (if obtainable from the United
States Government all of which premiums and charges shall be commercially
reasonable); (v) the cost of all building and cleaning supplies for the common
areas of the Building and charges for telephone for the Building; (vi) the cost
of all charges for management, window cleaning, security services, if any, and
janitorial services, and any independent contractor performing work included
within the definition of operating expenses; (vii) reasonable legal and
accounting services and other professional fees and disbursements incurred in
connection with the operation and management of the Land and Building (other
than as related to new leases, enforcing Landlord's rights under existing
leases, or sales of the Building, fees and charges for financing, refinancing,
syndications); (viii) general maintenance of the Building and the cost of
maintaining and replacing the landscaping; (ix) maintenance of the common area;
(x) capital expenditures, including the purchase of any item of capital
equipment or the leasing of capital equipment which have the effect of reducing
the expenses which would otherwise be included in Operating Expenses, the costs
of which shall be included in Operating Expenses for the Operational Year in
which the costs are incurred and subsequent Operational Years on a straight-line
basis, to the extent that such items are amortized over the actual life (but not
more than ten (10) years of the expenditure or equipment), with an interest
factor equal to the interest rate at the time of Landlord's having made said
expenditure; and (xi) that portion of the cost of any capital expenditures
incurred in connection with the operation of the Land and Building amortized on
a straight line basis, to the extent that such items are amortized over the
actual life, but not more than ten years, with an interest factor equal to the
interest rate, at the time of Landlord's having made said expenditure.
If during all or part of the Base Year or any
Operational Year, Landlord shall not furnish any particular item(s) of work or
service (which would otherwise constitute an Operating Expense hereunder) to
portions of the Land or Building due to the fact that (i) such portions are not
occupied or leased; (ii) such items of work or service is not required or
desired by the tenant of such portion; (iii) such tenant is itself obtaining and
providing such item of work or service; or (iv) for other reasons, then, for the
purposes of computing Operating Expenses, the amount for such item and for such
period shall be deemed to be increased by an amount equal to the additional
costs and expenses which would reasonably have been incurred during such period
by Landlord if it had at its own expense furnished such item of work or services
to such portion of the Building or such tenant.
Landlord agrees that the sum of all Proportionate Shares
of all tenants of increases in Operating Expenses for any Operational Year shall
not exceed the actual
8
increases in Operating Expanses for such Operational Year when the actual
Operating Expenses are so finally determined.
Notwithstanding the foregoing, the following costs and
expenses shall not be included in Operating Expenses:
(1) Executives' salaries (and all related compensation)
above the grade of building manager;
(2) Amounts received by Landlord through proceeds of
insurance except to the extent they are compensation for sums previously
included in Operating Expenses hereunder;
(3) Cost of repairs or replacements incurred by reason
of fire or other casualty or condemnation to the extent Landlord is compensated
therefor;
(4) Advertising and promotional expenditures (including
"open houses" or broker's parties);
(5) Costs incurred in performing work or furnishing
services for any tenant (including Tenant), whether at such tenant's or at
Landlord's expense, to the extent that such work or service is in excess of any
work or service that Landlord is obligated to furnish to or for Tenant at
Landlord's expense;
(6) Depreciation, except as provided above for permitted
capital expenditures;
(7) Brokerage commissions;
(8) Taxes (as hereinbefore defined);
(9) The cost of electricity (for other than heating and
air-conditioning) furnished to the Demised Premises or any other space leased to
tenants as reasonably estimated by Landlord;
(10) Refinancing costs and mortgage interest and
amortization payments;
(11) Leasing commissions;
(12) Costs of preparing tenantable space for a tenant's
initial occupancy or lease renewal or extension and costs of relocating tenants
of the Building;
(13) Any compensation paid to clerks, attendants or
other persons in commercial concessions operated by Landlord;
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(14) Interest on and amortization of debts, payments of
ground rent and other payments due under ground lease;
(15) Costs for acquisition or leasing of sculpture,
paintings or other objects of art;
(16) The cost of any additions to the square foot area
of the Building above the square foot area of the Building on the Commencement
Date;
(17) The cost of any work or services performed or other
expenses incurred in connection with installing, operating and maintaining any
specialty service or facility other than common Building facilities (e.g. a
skydeck, broadcasting facility or any luncheon, athletic or recreational club);
(18) Brokerage commission and legal costs (including
attorneys fees and disbursements) incurred in procuring tenants or renewing
leases or in connection with any mortgaging, financing, refinancing, sale or
entering into or extending or modifying any ground or underlying lease;
(19) Costs incurred in connection with a transfer or
disposition of all or any part of the Building or Land or any interest therein
or in Landlord or any entity comprising Landlord;
(20) Attorney's fees and Court costs in connection with
disputes with tenants of the Building unless such disputes relate to matters
which affect Tenant's (or any other tenant's) use or occupancy, or enjoyment of,
the Building, the Demised Premises or the space occupied by any such tenant;
(21) The cost of capital expenditures except as
expressly permitted herein;
(22) Any cost represented in an amount paid or allocated
to an affiliate of Landlord to the extent the same is materially in excess of
the amount which would have been paid in the absence of such a relationship
(except that any amount expressly stated in this Lease shall be deemed to be not
in excess);
(23) Costs incurred in the removal, containment,
encapsulation, disposal of or repair or cleaning of areas effected by asbestos
or other substances installed by persons other than Tenant in the Building which
must be removed or treated as required by law;
(24) Any other expenditure which would otherwise be an
Operating Expense to the extent Landlord is reimbursed therefore by condemnation
award or insurance proceeds, or by refund, credit, warranty, service, contract
or otherwise; and
(25) Costs incurred to correct structural defects in the
initial construction of the Building.
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(b) "Operational Year" shall mean each calendar year
commencing with calendar year 2001.
(c) "Base Year" shall mean calendar year 2000.
(d) "Tenant's Proportionate Share of Increase" shall mean
7.97% (which percentage may be adjusted as described above in Section 5.01(e),
multiplied by the increase in Operating Expenses for the Operational Year over
Operating Expenses for the Base Year. For purposes hereof, the Tenant's
Proportionate Share of Increase has been computed based upon a total square
footage of the Building equal to 304,000 square feet, and a total square footage
of the Demised Premises equal to 24,238 square feet.
(e) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase for the projected Operational Year divided by
twelve (12) and payable monthly by Tenant to Landlord as additional rent which
payment shall be made along with the fixed rent.
5.05. Commencing with the first Operational Year after Landlord
shall be entitled to receive Tenant's Proportionate Share of Increase, Tenant
shall pay to Landlord as additional rent for the then Operational Year, Tenant's
Projected Share of Increase.
5.06. After the expiration of the first Operational Year and for
each Operational Year thereafter, Landlord shall furnish to Tenant a written
detailed statement of the Operating Expenses (certified to be true and correct
by the Chief Operating Officer of Landlord) incurred for such Operational Year
which statement shall set forth Tenant's Proportionate Share of Increase, if
any. If the statement furnished by Landlord to Tenant, pursuant to this Section,
at the end of the then Operational Year shall indicate that Tenant's Projected
Share of Increase exceeded Tenant's Proportionate Share of Increase, Landlord
shall either forthwith pay the amount of excess directly to Tenant concurrently
with the statement or (if such excess is less than $1,000.00) credit same
against Tenant's next monthly installment of rent. If such statement furnished
by Landlord to Tenant hereunder shall indicate that the Tenant's Proportionate
Share of Increase exceeded Tenant's Projected Share of Increase for the then
Operational Year, Tenant shall forthwith pay the amount of such excess to
Landlord within thirty (30) days of Tenant's receipt of Landlord's statement.
5.07. Every statement given by Landlord pursuant to Sections 5.03
and 5.06 shall be conclusive and binding upon Tenant unless (i) within ninety
(90) days after the receipt of such statement Tenant shall notify Landlord that
it disputes the correctness of the statement, specifying the particular respects
in which the statement is claimed to be incorrect; and (ii) if such dispute
shall not have been settled by agreement, shall submit the dispute to judicial
proceedings within ninety (90) days after receipt of the statement. Within such
90 day period Tenant shall have the right to review, examine and audit
Landlord's books and records for the applicable calendar year which pertain to
the Operating Expenses and which are reasonably required to verify the accuracy
of any component of Landlord's Operating Statements. Landlord shall also provide
such additional reasonable information as is available based upon Tenant's
reasonable request. Landlord's documents shall be made available to Tenant at
Landlord's
11
offices in the Building and shall also be available for photocopy. Tenant agrees
that it and its representatives shall conduct a review with complete
confidentiality and shall enter into a reasonable confidentiality agreement with
Landlord respecting the review, examination and audit. Pending the determination
of such dispute by agreement or judicial proceedings as aforesaid, Tenant shall,
within thirty (30) days after receipt of such statement, pay additional rent in
accordance with Landlord's statement and such payment shall be without prejudice
to Tenant's position. If the dispute shall be determined in Tenant's favor,
Landlord shall forthwith pay Tenant the amount of Tenant's overpayment of rents
resulting from compliance with Landlord's statement. If, after judicial
proceeding, it is determined that the Landlord's Operating Statements vary by
more than five percent (5%), then Landlord shall reimburse Tenant for Tenant's
reasonable costs for payment of an auditor or accountant. If Landlord's
statement is confirmed, Tenant shall reimburse Landlord for Landlord's auditor
or accountant.
ARTICLE 6
SUBORDINATION, NOTICE TO MORTGAGEES
6.01. Subject to Section 6.02 hereof, this Lease, and all rights of
Tenant hereunder are and shall be subject and subordinate in all respects to all
mortgages which may now or hereafter affect the Land and/or the Building and/or
any of such leases, whether or not such mortgages shall also cover other lands
and/or buildings, to each and every advance made or hereafter to be made under
such mortgages, and to all renewals, modifications, replacements, and extensions
of such mortgages and spreaders and consolidations of such mortgages. This
Section shall be self-operative and no further instrument of subordination shall
be required. In confirmation of such subordination, Tenant shall promptly
execute and deliver an instrument that Landlord or the holder of any such
mortgage or any of their respective successors in interest may reasonably
request to evidence such subordination. The mortgages to which this Lease is, at
the time referred to, subject and subordinate are hereinafter sometimes called
"superior mortgages" and the holder of a superior mortgage or its successor in
interest at the time referred to is sometimes hereinafter called a "superior
mortgagee."
6.02. Landlord shall make a good faith effort to obtain from the
Mortgagee a Subordination, Non-Disturbance and Attornment Agreement (the
"Non-Disturbance Agreement") in favor of Tenant utilizing such Mortgagee's
standard form. Such Mortgagee's Non-Disturbance Agreement form is attached as
Exhibit G Landlord agrees, within 120 days of the execution of this Lease and
Tenant's execution of Exhibit G to promptly obtain Mortgagee's approval to
execute the Non-Disturbance Agreement. If Tenant fails to accept the
Non-Disturbance Agreement as described in Exhibit G attached, it shall be
considered that Landlord has satisfied any requirement respecting the existing
Mortgagee. As to any future mortgagee, Landlord agrees that it shall use its
best efforts to obtain a similar Non-Disturbance Agreement which Tenant shall
accept as a condition to a future subordination by Tenant under Section 6.01.
6.03. Landlord represents that the Land and Building are not subject
to any ground, underlying or overriding leases.
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ARTICLE 7
QUIET ENJOYMENT
7.01. So long as Tenant pays all of the fixed rent and additional
rent due hereunder and performs all of Tenant's other obligations hereunder,
Tenant and any person entitled under this Lease to claim through or under Tenant
shall peaceably and quietly have, hold, and enjoy the Demised Premises subject,
nevertheless, to the obligations of this Lease and, as provided in Article 6, to
the superior mortgages.
ARTICLE 8
ASSIGNMENT, MORTGAGING, SUBLETTING
8.01. Neither this Lease, nor the term and estate hereby granted,
nor any part hereof or thereof, nor the interest of Tenant in any sublease, or
the rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant, and neither the Demised Premises, nor any part
thereof shall be encumbered in any manner by reason of any act or omission on
the part of Tenant or anyone claiming under or through Tenant or shall be
sublet, or offered or advertised for subletting, or be used or occupied or
permitted to be used or occupied, or utilized for desk space or for mailing
privileges, by anyone other than Tenant or any entity which would be a permitted
subtenant or a permitted assignee under Section 8.06 for any purpose other than
as permitted by this Lease, without the prior written consent of Landlord in
every case, except as expressly otherwise provided in this Article. Landlord's
consent to a sublease or an assignment of the Demised Premises shall not be
unreasonably withheld. Landlord shall not be deemed unreasonable for the
purposes of consent for a sublease or an assignment if Landlord withholds its
consent for any of the following: (i) in Landlord's belief the sublessee or
assignee is known as a non-performing or litigious tenant; (ii) the sublessee's
or assignee's use will burden the parking facilities of the Building; (iii) the
sublessee's or assignee's use will violate any provision of this Lease; (iv) if
such sublessee or assignee is an environmental nuisance; (v) if in Landlord's
reasonable discretion the Landlord does not find that the financial capacity of
the sublessee or assignee is adequate; or (vi) for any other reason which shall
not be unreasonable for Landlord to withhold it's consent.
8.02. If this Lease be assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Demised Premises or any part thereof be sublet or be used or occupied by anybody
other than Tenant or any permitted subtenant or assignee under Section 8.06,
whether or not in violation of this Lease, Landlord may, after default by Tenant
and expiration of Tenant's time to cure such default, collect rent from the
undertenant or occupant. In either event, Landlord may apply the net amount
collected to the rents herein reserved, but no such assignment, underletting,
occupancy or collection shall be deemed a waiver of any of the provisions of
Section 8.01, or the acceptance of the assignee, undertenant or occupants as
Tenant, or a release of Tenant from the further performance by Tenant of
Tenant's obligations under this Lease. The consent by Landlord to assignment,
13
mortgaging, underletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or underletting or use
or occupancy by others not expressly permitted by this Article.
8.03. The following provisions shall govern in connection with the
subletting of all or a portion of the Demised Premises:
(a) Tenant shall submit in writing to Landlord (i) the name of
the proposed subtenant; (ii) the nature and character of the proposed
subtenant's business, and the intended use to be made of the Demised Premises by
the proposed subtenant; (iii) the terms and conditions of the proposed sublease;
and (iv) such reasonable financial information as Landlord may request regarding
the proposed subtenant.
(b) Within fifteen (15) business days of Landlord's receipt of
the information described in (a) above, Landlord, at Landlord's election may (i)
elect to sublease the Demised Premises directly from Tenant either upon (x) the
same terms and conditions offered to the proposed subtenant or, (y) upon the
same terms and conditions as set forth in this Lease; or (ii) cancel this Lease
as to that portion of the Demised Premises which Tenant desires to sublease, in
which event Tenant agrees to surrender all of its right, title, and interest
hereunder and Landlord may thereafter enter into a direct Lease with the
proposed subtenant or with any other persons as Landlord may desire; or (iii)
consent to the subletting on such terms and conditions as established by
Landlord, including Landlord's participation in any rentals received by Tenant.
Notwithstanding the foregoing, if during the first three (3) years of the Lease
term, Tenant submits a request for a proposed subtenant(s) for less than 12,000
rentable square feet whose subtennancy shall commence during the first three (3)
years of the Lease term, Landlord shall have no right to recapture as set forth
in (i) above and Landlord shall have no right to participate in any rentals as
set forth in (iii) above.
(c) As a condition to Landlord's consent, if given under (b)
above, Landlord shall have obtained consent to such proposed subletting by a
superior mortgagee, provided such superior mortgagee requires consent to the
subletting.
