EXHIBIT 10.9
500 PLAZA DRIVE CORP.
Landlord,
and
ALGORX PHARMACEUTICALS, INC.
Tenant
LEASE
Premises:
in
500 Plaza Drive, Secaucus, New Jersey
TABLE OF CONTENTS
ARTICLES PAGE
- -------- ----
ARTICLE 1 - DEFINITIONS................................................... 4
ARTICLE 2 - DEMISE AND TERM............................................... 10
ARTICLE 3 - RENT.......................................................... 10
ARTICLE 4 - USE OF DEMISED PREMISES....................................... 11
ARTICLE 5 - PREPARATION OF DEMISED PREMISES............................... 11
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS............................ 13
ARTICLE 7 - COMMON AREAS.................................................. 14
ARTICLE 8 - SECURITY...................................................... 15
ARTICLE 9 - SUBORDINATION................................................. 16
ARTICLE 10 - QUIET ENJOYMENT.............................................. 17
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING........................ 18
ARTICLE 12 - COMPLIANCE WITH LAWS......................................... 21
ARTICLE 13 - INSURANCE AND INDEMNITY...................................... 22
ARTICLE 14 - RULES AND REGULATIONS........................................ 24
ARTICLE 15 - ALTERATIONS.................................................. 24
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY............................. 26
ARTICLE 17 - REPAIRS AND MAINTENANCE...................................... 26
ARTICLE 18 - ELECTRIC ENERGY.............................................. 27
ARTICLE 19 - HEAT, VENTILATION AND AIR-CONDITIONING....................... 28
ARTICLE 20 - OTHER SERVICES; SERVICE INTERRUPTION......................... 29
ARTICLE 21 - ACCESS, CHANGES AND NAME..................................... 29
ARTICLE 22 - MECHANICS' LIENS AND OTHER LIENS............................. 30
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ARTICLE 23 - NON-LIABILITY ................................................ 31
ARTICLE 24 - DAMAGE OR DESTRUCTION......................................... 31
ARTICLE 25 - EMINENT DOMAIN................................................ 34
ARTICLE 26 - SURRENDER..................................................... 35
ARTICLE 27 - CONDITIONS OF LIMITATION...................................... 35
ARTICLE 28 - RE-ENTRY BY LANDLORD.......................................... 36
ARTICLE 29 - DAMAGES....................................................... 37
ARTICLE 30 - AFFIRMATIVE WAIVERS........................................... 40
ARTICLE 31 - NO WAIVERS.................................................... 40
ARTICLE 32 - CURING TENANT'S DEFAULTS...................................... 40
ARTICLE 33 - BROKER........................................................ 41
ARTICLE 34 - NOTICES....................................................... 41
ARTICLE 35 - ESTOPPEL CERTIFICATES......................................... 41
ARTICLE 36 - ARBITRATION................................................... 42
ARTICLE 37 - MEMORANDUM OF LEASE........................................... 42
ARTICLE 38 - [INTENTIONALLY OMITTED]....................................... 42
ARTICLE 39 - MISCELLANEOUS................................................. 42
EXHIBITS
Exhibit A - Demised Premises
Exhibit B - Description of Land
Exhibit C - Workletter
Exhibit D - Rules and Regulations
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Exhibit E - Cleaning Specifications
Exhibit F - Letter of Credit
3
LEASE, dated May 10, 2004, between 500 PLAZA DRIVE CORP., a New Jersey
corporation having an office at 400 Plaza Drive, P.O. Box 1515, Secaucus, New
Jersey 07096-1515 ("Landlord"), and ALGORX PHARMACEUTICALS, INC., a Delaware
corporation having an office at 101 Interchange Plaza, Suite 102, Cranbury, New
Jersey 08512 ("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Advance Rent: $20,494.92.
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
C. Architect: As Landlord may designate.
D. Base Year: The first full year (i.e. first 12 calendar months) of the
Term.
E. Broker: Cushman & Wakefield of New Jersey, Inc.
F. Building: The building or buildings now or hereafter located on the
Land and known or to be known as 500 Plaza Drive, Secaucus, New Jersey.
G. Building Fraction: a fraction the numerator of which is the Floor Space
of the Building (approximately 445,700 square feet) and the denominator of which
is the aggregate Floor Space of the buildings in the Development. If the
aggregate Floor Space of the buildings in the Development shall be changed due
to any construction or alteration, the denominator of the Building Fraction
shall be increased or decreased to reflect such change.
H. Business Days: All days except Saturdays, Sundays, days observed by the
federal or state government as legal holidays and such other holidays as shall
be designated as holidays by the applicable building service union employees'
service contract or by the applicable operating engineers' contract.
I. Business Hours: Generally customary daytime business hours, but not
before 8:00 A.M. or after 6:00 P.M.
J. Calendar Year: Any twelve-month period commencing on a January 1.
K. Commencement Date: The earlier of (a) the date on which both: (i) the
Demised Premises shall be Ready for Occupancy, and (ii) actual possession of the
Demised Premises shall have
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been delivered to Tenant by notice to Tenant, or (b) the date Tenant, or anyone
claiming under or through Tenant, first occupies the Demised Premises or any
part thereof for any purpose other than the performance of Tenant's Work. It is
anticipated that the Commencement Date shall occur on or about August 1, 2004.
L. Common Areas: All areas, spaces and improvements in the Building and on
the Land which Landlord makes available from time to time for the common use and
benefit of the tenants and occupants of the Building and which are not
exclusively available for use by a single tenant or occupant, including, without
limitation, parking areas, roads, walkways, sidewalks, landscaped and planted
areas, community rooms, if any, the managing agent's office, if any, and public
rest rooms, if any.
M. Demised Premises: The space that is or will be located on the second
(2nd) floor of the Building and that is indicated on the floor plan(s) attached
hereto as Exhibit A. The Demised Premises contains or will contain approximately
10,693 square feet of Floor Space.
N. Development: All lands and improvements now existing or hereafter
constructed, in which Landlord or its related entities has an interest, located
north of Route 3, east of the eastern spur of the New Jersey Turnpike, south of
69th Street and west of West Side Avenue.
O. Development Common Areas : The roads and bridges that from time to time
service and provide access to the Development for the common use of the tenants,
invitees, occupants of the Development, that are maintained by Landlord or its
related entities, including the New Jersey Turnpike overpass and the bridge over
Route 3.
P. Expiration Date: The date that is the day before the fifth (5th)
anniversary of the Rent Commencement Date if the Rent Commencement Date is the
first day of a month, or the fifth (5th) anniversary of the last day of the
month in which the Rent Commencement Date occurs if the Rent Commencement Date
is not the first day of a month. However, if the Term is extended by Tenant's
effective exercise of Tenant's right, if any, to extend the Term, the
"Expiration Date" shall be changed to the last day of the last extended period
as to which Tenant shall have effectively exercised its right to extend the
Term. For the purposes of this definition, the earlier termination of this Lease
shall not affect the "Expiration Date."
Q. Fixed Rent: An amount at the annual rate of $23.00 per square foot
multiplied by the Floor Space of the Demised Premises. It is intended that the
Fixed Rent shall be an absolutely net return to Landlord throughout the Term,
free of any expense, charge or other deduction whatsoever, with respect to the
Demised Premises, the Building, the Land and/or the ownership, leasing,
operation, management, maintenance, repair, rebuilding, use or occupation
thereof, or any portion thereof, with respect to any interest of Landlord
therein, except as may otherwise expressly be provided in this Lease.
R. Floor Space: As to the Demised Premises, the sum of the floor area
stated in square feet bounded by the exterior faces of the exterior walls, or by
the exterior or Common Area face of any wall between the Demised Premises and
any portion of the Common Areas, or by the center line of any wall between the
Demised Premises and space leased or available to be leased to a tenant or
occupant plus
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eighteen (18%). Any reference to Floor Space of a building shall mean the floor
area of all levels or stories of such building, excluding any roof, except such
portion thereof (other than cooling towers, elevator penthouses, mechanical
rooms, chimneys and staircases, entrances and exits) as is permanently enclosed,
and including any interior basement level or mezzanine area not occupied or used
by a tenant on a continuing or repetitive basis, and any mechanical room,
enclosed or interior truck dock, interior Common Areas, and areas used by
Landlord for storage, for housing meters and/or other equipment or for other
purposes. Any reference to the Floor Space is intended to refer to the Floor
Space of the entire area in question irrespective of the Person(s) who may be
the owner(s) of all or any part thereof. Notwithstanding anything contained in
the preceding sentence to the contrary, Landlord and Tenant have agreed that for
purposes of this Lease, the Demised Premises as shown on Exhibit A contain
10,693 square feet of Floor Space.
S. Guarantor: None.
T. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Land and
Building, whether now or hereafter in force.
U. Land: The Land upon which the Building and Common Areas are located.
The Land is described on Exhibit B.
V. Landlord's Work: The materials and work to be furnished, installed and
performed by Landlord at its expense in accordance with the provisions of
Exhibit C and as shown and described or Exhibit A.
W. Legal Requirements: Laws and ordinances of all federal, state, city,
town, county, borough and village governments, and rules, regulations, orders
and directives of all departments, subdivisions, bureaus, agencies or offices
thereof, and of any other governmental, public or quasi-public authorities
having jurisdiction over the Land and Building, whether now or hereafter in
force, including, but not limited to, those pertaining to environmental matters.
X. Mortgage: A mortgage and/or a deed of trust.
Y. Mortgagee: A holder of a mortgage or a beneficiary of a deed of trust.
Z. Operating Expenses: The sum of the following: (1) the cost and expense
(whether or not within the contemplation of the parties) for the repair,
replacement, maintenance, policing, insurance and operation of the Building and
Land, and (2) the Building Fraction of the sum of (a) the cost and expense for
the repair, replacement, maintenance, policing, insurance and operation of the
Development Common Areas; (b) the Real Estate Taxes, if any, attributable to the
Development Common Areas; and (3) the Parking Charges. The "Operating Expenses"
shall, include, without limitation, the following: (i) the cost for rent,
casualty, liability, boiler and fidelity insurance, (ii) if an independent
managing agent is employed by Landlord, the fees payable to such agent (provided
the same are competitive with the fees payable to independent managing agents of
comparable facilities in
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Hudson County), and (iii) costs and expenses incurred for legal, accounting and
other professional services (including, but not limited to, costs and expenses
for in-house or staff legal counsel or outside counsel at rates not to exceed
the reasonable and customary charges for any such services as would be imposed
in an arms length third party agreement for such services. In all years
subsequent to Base Year, if Landlord is itself managing the Building and has not
employed an independent third party for such management, Landlord shall be
entitled to an amount equal to three percent (3%) of the gross rental of the
Building for Landlord's home office administration and overhead cost and
expense. (herein, the "Landlord Management Fee"), provided that the Base Year
Operating Expenses shall be revised to include the Landlord Management Fee. All
items included in Operating Expenses shall be determined in accordance with
generally accepted accounting principles consistently applied.
The items making up Operating Expenses shall not include the following:
(i) Costs for which Landlord is specifically reimbursed by Tenant or any
other tenant (other than through operating expense provisions), or by insurance
carried pursuant to this Lease;
(ii) Interest or principal on mortgages of the Land and Building and
costs relating to financing or refinancing, rents under underlying leases or
Superior Leases, and any ground rent, additional rent, or other charges under
underlying leases or Superior Leases, unless otherwise includable in Operating
Expenses (but not in duplication thereof);
(iii) Rent concessions or expenditures for any tenant alteration,
renovation, decoration, redecoration or finish of any other tenant space in the
Building whether performed in connection with the occupancy of such space by a
new tenant or in connection with a renewal of a lease for such space by the
existing tenant thereof or the relocation of a tenant or otherwise with respect
to such tenancy;
(iv) Leasing commissions, marketing, advertising and promotional costs
related to leasing space in the Building and all finder's fees and all other
leasing expenses incurred in procuring tenants including without limitation,
tenant space preparation and relocation costs;
(v) The cost of repairs, replacements or other work incurred by reason of
fire, casualty, or condemnation to the extent same is reimbursed by insurance
proceeds, provided that if any non-reimbursement is due to Landlord's failure to
pay the applicable insurance premiums or Landlord is otherwise at fault for
such non-reimbursement, then such non-reimbursed amounts shall not be included
Operating Expenses;
(vi) Income and franchise taxes of Landlord or its affiliated entities
including corporate, unincorporated business, estate or inheritance tax or
charges imposed upon or assessed against Landlord, provided however, that
nothing in this subsection (vi) shall be deemed to limit the provisions of
Section 6.01 hereof; and
(vii) The cost of electricity (including applicable taxes) and other
utilities furnished directly to leased areas of the Building or other areas of
the Building offered for lease (other than the Demised Premises) as measured by
meters, or if there be no meters, as reasonably determined by Landlord, and the
cost of other utilities furnished to such other leased areas of the Building or
other areas of the
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Building offered for lease (other than the Demised Premises) as measured by
meters or, if there be no meters, as reasonably determined by Landlord.
AA. Parking Charges: The cost and expense of the repair, replacement,
striping, maintenance, policing, insurance, Real Estate Taxes, utilities, and
landscaping attributable to the pro rata share of the parking deck(s) allocated
to the Building. The pro rata share shall be determined based upon the number of
parking spaces allocated to the Building divided by the total number of the
parking spaces in the parking deck(s). The parking charges shall include
expenses attributable only to the parking deck(s) and shall not include expenses
attributable to any other improvements.
BB. Permitted Uses: Executive offices of a character consistent with that
of a first class office building.
CC. Person: A natural person or persons, a partnership, a corporation, or
any other form of business or legal association or entity.