(d) In connection with any subletting, Tenant shall not offer
the Demised Premises, or any part thereof, to any other tenant in the Building
or their subsidiaries or affiliates at a rental rate less than the current
rental rate for office buildings in the surrounding area.
8.04. Tenant shall remain fully liable for the performance of all
Tenant's obligations hereunder notwithstanding any subletting provided for
herein (except to Landlord), and without limiting the generality of the
foregoing, shall remain fully responsible and liable to Landlord for all acts
and omissions of any subtenant or anyone claiming under or through any subtenant
which shall be in violation of any of the obligations of this Lease and any such
violation shall be deemed to be a violation by Tenant.
14
8.05. Tenant shall not, without the prior written consent of
Landlord, assign this Lease, and the provisions of Section 8.03 with respect to
subletting shall equally apply to any assignment of this Lease. Tenant herein
named, or any immediate or remote successor in interest of Tenant herein named,
shall remain liable jointly and severally (as a primary obligor) with its
assignee and all subsequent assignees for the performance of Tenant's
obligations hereunder. In the event that Tenant hereunder is a corporation
(other than one whose shares, now or in the future, are regularly and publicly
traded on a recognized stock exchange, including over the counter, or is a
public company or merges with a public company), then any substantial change in
the ownership of and/or power to vote the majority of the outstanding capital
stock of Tenant, other than by inheritance or operation of law, shall be deemed
an assignment of this Lease and the provisions with respect to assignment shall
be applicable.
8.06. Notwithstanding anything to the contrary contained in this
Article with respect to assignment or subletting, Landlord shall consent to any
assignment and/or subletting (i) to any parent, affiliate or wholly-owned
subsidiary of Tenant (as defined in Rule 240.12b-2 under the Securities
Exchange Act of 1934) or (ii) to any corporation or other entity which succeeds
to all or substantially all of the assets and business of Tenant provided the
resulting entity has a financial condition equal to or greater than Tenant's as
of the date hereof, landlord's consent shall also not be required with respect
to (a) any transfer of corporate shares in or of Tenant which are publicly
traded on a recognized stock exchange or over-the-counter market; (b) any
transfer of corporate shares or other interests, or the creation of additional
corporate shares or other interests, which are not so publicly traded, provided
such transfer or creation is for a good business purpose and not for the sole
purpose transferring this Lease; (c) any sale or transfer of all or
substantially all of the Tenant's assets other than in connection with
(ii) above provided the resulting entity or owner shall have a financial
capacity and net worth equal to or greater than Tenant's as of the date of this
Lease; (d) any transfer of corporate shares or other interests in the Tenant
following the death of any shareholder or other principal. Tenant shall so
notify Landlord of all of the foregoing and provide Landlord such additional
reasonable available information as Landlord reasonably requests or with
respect to which Landlord is entitled.
8.07. Tenant agrees that in connection with each separate request
for a Landlord's consent to a subletting or assignment (including the review of
a statutory or other name change), Tenant shall pay to Landlord the sum of
$500.00 representing a reasonable compensation to Landlord for the
administration costs of evaluating and responding to the request.
8.08. Tenant further agrees that it shall not place any signs on the
Land or on the windows located in the Demised Premises indicating that all or
any portion of the Demised Premises are available for subleasing or assignment.
15
ARTICLE 9
COMPLIANCE WITH LAWS AND REQUIREMENTS
OF PUBLIC AUTHORITIES
9.01. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of public authority, and at
its expense shall comply with all laws and requirements of public authorities
which shall, with respect to the Demised Premises or the use and occupation
thereof, or the abatement of any nuisance, impose any violation, order or duty
on Landlord or Tenant, arising from (i) Tenant's specific use (other than
general office use) of the Demised Premises; (ii) the manner of conduct of
Tenant's business or operation of its installation, equipment or other property
therein; (iii) any cause or condition created by or at the instance of Tenant,
other than by Landlord's performance of any work for or on behalf of Tenant; or
(iv) the breach of any of Tenant's obligations hereunder. Furthermore, Tenant
need not comply with any such law or requirement of public authority so long as
Tenant shall be contesting the validity thereof, or the applicability thereof to
the Demised Premises, in accordance with Section 9.02.
Nothing contained herein shall be construed to require Tenant
to make structural alterations to the Building except to the extent that same
are required by reason of Tenant's specific use (other than general office).
Further, Tenant shall have no obligation under this Section 9.01 with respect to
any non-compliance of the Demised Premises or the Building with any law or
requirement of public authority existing on the Commencement Date of this Lease
unless caused by Tenant, its agents, employees and/or invitees. Tenant shall
have no obligation hereunder with respect to any law which requires the removal
and capsulation or abatement of any hazardous materials or substances including
asbestos that are located in the Building on the Commencement Date (unless
placed there by Tenant or its agents) and which on the Commencement Date are
considered hazardous materials or substances requiring removal by any such
public authority. Landlord represents that the Building does not contain any
asbestos or any other toxic materials or environmentally hazardous materials
which are considered such under any applicable building code or BOCA Code at the
time the Building received its initial Certificate of Occupancy. Without any
liability to Tenant, Landlord shall be liable to remove any such toxic
environmentally hazardous material if such representation proves untrue.
9.02. Tenant may, at its expense (and if necessary, in the name of
but without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings provided that:
(a) Tenant shall defend, indemnify, and hold harmless Landlord
against all liability, loss or damage which Landlord shall suffer by reason of
such noncompliance or contest, including reasonable attorney's fees and other
expenses reasonably incurred by Landlord;
(b) Such non-compliance or contest shall not constitute or
result in any violation of any superior mortgage, or, if such superior mortgage
shall permit such non-
16
compliance or contest on condition of the taking of action or furnishing of
security by Landlord, such action shall be taken and such security shall be
furnished at the expense of Tenant; and
(c) Tenant shall keep Landlord advised as to the status of
such proceedings.
9.03 Landlord states that, to the best of its knowledge, the
Building complies with Title III of the Americans with Disabilities Act, (the
Act), as the Act applies to existing structures constituting commercial
facilities. Landlord further states that Landlord's Work, as described in
Exhibit C, shall comply with the Act under Title III for existing structures
which are commercial facilities. If, after the Demised Premises are ready for
occupancy in accordance with Article 4, the Act requires further changes to the
Building when occasioned by any other tenant, then such changes shall not be
Tenant's responsibility. If, after the Demised Premises are ready for occupancy,
further changes to the Building, including the Demised Premises, are required by
virtue of the Lease and/or Tenant's specific use and occupancy other than as
general office uses, such changes shall be Tenant's responsibility.
ARTICLE 10
INSURANCE
10.01. Tenant shall not violate, or permit the violation of, any
condition imposed by the all-risk casualty policy issued for the Building and
shall not do anything, or permit anything to be kept, in the Demised Premises
which would increase the fire or other casualty insurance rate on the Building
or the property therein over the rate which would otherwise then be in effect,
(unless Tenant pays the resulting increased amount of premium as provided in
Section 10.02) or which would result in insurance companies of good standing
refusing to insure the Building or any of such property in amounts and at normal
rates reasonably satisfactory to Landlord. Tenant shall not be in violation
hereof unless Tenant first receives written notice thereof. However, Tenant
shall not be subject to any liability or obligation under this Article by reason
of the proper use of the Demised Premises for the purposes permitted by Article
2.
10.02. If, by reason of any act or omission on the part of Tenant,
the rate of fire insurance with extended all-risk coverage on the Building or
equipment or other property of Landlord or other tenants shall be higher than it
otherwise would be, Tenant shall reimburse Landlord, on demand, for that part of
the premiums for fire insurance and extended all-risk coverage paid by Landlord
because of such act or omission on the part of Tenant, which sum shall be deemed
to be additional rent and collectible as such. If such increase is attributable
to the acts or omissions of other tenants as well, the additional premiums shall
be allocated among all applicable tenants, including Tenant.
10.03. In the event that any dispute should arise between Landlord
and Tenant concerning insurance rates, a schedule or "make up" of rates for the
Building or the Demised Premises, as the case may be, issued by the Fire
Insurance Rating Organization of New Jersey or
17
other similar body making rates for fire insurance and extended coverage for the
premises concerned, shall be presumptive evidence of the facts therein stated
and of the several items and charges in the fire insurance rates with extended
coverage then applicable to such premises.
10.04. Tenant shall obtain and keep in full force and effect during
the term of this Lease, at its own cost and expense, Comprehensive General
Liability Insurance, such insurance to afford protection in an amount of not
less than $1,000,000 for injury or death to any one person, $3,000,000 for
injury or death arising out of any one occurrence, and $1,000,000 for damage to
property, protecting and naming the Landlord, Alfieri Property Management as
additional insured and the Tenant as insured against any and all claims for
personal injury, death or property damage occurring in, upon, adjacent, or
connected with the Demised Premises and any part thereof. Tenant shall name such
other insureds associated with the Building as Landlord reasonably requests.
Tenant shall pay all premiums and charges therefor and upon failure to do so
Landlord may, but shall not be obligated to, make payments, and in such latter
event the Tenant agrees to pay the amount thereof to Landlord on demand and said
sum shall be deemed to be additional rent, and in each instance collectible on
the first day of any month following the date of notice to Tenant in the same
manner as though it were rent originally reserved hereunder, together with
interest thereon at the rate of two points in excess of Prime Rate of the First
Union. Tenant will use commercially reasonable efforts to include in such
Comprehensive General Liability Insurance policy a provision to the effect that
same will be non-cancelable, except upon reasonable advance written notice to
Landlord. Original insurance certificates evidencing the foregoing requirement
shall be deposited with Landlord together with any renewals, replacements or
endorsements thereof to the end that said insurance shall be in full force and
effect for the benefit of the Landlord during the term of this Lease.
10.05. Landlord and Tenant agree to use their best efforts to
include in each of its insurance policies a waiver of the insurer's right of
subrogation against the other party or if such waiver shall be unobtainable or
unenforceable (a) an express agreement that such policy shall not be invalidated
if the insured waives or has waived before the casualty, the right of recovery
against any party responsible for a casualty covered by the policy or (b) any
other form of permission for the release of the other party. If such waiver,
agreement, or permission shall not be or shall cease to be obtainable without
additional charge, or at all, the insured party shall so notify the other party
after learning thereof. In such a case, if the other party shall agree in
writing to pay the insurer's additional charge therefor, such waiver agreement
or permission shall, if obtainable, be included in the policy.
10.06. Each party hereby releases the other party with respect to
any claim (including a claim for negligence) which it might otherwise have
against the other party for loss, damage, or destruction with respect to its
property (including rental value or business interruption) occurring during the
term of this Lease.
10.07 The waiver of subrogation or permission for release referred
to in Section 10.05 shall extend to the agents of each party and their employees
and, in the case of Tenant, shall also extend to all other persons and entities
occupying, using or visiting the Demised Premises in accordance with the terms
of this Lease, but only if and to the extent that such waiver or permission can
be obtained without additional charge (unless such party shall pay such
18
charge). The releases provided for in Section 10.06 shall likewise extend to
such agents, employees and other persons and entities, if and to the extent that
such waiver or permission is effective as to them. Nothing contained in Section
10.06 shall be deemed to relieve either party of any duty imposed elsewhere in
this Lease to repair, restore or rebuild or to nullify any abatement of rents
provided for elsewhere in this Lease. Except as otherwise provided in Section
10.04, nothing contained in Sections 10.05 and 10.06 shall be deemed to impose
upon either party any duty to procure or maintain any of the kinds of insurance
referred to therein or any particular amounts or limits of any such kinds of
insurance. However, each party shall advise the other, upon request, from time
to time (but not more often than once a year) of all of the policies of
insurance it is carrying of any of the kinds referred to in Sections 10.01 and
10.04, and if it shall discontinue any such policy or allow it to lapse, shall
notify the other party thereof with reasonable promptness. The insurance
policies referred to in Sections 10.05 and 10.06 shall be deemed to include
policies procured and maintained by a party for the benefit of its mortgagee or
pledgee.
10.08. Landlord agrees that it shall maintain in full force and
effect all risk insurance in an amount not less than sufficient to avoid
co-insurance with respect to the Building, including the Demised Premises, the
Land, and Parking Deck. Landlord also agrees to carry loss of rent insurance so
long as such insurance may be carried on a commercially reasonable basis.
Landlord agrees that in connection with any such rent insurance, the waiver of
subrogation provision set forth above shall apply as well. Landlord shall also
maintain general public liability insurance, including contractual liability
insurance, in such amounts as are generally carried by owners of first class
office buildings in the Edison, Metro Park, New Jersey area. None of the
foregoing shall relieve Tenant of nor diminish Landlord's rights with respect to
Operating Expenses described in Article 5.
ARTICLE 11
RULES AND REGULATIONS
11.01. Tenant and its employees and agent shall faithfully observe
and comply with the Rules and Regulations annexed hereto as Exhibit E, and such
reasonable changes therein (whether by modification, elimination, or addition)
as Landlord at any time or times hereafter may make and communicate in writing
to Tenant, which do not unreasonably affect the conduct of Tenant's business in
the Demised Premises; provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations as originally promulgated or as changed, the provisions of this
Lease shall control.
11.02. Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to Tenant to enforce the Rules and
Regulations or the terms, covenants, or conditions in any other lease, as
against any other tenant and Landlord shall not be liable to Tenant for
violation of the same by any other tenant or its employees, agents or visitors.
However, Landlord shall not enforce any of the Rules and Regulations in such
manner as to discriminate against Tenant or anyone claiming under or through
Tenant.
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ARTICLE 12
TENANT'S CHANGES
12.01. Tenant shall make no changes, alterations, additions,
installations, substitutions, or improvements (hereinafter Collectively called
"changes", and, as applied to changes Provided for in this Article, "Tenant's
Changes") in and to the Demised Premises without the express prior written
consent of Landlord, which consent shall not be unreasonably withheld.
All proposed Tenant's Changes shall be submitted to Landlord for
written consent at least forty five (45) days prior to the date Tenant intends
to commence such changes, such submission to include all plans and
specifications reasonably required for the work to be done, proposed scheduling,
and the estimated cost of completion of Tenant's Changes. If Landlord consents
to Tenant's Changes, Tenant may commence and diligently prosecute to completion
Tenant's Changes, under the direct supervision of Landlord.
Tenant shall pay to Landlord a commercially reasonable supervision
fee (which shall include the cost of review of the proposed Tenant's Changes)
equal to the lesser of the actual cost of the supervision or ten percent (10%)
of the certified cost of completion of Tenant's Changes. Prior to the
commencement of Tenant's Changes, Tenant shall pay to Landlord ten percent (10%)
of the estimated cost of completion (the "Estimated Payment") as additional
rent. Within fifteen (15) days after completion of Tenant's Changes, Tenant
shall furnish Landlord with a statement, certified by an officer or a principal
of Tenant to be accurate and true, of the total cost of completion of Tenant's
Changes (the "Total Cost"). If such certified statement furnished by Tenant
shall indicate that the Estimated Payment exceeded the lesser of the actual cost
of the supervision or ten percent (10%) of the Total Cost, Landlord shall
forthwith either (i) pay the amount of excess directly to Tenant concurrently
with the delivery of the certified statement or (ii) permit Tenant to credit the
amount of such excess against the subsequent payment of rent due hereunder. If
such certified statement furnished by Tenant shall indicate that the lesser of
the actual cost of the supervision or ten percent (10%) of the Total Cost
exceeded Tenant's Estimated Payment, Tenant shall, simultaneously with the
delivery to Landlord of the certified statement, pay the amount of such excess
to Landlord as additional rent.