DD. Ready for Occupancy: The condition of the Demised Premises when for
the first time the Landlord's Work shall have been substantially completed and
if Landlord is obligated to obtain same, a temporary, permanent, or continuing
Certificate of Occupancy shall have been issued permitting use of the Demised
Premises for the Permitted Uses. The Landlord's Work shall be deemed
substantially completed notwithstanding the fact that minor or insubstantial
details of construction, mechanical adjustment or decoration remain to be
performed, the noncompletion of which does not materially interfere with
Tenant's use of the Demised Premises or the performance by Tenant of Tenant's
Work.
EE. Real Estate Taxes: The real estate taxes, assessments and special
assessments impose upon the Building and Land by any federal, state, municipal
or other governments or governmental bodies or authorities, and any expenses
incurred by Landlord in contesting such taxes or assessments and/or the
assessed value of the Building and Land, which expenses shall be allocated to
the period of time to which such expenses relate. If at any time during the Term
the methods of taxation prevailing on the date hereof shall be altered so that
in lieu of, or as an addition to or as a substitute for, the whole or any part
of such real estate taxes, assessments and special assessments now imposed on
real estate there shall be levied, assessed or imposed (a) a tax, assessment,
levy, imposition, license fee or charge wholly or partially as a capital levy
or otherwise on the rents received therefrom, or (b) any other such additional
or substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Real Estate
Taxes" for the purposes hereof. Absent an alteration in the method of taxation
as set forth above, and except with respect to charges imposed in lieu of real
estate taxes, assessments and special assessments, "Real Estate Taxes" shall
not be deemed to include Landlord's personal and corporate income taxes,
inheritance and estate taxes, franchise, gift and transfer taxes. Landlord
represents that the Building and the Land do not currently receive the benefit
of any tax abatement or exemption.
FF. Rent: The Fixed Rent and the Additional Charges.
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FF1. Rent Commencement Date: Two months following the Commencement Date.
GG. Rules and Regulations: The reasonable rules and regulations that may
be promulgated by Landlord from time to time, which may be reasonably changed by
Landlord from time to time. The Rules and Regulations now in effect are attached
hereto as Exhibit D.
HH. Security Deposit: $ 184,454 Letter of Credit, subject to reduction as
set forth in Article 8 hereof.
II. Substitute Premises: As defined in Section 38.01.
JJ. Successor Landlord: As defined in Section 9.03.
KK. Superior Lease: Any lease to which this Lease is, at the time referred
to, subject and subordinate.
LL. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
MM. Superior Mortgage: Any Mortgage to which this Lease is, at the time
referred to, subject and subordinate.
NN. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the time
referred to.
OO. Tenant's Fraction: The Tenant's Fraction shall mean the fraction, the
numerator of which shall be the Floor Space of the Demised Premises and the
denominator of which shall be the Floor Space of the Building (presently, 2.4%).
If the size of the Demised Premises or the Building shall be changed from the
initial size thereof, due to any taking, any construction or alteration work or
otherwise, the Tenant's Fraction shall be changed to the fraction the numerator
of which shall be the Floor Space of the Demised Premises and the denominator of
which shall be the Floor Space of the Building. In the event Landlord determines
that Tenant's utilization of any item of Operating Expenses exceeds the fraction
referred to above, Tenant's Fraction with respect to such item shall, at
Landlord's option, mean the percentage of any such item (but not less than the
fraction referred to above) which Landlord reasonably estimates as Tenant's
proportionate share thereof.
PP. Tenant's Property: As defined in Section 16.02.
QQ. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's occupancy.
RR. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
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SS. Unavoidable Delays: A delay arising from or as a result of a strike,
lockout, or labor difficulty, explosion, sabotage, accident, riot or civil
commotion, act of war, fire or other catastrophe, Legal Requirement or an act of
the other party and any cause beyond the reasonable control of that party,
provided that the party asserting such Unavoidable Delay has exercised its best
efforts to minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. Promptly following the
Commencement Date, the parties hereto shall enter into an agreement in form and
substance satisfactory to Landlord setting forth the Commencement Date.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month during the Term
(except that Tenant shall pay, upon the execution and delivery of this Lease by
Tenant, the Advance Rent, to be applied against the first installment or
installments of Fixed Rent becoming due under this Lease). If the Rent
Commencement Date occurs on a day other than the first day of a calendar month,
the Fixed Rent for the partial calendar month at the commencement of the Term
shall be prorated.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other Person, and
any check received by Landlord shall be deemed received subject to collection.
If any check is mailed by Tenant, Tenant shall post such check in sufficient
time prior to the date when payment is due so that such check will be received
by Landlord on or before the date when payment is due. Tenant shall assume the
risk of lateness or failure of delivery of the mails, and no lateness or failure
of the mails will excuse Tenant from its obligation to have made the payment in
question when required under this Lease.
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent 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.
3.04.If Tenant is in arrears in payment of Rent, Tenant waives Tenant's
right, if any, to designate the items to which any payments made by Tenant are
to be credited, and Landlord may apply any payments made by Tenant to such items
as Landlord sees fit, irrespective of and notwithstanding
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any designation or request by Tenant as to the items to which any such payments
shall be credited.
3.05. In the event that any installment of Rent due hereunder shall be
overdue, a "Late Charge" equal to four percent (4%) or the maximum rate
permitted by law, whichever is less ("Late Payment Rate") for Rent so overdue
may be charged by Landlord for each month or part thereof that the same remains
overdue ("Late Payment Rate"). In the event that any check tendered by Tenant to
Landlord is returned for insufficient funds, Tenant shall pay to Landlord, in
addition to the charge imposed by the preceding sentence, a fee of $50.00. Any
such Late Charges if not previously paid shall, at the option of the Landlord,
be added to and become part of the next succeeding Rent payment to be made
hereunder.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
Uses, and Tenant shall not use or permit or suffer the use of the Demised
Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit, other than a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises or any part thereof, Tenant shall duly procure
and thereafter maintain such license or permit and submit the same to Landlord
for inspection. Tenant shall at all times comply with the terms and conditions
of each such license or permit. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy the Demised Premises, or do or permit
anything to be done in the Demised Premises, in any manner which (a) violates
the Certificate of Occupancy for the Demised Premises or for the Building; (b)
causes or is liable to cause injury to the Building or any equipment, facilities
or systems therein; (c) constitutes a violation of the Legal Requirements or
Insurance Requirements; (d) impairs or tends to impair the character, reputation
or appearance of the Building as a first-class office building; (e) impairs or
tends to impair the proper and economic maintenance, operation and repair of the
Building and/or its equipment, facilities or systems; or (f) annoys or
inconveniences or tends to annoy or inconvenience other tenants or occupants of
the Building.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01. (a) The Demised Premises shall be completed and prepared for
Tenant's occupancy in the manner described in, and subject to the provisions of,
Exhibit C and Exhibit A. Tenant shall occupy the Demised Premises promptly after
the same are Ready for Occupancy and possession thereof is delivered to Tenant
by Landlord giving to Tenant a notice of such effect. Except as expressly
provided to the contrary in this Lease, the taking of possession by Tenant of
the Demised Premises shall be conclusive evidence as against Tenant that the
Demised Premises and the Building were in good and satisfactory condition at the
time such possession was taken. Except as expressly provided to the contrary in
this Lease, Tenant is leasing the Demised Premises "as is" on the date hereof.
(b) If Tenant requests, and Landlord agrees to any changes to the working
drawings and/or
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plans and specifications for Landlord's Work, the provisions of Section 5.02
shall apply. Upon Landlord's submission to Tenant of any revised working
drawings and/or plans and specifications for Landlord's Work, Tenant shall,
within ten (10) days of its receipt of working drawings and/or plans and
specifications for Landlord's Work, review and approve the working drawings
and/or plans and specifications for Landlord's Work by giving Landlord written
notice thereof. If Tenant does not respond within said ten (10) day period, the
working drawings and/or plans and specifications for Landlord's Work shall be
deemed approved. If Tenant disapproves of the working drawings, it shall specify
in detail the reasons for its disapproval. If Tenant makes changes in the
working drawings and/or plans and specifications for Landlord's Work, the
provisions of Section 5.02 shall apply. If any agreed upon changes or
modifications are made to the working drawings and/or plans and specifications
for Landlord's Work, within ten (10) days after the revised or modified working
drawings are approved or deemed approved, Landlord shall submit to Tenant prices
for the construction of any items in excess of the originally contemplated
Landlords' Work. Tenant shall, within ten (10) days of its receipt of prices,
review and approve the prices by giving Landlord written notice thereof. If
Tenant does not respond within said ten (10) day period, then the prices shall
be deemed approved. If Tenant disapproves of any prices, the provisions of
Section 5.02 shall apply.
(b) Tenant shall provide Landlord with written notice of any claimed
defects in workmanship or materials in Landlord's Work (except for any defects
in the Demised Premises or the Building which were not known or reasonably
discoverable by Tenant by observation or an inspection ["Latent Defects"]), and
any items of work performed by Landlord of a minor or insubstantial nature
("Punchlist Items") not later than sixty (60) days after Tenant receives notice
from Landlord that the Demised Premises are Ready for Occupancy, and with
respect to any Latent Defects, within sixty (60) days after tenant becomes aware
of such defect. Landlord's obligations with respect to defects in workmanship or
materials in Landlord's Work shall be as set forth in Section 17.04 hereof.
5.02. If the substantial completion of the Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees, agents
or contractors (including, without limitation, [i] any delays due to changes in
or additions to the Landlord's Work, or [ii] any delays by Tenant in the
submission of plans, drawings, specifications or other information or in
approving any working drawings or estimates or in giving any authorizations or
approvals), or (b) any additional time needed for the completion of the
Landlord's Work by the inclusion in the Landlord's Work of any items specified
by Tenant that require long lead time for delivery or installation, then the
Demised Premises shall be deemed Ready for Occupancy on the date when they would
have been ready but for such delay(s).
5.03. [Intentionally Omitted].
5.04. Landlord reserves the right, at any time and from time to time, to
increase, reduce or change the number, type, size, location, elevation, nature
and use of any of the Common Areas and the Building and any other buildings and
other improvements on the Land, including, without limitation, the right to move
and/or remove same, provided same shall not unreasonably block or interfere with
Tenant's means of ingress or egress to and from the Demised Premises.
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ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Tenant shall pay to Landlord, as hereinafter provided, Tenant's
Fraction of the Real Estate Taxes. Tenant's Fraction of the Real Estate Taxes
shall be the Real Estate Taxes in respect of the Building for the period in
question, less the Real Estate Taxes attributable to the Base Year, multiplied
by the Tenant's Fraction, plus the Real Estate Taxes in respect of the Land for
the period in question, less the Real Estate Taxes attributable to the Base
Year, multiplied by the Tenant's Fraction. If any portion of the Building shall
be exempt from all or any part of the Real Estate Taxes, then for the period of
time when such exemption is in effect, the Floor Space on such exempt portion
shall be excluded when making the above computations in respect of the part of
the Real Estate Taxes for which such portion shall be exempt. Landlord shall
estimate the annual amount of Tenant's Fraction of the Real Estate Taxes (which
estimate may be changed by Landlord at any time and from time to time), and
Tenant shall pay to Landlord 1/12th of the amount so estimated on the first day
of each month in advance. Tenant shall also pay to Landlord on demand from time
to time the amount which, together with said monthly installments, will be
sufficient in Landlord's estimation to pay Tenant's Fraction of any Real Estate
Taxes thirty (30) days prior to the date when such Real Estate Taxes shall first
become due. When the amount of any item comprising Real Estate Taxes is finally
determined for a real estate fiscal tax year, Landlord shall submit to Tenant a
statement in reasonable detail of the same, and the figures used for computing
Tenant's Fraction of the same, and if Tenant's Fraction so stated is more or
less than the amount theretofore paid by Tenant for such item based on
Landlord's estimate, Tenant shall pay to Landlord the deficiency within thirty
(30) days after submission of such statement, or Landlord shall, at its sole
election, either refund to Tenant the excess or apply same to future
installments of Real Estate Taxes due hereunder, except that in the last year of
the Term, Landlord shall refund the excess to Tenant within thirty (30) days
after submission of such statement. Any Real Estate Taxes for a real estate
fiscal tax year, a part of which is included within the Term and a part of which
is not so included, shall be apportioned on the basis of the number of days in
the real estate fiscal tax year included in the Term, and the real estate fiscal
tax year for any improvement assessment will be deemed to be the one-year period
commencing on the date when such assessment is due, except that if any
improvement assessment is payable in installments, the real estate fiscal tax
year for each installment will be deemed to be the one-year period commencing on
the date when such installment is due. The above computations shall be made by
Landlord in accordance with generally accepted accounting principles, and the
Floor Space referred to will be based upon the average of the Floor Space in
existence on the first day of each month during the period in question. In
addition to the foregoing, Tenant shall be responsible for any increase in Real
Estate Taxes attributable to assessments for improvements installed by or for
the account of Tenant at the Demised Premises. If the Demised Premises are not
separately assessed, the amount of any such increase shall be determined by
reference to the records of the tax assessor.
6.02. Tenant shall pay to Landlord, as hereinafter provided, Tenant's
Fraction of the Operating Expenses. Tenant's Fraction of the Operating Expenses
shall be the Operating Expenses for the period in question, less the Operating
Expenses for the Base Year, multiplied by Tenant's Fraction]. Landlord shall
estimate Tenant's annual Fraction of the Operating Expenses (which estimate may
be reasonably changed by Landlord from time to time), and Tenant shall pay to
Landlord l/12th of the amount so estimated on the first day of each month in
advance. If at any time Landlord changes its estimate of Tenant's Fraction of
the Operating Expenses for the then current Calendar Year or partial Calendar
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Year, Landlord shall give notice to Tenant of such change and within ten (10)
days after such notice Landlord and Tenant shall adjust for any overpayment or
underpayment during the prior months of the then current Calendar Year or
partial Calendar Year. After the end of each Calendar Year, including any
partial Calendar Year at the beginning of the Term, and after the end of the
Term, Landlord shall submit to Tenant a statement in reasonable detail stating
Tenant's Fraction of the Operating Expenses for such Calendar Year, or partial
Calendar Year in the event the Term shall begin on a date other than a January
1st and/or end on a date other than a December 31st, as the case may be, and
stating the Operating Expenses for the period in question and the figures used
for computing Tenant's Fraction, and if Tenant's Fraction so stated for such
period is more or less than the amount paid for such period, Tenant shall pay to
Landlord the deficiency within thirty (30) days after submission of such
statement, or Landlord shall, at its sole election, either refund to Tenant the
excess or apply same to future installments of Operating Expenses due hereunder,
except that in the last year of the Term, Landlord shall refund the excess to
Tenant within thirty (30) days after submission of such statement. All
computations shall be made in accordance with generally accepted accounting
principles.