12.02. Notwithstanding the provisions of Section 12.01, all proposed
Tenant's Changes which shall affect or alter:
(a) The outside appearance or the strength of the Building or
of any of its structural parts; or
(b) Any part of the Building outside of the Demised Premises;
or
(c) The mechanical, electrical, sanitary and other service
systems of the Building, or increase the usage of such systems;
20
shall be performed only by the Landlord, at a cost to be mutually agreed upon
between Landlord and Tenant, which cost shall be commercially reasonable.
12.03. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Tenant's Changes and for final approval thereof upon completion, and shall cause
Tenant's Changes to be performed in compliance therewith and with all applicable
laws and requirements of public authorities, and with all applicable
requirements of insurance bodies, and in good and workmanlike manner, using new
materials and equipment at least equal in quality and class to the original
installations in the Building. Tenant's Changes shall be performed in such
manner as not to unreasonably interfere with or delay and (unless Tenant shall
indemnify Landlord therefor to the latter's reasonable satisfaction) as not to
impose any additional expense upon Landlord in the construction, maintenance or
operation of the Building. Throughout the performance of Tenant's Changes,
Tenant, at its expense, shall carry, or cause to be carried, workmen's
compensation insurance in statutory limits and general liability insurance for
any occurrence in or about the Building, in which Landlord and its agents shall
be named as parties insured in such limits as Landlord may reasonably prescribe,
with insurers reasonably satisfactory to Landlord. Tenant shall furbish Landlord
with reasonably satisfactory evidence that such insurance is in effect at or
before the commencement of Tenant's Changes and, on request, at reasonable
intervals thereafter during the continuance of Tenant's Changes. If any of
Tenant's Changes shall involve the removal of any fixtures, equipment or other
property in the Demised Premises which are not Tenant's Property (as defined in
Article 13), such fixtures, equipment or other property shall be promptly
replaced, at Tenant's expense, with new fixtures, equipment or other property
(as the case may be) of like utility and at least equal value. In addition,
unless Landlord shall otherwise expressly consent in writing, the Tenant shall
deliver such removed fixtures to Landlord unless Tenant is reusing such fixtures
within the Demised Premises.
12.04. Tenant, at its expense, and with diligence and dispatch,
shall procure the cancellation or discharge of all notices of violation arising
from or otherwise connected with Tenant's Changes which shall be issued by any
public authority having or asserting jurisdiction. Tenant shall defend,
indemnify and save harmless Landlord against any and all mechanic's and other
liens filed in connection with Tenant's Changes, including the liens of any
security interest in, conditional sales of, or chattel mortgages upon, any
material, fixtures or articles so installed in and constituting part of the
Demised Premises and, against all costs, expenses and liabilities incurred in
connection with any such lien, security interest, conditional sale or chattel
mortgage or any action or proceeding brought thereon. Tenant, at its expense,
shall bond over or procure the satisfaction or discharge of all such liens
within fifteen (15) days after Landlord makes written demand therefor. However,
nothing herein contained shall prevent Tenant from contesting, in good faith and
at its own expense, any such notice of violation, provided that Tenant shall
comply with the provisions of Section 9.02.
12.05. Tenant agrees that the exercise of its rights pursuant to the
provisions of this Article 12 shall not be done in a manner which would create
any work stoppage, picketing, labor disruption or dispute or violate Landlord's
union contracts affecting the Land and Building, nor interference with the
business of Landlord or any tenant or occupant of the Building.
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12.06.All of Tenant's Changes shall be subject to restoration in the
same manner and subject to the same terms and conditions as described in Section
3.02.
12.07.None of the provisions of this Article 12 shall apply to
Landlord's Work or Tenant's Finish Work described in Exhibit C.
ARTICLE 13
TENANT'S PROPERTY
13.01. All fixtures, equipment, improvements, and appurtenances
attached to or built into the Demised Premises at the commencement of or during
the term of this Lease, whether or not by or at the expense of Tenant, shall be
and remain a part of the Demised Premises, shall be deemed the property of
Landlord and shall not be removed by Tenant, except as required herein to be
restored or hereinafter in this Article expressly provided.
13.02. All business and trade fixtures, machinery and equipment,
communications equipment and office equipment, whether or not attached to or
built into the Demised Premises, which are installed in the Demised Premises by
or for the account of Tenant, without expense to Landlord, and can be removed
without permanent structural damage to the Building, and all furniture,
furnishings and other articles of movable personal property owned by Tenant and
located in the Demised Premises (all of which are sometimes called "Tenant's
Property"), shall be and shall remain the property of Tenant and shall be
removed by it at any time during the term of this Lease; provided that if any of
Tenant's Property is removed, Tenant shall repair or pay the cost of repairing
any damage to the Demised Premises or to the Building resulting from such
removal.. Tenant's trade fixtures shall include movable millwork, such as desks,
workstations, and audio-visual equipment and telecommunications equipment,
except any such removal shall be without permanent structural damage to the
Building as described above.
13.03. At or before the Expiration Date, or the date of an earlier
termination of this Lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall restore the Demised Premises
subject to the provisions of Section 3.02 and shall remove all Tenant's Property
as described in Section 13.02 above. If Tenant fails to remove its Property
and/or otherwise fails to perform any restoration required of it under this
Lease, then Tenant shall be deemed a hold-over Tenant as contemplated in Article
40.
13.04. Any other items of Tenant's Property (except money,
securities, and other like valuables) which shall remain in the Demised Premises
after the Expiration Date or after a period of fifteen (15) days following an
earlier termination date, may, at the option of the Landlord, be deemed to have
been abandoned, and in such case either may be retained by Landlord as its
property or may be disposed of, without accountability, in such manner as
Landlord may see fit, at Tenant's expense. The foregoing shall not limit
Tenant's liability for failure to restore as required under this Lease.
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ARTICLE 14
REPAIRS AND MAINTENANCE
14.01. Tenant shall take good care of the Demised Premises. Tenant,
at its expense, shall promptly make all repairs, ordinary or extraordinary,
interior or exterior, structural or otherwise in and about the Demised Premises
and the Building as shall be required by reason of (i) the performance of
Tenant's Finish Work or Tenant's Changes; (ii) the installation, use or
operation of Tenant's Property in the Demised Premises by Tenant, its agents or
employees; (iii) the moving of Tenant's Property in or out of the Building; or
(iv) the misuse or neglect of Tenant or any of its employees, agents,
contractors or invitees; but Tenant shall not be responsible, and Landlord shall
be responsible, for any of such repairs as are required by reason of Landlord's
neglect or other fault in the manner of performing any of Tenant's Finish Work
or Tenant's Changes which may be undertaken by Landlord for Tenant's account or
are otherwise required by reason of neglect or other fault of Landlord or its
employees, agents, or contractors. Except if required by the neglect or other
fault of Landlord or its employees, agents, or contractors, Tenant, at its
expense, shall replace all scratched, damaged or broken doors or other glass in
or about the Demised Premises and shall be responsible for all repairs,
maintenance, and replacement of wall and floor coverings in the Demised Premises
and, for the repair and maintenance of all lighting fixtures therein.
14.02. Landlord, subject to the provisions of Section 5.04, shall
keep and maintain the Building and its fixtures, appurtenances, systems and
facilities serving the Demised Premises, in good working order, condition, and
repair and shall make with all due diligence all repairs, structural and
otherwise, interior and exterior, as and when needed in or about the Demised
Premises, except for those repairs for which Tenant is responsible pursuant to
any other provisions of this Lease. Landlord states that on the inception of
this Lease, the plumbing, mechanical, electrical, sewerage, fire protection and
sprinkler systems and the HVAC system and the elevators will be in good working
order and shall comply with applicable legal requirements.
14.03. Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption, or injury to Tenant's business arising
from Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or required by law, to make in or to any portion of the
Building or the Demised Premises, or in or to the fixtures, equipment of
appurtenances of the Building or the Demised Premises, provided that Landlord
shall use due diligence with respect thereto and shall perform such work, except
in case of emergency, at a time reasonably convenient to Tenant and otherwise in
such a manner as will not materially interfere with Tenant's use of the Demised
Premises.
ARTICLE 15
ELECTRICITY
15.01. Landlord shall furnish the electric energy that Tenant shall
require in the Demised Premises. Tenant shall pay to Landlord, as additional
rent, the costs and charges for all electric energy furnished to Tenant at the
Demised Premises, other than the electric energy costs
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and charges for the use and operation of the HVAC system (and all its component
parts) which costs shall be included as Operating Expenses under Article 5.
Additional rent for such electric energy shall be calculated and payable in the
manner hereinafter set forth.
15.02. As part of Landlord's Work described in Exhibit C, Landlord,
at Tenant's sole cost and expense, shall install an electrical meter or
sub-meter which shall measure Tenant's electrical use (other than the electric
energy costs and charges for the use and operation of the base Building HVAC
system and all of its component parts). Tenant shall pay the cost of such use to
Landlord as additional rent, based upon the actual electrical energy usage as
measured by the sub-meter, as if Tenant was a direct independent customer of the
utility company.
15.03. Landlord shall not be liable in any way to Tenant for any
failure or defect in the supply or character of electric energy furnished to the
Demised Premises by reason of any requirement, act, or omission of the public
utility serving the Building with electricity or for any other reason. Landlord
shall furnish and install all replacement lighting tubes, lamps, bulbs, and
ballasts required in the Demised Premises at Tenant's expense at a commercially
reasonable cost.
15.04. Tenant's use of electric energy in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. Landlord represents that
the electrical capacity of the Demised Premises is sufficient to satisfy the
needs of Tenant for any commercially reasonable use based upon the improvements
contemplated in Exhibit C. Landlord further states that the Landlord shall
provide electricity service to the main distribution electric buss service in
the closet located in the Demised Premises capable of providing seven (7) watts
(electric demand load, exclusive of HVAC) per rentable square feet as a basic
building service. Tenant's use of such electricity service (other than the
electric energy costs and charges for the use and operation of the base Building
HVAC system and all of its component parts) shall be separately metered, as
provided in Section 15.02. All distribution of electricity from this point shall
be the responsibility of Tenant, all at Tenant's sole cost. Any increase in HVAC
equipment or service necessitated by the use of this electric demand load shall
be at the sole coat and expense of Tenant. In order to insure that such capacity
is not exceeded and to avert possible adverse effect upon the Building electric
service, Tenant shall not, without Landlord's prior written consent in each
instance (which shall not be unreasonably withheld), connect any additional
fixtures, appliances, or equipment to the Building electrical distribution
system in excess of plus or minus 7 watts per rentable square foot or make any
alteration or addition to the electric system of the Demised Premises existing
on the Commencement Date, which shall cause the Building's electrical capacity
to be exceeded. Should Landlord grant such consent, all additional risers, HVAC
equipment or other electrical equipment required therefor shall be provided by
Landlord and the cost of installation and maintenance thereof shall be paid by
Tenant upon Landlord's demand. As a condition to granting such consent,
Landlord, at Tenant's sole expense, may cause a new survey to be made of the use
of electric energy (other than for Building standard heating and
air-conditioning as described in Exhibit C) in order to calculate the potential
additional electric energy to be made available to Tenant based upon the
estimated additional capacity of such additional risers or other
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equipment. When the amount of such increase is so determined, and the estimated
cost thereof is calculated, the amount of monthly additional rent payable
pursuant to Section 15.02 hereof shall be adjusted to reflect the additional
cost, and shall be payable as therein provided.
ARTICLE 16
HEATING, VENTILATION AND AIR-CONDITIONING
16.01. Landlord, subject to the provisions of Section 5.04, shall
maintain and operate the heating, ventilating, and air-conditioning systems
(hereinafter called "the systems") and shall furnish heat, ventilating, and air
conditioning (hereinafter collectively called "air conditioning service") in the
Demised Premises through the systems, as may be required for comfortable
occupancy of the Demised Premises in accordance with the HVAC specifications
incorporated as Item "1" of Exhibit C from 8:00 A.M. to 6:00 P.M. Monday
through Friday except days observed by the Federal or the state government as
legal holidays ("Regular Hours") throughout the year. Air cooling shall occur
from April 15th through October 15th of each calendar year. If Tenant shall
require air-conditioning service at any other time (hereinafter called "after
hours"), Landlord shall furnish such after hours air-conditioning service upon
reasonable advance notice from Tenant, and Tenant shall pay Landlord's then
established charges therefor on Landlord's demand.
16.02. Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) specified in Exhibit C for air-conditioning service in the Demised
Premises, or rearrangement of partitioning which interferes with normal
operation of the air-conditioning in the Demised Premises, may require changes
in the air-conditioning system servicing the Demised Premises. Such changes, so
occasioned, shall be made by Landlord, at Tenant's expense, as Tenant's Changes
pursuant to Article 12.
ARTICLE 17
LANDLORD'S OTHER SERVICES
17.01. Landlord, subject to the provisions of Section 5.04, shall
provide public elevator service, passenger and service, by elevators serving the
floor on which the Demised Premises are situated during Regular Hours, and shall
have at least one passenger elevator subject to call at all other times.
Landlord states that except for such instances of temporary use for move in, no
elevator shall be dedicated to the exclusive use of one tenant.
17.02. Landlord, subject to the provisions of Section 5.04, shall
cause the Demised Premises, including the exterior and the interior of the
windows thereof, to be cleaned. Tenant shall pay to Landlord on demand the costs
incurred by Landlord for (a) extra cleaning work in the Demised Premises
required because of (i) misuse or neglect on the part of Tenant or its employees
or visitors; (ii) use of portions of the Demised Premises for preparation,
serving or consumption of food or beverages, data processing, or reproducing
operations, private lavatories
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or toilets or other special purpose areas requiring greater or more difficult
cleaning work than office areas (only to the extent of such additional work
performed); (iii) unusual quantity of interior glass surfaces; (iv) non-building
standard materials or finishes installed by Tenant or at its request after the
Commencement Date; and (b) removal from the Demised Premises and the Building of
so much of any refuse and rubbish of Tenant as shall exceed that ordinarily
accumulated daily in the routine of business office occupancy. Landlord, its
cleaning contractor, and their employees shall have after-hours access to the
Demised Premises and the free use of light, power, and water in the Demised
Premises as reasonably required for the purpose of cleaning the Demised Premises
in accordance with Landlord's obligations hereunder. Landlord agrees that it
shall reasonably permit Tenant to designate a locked "or security zone" for the
storage of confidential proprietary information, which will have restricted
access available to Landlord and its agents. To the extent such security zone is
not available to Landlord, Tenant shall be liable for all legal requirements
relating to safety, access, ventilation and maintenance and shall indemnify
Landlord with respect thereto. Access shall be made available to Landlord upon
reasonable notice and during emergencies. Tenant shall maintain the security
zone so as to comply with reasonable requirements of Landlord's insurer.
17.03. Landlord, subject to the provisions of Section 5.04, shall
furnish adequate hot and cold water to each floor of the Building for drinking,
lavatory, and cleaning purposes, together with soap, towels, and toilet tissue
for each lavatory. If Tenant uses water for any other purpose, Landlord, at
Tenant's expense, shall install meters to measure Tenant's consumption of cold
water and/or hot water for such other purposes and/or steam, as the case may be.
Tenant shall pay for the quantities of cold water and hot water shown on such
meters, at Landlord's cost thereof, on the rendition of Landlord's bills
therefor.
17.04. Landlord, at its expense, and at Tenant's request, shall
insert initial listings on the Building directory of the names of Tenant, and
the names of any of their officers and employees, provided that the names so
listed shall not take up more than Tenant's proportionate share of the space on
the Building directory. All reasonable Building directory changes made at
Tenant's reasonable request after the Tenant's initial listings have been placed
on the Building directory shall be made by Landlord at the expense of Tenant,
and Tenant agrees to promptly pay to Landlord as additional rent the cost of
such changes within ten (10) days after Landlord has submitted an invoice
therefor.