6.03. Landlord shall, within thirty (30) days after written request from
Tenant (given no later than ninety (90) days after the issuance of the
Landlord's statement of Real Estate Taxes or Operating Expenses pursuant to
Section 6.01 or 6.02 hereof which Tenant desires to review), provide Tenant with
such information as Tenant may reasonably request to permit Tenant to verify the
charges first appearing in such statement including, without limitation access
to and review of Landlord's relevant books, records and other financial
information. Each such statement given by Landlord pursuant to Section 6.01 or
Section 6.02 shall be conclusive and binding upon Tenant unless before the date
which is ninety (90) days after the receipt of such statement, Tenant shall
notify Landlord in writing that it disputes the correctness of the statement,
specifying the particular respects in which the statement is claimed to be
incorrect. If such dispute is not settled by agreement, either party may submit
the dispute to arbitration as provided in Article 36. Pending the determination
of such dispute by agreement or arbitration as aforesaid, Tenant shall, within
thirty (30) days after receipt of such statement, pay the Additional Charges in
accordance with such statement, without prejudice to Tenant's position. If the
dispute shall be determined in Tenant's favor, Landlord shall credit or
reimburse Tenant the amount of Tenant's overpayment.
ARTICLE 7 - COMMON AREAS
7.01. So long as Tenant is not in monetary default under this Lease,
subject to the provisions of Section 5.04, Landlord will operate, manage, equip,
light, repair and maintain, or cause to be operated, managed, equipped, lighted,
repaired and maintained, the Common Areas for their intended purposes. Landlord
reserves the right, at any time and from time to time, to construct within the
Common Areas kiosks, fountains, aquariums, planters, pools and sculptures, and
to install vending machines, telephone booths, benches and the like, provided
same shall not unreasonably block or interfere with Tenant's means of ingress or
egress to and from the Demised Premises.
7.02. So long as Tenant is not in monetary default under this Lease,
Tenant and its subtenants and concessionaires, and their respective officers,
employees, agents, customers and invitees, shall have the non-exclusive right,
in common with Landlord and all others to whom Landlord has granted or may
14
hereafter grant such right, but subject to the Rules and Regulations, to use the
Common Areas. Landlord reserves the right, at any time and from time to time, to
close temporarily all or any portions of the Common Areas when in Landlord's
reasonable judgment any such closing is necessary or desirable (a) to make
repairs or changes or to effect construction, (b) to prevent the acquisition of
public rights in such areas, (c) to discourage unauthorized parking, or (d) to
protect or preserve natural persons or property. Landlord may do such other acts
in and to the Common Areas as in its reasonable judgment may be desirable to
improve or maintain same.
7.03. Tenant agrees that it, any subtenant or licensee and their
respective officers, employees, contractors and agents will park their
automobiles and other vehicles only where and as permitted by Landlord. Tenant
will, if and when so requested by Landlord, furnish Landlord with the license
numbers of any vehicles of Tenant, any subtenant or licensee and their
respective officers, employees and agents.
ARTICLE 8 - SECURITY
8.01. Tenant has deposited with Landlord the Security Deposit as security
for the full and faithful payment and performance by Tenant of Tenant's
obligations under this Lease. If Tenant defaults in the full and prompt payment
and performance of any of its obligations under this Lease, including, without
limitation, the payment of Rent, Landlord may use, apply or retain the whole or
any part of the Security Deposit to the extent required for the payment of any
Rent or any other sums as to which Tenant is in default or for any sum which
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of Tenant's obligations under this Lease, including, without
limitation, any damages or deficiency in the reletting of the Demised Premises,
whether such damages or deficiency accrue before or after summary proceedings or
other re-entry by Landlord. If Landlord shall so use, apply or retain the whole
or any part of the security, Tenant shall upon demand immediately deposit with
Landlord a sum equal to the amount so used, applied and retained, as security as
aforesaid. If Tenant shall fully and faithfully pay and perform all of Tenant's
obligations under this Lease, the Security Deposit or any balance thereof to
which Tenant is entitled shall be returned or paid over to Tenant after the date
on which this Lease shall expire or sooner end or terminate, and after delivery
to Landlord of entire possession of the Demised Premises. In the event of any
sale or leasing of the Land, Landlord shall have the right to transfer the
security to which Tenant is entitled to the vendee or lessee and Landlord shall
thereupon be released by Tenant from all liability for the return or payment
thereof; and Tenant shall look solely to the new landlord for the return or
payment of the same; and the provisions hereof shall apply to every transfer or
assignment made of the same to a new landlord. Tenant shall not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security, and neither Landlord nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
(b) In lieu of the cash security required by this Lease, Tenant shall
provide to Landlord an irrevocable Letter of Credit in the amount of the
Security Deposit in form and substance satisfactory to Landlord and issued by a
financial institution reasonably approved by Landlord and otherwise conforming
to Exhibit F, annexed hereto and made a part hereof. Landlord shall have the
right, upon written notice to Tenant (except for Tenant's non-payment of Rent or
for Tenant's failure to comply
15
with Article 8.03 for which no notice shall be required), and regardless of the
exercise of any other remedy the Landlord may have by reason of a default, to
draw upon said Letter of Credit to cure any default of Tenant or for any purpose
authorized by section 8.01(a) of this Lease and if Landlord does so, Tenant
shall, upon demand, additionally fund the Letter of Credit with the amount so
drawn so that Landlord shall have the full deposit on hand at all times during
the Term of the Lease and for a period of thirty (30) days' thereafter. In the
event of a sale of the Building or a lease of the Building subject to this
Lease, Landlord shall have the right to transfer the security to the vendee or
lessee.
8.02. The Letter of Credit shall expire not earlier than thirty (30) days
after the Expiration Date of this Lease. Upon Landlord's prior consent, the
Letter of Credit may be of the type which is automatically renewed on an annual
basis (Annual Renewal Date), provided however, in such event Tenant shall
maintain the Letter of Credit and its renewals in full force and effect during
the entire Term of this Lease (including any renewals or extensions) and for a
period of thirty (30) days thereafter. The Letter of Credit will contain a
provision requiring the issuer thereof to give the beneficiary (Landlord) sixty
(60) days' advance written notice of its intention not to renew the Letter of
Credit on the next Annual Renewal Date.
8.03.In the event Tenant shall fail to deliver to Landlord a substitute
irrevocable Letter of Credit, in the amount stated above, on or before thirty
(30) days prior to the next Annual Renewal Date, said failure shall be deemed a
default under this Lease. Landlord may, in its discretion treat this the same as
a default in the payment of Rent or any other default and pursue the appropriate
remedy. In addition, and not in limitation, Landlord shall be permitted to draw
upon the Letter of Credit as in the case of any other default by Tenant under
the Lease.
8.04. Provided Tenant is not in monetary default of its obligations under
this Lease, Landlord shall consent to a reduction of the Security Deposit on
(but not before) each anniversary of the Rent Commencement Date of the Lease in
an amount equal to twenty percent (20%) of the amount of the Security Deposit in
effect on the day immediately preceding such anniversary; provided, however,
that in no event shall the Security Deposit be reduced below $40,989. Such
reductions shall be reflected by reductions in the amount of the Letter of
Credit. In no event however shall the Letter of Credit contain a provision for
its automatic reduction. Landlord agrees to cooperate with Tenant to effect an
orderly and timely reduction and exchange of the Letter of Credit.
ARTICLE 9 - SUBORDINATION
9.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all ground leases and underlying leases of the Land
and/or the Building now or hereafter existing and to all Mortgages which may now
or hereafter affect the Land and/or building and/or any of such leases, whether
or not such Mortgages or leases 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 leases and
such Mortgages and spreaders and consolidations of such Mortgages. The
provisions of this Section 9.01 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the
16
Mortgagee of any such Mortgage or any of their respective successors in interest
may reasonably request to evidence such subordination; and if Tenant fails to
execute, acknowledge or deliver any such instruments within 10 days after
request therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute and deliver any
such instruments for and on behalf of Tenant.
9.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease, as the case may be, to remedy the same (which reasonable period
shall in no event be less than the period to which Landlord would be entitled
under this Lease or otherwise, after similar notice, to effect such remedy),
provided such Superior Mortgagee or Superior Lessor shall with due diligence
give Tenant notice of intention to, and commence and continue to, remedy such
act or omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; (c) be liable
for the return of any Security Deposit, in whole or in part, to the extent that
same is not paid over to the Successor Landlord; or (d) be bound by any previous
modification of this Lease or by any previous prepayment of more than one
month's Fixed Rent or Additional Charges, unless such modification or prepayment
shall have been expressly approved in writing by the Superior Lessor of the
Superior Lease or the Mortgagee of the Superior Mortgage through or by reason of
which the Successor Landlord shall have succeeded to the rights of Landlord
under this Lease.
9.04. If any then present or prospective Superior Mortgagee shall require
any modification(s) of this Lease, Tenant shall promptly execute and deliver to
Landlord such instruments effecting such modification(s) as Landlord shall
request, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights under this Lease.
ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as Tenant pays all of the Rent and performs all of Tenant's
other obligations
17
hereunder, Tenant shall peaceably and quietly have, hold and enjoy the Demised
Premises without hindrance, ejection or molestation by Landlord or any person
lawfully claiming through or under Landlord, subject, nevertheless, to the
provisions of this Lease and to Superior Leases and Superior Mortgages.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease, (b)
sublet the Demised Premises or any part thereof, or offer or advertise to do so,
or allow the same to be used, occupied or utilized by anyone other than Tenant,
or (c) mortgage, pledge, encumber or otherwise hypothecate this Lease in any
manner whatsoever, without in each instance obtaining the prior written consent
of Landlord.
Landlord agrees not to unreasonably withhold its consent to the subletting
of the Demised Premises or an assignment of this Lease. In determining
reasonableness, Landlord may take into consideration all relevant factors
surrounding the proposed sublease and assignment, including, without limitation,
the following: (i) The business reputation of the proposed assignee or subtenant
and its officers or directors in relation to the other tenants or occupants of
the Building or Development; (ii) the nature of the business and the proposed
use of the Demised Premises by the proposed assignee or subtenant in relation to
the other tenants or occupants of the Building or Development; (iii) if Landlord
or any affiliate of Landlord has comparable space available in the Building or
Development, whether the proposed assignee or subtenant is then a tenant (or
subsidiary, affiliate or parent of a tenant) of other space in the Building or
Development; (iv) the financial condition of the proposed assignee or subtenant;
(v) restrictions, if any, contained in leases or other agreements affecting the
Building and the Development; (vi) the effect that the proposed assignee's or
subtenant's occupancy or use of the Demised Premises would have upon the
operation and maintenance of the Building and the Development; (vii) the extent
to which the proposed assignee or subtenant and Tenant provide Landlord with
assurances reasonably satisfactory to Landlord as to the satisfaction of
Tenant's obligations hereunder. In any event, at no time shall there be more
than two (2) subtenants of the Demised Premises permitted.
In the event the Demised Premises are sublet or this Lease is assigned,
Tenant shall pay to Landlord as an Additional Charge the following amounts less
the actual reasonable expense incurred by Tenant in connection with such
assignment or subletting, as substantiated by Tenant, in writing, to Landlord's
reasonable satisfaction, including, without limitation, a reasonable
brokerage fee and reasonable legal fees, as the case may be: (i) in the case of
an assignment, an amount equal to fifty percent (50%) of all sums and other
consideration paid to Tenant by the assignee for or by reason of such
assignment, and (ii) in the case of a sublease, fifty percent (50%) of any
rents, additional charge or other consideration payable under the sublease to
Tenant by the subtenant which is in excess of the Fixed Rent and Additional
Charges accruing during the term of the sublease in respect of the subleased
space (at the rate per square foot payable by Tenant hereunder) pursuant to the
terms hereof.
Notwithstanding anything contained in this Section 11.01 or in 11.02 below
to the contrary, as to the original named Tenant and any Affiliate (as
hereinafter defined) thereof only, Landlord's consent
18
shall not be required for any assignment of this Lease or subletting of the
Demised Premises (or any part thereof) to any Affiliate; provided, however, that
(a) the original named Tenant shall at all times be and remain primarily and
jointly liable under this Lease despite any such subletting or assignment; and
(b) Landlord receives a copy of the proposed instrument that is to accomplish
the subletting and/or assignment and an original of the executed agreement
within ten (10) days of such transfer. For the purposes hereof, Affiliate shall
mean any Person owning or controlling Tenant, or under common ownership or
control with or by Tenant; For purposes hereof, "ownership or control" shall
mean either (i) the legal or beneficial ownership of fifty percent (50%) or more
of the voting stock of any corporation, or, if not a corporation, fifty percent
(50%) of the partnership interest or other form of ownership, or (ii) the sole
ability to direct the day to day affairs of such Person.