17.05. Landlord reserves the right, without any liability to Tenant,
to stop service of any of the heating, ventilating, air conditioning, electric,
sanitary, elevator, or other Building systems serving the Demised Premises, or
the rendition of any of the other services required of Landlord under this
Lease, whenever and for so long as may be necessary, by reason of accidents,
emergencies, strikes, or the making of repairs or changes which Landlord is
required by this Lease or by law to make or in good faith deems necessary, by
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond
Landlord's reasonable control. Notwithstanding the foregoing, if, as a result of
circumstances beyond Landlord's control, any service, utility or capacity which
Landlord is required to furnish or make available to Tenant under this Lease is
interrupted such that Tenant is unable to utilize the Demised Premises, and such
condition exists for three (3) consecutive business days after written notice
thereof, then commencing from the fourth (4th)
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business day, Tenant shall be entitled to an abatement of fixed rent and
additional rent for each day thereafter that Tenant is unable to utilize the
Demised Premises for the conduct of its business. If the condition exists for
sixty (60) or more consecutive days, then on five (5) business days written
notice, Tenant shall be entitled to terminate this Lease in which event, neither
party shall have any further liability to the other.
17.06. Landlord shall make available for Tenant's use Tenant's
Proportionate Share of parking spaces in common with other tenants of the
Building in the parking area adjacent to the Building. Landlord agrees that
except for payment of common expense charges covered by Article 5, there shall
be no separate fee or cost to Tenant for use of the parking areas. Landlord
states that the parking for the Building and the Building known as 379 Thornall
Street, including the atrium, is contained in a parking structure attached to
both buildings and surface parking area surrounding same and that the parking
spaces are calculated on the basis of four (4) parking spaces per rentable 1,000
square feet of office space.
17.07. The Building and the Demised Premises shall be cleaned in
accordance with the Cleaning and Maintenance Schedule set forth on Exhibit D
annexed hereto and made a part hereof.
17.08. Tenant acknowledges that as part of the consideration for
this Lease, and in order not to interfere with the rights of other tenants or
other tenants' quiet enjoyment of the common areas of the Building and otherwise
prevent Landlord from performing its services without causing increases to the
cost of such services, Tenant agrees that it shall not permit its employees to
congregate in hallways or elevators, shall not permit its employees to create an
unsightly condition in or about any passageway from the Building or the common
areas or to the parking lot/deck, with regard to smoking, including the disposal
of cigarettes, in the courtyard and/or outer areas adjacent to the Building and
will otherwise require its employees to act and conduct themselves in the common
areas in such a manner as will not disturb other tenants or the use and
enjoyment by other tenants of the Building.
ARTICLE 18
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
18.01. All walls, windows, and doors bounding the Demised Premises
(including exterior Building walls, core corridor walls and doors, and any core
corridor entrance), except the inside surfaces thereof, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan room, ducts, electric or
other utilities, sinks or other Building facilities, and the use thereof, as
well as access thereto through the Demised Premises for the purposes of
operation, maintenance, decoration, and repair are reserved to Landlord. The
exercise of Landlord's rights hereunder shall not result in a reduction in the
rentable square footage of the Demised Premises or materially adversely affect
Tenant's use and enjoyment of the Demised Premises.
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18.02. Tenant shall permit Landlord to install, use, and maintain
pipes, ducts, and conduits within the demising walls, bearing columns, and
ceilings of the Demised Premises.
18.03. Landlord or Landlord's agent shall have the right upon
reasonable advanced request to Tenant at the Demised Premises (except in
emergency under clause (ii) hereof) to enter and/or pass through the Demised
Premises or any part thereof, at reasonable times during reasonable hours, (i)
to examine the Demised Premises and to show them to the holders of superior
mortgages, prospective purchasers or mortgagees of the Building as an entirety;
and (ii) for the purpose of making such repairs or changes or doing such
repainting in or to the Demised Premises or its facilities, as may be provided
for by this Lease or as may be mutually agreed upon by the parties or as
Landlord may be required to make by law or in order to repair and maintain said
structure or its fixtures or facilities. Landlord shall be allowed to take all
materials into and upon the Demised Premises that may be required for such
repairs, changes, repainting, or maintenance, without liability to Tenant but
Landlord shall not unreasonably interfere with Tenant's use of the Demised
Premises. Landlord shall also have the right to enter on and/or pass through the
Demised Premises, or any part thereof, at such times as such entry shall be
required by circumstances of emergency affecting the Demised Premises or the
Building.
18.04. During the period of six (6) months prior to the Expiration
Date, Landlord may exhibit the Demised Premises to prospective tenants.
18.05. Landlord reserves the right, at any time after completion of
the Building, without incurring any liability to Tenant therefor, to make such
changes in or to the Building and the fixtures and equipment thereof, as well as
in or to the street entrances, halls, passages, elevators, escalators, and
stairways thereof, as it may deem necessary or desirable, provided, however,
that such changes shall not reduce the size of the Demised Premises nor
materially adversely alter the character of the Building as a "first-class
commercial office building."
18.06. Landlord may adopt any name for the Building. Landlord
reserves the right to change the name or address of the Building at any time.
ARTICLE 19
NOTICE OF ACCIDENTS
19.01. Landlord and Tenant mutually agree to give notice to the
other, promptly after learning of (i) any accident in or about the Demised
Premises for which Landlord might be liable; (ii) all fires in the Demised
Premises; (iii) all damage to or defects in the Demised Premises, including the
fixtures, equipment, and appurtenances thereof, for the repair of which Landlord
might be responsible; and (iv) all damage to or defects in any parts or
appurtenances of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator, and other systems located in or passing through the
Demised Premises or any part thereof.
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ARTICLE 20
NON-LIABILITY AND INDEMNIFICATION
20.01. Neither Landlord nor any agent or employee of Landlord shall
be liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant or
of any other person, irrespective of the cause of such injury, damage, or loss,
unless caused by or due to the negligence of Landlord, its agents, or employees
without contributory negligence on the part of Tenant. Neither Tenant nor any
agent or employee of Tenant shall be liable to Landlord for any injury or damage
to Landlord or to any property of Landlord or of any other person or damage to
any other person or their property, irrespective of the cause of such injury,
damage, or loss, unless caused by or due to the negligence of Tenant, its
agents, or employees without contributory negligence on the part of Landlord.
20.02. Tenant shall indemnify and save harmless Landlord and its
agents against and from (a) any and all claims (i) arising from (x) the conduct
or management of the Demised Premises or of any business therein, or (y) any
work or thing whatsoever done, or any condition created (other than by Landlord
for Landlord's or Tenant's account) in or about the Demised Premises during the
term of this Lease or during the period of time, if any, prior to the
Commencement Date that Tenant may have been given access to the Demised
Premises, or (ii) arising from any negligent or otherwise wrongful act or
omission of Tenant or any of its subtenants, invitees or licensees or its or
their employees, agents, or contractors, and (b) all costs, expenses, and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon. In case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall
resist and defend such action or proceeding.
20.03. Except as otherwise expressly provided in this Lease, this
Lease and the obligations of Tenant hereunder shall be in no way affected,
impaired or excused because Landlord is unable to fulfill, or is delayed in
fulfilling, any of its obligations under this Lease by reason of strike, other
labor trouble, governmental pre-emption or priorities or other controls in
connection with a national or other public emergency or shortages of fuel
supplies or labor resulting therefrom, or other like cause beyond Landlord's
reasonable control.
20.04. Landlord shall indemnify and save Tenant harmless and its
agents, employees and invitees arising from any negligent or other wrongful act
or omission of Landlord or any of its subcontractors, or agents, or employees
with respect to the Building and common areas and all costs, expenses, and
liabilities incurred in connection with each such claim or action or proceeding
brought thereon. In case any action or proceeding be brought against Tenant by
reason of any such claim, Landlord, upon notice from Tenant, shall resist and
defend such action or proceeding.
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ARTICLE 21
DESTRUCTION OR DAMAGE
21.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents or visitors (and if this Lease shall not have been
terminated as in this Article hereinafter provided), Landlord shall repair the
damage and restore and rebuild the Building and/or the Demised Premises, at its
expense, with reasonable dispatch after notice to it of the damage or
destruction; provided, however, that Landlord shall not be required to repair or
replace any of the Tenant's Property.
21.02. If the Building or the Demised Premises shall be partially
damaged or partially destroyed by fire or other cause not attributable to the
fault or negligence of Tenant, its agents, or employees, the rents payable
hereunder shall be abated to the extent that the Demised Premises shall have
been rendered untenantable and for the period from the date of such damage or
destruction to the date the damage shall be repaired or restored. If the Demised
Premises or a major part thereof shall be totally (which shall be deemed to
include substantially totally) damaged or destroyed or rendered completely
(which shall be deemed to include substantially completely) untenantable on
account of fire or other cause, the rents shall abate as of the date of the
damage or destruction and until Landlord shall repair, restore, and rebuild the
Building and the Demised Premises, provided, however, that should Tenant
reoccupy a portion of the Demised Premises for the ordinary conduct of its work
during the period of restoration work is taking place and prior to the date that
the same are made completely tenantable, rents allocable to such portion shall
be payable by Tenant from the date of such occupancy.
21.03. If the Building shall be totally damaged or destroyed by fire
or other cause, or if the Building shall be so damaged or destroyed by fire or
other cause (whether or not the Demised Premises are damaged or destroyed) as to
require a reasonably estimated expenditure of more than twenty-five percent
(25%) of the full insurable value of the Building immediately prior to the
casualty, and Landlord elects to terminate all other leases, then in either such
case Landlord may terminate this Lease by giving Tenant notice to such effect
within sixty (60) days after the date of the casualty. In case of any damage or
destruction mentioned in this Article, Tenant may terminate the Lease by notice
to Landlord, if Landlord has not completed the making of the required repairs
and restored and rebuilt the Building and the Demised Premises within twelve
(12) months from the date of such damage or destruction, or within such period
after such date (not exceeding six (6) months) as shall equal the aggregate
period Landlord may have been delayed in doing so by adjustment of insurance,
labor trouble, governmental controls, act of God, or any other cause beyond
Landlord's reasonable control. In connection with any damage pursuant to this
Section 21.03, if the Building is damaged during the last two (2) years of the
term, then Tenant may cancel this Lease effective as of the date of the casualty
by notifying Landlord within thirty (30) days of the casualty.
21.04. No damages, compensation, or claim shall be payable by
Landlord for inconvenience, loss of business, or annoyance arising from any
repair or restoration of any portion 2of the Demised Premises or of the Building
pursuant to this Article. Landlord shall use
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its best efforts to effect such repair or restoration promptly and in such
manner as not unreasonably to interfere with Tenant's use and occupancy during
such time that Tenant is able to use the Demised Premises during Landlord's
restoration.
21.05. Landlord will not carry insurance of any kind on Tenant's
Property, and, except as provided by law or by reason of its fault or its breach
of any of its obligations hereunder, shall not be obligated to repair any damage
thereto or replace the same; to the extent that Tenant shall maintain insurance
on Tenant's Property, Landlord shall not be obligated to repair any damage
thereto or replace the same.
21.07. The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and any law of the State of New Jersey providing for
such a contingency in the absence of an express agreement, and any other law of
like import, now of hereafter in force, shall have no application in such case.
ARTICLE 22
EMINENT DOMAIN
22.01. If the whole of the Building shall be lawfully taken by
condemnation or in any other manner for any public or quasi-public use of
purpose, this Lease and the term and estate hereby granted shall forthwith
terminate as of the date of vesting of title on such taking (which date is
herein after also referred to as the "date of the taking"), and the rents shall
be prorated and adjusted as of such date.
22.02. If any part of the Building shall be so taken, this Lease
shall be unaffected by such taking, except that Tenant may elect to terminate
this Lease in the event of a permanent partial taking, of or part of the Demised
Premises if the Demised Premises are not be reasonably sufficient for Tenant to
continue feasible operation of its business. Tenant shall give notice of such
election to Landlord not later than thirty (30) days after the date of such
taking. Upon the giving of such notice to Landlord, this Lease shall terminate
on the date of service of notice and the rents apportioned to the part of the
Demised Premises so taken shall be prorated and adjusted as of the date of the
taking and the rents apportioned to the remainder of the Demised Premises shall
be prorated and adjusted as of such termination date. Upon such partial taking
and this Lease continuing in force as to any part of the Demised Premises, the
rents apportioned to the part taken shall be prorated and adjusted as of the
date of taking and from such date the fixed rent shall be reduced to the amount
apportioned to the remainder of the Demised Premises and additional rent shall
be payable pursuant to Article 5 according to the rentable area remaining.
22.03. Except as specifically set forth in Section 22.04. hereof,
Landlord shall be entitled to receive the entire award in any proceeding with
respect to any taking provided for in this Article without deduction therefrom
for any estate vested in Tenant by this Lease, and
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Tenant shall receive no part of such award. Tenant hereby expressly assigns to
Landlord all of its right, title, and interest in or to every such award. Tenant
may claim a condemnation award for the unamortized portion of the cost incurred
by Tenant in connection with any of Tenant's Property installed pursuant to this
Lease. In addition, Tenant may sue the appropriate agency for relocation
expenses.
22.04. If the temporary use or occupancy of all or any part of the
Demised Premises shall be lawfully taken by condemnation or in any other manner
for any public or quasi-public use or purpose during the term of this Lease,
Tenant shall be entitled, except as hereinafter set forth, to receive any award
for such taking up to the aggregate of all fixed rent and additional rent
provided any such reward does not serve to diminish Landlord's award in any
respect whatsoever and, if so awarded, for the taking of Tenant's Property and
for moving expenses, and Landlord shall be entitled to receive that portion
which represents reimbursement for the cost of restoration of the Demised
Premises. This Lease shall be and remain unaffected by such taking and Tenant
shall remain responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay in full
the fixed rent and additional rent when due. If the period of temporary use or
occupancy of the Demised Premises (or a part thereof) shall be divided between
Landlord and Tenant so that Tenant shall receive so much thereof as represents
the period prior to the Expiration Date and Landlord shall receive so much
thereof as represents the period subsequent to the Expiration Date. All moneys
received by Tenant as, or as part of, an award for temporary use and occupancy
for a period beyond the date to which the rents hereunder have been paid by
Tenant shall be received, held, and applied by Tenant as a trust fund for
payment of the rents falling due hereunder. Any temporary taking which lasts
longer than nine (9) months shall constitute a permanent taking.
22.05. In the event of any taking of less than the whole of the
Building which does not result in a termination of this Lease, or in the event
of a taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, shall proceed with reasonable diligence to repair, alter, and restore
the remaining parts of the Building and the Demised Premises to substantially
their former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and Demised Premises provided that
Landlord's liability under this Section 22.05 shall be limited to the net amount
(after deducting all costs and expenses, including, but not limited to, legal
expenses incurred in connection with the eminent domain proceeding) received by
Landlord as an award arising out of such taking. If such taking occurs within
the last three (3) years of the term of this Lease, Landlord shall have the
right to terminate this Lease by giving the Tenant written notice to such effect
within ninety (90) days after such taking, and this Lease shall then expire on
that effective date stated in the notice as if that were the Expiration Date,
but the fixed rent and the additional rent shall be prorated and adjusted as of
the date of such taking. If such taking occurs during the last two (2) years of
the term of this Lease, then Tenant shall have the right to terminate this lease
by giving the Landlord written notice to such effect and the foregoing
provisions of this Section 22.05 shall apply with respect to the Tenant's
notification to terminate.
22.06. Should any part of the Demised Premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in
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this Article then, (i) if such compliance is the obligation of Tenant under this
Lease, Tenant shall not be entitled to any diminution or abatement of rent or
other compensation from Landlord therefor, but (ii) if such compliance is the
obligation of Landlord under this Lease, the fixed rent hereunder shall be
reduced and additional rents under Article 5 shall be adjusted in the same
manner as is provided in Section 22.02 according to the reduction in rentable
area of the Demised Premises resulting from such taking.
22.07. Any dispute which may arise between the parties with respect
to the meaning or application of any of the provisions of this Article shall be
determined by arbitration in the manner provided in Article 33.
22.08. Landlord and Tenant agree that any taking limited to the
parking deck and surrounding areas, within the Land, which results in a
permanent loss of twenty percent (20%) of the parking spaces, then such event
shall be deemed a taking under this Article 22.
ARTICLE 23
SURRENDER
23.01. Landlord and Tenant acknowledge that Tenant shall be
obligated to restore the Demised Premises by the end of the term, including such
renewals thereto, or at any earlier expiration date. For purposes of this Lease,
and specifically without limitation, for purposes of Article 3, Article 13 and
specifically without limitation, Section 13.02, and this Article 23, references
to "restoration" or to the obligation of Tenant "to restore", shall mean the
demolition of all of Landlord's Work and Tenant's Finish Work, excluding the
base Building air-conditioning equipment and duct work and sprinkler systems,
and of all work thereafter performed by or on behalf of Tenant in connection
with Tenant Changes such that the Demised Premises are delivered to Landlord in
the same manner and in the same condition as existed prior to Landlord's Work or
Tenant's Finish Work as set forth in Exhibit C. Landlord agrees that Tenant
shall have the right, but shall be under no obligation, to request Landlord to
restore the Demised Premises upon written notice to such effect given not later
than sixty (60) days prior to the expiration of the term. If Tenant requests
Landlord to restore the Demised Premises as aforesaid, then Tenant's restoration
obligation shall be limited to payment of such demolition costs as are specific
to Tenant's then constructed Demised Premises based upon the then applicable
labor costs, as may be escalated, and upon the then applicable garbage hauling
costs, as may be escalated, and the quantities so involved so reduced at
Landlord's discretion. If Tenant fails to perform any restoration required of it
under this Lease on or before the last day of the term of this Lease or upon any
earlier termination, Tenant shall be deemed a hold-over Tenant under Article 40
of this Lease until such time as Tenant has completed such restoration.
ARTICLE 24
CONDITIONS OF LIMITATION
24.01. This Lease and the term and estate hereby granted are subject
to the limitation that whenever Tenant shall make an assignment of the property
of Tenant for the
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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 shall be filed against Tenant under any bankruptcy or insolvency law,
or whenever a petition shall be filed by or against Tenant under the
reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like imports or whenever a petition shall be filed by
Tenant under the arrangement provisions of any law of like import, whenever a
permanent receiver of Tenant or of or for the property of Tenant shall be
appointed, then Landlord, (a) at any time of receipt of notice of the occurrence
of any such event, or (b) if such event occurs without the acquiescence of
Tenant, at any time after the event continues for sixty (60) days, Landlord may
give Tenant a notice of intention to end the term of this Lease at the
expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 26.
24.02. This Lease and the term and estate hereby granted are subject
to the further limitation that:
(a) Whenever Tenant shall default in the payment of
installment of fixed rent, or in the payment of any additional rent or any other
charge payable by Tenant to Landlord, or any day upon which the same ought to be
paid, and such default shall continue for ten (10) days after written notice
thereof in the case of fixed rent, Tenant's monthly Projected Share of Increases
in Taxes and Operating Expenses, and Tenant's monthly electric charge and twenty
(20) days in any other case; or,
(b) Whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a
written notice specifying the same, or, in the case of a happening or default
which cannot with due diligence be cured within a period of thirty (30) days and
the continuance of which for the period required for cure will not subject
Landlord to risk of criminal liability or foreclosure of any superior mortgage
if Tenant shall not, (i) within said thirty (30) day period advise Landlord of
Tenant's intention to duly institute all steps necessary to remedy such
situation; (ii) duly institute within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
same; (iii) complete such remedy within such time after the date of giving of
said notice to Landlord as shall reasonably be necessary; or
(c) Whenever any event shall occur or any contingency shall
arise whereby this Lease or the estate hereby granted or the unexpired balance
of the term hereof would, by operation of law or otherwise, devolve upon or pass
to any person, firm, or corporation other than Tenant, except as expressly
permitted by Article 8; or
(d) Whenever Tenant shall abandon the Demised Premises and not
pay rent (unless as a result of a casualty);
34
(e) Whenever Tenant shall be deemed in default of the Other
Lease; then, and in any of the foregoing cases, this Lease and the term and
estate hereby granted, whether or not the term shall theretofore have commenced,
shall, if the Landlord so elects, terminate upon ten (10) days written notice by
Landlord to Tenant of Landlord's election to terminate the Lease and the term
hereof shall expire and come end on the date fixed in such notice, with the same
effect as if that day were the Expiration Date, but Tenant shall remain liable
for the rent and additional rent which subsequently accrues and for damages as
provided in Article 26.
24.03. In addition to any other rights of Tenant set forth in this
Lease, in the event Landlord is in default of its obligations hereof, Tenant
shall give Landlord a written notice of such default and thirty (30) days within
which to cure same, unless the nature of the default precludes cure within
thirty (30) days in which case Landlord shall commence such cure within thirty
(30) days and use its reasonable diligence to complete the cure of such default.
If, Landlord fails to cure such default, Tenant shall have the right to pay such
reasonable sums to cure such default and demand payment by Landlord thereof, or
otherwise seek such relief as Tenant is entitled at law or in equity. Under no
circumstances shall Tenant have the right to reduce its obligations to pay fixed
or additional rent, or otherwise set off any sums against fixed or additional
rent pending a judicial order permitting same or a judgment rendered against
Landlord.
ARTICLE 25
RE-ENTRY BY LANDLORD
25.01. If this Lease shall expire as provided in Article 24,
Landlord or Landlord's agents and employees may immediately or at any time
thereafter re-enter the Demised Premises, or any part thereof, in the name of
the whole, either by summary dispossess proceedings or by any suitable action or
proceeding at law, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any persons therefrom, to
the end that Landlord may have, hold, and enjoy the Demised Premises again as
and of its first estate and interest therein. The word "re-enter", as herein
used, is not restricted to its technical legal meaning. In the event of any
termination of this Lease under the provisions of Article 24 or if Landlord
shall re-enter the Demised Premises under the provisions of this Article or in
the event of the termination of this Lease, or of re-entry, by or under any
summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to
Landlord the fixed rent and additional rent payable by Tenant to Landlord up to
the time of such termination of this Lease, or of such recovery of possession or
the Demised Premises by Landlord, as the case may be, and shall also pay to
Landlord damages as provided in Article 26.
25.02. In the event of a breach or threatened breach by Landlord or
Tenant of any of their respective obligations under this Lease, either Landlord
or Tenant, as the case may be, shall also have the right of injunction. The
special remedies hereunder are cumulative and
35
are not intended to be exclusive of any other remedies or means of redress to
which the parties may lawfully be entitled at any time.
25.03. If this Lease shall terminate under the provisions of Article
24, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article, or in the event of any termination of this Lease, or of re-entry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Landlord
shall be entitled to retain all moneys, if any, paid by Tenant to Landlord,
whether as advance rent, security, or otherwise, but such moneys shall be
credited by Landlord against any fixed rent or additional rent due from Tenant
at the time of such termination or re-entry or, at Landlord's option, against
any damages payable by Tenant under Article 26 or pursuant to law.
ARTICLE 26
DAMAGES
26.01. If this Lease is terminated under the provisions of Article
24, or if Landlord shall re-enter the Demised Premises under the provisions of
Article 25, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action of any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages sums equal to the fixed rent and the additional rent (as
above presumed) payable hereunder which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the Expiration Date, provided, however,
that if Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such reletting,
such net rents to be determined by first deducting from the gross rents as and
when received by Landlord from such reletting, the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including
altering and preparing the Demised Premises for new tenants, brokers'
commissions, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom; it being understood that any such reletting
may be for a period shorter or longer than the remaining term of this Lease; but
in no event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this Subsection
to a credit in respect of any net rents from a reletting, except to the extent
that such net rents are actually received by Landlord. Damages shall also
include the unamortized portion of the cost of Landlord's Work and any brokerage
fees or commissions paid by Landlord. If the Demised Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent received from
such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof to be relet by
Landlord for the unexpired portion of the term of this Lease, or any part
thereof, before presentation of proof of such damages to any court, commission
or tribunal, the amount of rent reserved upon such
36
reletting shall, prima facie, be the fair and reasonable rental value for the
Demised Premises, or part thereof, so relet during the term of the reletting.
Landlord agrees that it shall exert commercially reasonable
efforts to mitigate damages by attempting to relet the Demised Premises.
However, in the exercise of such efforts, Tenant acknowledges that Landlord
shall have no obligation to Tenant to offer the Demised Premises, or any part
thereof, in any manner, shape, form, or pursuant to any program different from
any other space in any building owned by Landlord in the Metro Park Complex then
sought to be leased by Landlord.
26.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated under the provisions of Article 24, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to seek and obtain as
liquidated damages by reason of the termination of this Lease or re-entry on the
Demised Premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 26.01. Except with respect to the amount of fixed rent or Tenant's
finally determined Proportionate Share of Operating Expenses (which shall be
governed by Article 5), any payment by Tenant may be accompanied by a letter
from Tenant protesting such payment or reserving its rights under the Lease with
respect to such payment. Any such protest or reservation must be made along with
the payment and must be detailed and specific as to the nature of such protest
or reservation. If Tenant fails to implement litigation proceedings within
ninety (90) days of its reservation or protest, Tenant shall be deemed to have
waived its protest and reservation. If Landlord accepts, or is otherwise as a
result of litigation, required to reimburse or repay Tenant in connection with
such reservation or protest, such reimbursement shall be accompanied by interest
at First Union Prime Plus 2.5% per annum, which shall run from the date of
protest through the date of payment by Landlord.
26.03. In addition to the foregoing and without regard to whether
this Lease is terminated, Tenant shall pay to Landlord upon demand, all costs
and expenses incurred by Landlord, including reasonable attorney's fees, with
respect to any lawsuit instituted or defended or any action taken by Landlord to
enforce all or any of the provisions of this Lease to the extent Landlord is
successful. Landlord agrees that, if, after implementing proceedings or
litigation, Tenant is successful therein, then Landlord shall pay Tenant's
reasonable costs and expenses, including reasonable attorney fees.
37
ARTICLE 27
WAIVERS
27.01. Tenant, for Tenant, and on behalf of any and all persons
claiming through or under Tenant, including creditors of all kinds, does hereby
waive and surrender all right and privilege which they or any of them might have
under or by reason of any present or future law, to redeem the Demised Premises
or to have a continuance of this Lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as herein provided.
27.02. In the event that Tenant is in arrears in payment of fixed
rent or additional rent hereunder, Tenant waives Tenant's right, if any, to
designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
27.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto.
27.04. The provisions in Articles 16 and 17 shall be considered
express agreements governing the services to be furnished by Landlord, and
Tenant agrees that any laws and/or requirements of public authorities, now or
hereafter in force, shall have no application in connection with any enlargement
of Landlord's obligations with respect to such services.
ARTICLE 28
NO OTHER WAIVERS OR MODIFICATIONS
28.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this Lease or of the right to exercise such election, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act, or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such executory agreement is in writing, refers expressly to
this Lease and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge, or termination of effectuation of the
abandonment is sought.
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28.02. Without limiting Section 28.01, the following provisions
shall also apply:
(a) No agreement to accept a surrender of all or any part of
the Demised Premises shall be valid unless in writing and signed by Landlord.
The delivery of keys to an employee of Landlord or of its agent shall not
operate as a termination of this Lease or a surrender of the Demised Premises.
If Tenant shall at any time request Landlord to sublet the Demised Premises for
Tenant's account, Landlord or its agent is authorized to receive said keys for
such purposes without releasing Tenant from any of its obligations under this
Lease, and Tenant hereby releases Landlord from any liability for loss or damage
to any of Tenant's property in connection with such subletting.
(b) The receipt by Landlord or the payment by Tenant of rent
with knowledge of breach of any obligation of this Lease shall not be deemed a
waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser
amount than the correct fixed rent or additional rent due hereunder shall be
deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or pursue any other
remedy in this Lease or at law provided.
ARTICLE 29
CURING TENANT'S DEFAULTS
29.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice, in a case of emergency, and in any other
case, only if such default continues after the expiration of (i) ten (10) days
from the date Landlord gives Tenant notice of intention so to do, or (ii) the
applicable grace period provided in Section 24.02 or elsewhere in this Lease for
cure of such default, whichever occurs later.
29.02. Bills, invoices and purchase orders for any and all
reasonable costs, charges, and expenses incurred by Landlord in connection with
any such performance by it for the account of Tenant, including reasonable
counsel fees, involved in collecting or endeavoring to collect the fixed rent or
additional rent or any part thereof, or enforcing or endeavoring to enforce any
rights against Tenant, under or in connection with this Lease, or pursuant to
law, including any such cost, expense, and disbursement involved in instituting
and prosecuting summary proceedings, may be sent by Landlord to Tenant monthly,
or immediately, at Landlord's option, and, shall be due and payable in
accordance with the terms of such bills.
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ARTICLE 30
BROKER
30.01. Landlord and Tenant covenant, warrant, and represent that
there was no broker except THE CORPORATE REAL ESTATE ALLIANCE, ("Broker")
instrumental in consummating this Lease and that no conversations or
negotiations were had with any broker except Broker concerning the renting of
the Demised Premises. Landlord and Tenant agree to hold the other party harmless
against any claims for a brokerage commission arising out of a breach by the
other party of the foregoing representation.
ARTICLE 31
NOTICES
31.01. Any notice, statement, demand, or other communications
required or permitted to be given, rendered, or made by either party to the
other, pursuant to this Lease or pursuant to any applicable law or requirement
of public authority, shall be in writing (whether or not so stated elsewhere in
this Lease) and shall be deemed to have been properly given, rendered or made,
if sent by registered or certified mail, return receipt requested, addressed to
the other party at the address hereinabove set forth (except that after the
Commencement Date, Tenant's address, unless Tenant shall give notice to the
contrary, shall be the Building) and shall be deemed to have been given,
rendered, or made on the date following the date of mailing. Notice may also be
given by facsimile transmittal or overnight mail. If such notice is given by
facsimile transmittal, it shall be deemed received the day it was sent and
overnight mail shall be deemed received the day after it was sent. Either party
may, by notice as aforesaid, designate a different address or addresses for
notices, statements, demands, or other communications intended for it. In the
event of the cessation of any mail delivery for any reason, personal delivery
shall be substituted for the aforedescribed method of serving notices.
ARTICLE 32
ESTOPPEL CERTIFICATE
32.01. Tenant agrees, when requested by Landlord, to execute and
deliver to Landlord a statement certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), certifying the
dates to which the fixed rent and additional rent have been paid, whether any
dispute exists with respect thereto and stating whether or not, to Tenant's best
knowledge, Landlord is in default in performance of any of its obligations under
this Lease, and, if so, specifying each such default of which Tenant may have
knowledge, it being intended that any such statement delivered pursuant hereto
may be relied upon by others. Such statement shall be served upon Landlord by
Tenant within ten (10) days of Landlord's request. Landlord agrees, when
requested by Tenant, to execute and deliver to Tenant within ten (10) days of
Tenant's written request therefor, a statement certifying that this Lease is
unmodified and in full force and
40
effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications), certifying the dates to which
the fixed rent and additional rent have been paid, whether any dispute exists
with respect thereto and stating whether or not, to Landlord's best knowledge,
Tenant is in default in performance of any of its obligations under this Lease,
and, if so, specifying each such default of which Landlord may have knowledge,
it being intended that any such statement delivered pursuant hereto may be
relied upon by others.