11.02. If at any time (a) the original Tenant named herein, (b) the then
Tenant, (c) any Guarantor, or (d) any Person owning a majority of the voting
stock of, or directly or indirectly controlling, the then Tenant shall be a
corporation or partnership, any transfer of voting stock or partnership interest
resulting in the person(s) who shall have owned a majority of such corporation's
shares of voting stock or the general partners' interest in such partnership, as
the case may be, immediately before such transfer, ceasing to own a majority of
such shares of voting stock or general partner's interest, as the case may be,
except as the result of transfers by inheritance, shall be deemed to be an
assignment of this Lease as to which Landlord's consent shall have been
required, and in any such event Tenant shall notify Landlord. The provisions of
this Section 11.02 shall not be applicable to any corporation all the
outstanding voting stock of which is listed on a national securities exchange
(as defined in the Securities Exchange Act of 1934, as amended) or is traded in
the over-the-counter market with quotations reported by the National Association
of Securities Dealers through its automated system for reporting quotations and
shall not apply to transactions with a corporation into or with which the then
Tenant is merged or consolidated or to which substantially all of the then
Tenant's assets are transferred or to any corporation which controls or is
controlled by the then Tenant or is under common control with the then Tenant,
provided that in any of such events (i) the successor to Tenant has a net worth
computed in accordance with generally accepted accounting principles at least
equal to the greater of (1) the net worth of Tenant immediately prior to such
merger, consolidation or transfer, or (2) the net worth of the original Tenant
on the date of this Lease, and (ii) proof satisfactory to Landlord of such net
worth shall have been delivered to Landlord at least 10 days prior to the
effective date of any such transaction. For the purposes of this Section, the
words "voting stock" shall refer to shares of stock regularly entitled to vote
for the election of directors of the corporation. Landlord shall have the right
at any time and from time to time during the Term to inspect the stock record
books of the corporation to which the provisions of this Section 11.02 apply,
and Tenant will produce the same on request of Landlord.
11.03 If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
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 subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 11.01 or
Section 11.02, or the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The
19
consent by Landlord to any assignment, mortgaging, subletting 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 subletting or use or occupancy by others not expressly
permitted by this Article 11. References in this Lease to use or occupancy by
others (that is, anyone other than Tenant) shall not be construed as limited to
subtenants and those claiming under or through subtenants but shall be construed
as including also licensees and others claiming under or through Tenant,
immediately or remotely.
11.04. Any permitted assignment or transfer, whether made with Landlord's
consent pursuant to Section 11.01 or without Landlord's consent if permitted by
Section 11.02, shall be made only if, and shall not be effective until, the
assignee shall execute, acknowledge and deliver to Landlord an agreement in form
and substance satisfactory to Landlord whereby the assignee shall assume
Tenant's obligations under this Lease and whereby the assignee shall agree that
all of the provisions in this Article 11 shall, notwithstanding such assignment
or transfer, continue to be binding upon it in respect to all future assignments
and transfers. Notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
Rent by Landlord from an assignee, transferee, or any other party, the original
Tenant and any other person(s) who at any time was or were Tenant shall remain
fully liable for the payment of the Rent and for Tenant's other obligations
under this Lease.
11.05. The liability of the original named Tenant and any other Person(s)
(including but not limited to any Guarantor) who at any time are or become
responsible for Tenant's obligations under this Lease shall not be discharged,
released or impaired by any agreement extending the time of, or modifying any of
the terms or obligations under this Lease, or by any waiver or failure of
Landlord to enforce, any of this Lease.
11.06. The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Demised Premises,
nor shall it be deemed to be the consent of Landlord to any assignment or
transfer of this Lease or to any sublease of the Demised Premises or to the use
or occupancy thereof by others. Notwithstanding anything contained in this Lease
to the contrary, Landlord shall have the absolute right to withhold its consent
to an assignment or subletting to a Person who is otherwise a tenant or occupant
of the Building, or of a building owned or managed by Landlord or its affiliated
entities, in the event Landlord or its affiliates have a substantially
equivalent sized space for a substantially equivalent term available in the
Building or the Development.
11.07. Without limiting any of the provisions of Article 27, if pursuant
to the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant is permitted to assign this Lease notwithstanding
the restrictions contained in this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of one (1)
year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease, to be held and applied in the manner specified for
security in Section 8.01.
20
11.08. If Tenant shall propose to assign or in any manner transfer this
Lease or any interest therein, or sublet the Demised Premises or any part or
parts thereof, or grant any concession or license or otherwise permit occupancy
of all or any part of the Demised Premises by any person, Tenant shall give
notice thereof to Landlord, together with a copy of the proposed instrument that
is to accomplish same and such financial and other information pertaining to the
proposed assignee, transferee, subtenant, concessionaire or licensee as Landlord
shall require. Notwithstanding anything contained in this Lease to the contrary,
Landlord shall not be obligated to entertain or consider any request by Tenant
to consent to any proposed assignment of this Lease or sublet of all or any part
of the Demised Premises unless each request by Tenant is accompanied by a
non-refundable fee payable to Landlord in the amount of One Thousand Dollars
($1,000.00) to cover Landlord's administrative, legal, and other costs and
expenses incurred in processing each of Tenant's requests. Neither Tenant's
payment nor Landlord's acceptance of the foregoing fee shall be construed to
impose any obligation whatsoever upon Landlord to consent to Tenant's request.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
costs, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 12.01.
However, Tenant need not comply with any such law or requirement of any public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 12.02.
12.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non- compliance or otherwise by reason of such contest;
(b) before the commencement of such contest, Tenant shall furnish to Landlord
either (i) the bond of a surety company reasonably satisfactory to Landlord,
which bond shall be, as to its provisions and form, satisfactory to Landlord,
and shall be in an amount at least equal to 125% of the cost of such compliance
(as estimated by a reputable contractor designated by Landlord) and shall
indemnify Landlord against the cost thereof and against all liability for
damages, interest, penalties and expenses (including reasonable attorneys' fees
and expenses), resulting from or incurred in connection with such contest or
non-compliance, or (ii) other security in place of such bond satisfactory to
Landlord; (c) such non-compliance or contest shall not constitute or result in
any violation of any Superior Lease or Superior Mortgage, or if any such
Superior Lease and/or Superior Mortgage shall permit such non-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 (d) Tenant shall keep Landlord advised as to the status
of such proceedings. Without limiting the application of the above, Landlord
shall be deemed subject to prosecution for a crime if Landlord, or its managing
agent, or any officer, director, partner, shareholder
21
or employee of Landlord or its managing agent, as an individual, is charged with
a crime of any kind or degree whatsoever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or its managing
agent, or such officer, director, partner, shareholder or employee of Landlord
or its managing agent (as the case may be) is required to plead or answer
thereto. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall not file any Real Estate Tax Appeal with respect to the Land,
Building or the Demised Premises.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Landlord shall maintain or cause to be maintained All Risk
insurance in respect of the Building and other improvements on the Land normally
covered by such insurance (except for the property Tenant is required to cover
with insurance under Section 13.02 and similar property of other tenants and
occupants of the Building or buildings and other improvements which are on land
neither owned by nor leased to Landlord) for the benefit of Landlord, any
Superior Lessors, any Superior Mortgagees and any other parties Landlord may at
any time and from time to time designate, as their interests may appear, but not
for the benefit of Tenant, and shall maintain rent insurance as required by any
Superior Lessor or any Superior Mortgagee. The All Risk insurance will be in the
amounts required by any Superior Lessor or any Superior Mortgagee but not less
than the amount sufficient to avoid the effect of the co-insurance provisions of
the applicable policy or policies. Landlord may also maintain any other forms
and types of insurance which Landlord shall deem reasonable in respect of the
Building and Land. Landlord shall have the right to provide any insurance
maintained or caused to be maintained by it under blanket policies.