ARTICLE 33
ARBITRATION
33.01. The parties hereto shall not be deemed to have agreed to
determination of any dispute arising out of this Lease by arbitration unless
determination in such manner shall have been specifically provided for in this
Lease.
33.02. The party desiring arbitration shall give notice to that
effect to the other party and shall in such notice appoint a person as
arbitrator on its behalf. Within ten (10) days, the other party by notice to the
original party shall appoint a second person as arbitrator on its behalf. The
arbitrators thus appointed shall appoint a third person, and such three
arbitrators shall as promptly as possible determine such matter, provided,
however that:
(a) If the second arbitrator shall not have been appointed as
aforesaid, the first arbitrator shall proceed to determine such matter; and
(b) If the two arbitrators appointed by the parties shall be
unable to agree, within ten (10) days after the appointment of the second
arbitrator, upon the appointment of a third arbitrator, they shall give written
notice to the parties of such failure to agree, and, if the parties fail to
agree upon the selection of such third arbitrator within ten (10) days after the
arbitrators appointed by the parties give notice as aforesaid, then within five
(5) days thereafter either of the parties upon notice to the other party may
request such appointment by the American Arbitration Association (or any
organization successor thereto), or in it absence, refusal, failure, or
inability to act, may apply for a court appointment of such arbitrator.
33.03. Each arbitrator shall be a fit and impartial person who shall
have had at least five years' experience in a calling connected with the matter
of dispute.
33.04. The arbitration shall be conducted, to the extent consistent
with this Article, in accordance with the then prevailing rules of the American
Arbitration Association (or any organization successor thereto). The arbitrators
shall render their decision and award, upon the concurrence of at least two of
their number, within thirty (30) days after the appointment of the third
arbitrator. Such decision and award shall be in writing and shall be final and
conclusive on the parties, and counterpart copies thereof shall be delivered to
each of the parties. In rendering such decision and award, the arbitrators shall
not add to, subtract from, or otherwise modify the provisions of this Lease.
Judgment may be had on the decision and award of the arbitrator(s) so rendered
in any court of competent jurisdiction. Notwithstanding the foregoing, the
parties hereto agree that such judgment of the arbitrator shall not be binding
and may be the
41
subject of litigation in the Superior Court of New Jersey if it is alleged that
the arbitrator made a mistake of fact or law.
33.05. Each party shall pay the fees and expenses of the one of the
two original arbitrators appointed by or for such party and the fees and
expenses of the third arbitrator and all other expenses of the arbitration
(other than the fees and disbursement of attorneys or witnesses for each party)
shall be borne by the parties equally.
33.06. Notwithstanding the provisions of this Article, if any delay
in complying with any requirements of this Lease by Tenant might subject
Landlord to any fine or penalty, or to prosecution for a crime, or if it would
constitute a default by Landlord under any mortgage, Landlord may exercise its
right under Article 29, to remedy such default and in such event the sole
question to be determined by the arbitrators under this Article, shall be
whether Tenant is liable for Landlord's cost and expenses of curing such
default.
ARTICLE 34
NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW
34.01. Tenant expressly acknowledges and agrees that Landlord has
not made and is not making, and Tenant, in executing and delivering this Lease,
is not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease. It is
understood and agreed that all understandings and agreements heretofore had
between the parties are merged in the Lease, which alone fully and completely
express their agreements and that the same are entered into after full
investigation, neither party relying upon any statement or representation not
embodied in the Lease made by the other.
34.02. If any of the provisions of this Lease, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
34.03. This Lease shall be governed in all respects by the laws of
the State of New Jersey.
ARTICLE 35
SECURITY
INTENTIONALLY DELETED
42
ARTICLE 36
PARTIES BOUND
36.01. The obligation of this Lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to, except that no violation of
the provisions of Article 8 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 24.
However, the obligations of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in event of such
transfer said obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee of the Building,
but only with respect to the period ending with a subsequent transfer within the
meaning of this Article.
36.02. If Landlord shall be an individual, joint venture, tenancy in
common, partnership, unincorporated association, or other unincorporated
aggregate of individuals and/or entities or a corporation, Tenant shall look
only to such Landlord's estate and property in the Building (or the proceeds
thereof), all consideration received by Landlord from the sale or the
disposition of any part of Landlord's right, title and interest in the Building,
all available condemnation awards and insurance proceeds not used for
restoration, but subject to the rights of the mortgagee and, where expressly so
provided in this Lease, to offset against the rents payable under this Lease for
the collection of a judgment (or other judicial process) which requires the
payment of money by Landlord in the event of any default by Landlord hereunder.
No other property or assets of such Landlord shall be subject to levy, execution
or other enforcement procedure for the satisfaction of Tenant's remedies under
or with respect to this Lease, the relationship of Landlord and Tenant hereunder
or Tenant's use or occupancy of the Demised Premises. Further, Tenant agrees
that Landlord shall not be liable to Tenant for any special, indirect, or
consequential damages arising out of Landlord's breach of this Lease.
36.03. Landlord agrees that Tenant shall not be liable to Landlord
for any special, indirect or consequential damages arising out of Tenant's
breach of this Lease, however, rents, restoration charges, interest, late
charges, fees, reimbursements, damages incurred by Landlord as a result of
Tenant holding over and other damages provided for in Article 26 shall not be
considered special, indirect or consequential damages.
ARTICLE 37
CONSENTS
37.01. Wherever it is specifically provided in this Lease that a
party's consent is not to be unreasonably withheld, a response to a request for
such consent shall also not be unreasonably delayed, If either Landlord or
Tenant considers that the other had unreasonably withheld or delayed a consent,
it shall so notify the other party within ten (10) days after receipt
43
of notice of denial of the requested consent or, in case notice of denial is not
received, within twenty (20) days after making its request for the consent.
ARTICLE 38
MORTGAGE FINANCING - TENANT COOPERATION
38.01. In the event that Landlord desires to seek mortgage financing
secured by the Demised Premises, Tenant agrees to cooperate with Landlord in the
making of any application(s) by Landlord for such financing including the
delivery to Landlord's mortgage broker or mortgagee, of such information as they
shall require with respect to Tenant's occupancy of the Demised Premises,
including, but not limited to the current financial statement of Tenant, but
Tenant shall not be required to deliver such information directly to Landlord,
all of the above to be at no cost and expense of Tenant. In the event that
Landlord's mortgagee shall request changes to the within Lease in order to make
same acceptable to Landlord's mortgagee, Tenant agrees to consent to such
changes, provided such changes shall not affect the term of this Lease nor the
financial obligations of Tenant hereunder nor otherwise adversely affect
Tenant's rights hereunder. The request by such mortgagee for notice of
Landlord's defaults and reasonable opportunity to cure shall not be deemed
adverse.
ARTICLE 39
ENVIRONMENTAL COMPLIANCE
39.01. Tenant shall, at Tenant's sole cost and expense, comply with
the New Jersey Industrial Site Recovery Act and the regulations promulgated
thereunder (referred to as "ISRA") as same relate to Tenant's occupancy of the
Demised Premises, as well as all other state, federal or local environmental
law, ordinance, rule, or regulation either in existence as of the date hereof or
enacted or promulgated after the date of this Lease, that concern the
management, control, discharge, treatment and/or removal of hazardous discharges
or otherwise affecting or affected by Tenant's use and occupancy of the Demised
Premises. Tenant represents that Tenant's SIC number does not subject it to
ISRA. Tenant shall, at Tenant's own expense, make all submissions to, provide
all information to, and comply with all requirements of the Bureau of Industrial
Site Evaluation (the "Bureau") of the New Jersey Department of Environmental
Protection ("NJDEP"). Should the Bureau or any other division of NJDEP, pursuant
to any other environmental law, rule, or regulation, determine that a cleanup
plan be prepared and that a cleanup be undertaken because of any spills or
discharge of hazardous substances or wastes at the Demised Premises which occur
during the term of this Lease and were caused by Tenant or its agents or
contractors, then Tenant shall, at Tenant's own expense prepare and submit the
required plans and financial assurances, and carry out the approved plans. In
the event that Landlord shall have to comply with ISRA by reason of Landlord's
actions, Tenant shall promptly provide all information requested by Landlord for
preparation of non-applicability affidavits or a Negative
44
Declaration and shall promptly sign such affidavits when requested by Landlord.
Tenant shall indemnify, defend, and save harmless Landlord from all fines,
suits, procedures, claims, and actions of any kind arising out of or in any way
connected with any spills or discharges of hazardous substances or wastes at the
Demised Premises which occur during the term of this Lease and were caused by
Tenant or its agents or contractors, and from all fines, suits, procedures,
claims, and actions of any kind arising out of Tenant's failure to provide all
information, make all submissions and take all actions required by the Bureau or
any other division of NJDEP. Tenant's obligations and liabilities under this
Paragraph shall continue so long as Landlord remains responsible for any spills
or discharges of hazardous substances or wastes at the Demised Premises which
occur during the term of this Lease and were caused by Tenant or its agents or
contractors. Tenant's failure to abide by the terms of this paragraph shall be
restrainable by injunction. Tenant shall have no responsibility to obtain a
"Negative Declaration" or "Letter of Non-Applicability" from the NJDEP if the
sole reason for obtaining same is in connection with a sale or other disposition
of the real estate by Landlord but Tenant agrees to cooperate with Landlord in
Landlord's effort to obtain same and shall perform at Tenant's expense any clean
up required by reason of Tenant's use and occupancy of the Demised Premises.
ARTICLE 40
HOLDING OVER
40.01. Tenant will have no right to remain in possession of all or
part of the Demised Premises after the expiration of the term. If Tenant remains
in possession of all or any part of the Demised Premises after the expiration of
the Lease, without the express consent of Landlord: (a) such tenancy will be
deemed to be a periodic tenancy from month-to-month only; (b) such tenancy will
not constitute a renewal or extension of this Lease for any further term; and
(c) such tenancy may be terminated by Landlord upon the earlier of (i) thirty
(30) days prior written notice, or (ii) the earliest date permitted by law. In
such event, monthly rent will be increased to an amount equal to one hundred and
twenty five percent (125%) for the first month of holdover, one hundred and
fifty (150%) for the second month of holdover and two hundred percent (200%)
thereafter of the monthly rent payable during the last month of the term, and
any other sums due under this Lease will be payable in the amount and at the
times specified in this Lease. Such month-to-month tenancy will be subject to
every other term, condition, and covenant contained in this Lease. The
provisions of this Section shall not be construed to relieve Tenant from
liability to Landlord for damages resulting from any such holding over, or
preclude Landlord from implementing summary dispossess proceedings. Tenant
further acknowledges that its failure to perform any restoration required of it
under this Lease shall be deemed the same as its remaining in possession of the
Demised Premises after the expiration of the term, subjecting it to hold-over
rent in accordance with this Article 40.
45
ARTICLE 41
CERTAIN DEFINITIONS AND CONSTRUCTIONS
41.01. For the purpose of this Lease and all agreements supplemental
to this Lease, unless the context otherwise requires, the definitions set forth
in Exhibit F annexed hereto shall be utilized.
41.02. The various terms which are italicized and defined in other
Articles of this Lease or are defined in Exhibits annexed hereto, shall have the
meanings specified in such other Articles and such Exhibits for all purposes of
this Lease and all agreements supplemental thereto, unless the context shall
otherwise require.
41.03. The submission of this Lease for examination does not
constitute a reservation of, or option for, the Demised Premises, and this Lease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord and Tenant.
41.04. The Article headings in this Lease and the Index prefixed to
this Lease are inserted only as a matter of convenience in reference and are not
to be given any effect whatsoever in construing this Lease.
ARTICLE 42
RELOCATION OF TENANT
42.01. Landlord at its sole expense, on at least sixty (60) days
prior written notice, may require Tenant to move from the Demised Premises to
another location of comparable size and decor in the Building. By written notice
to Landlord served within five (5) days of Tenant's receipt of the relocation
notice, Tenant may elect to terminate this Lease in lieu of relocating to the
other space and shall there upon vacate the Demised Premises within the sixty
(60) day period. In the event of any such relocation, Landlord shall be
responsible for the expenses of preparing and decorating the relocated premises
so that they will be substantially similar to the Demised Premises being
relocated at the time of such relocation. Landlord shall also bear the moving
expenses of the relocation, but reserves the right to move Tenant through its
own personnel. Landlord agrees that its right to relocate Tenant shall be
limited to relocating Tenant to the 15th floor. Landlord shall be responsible
for all costs associated with the closing of the stairwell on the 14th floor and
its relocation between the 14th and 15th floor. Notwithstanding the foregoing,
Landlord shall be entitled to rescind its notice of relocation within forty-five
(45) days of its having forwarded to Tenant the notice of relocation or within
forty-eight (48) hours of Tenant having properly elected to terminate this
Lease. In the event Landlord rescinds the notice as aforesaid, this Lease shall
continue in full force and effect.
46
ARTICLE 43
OPTION TO RENEW
43.01. Provided that Tenant is not then in default of the terms,
covenants, and provisions of this Lease beyond any applicable notice and grace
period and opportunity to cure, Landlord hereby grants to Tenant the right to
renew the term of this Lease for one (1) additional period of five (5) years
(the "First Renewal Period") commencing on the day after the initial Expiration
Date upon the same terms and conditions as set forth in this Lease other than
the fixed annual rental which shall be the Fair Market Rental of the Demised
Premises at the time of the commencement of the First Renewal Period. Said fixed
annual rental shall be payable in equal monthly installments in advance on the
first day of each and every month of the First Renewal Period. The base year for
calculation of additional rent for increase in taxes and operating expenses for
the First Renewal Period shall be the assessed valuation of the Land and
Building for the Tax Year in which the First Renewal Period shall commence,
multiplied by the tax rate applicable to such period and the Base Year for
Operating Expenses which shall be the first Operational Year in which the First
Renewal Period shall commence. Tenant shall exercise the within Option by giving
written notice to Landlord not later than nine (9) months prior to the initial
Expiration Date, TIME BEING OF THE ESSENCE. If Tenant fails to give such notice,
Tenant will be deemed to have waived such Renewal Option and the provisions of
this Section shall be null and void.
43.02. Provided that Tenant is not then in default of the terms,
covenants, and provisions of this Lease beyond any applicable notice and grace
periods and has exercised its rights under Section 43.01 with respect to the
First Renewal Period, Landlord hereby grants to Tenant the right to renew the
term of this Lease for a second additional period of five (5) years (the "Second
Renewal Period") commencing on the day after the expiration of the First Renewal
Period upon the same terms and conditions as set forth in this Lease other than
the fixed annual rental which shall be the Fair Market Rental of the Demised
Premises at the time of the commencement of the Second Renewal Period. Said
fixed annual rental shall be payable in equal monthly installments in advance on
the first day of each and every month of the Second Renewal Period. The base
year for calculation of additional rent for increase in taxes and operating
expenses for the Second Renewal Period shall be the assessed valuation of the
Land and Building for the Tax Year in which the Second Renewal Period shall
commence, multiplied by the tax rate applicable to such period and the Base Year
for Operating Expenses which shall be the first Operational Year in which the
Second Renewal Period shall commence. Tenant shall exercise the within Option by
giving written notice to Landlord not later than nine (9) months prior to the
expiration of the First Renewal Period, TIME BEING OF THE ESSENCE. If Tenant
fails to give such notice, Tenant will be deemed to have waived such Renewal
Option and the provisions of this Section shall be null and void.
47
43.03. Fair Market Value shall mean the rents obtainable for
comparable space in the Metro Park, Edison, New Jersey market area.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
WITNESS: LANDLORD:
THORNALL ASSOCIATES, L.P.,
a New Jersey Limited Partnership
/s/ Michael Alfieri
- ---------------------------- ----------------------------------------
By: Michael Alfieri
Title: Partner
ATTEST: TENANT:
PXRE CORPORATION,
a Delaware Corporation
/s/ Sanford M. Kimmel
- ---------------------------- ----------------------------------------
By: Sanford M. Kimmel
Title: Senior V.P. & Treasurer
48
EXHIBIT A
DESCRIPTION OF LAND
399 THORNALL STREET
ALL that certain tract, lot and parcel of land lying and being in the Township
of Edison, County of Middlesex, and State of New Jersey being more particularly
described as follows:
BEGINNING at a point in the Southeasterly Right-of-Way line of Thornall Street,
distant Southwestwardly 1,234.34 feet from the intersection formed by the
Southeasterly Right-of-Way line of Thornall Street, with the Southwesterly
Right-of-Way line of Wood Avenue South and from said beginning point running
thence:
1. South 43 degrees 27 minutes 01 seconds East along the common line between
lot 2-B-1 and Lot 2-B-4 in Block 676, as shown on the current Township of
Edison Tax Map 919.28 feet to a point; running thence
2. South 55 degrees 02 minutes 33 seconds West, along the common line between
Lot 2-B-4 and Lot 5 in Block 676, as shown on said Tax Map, 134.80 feet to
an angle point; running thence
3. South 31 degrees 14 minutes 31 seconds West, 99.16 feet to a point;
running thence
4. North 53 degrees 23 minutes 59 seconds West, 612.14 feet to a point;
running thence
5. North 36 degrees 36 minutes 01 seconds East, 76.19 feet to a point;
running thence
6. North 53 degrees 23 minutes 59 seconds West 264.80 feet to a point in the
new southeasterly Right-of-Way line of Thornall Street; running thence
7. Northeastwardly along the new southeasterly Right-of-Way line of Thornall
Street, along a curve to the left having a radius of 4,694.00 feet and an
arc length of 42.71 feet to a point of tangency; thence running
8. North 31 degrees 44 minutes 10 seconds East, continuing along said
Right-of-Way line of Thornall Street, 32.06 feet to a point of curvature;
running thence
9. Northeastwardly still along the above mentioned new Right-of-Way line of
Thornall Street, along a curve to the right, having a radius of 894.19
feet, an arch length of 235.66 feet to a point, said point being the point
and place of BEGINNING.
Being also known as Lot 2-B-4 in Block 676 on the current Tax Map of the
Township of Edison, Middlesex County, New Jersey.
Subject to easements, restrictions, and covenants of record and such state of
facts as an accurate survey may reveal.
1A
EXHIBIT B
FLOOR PLAN
SEE ATTACHED
1B
[PXRE CORPORATION FLOOR PLAN DIAGRAM]
EXHIBIT B
EXHIBIT C
SEPARATE WORKLETTER
1C
THORNALL ASSOCIATES, AS LANDLORD
PXRE CORPORATION, AS TENANT
EXHIBIT C
LANDLORD'S WORK
1. HVAC - Perimeter baseboard electric heat, central high velocity fan system
which utilizes a minimum of 10% to a maximum of 100% fresh air to maintain
no less than 68 degrees interior at zero degrees exterior, with a 15-mile
per hour wind. Air-cooling shall maintain no more than 78 degrees F dry
bulb with approximately 50% relative humidity when the outdoor conditions
are 91 degrees F dry bulb. The above heating and cooling standard is for
normal office use only which shall be deemed to be one person for every
200 square feet in any given or confined area which shall not include
areas with special HVAC requirements such as computer rooms, conference
rooms, cafeterias, high density or excessive heat producing equipment.
Perimeter baseboard electric heat is used during winter operations and an
air cooling system is utilized during summer operations.
2. Window covering - one (1) building-standard venetian blind per window.
3. Landlord shall complete the interior of the Demised Premises in accordance
with space plans and specifications that shall be supplied by the Tenant.
The location of the space is shown in Exhibit B, dated October 5, 1999.
4. Landlord shall permit Tenant and/or its agents or labor to enter the
Premises prior to the Commencement Date of the Lease upon prior reasonable
written request from Tenant, at a time designated by Landlord consistent
with Landlord's construction schedule in order to install telephone
outlets, data lines and computer equipment for the Computer Room. The
foregoing right to enter prior to the Commencement Date, however, is
conditioned upon Tenant's not interfering with Landlord's labor. If at any
time such entry shall cause disharmony, interference, or union disputes of
any nature whatsoever, or if Landlord shall, in Landlord's sole reasonable
judgment, determine that such entry, such work and the continuance thereof
shall interfere with, hamper or prevent Landlord from proceeding with the
completion of the Demised Premises at the earliest possible date, then
this right of entry may be withdrawn by Landlord immediately upon written
notice to Tenant but shall be reinstated as soon as Landlord deems
Tenant's re-entry practicable. Such entry shall be at Tenant's sole risk.
In the event that Tenant's agents or labor incur any charges from
Landlord, including but not limited to, charges for clean-up costs
necessitated by Tenant's entry, such charges shall be deemed an obligation
of Tenant and shall be collectible as additional rent pursuant to the
Lease. Landlord shall have no liability for any furnishings, equipment or
other items placed in the Demised Premises and Tenant shall indemnify,
defend and hold Landlord harmless for any damage, loss or expense caused
by it or its contractors or agents. Tenant shall also provide evidence of
insurance in accordance with the Lease and evidence of Worker's
Compensation Insurance to
-2-
protect Landlord and Tenant during the period of Tenant's entry prior to
the Commencement Date.
5. At any time after substantial completion of Landlord's Work, Landlord,
upon reasonable notice to Tenant, may enter the Demised Premises, at such
times as shall be reasonably acceptable to Landlord and Tenant, to
complete unfinished details of Landlord's Work and entry by Landlord, its
agents, servants, employees or contractors for such purpose shall not
constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents.
6. Tenant further agrees that if an elevator lobby or corridor is included in
Tenant's Demised Premises or if by virtue of the size and configuration of
Tenant's Demised Premises, other tenants of the Building when in the
lobby, elevator or corridor can see into Tenant's Demised Premises through
a demising wall by a glass window, the Landlord shall have the sole and
final decision as to the color and design of all paint, wall coverings and
floor coverings so visible from the lobby, elevator or corridor.
7. The Tenant shall provide the Landlord with a complete set of architectural
and engineering documents to bid and for construction of the Tenant
fit-out. These shall be submitted to the Landlord on or before November
30, 1999. Delivery after November 30, 1999 shall constitute a Tenant
Delay, to the extent Landlord's Work is actually delayed. The Landlord
shall have the right to review and approve these drawings.
8. The Landlord shall provide the Tenant with $23.00 per rentable square foot
for the Tenant's improvements. This allowance shall be used in connection
with the cost of Landlord's Work and for no other purpose of readying the
Demised Premises for occupancy, such as telephone, furniture, or computer
systems.
9. For any costs above the Landlord's Work, the Tenant shall pay the Landlord
a 33% payment with the return of the work authorization to proceed, a 33%
payment thirty (30) days after receipt of the building permit, a 29%
payment upon Landlord's return of a Certificate of Occupancy and a final
5% payment upon Landlord's completion of the punchlist items. The
punchlist shall be delivered by the Tenant to the Landlord within ten
business days after the issuance of a Certificate of Occupancy. The
punchlist items shall be limited to the scope and the extent of the
initial construction fit-out work contained in the construction documents
as provided by the Tenant to the Landlord per Paragraph 7 of Exhibit "C"
above. After notice by the Landlord to the Tenant that the punchlist items
are complete, then the Tenant shall pay the final 5% to the Landlord.
-3-
10. The Landlord shall bid out all the trades to duly qualified
subcontractors. The Tenant may make recommendations to the Landlord for
qualified subcontractors, but the Landlord shall have the final choice as
to which subcontractors are qualified. The Landlord shall pick the low
bidder unless the Landlord and Tenant agree upon a higher bidder. The
final cost for the entire job shall include:
General conditions as defined in Division B10.00 of R. S. Means
Construction Cost Data, as applicable to the Tenant's fit-out
project
All of the subcontractors' bids
All demolition work shall be performed by the Landlord
Overhead at 13% of the general conditions and the subcontractors'
bids above
Profit at 10% of all the items listed above
Architectural fees, if any
All charges associated with the review of mechanical, electrical,
sprinkler, plumbing and structural engineering documents, if any
11. The Tenant shall be responsible for the telephone and computer
installation. The Landlord shall coordinate the timing of these items with
the Tenant. The Landlord shall not charge any overhead fees or profit for
such coordination work.
12. All changes to Landlord's Work requested by Tenant shall be in writing.
Landlord shall advise Tenant before accepting the change, of the cost
thereof or, if applicable, the savings and the delay in the substantial
completion, if any, caused by the change and, for any major changes to
Landlord's Work, any additional restoration requirements, if any. Tenant
shall have five (5) days from receipt of this information from Landlord to
advise Landlord to proceed with the change or to withdraw the request.
Tenant shall pay the cost of the change order within thirty (30) days
after receipt of Landlord's invoice with respect to such change if there
shall be an increased cost to Landlord as a result thereof.
13. The Landlord shall provide seven (7) watts per rentable square foot for
the Tenant's electric in the suite, exclusive of HVAC.
14. The Tenant shall have the option to install a stairwell between the 12th
and 14th Floors, subject to the review and approval by the Landlord of its
location and for approval by the Landlord of the architectural and
engineering drawings for the stairwell, which location has been approved
by Landlord as set forth in the plan, titled PL-1A, dated July 15, 1999.
15. The Landlord will provide a location for the supplemental HVAC outside the
building.
EXHIBIT D
CLEANING AND MAINTENANCE SPECIFICATIONS
Landlord will provide building standard cleaning services to the tenant area and
the ground floor lobby area in accordance with the following specifications:
NIGHTLY
1. GENERAL CLEANING
a. Empty all waste and recycling receptacles, removing waste and
recycling material to designated central location for disposal.
b. Empty and damp wipe clean all ashtrays. Screen and clean all sand
urns, wipe exterior of sand urns.
c. Wash and disinfect all water coolers and drinking fountains.
d. Wipe clean fingermarks, smudges, etc. from all doors, security
desks, wall surfaces, furniture system trim, fixtures, cabinets,
files, conference tables, chairs, partition glass, flat ledges,
heating units, baseboards, blinds and window ledges.
e. Replace plastic liners in all waste-disposal cans.
f. Hand brush and/or vacuum all upholstered furniture, including
furniture system fabric panels.
g. Doors: Wash and wipe clean all kick panels, push/pull areas.
h. Wash and disinfect all public telephones.
i. Wipe down mail chute and mail depository nightly.
j. Clean all Tenant's interior stairways.
2. FLOORS
Group A - Ceramic tile, marble, terrazzo.
1D
Group B - Linotile, asphalt, koroseal, plastic vinyl, rubber, wood,
cork, or other types of floors and base.
a. All floors in Group A to be swept and wet-mopped. Move light
furniture, planters and equipment other than desks and files.
b. All floors in Group B to be dry mopped, using a "dustdown"
preparation, and spots to be removed by wet process.
c. Main lobby to be machine buffed nightly.
3. VACUUMING
a. Vacuum all rugs and carpeted areas, moving light furniture and
office equipment other than desks and file cabinets. Spot clean to
remove soluble spots which safely respond to standard spotting
procedures without risk of injury to color or fabric.
4. WASHROOMS AND TOILETS
a. Sweep, mop, rinse, and dry floors. Polish mirrors, chrome plumbing
and bright-work. Clean enameled surfaces.
b. Wash and disinfect basins, urinals, and bowls using scouring powder
to remove stains, making certain to clean undersides of rims of
urinals and bowls.
c. Wash and disinfect both sides of all toilet seats.
d. Supply and service all toilet tissue, soap, towels, and sanitary
napkins. Sanitary napkins will be supplied in coin operated
dispensers.
e. All wastepaper cans and all receptacles are to be emptied and new
plastic liners installed.
f. Hand dust and wash clean all partitions, tile walls, dispensers, and
receptacles in lavatories and vanity area.
g. Empty and clean sanitary disposal receptacles and install new
plastic liners.
5. ELEVATORS
2D
a. Clean the floor in accordance with specifications outlined above
based upon the type of flooring installed. The doors, metal wall
surfaces, wood wall surfaces, ceiling and fixtures shall be dusted.
6. GLASS
a. Clean both sides of all lobby glass, building entrance doors, upper
lobby glass, furniture system partition glass and interior wall
glass.
7. STAIRWELLS
a. Check all stairwells and landings nightly throughout entire demised
area, and keep in clean condition. All stairways and landings will
be dry mopped nightly. Railings, ledges, and equipment will be
dusted nightly.
WEEKLY
8. GENERAL CLEANING
a. Hand dust all office equipment, furniture, fixtures, including
paneling, shelving, window sills and mullions, telephones and all
flat surfaces with a treated cloth or yarn duster.
9. FLOORS
a. Floors in Group B will be wet mopped weekly.
10. WASHROOMS AND TOILETS
a. Wash down walls in washrooms and stalls, from trim to floor.
11. ELEVATORS
a. The doors, surfaces and fixtures shall be damp wiped. The floors
shall be stripped, waxed and machine buffed weekly.
12. STAIRWAYS
a. These areas shall be stripped, waxed and buffed weekly. This will be
governed by the amount of wear due to weather and other conditions.
13. MAIN LOBBY
3D
a. Clean walls with damp cloth and dust weekly.
MONTHLY
14. FLOORS
a. Waxing, buffing, stripping or machine scrubbing of the floors in
Group A and B.
15. HIGH DUSTING
a. Dust all closet shelving and wash all closet floors, when
accessible.
QUARTERLY
16. GLASS
a. Clean inside of windows.
17. HIGH DUSTING
a. Damp dust all pictures, charts, graphs, light fixtures, etc., not
reached in nightly cleaning.
b. Dust clean all vertical surfaces such as walls, partitions, doors,
door bucks and other surfaces not reached in nightly cleaning.
c. Damp dust air conditioning diffusers, wall grills, door louvers,
registers and venetian blinds.
SEMI ANNUALLY
18. GLASS
a. Clean all doors and exterior side of exterior windows.
ANNUALLY
19. HIGH DUSTING
a. Dust interior and exterior of light fixtures.
4D
MISCELLANEOUS
a. On completion of work, all slop sinks are to be thoroughly cleaned,
and cleaning equipment to be stored neatly in designated locations.
b. All cleaning services except those performed by day porters, window
cleaners, and matrons are to be performed nightly, five nights per
week. No Saturday, Sunday or Building holiday service to be
provided. In no event shall performance of any cleaning service
interfere with Tenant's normal business operation.
c. The Contractor or Landlord is to furnish all necessary approved
cleaning materials, implements, and machinery for the satisfactory
completion of the work. This includes scaffolding, vacuum machines,
scrubbing machines, etc.
d. Contractor shall furnish proof of liability and property damage
insurance reasonably acceptable to Landlord, and Workman's
Compensation Insurance in amounts required under the laws of New
Jersey.
e. Tenant will be charged for cleaning services in excess of the
specifications outlined above.
f. Tenant will be charged for the incremental cost to clean any areas
of the Demised Premises used for special purposes requiring more
difficult cleaning work than office areas including, but not limited
to, private toilets and showers, dining areas, cafeteria, kitchen,
etc.
5D
EXHIBIT E
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, elevators, and
escalators of the Building are limited to ingress to and egress from the
tenants' demised premises for the tenants and their employees, licensees, and
invitees, and no tenant shall use or permit the use of the entrances, corridors,
escalators, or elevators for any other purpose. No tenant shall invite to the
tenant's demised premises, or permit the visit of, persons in such numbers or
under such conditions as to interfere with the use and enjoyment of any of the
plazas, entrances, corridors, escalators, elevators, and other facilities of the
Building by other tenants. Fire exits and stairways are for emergency use only,
and they shall not be used for any other purpose by the tenants, their
employees, licensees, or invitees. No tenant shall encumber or obstruct, or
permit the encumbrance or obstruction of any of the sidewalks, plazas,
entrances, corridors, escalators, elevators, fire exits, or stairways of the
Building. The Landlord reserves the right to control and operate the public
portions of the Building and the public facilities , as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of the tenants generally.
2. The Landlord may refuse admission to the Building outside of
ordinary business hours to any person not having a pass issued by the Landlord
or the tenant whose demised premises are to be entered or not otherwise properly
identified, and may require all persons admitted to or leaving the Building
outside of ordinary business hours to register. Any person whose presence in the
Building at any time shall, in the judgment of the Landlord, be prejudicial to
the safety, character, reputation, and interests of the Building or of its
tenants may be denied access to the Building or may be ejected therefrom. In
case of invasion, riot, public excitement, or other commotion, the Landlord may
prevent all access to the Building during the continuance of the same, by
closing the doors or otherwise, for the safety of the tenants and protection of
property of the Building. The Landlord may require any person leaving the
Building with any package or other object to exhibit a pass from the tenant from
whose premises the packaging or object is being removed, but the establishment
and enforcement of such requirement shall not impose any responsibilities on the
Landlord for the protection of any tenant against the removal of property from
the premises of the tenant. The Landlord shall in no way be liable to any tenant
for damages or loss arising from the admission, exclusion, or ejection of any
person to or from the tenant's premises or the Building under the provisions of
this rule. Canvassing, soliciting, or peddling in the Building is prohibited,
and every tenant shall cooperate to prevent the same.
3. No tenant shall obtain or accept for use in its demised premises
ice, food for on premises preparation other than warming, beverage towel,
barbering, boot blackening, floor polishing, lighting maintenance, cleaning, or
other similar services from any persons not authorized by the Landlord in
writing to furnish such services, provided that the charges for such services by
persons authorized by the Landlord are not excessive and where appropriate and
1E
consonant with the security and proper operation of the Building sufficient
persons are so authorized for the same service to provide tenants with a
reasonably competitive selection. Such services shall be furnished only at such
hours, in such places within the Tenant's Demised Premises and under such
reasonable regulations as may be fixed by the Landlord. Tenant may have a coffee
service, subject to Landlord's approval, and a kitchen for the use of its
employees commensurate with normal office use.
4. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or the employees, licensees, or invitees of the
tenant shall be paid by such tenant.
5. No lettering, sign, advertisement, notice or object shall be
displayed in or on the windows or doors, or on the outside of any tenant's
demised premises, or at any point inside any tenant's premises where the same
might be visible outside of such demised premises, except that the name of the
tenant may be displayed on the entrance door of the tenant's demised premises,
and in the elevator lobbies of the floors which are occupied entirely by any
tenant, subject to the approval of the Landlord as to the size, color, and style
of such display. The inscription of the name of the tenant on the door of the
tenant's demised premises shall be done by the Landlord at the expense of the
tenant.
6. No awnings or other projections over or around the windows shall
be installed by any tenant, and only such window blinds as are supplied or
permitted by the Landlord shall be used in a tenant's demised premises.
Linoleum, tile, or other floor covering shall be laid in a tenant's demised
premises only in a manner approved by the Landlord.
7. The Landlord shall have the right to prescribe the weight and
position of safes and other objects of excessive weight, and no safe or other
object whose weight exceeds the lawful load for the area upon which it would
stand shall be brought into or kept upon a tenant's demised premises. If, in the
judgment of the Landlord, it is necessary to distribute the concentrated weight
of any heavy object, the work involved in such distribution shall be done at the
expense of the tenant and in such manner as the Landlord shall determine. The
moving of safes and other heavy objects shall take place only outside of
ordinary business hours upon the same upon previous notice to the Landlord, and
the persons employed to move the same in and out of the Building shall be
reasonably acceptable to the Landlord and if so required by law, shall hold a
Master Rigger's license. Freight, furniture, business equipment, merchandise,
and bulky matter of any description shall be delivered to and removed from the
demised premises only in the freight elevators and through the service entrances
and corridors, and only during hours and in a manner approved by the Landlord.
Arrangements will be made by the Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building.
8. No machines or mechanical equipment of any kind other than
typewriters and other ordinary portable business machines, may be installed or
operated in any tenant's demised premises without Landlord's prior written
consent, and in no case (even where the same are of a type so accepted or as so
consented to by Landlord) shall any machines or mechanical equipment be so
placed or operated as to disturb other tenants; but machines and mechanical
2E
equipment which may be permitted to be installed and used in a tenant's demised
premises shall be so equipped, installed and maintained by such tenant as to
prevent any disturbing noise, vibration, or electrical or other interference
from being transmitted from such premises to any other area of the Building.
9. No noise, including the playing of any musical instruments, radio
or television, which, in the judgment of the Landlord might disturb other
tenants in the building, shall be made or permitted by any tenant, and no
cooking shall be done in the tenant's demised premises, except as expressly
approved by the Landlord. Nothing shall be done or permitted in any tenants'
demised premises, and nothing shall be brought into or kept in any tenants'
demised premises, which would impair or interfere with any of the Building
services or the proper and economic heating, cleaning, or other servicing of the
Building or the demised premises, or the use of enjoyment by any other tenant of
any other demised premises, nor shall there be installed by any tenant any
ventilating, air conditioning, electrical or other equipment of any kind which,
in the judgment of the Landlord, might cause any such impairment or
interference. No dangerous, inflammable, combustible, or explosive object or
material shall be brought into the building by any tenant or with the permission
of any tenant. Any cuspidors or similar containers or receptacles used in any
tenants' demised premises shall be cared for and cleaned by and at the expense
of the tenant.
10. No acids, vapors, or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures in
or serving any tenant's premises shall not be used for any purpose other than
the purposes for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein.
11. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows in any tenants' demised premises and no lock on any
door therein shall be changed or altered in any respect. Additional keys for a
tenant's demised premises and toilet rooms shall be procured only from the
Landlord, which may make a reasonable charge therefor. Upon the termination of a
tenant's lease, all keys of the tenant's demised premises and toilet rooms shall
be delivered to the Landlord.
12. All entrance doors in each tenants' demised premises shall be
left locked, and all windows shall be left closed by the tenant when the
tenant's demised premises are not in use. Entrance doors shall not be left open
at any time.
13. Hand trucks not equipped with rubber tires and side guards shall
not be used within the Building.
14. All windows in each tenant's demised premises shall be kept
closed and all blinds therein above the ground floor shall be lowered when and
as reasonably required because of the position of the sun, during the operation
of the Building air conditioning system to cool or ventilate the tenant's
demised premises.
3E
EXHIBIT F
DEFINITIONS
(a) The term "mortgage" shall mean an indenture of mortgage and deed
of trust to a trustee to secure an issue of bonds, and the term "mortgagee"
shall mean such a trustee.
(b) The terms "include," "including," and "such as" shall each be
construed as if followed by the phrase "without being limited to."
(c) References to Landlord as having no liability to Tenant or being
without liability to Tenant, shall mean the Tenant is not entitled to terminate
this Lease, or to claim actual or constructive eviction, partial or total, or to
receive any abatement or diminution of rent, or to be relieved in any manner of
any of its other obligations hereunder, or to be compensated
(d) The term laws and/or requirements of public authorities and
words of like import shall mean laws and ordinances of any or all of the
Federal, state, city, county, and borough governments and rules, regulations,
orders and/or directives of any or all departments, subdivisions, bureaus,
agencies, or office thereof, or of any other governmental, public, or
quasipublic authorities, having jurisdiction in the premises, and/or the
direction of any public officer pursuant to law.
(e) The term requirements of insurance bodies and words of like
import shall mean rules, regulations, orders, and other requirements of the New
Jersey Board of Fire Underwriters and/or similar body performing the same or
similar functions and having jurisdiction or cognizance of the Building and/or
the Demised Premises.
(f) The term repair shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition.
(g) Reference to termination of this Lease includes expiration or
earlier termination of the term of this Lease or cancellation of this Lease
pursuant to any of the provisions of this Lease or to law. Upon a termination of
this Lease, the term and estate granted by this Lease shall end at noon of the
date of termination as if such date were the date of expiration of the term of
this Lease and neither party shall have any further obligation or liability to
the other after such termination (i) except as shall be expressly provided for
in this Lease, or (ii) except for such obligation as by its nature or under the
circumstances can only be, or by the provisions of this Lease, may be performed
after such termination and, in any event, unless expressly otherwise provided in
this Lease, any liability for a payment which shall have accrued to or with
respect to any period ending at the time of termination shall survive the
termination of this Lease.
EXHIBIT G
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this _______ day of
________, 199___, by and among _______________________________________ (" Tenant
") and NEW YORK LIFE INSURANCE COMPANY, a New York mutual insurance company [NEW
YORK LIFE INSURANCE AND ANNUITY CORPORATION, a Delaware corporation] ("
Lender"), whose principal address is 51 Madison Avenue, New York, New York, and
THORNALL ASSOCIATES, L.P. ("Landlord").
RECITALS:
A. Lender has made a mortgage loan (the " Loan ") to Landlord in the
amount of $36,000,000 secured by a mortgage (the " Mortgage ") on the real
property legally described in Exhibit "A" attached hereto (the "Premises");
B. Tenant is the present lessee under a lease dated
_______________________ made by Landlord demising a portion of the Premises and
other property (said lease and all amendments thereto being referred to as the
"Lease");
C. The Loan terms require that Tenant subordinate the Lease and its
interest in the Premises in all respects to the lien of the Mortgage and that
Tenant attorn to Lender; and
D. In return, Lender is agreeable to not disturbing Tenant's possession of
the portion of the Premises covered by the Lease (the " Demised Premises "), so
long as Tenant is not in default under the Lease.
NOW THEREFORE, in consideration for the mutual covenants contained herein
and other consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
AGREEMENTS:
1. Subordination. The Lease, and the rights of Tenant in, to and under the
Lease and the Demised Premises, are hereby subjected and subordinated to the
lien of the Mortgage and to any modification, reinstatement, extension,
supplement, consolidation or replacement thereof as well as any advances or
re-advances with interest thereon and to any mortgages or deeds trust on the
Premises which may hereafter be held by Lender.
-2-
2. Tenant Not to be Disturbed. In the event it should become necessary to
foreclose the Mortgage or Lender should otherwise come into possession of title
to the Premises, Lender will not join Tenant in summary or foreclosure
proceedings unless required by law in order to obtain jurisdiction, but in such
event no judgment foreclosing the Lease will be sought, and Lender will not
disturb the use and occupancy of Tenant under the Lease so long as Tenant is not
in default under any of the terms, covenants or conditions of the Lease and has
not prepaid the rent except monthly in advance as provided by the terms of the
Lease.
3. Tenant to Attorn to Lender. Tenant agrees that in the event any
proceedings are brought for foreclosure of the Mortgage, it will attorn to the
purchaser as the landlord under the Lease. The purchaser by virtue of such
foreclosure shall be deemed to have assumed and agreed to be bound, as
substitute landlord, by the terms and conditions of the Lease until the resale
or other disposition of its interest by such purchaser, except that such
assumption shall not be deemed of itself an acknowledgment by such purchaser of
the validity of any then existing claims of Tenant against any prior landlord
(including Landlord). All rights and obligations under the Lease shall continue
as though such foreclosure proceedings had not been brought, except as
aforesaid. Tenant agrees to execute and deliver to any such purchaser such
further assurance and other documents, including a new lease upon the same terms
and conditions of the Lease, confirming the foregoing as such purchaser may
reasonably request. Tenant waives the provisions (i) contained in the Lease or
any other agreement relating thereto and (ii) of any statute or rule of law now
or hereafter in effect which may give or purport to give it any right or
election to terminate or otherwise adversely affect the Lease and the
obligations of Tenant thereunder by reason of any foreclosure proceeding.
4. Limitations. Notwithstanding the foregoing, neither Lender nor such
other purchaser shall in any event be:
(a) liable for any act or omission of any prior landlord (including
Landlord);
(b) obligated to cure any defaults of any prior landlord (including
Landlord) which occurred prior to the time that Lender or such other purchaser
succeeded to the interest of such prior landlord under the Lease;
(c) subject to any offsets or defenses which Tenant may be entitled to
assert against any prior landlord (including landlord);
(d) bound by any payment of rent or additional rent by Tenant to any prior
landlord (including Landlord) for more than one month in advance;
(e) bound by any amendment or modification of the Lease made without the
written consent of Lender or such other purchaser, or
-3-
(f) liable or responsible for, or with respect to, the retention,
application and/or return to Tenant of any security deposit paid to any prior
landlord (including Landlord), whether or not still held by such prior landlord,
unless and until Lender or such other purchaser has actually received for its
own account as landlord the full amount of such security deposit.
5. Acknowledgement of Assignment of Lease and Rent. Tenant acknowledges
that it has notice that the Lease and the rent and all other sums due thereunder
have been assigned or are to be assigned to Lender as security for the Loan
secured by the Mortgage. In the event that Lender notifies Tenant of a default
under the Mortgage and demands that Tenant pay its rent and all other sums due
under the Lease to Lender, Tenant agrees that it will honor such demand and pay
its rent and all other sums due under the Lease directly to Lender or as
otherwise required pursuant to such notice.
6. Limited Liability. Tenant acknowledges that in all events, the
liability of Lender and any purchaser shall be limited and restricted to their
interest in the Premises and shall in no event exceed such interest.
7. Lender's Right to Notice of Default and Option to Cure: Tenant will
give written notice to Lender of any default by Landlord under the Lease by
mailing a copy of the same by certified mail, postage prepaid, addressed as
follows (or to such other address as may be specified from time to time by
Lender to Tenant):
To Lender: New York Life Insurance Company
[New York Life Insurance and Annuity Corporation]
51 Madison Avenue
New York, NY 10010
Attn: Senior Vice President
Mortgage Finance Department
Upon such notice, Lender shall be permitted and shall have the option, in its
sole and absolute discretion, to cure any such default during the period of time
during which the Landlord would be permitted to cure such default, but in any
event, Lender shall have a period of thirty (30) days after the receipt of such
notification to cure such default, provided, however, that in the event Lender
is unable to cure the default by exercise of reasonable diligence within such 30
day period, Lender shall have such additional period of time as may be
reasonably required to remedy such default with reasonable dispatch.
Tenant waives the provisions of any statute or rule of law now or hereafter in
effect which may give or purport to give it any right or election to terminate
or otherwise adversely affect the Lease and the obligations of Tenant thereunder
in connection with any foreclosure proceedings.
-4-
8. Successors and Assigns. The provisions of this Agreement are binding
upon and shall inure to the benefit of the heirs, successors and assigns of the
parties hereof.
IN WITNESS WHEREOF, the parties hereto have executed these presents the
day and year first above written;
WITNESSED: TENANT:
___________________________________________
______________________________ By:________________________________________
Name:______________________________________
______________________________ Title:_____________________________________
LENDER:
NEW YORK LIFE INSURANCE COMPANY
[NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION]
______________________________ By:________________________________________
Name:______________________________________
______________________________ Title:_____________________________________
The terms of the above Agreement are hereby consented, agreed to and
acknowledged.
LANDLORD:
THORNALL ASSOCIATES, L.P.
______________________________ By:________________________________________
Name: Michael Alfieri
______________________________ Title: Partner