13.02. Tenant shall maintain the following insurance: (a) commercial
general liability insurance in respect of the Demised Premises and the conduct
and operation of business therein, having a limit of liability not less than a
$5,000,000. per occurrence for bodily injury or property damage, coverage to
include but not be limited to premises/operations, completed operations,
contractual liability and product liability, (b) automobile liability insurance
covering all owned, hired and non-owned vehicles used by the Tenant in
connection with the premises and any loading or unloading of such vehicles, with
a limit of liability not less than $2,000,000 per accident and (c) worker's
compensation and employers liability insurance as required by statutes, but in
any event not less than $500,000. for Employers Liability; (d) All Risk
insurance in respect of loss or damage to Tenant's stock in trade, fixtures,
furniture, furnishings, removable floor coverings, equipment, signs and all
other property of Tenant in the Demised Premises in an amount equal to the full
replacement value thereof as same might increase from time to time or such
higher amount as either may be required by the holder of any fee mortgage, or is
necessary to prevent Landlord and/or Tenant from becoming a co-insurer. Such
insurance shall include coverage for property of others in the care, custody and
control of Tenant in amounts sufficient to cover the replacement value of such
property, to the extent of Tenant's liability therefor; and (e) such other
insurance as Landlord may reasonably require. Landlord may at any time and from
time to time require that the limits for the general liability insurance to be
maintained by Tenant be increased to the limits that new tenants in the Building
are required by Landlord to maintain. Tenant shall deliver to Landlord and any
additional insured(s) certificates for such fully paid-for policies upon
execution hereof. Tenant shall procure and pay for renewals of such insurance
from time to time before the expiration thereof, and Tenant shall deliver to
Landlord and any additional insured(s)
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certificates therefor at least thirty (30) days before the expiration of any
existing policy. All such policies shall be issued by companies acceptable to
Landlord, having a Bests Rating of not less than A, Class VII (or an equivalent
S&P rating if requested by Landlord), and licensed to do business in New Jersey,
and all such policies shall contain a provision whereby the same cannot be
canceled unless Landlord and any additional insured(s) are given at least thirty
(30) days' prior written notice of such cancellation. The policies and
certificates of insurance (such certificates to be on Acord form 27 or its
equivalent) to be delivered to Landlord by Tenant pursuant to this Section 13.02
(other than workers compensation insurance) shall name Landlord as an additional
insured and, at Landlord's request, shall also name any Superior Lessors or
Superior Mortgagees as additional insureds, and the following phrase must be
typed on the certificate of insurance: "500 Plaza Drive Corp., Hartz Mountain
Industries, Inc., and their respective subsidiaries, affiliates, associates,
joint ventures, and partnerships, and (if Landlord has so requested) Superior
Lessors and Superior Mortgagees are hereby named as additional insureds as their
interests may appear. It is intended for this insurance to be primary and
non-contributing." Tenant shall give Landlord at least thirty (30) days' prior
written notice that any such policy is being canceled or replaced. Tenant's
obligations to carry the insurance provided for herein may be brought within the
coverage of a so-called blanket policy of insurance carried and maintained by
Tenant; provided, however, that certificates of insurance are delivered to
Landlord and that Landlord shall be named as an additional insured thereunder,
as its interest may appear, and that the coverage afforded Landlord shall not be
reduced or diminished by reason of the use of such blanket policy of insurance
and, provided further, that the requirements set forth herein are otherwise
satisfied. Tenant agrees to also make available to Landlord, at all reasonable
times, the original policies of insurance, or to provide Landlord with true
copies or summaries thereof reasonably acceptable to Landlord.
13.03. Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy the
Demised Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company or companies whereby the fire insurance
or any other insurance then in effect in respect of the Land and Building or any
part thereof shall become void or suspended or whereby any premiums in respect
of insurance maintained by Landlord shall be higher than those which would
normally have been in effect for the occupancy contemplated under the Permitted
Uses. In case of a breach of the provisions of this Section 13.03, in addition
to all other rights and remedies of Landlord hereunder, Tenant shall (a)
indemnify Landlord and the Superior Lessors and hold Landlord and the Superior
Lessors harmless from and against any loss which would have been covered by
insurance which shall have become void or suspended because of such breach by
Tenant and (b) pay to Landlord any and all increases of premiums on any
insurance, including, without limitation, rent insurance, resulting from any
such breach.
13.04. Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and its and their respective partners, joint venturers, directors,
officers, agents, servants and employees from and against any and all claims
arising from or in connection with (a) the conduct or management of the Demised
Premises or of any business therein, or any work or thing whatsoever done, or
any condition created (other than by Landlord) in the Demised Premises during
the Term or during the period of time, if any, prior to the Commencement Date
that Tenant may have been given access to the Demised Premises; (b) any act,
omission or negligence of Tenant or any of its subtenants or licensees or its or
their partners, joint venturers, directors, officers, agents, employees or
contractors; (c) any accident, injury or damage whatever (unless caused solely
by Landlord's negligence) occurring in the Demised
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Premises; and (d) any breach or default by Tenant in the full and prompt payment
and performance of Tenant's obligations under this Lease; together with all
costs, expenses and liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon, including, without limitation,
all reasonable attorneys' fees and expenses. In case any action or proceeding is
brought against Landlord and/or any Superior Lessor and/or its or their
partners, joint venturers, directors, officers, agents and/or employees by
reason of any such claim, Tenant, upon notice from Landlord or such Superior
Lessor, shall resist and defend such action or proceeding by counsel reasonably
satisfactory to Landlord.
13.05. Neither Landlord nor any Superior Lessor shall be liable or
responsible for, and Tenant hereby releases Landlord and each Superior Lessor
from, all liability and responsibility to Tenant and any person claiming by,
through or under Tenant, by way of subrogation or otherwise, for any injury,
loss or damage to any person or property in or around the Demised Premises or to
Tenant's business irrespective of the cause of such injury, loss or damage, and
Tenant shall require its insurers to include in all of Tenant's insurance
policies which could give rise to a right of subrogation against Landlord or any
Superior Lessor a clause or endorsement whereby the insurer waives any rights of
subrogation against Landlord and such Superior Lessors or permits the insured,
prior to any loss, to agree with a third party to waive any claim it may have
against said third party without invalidating the coverage under the insurance
policy.
ARTICLE 14 - RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
reasonable judgment, shall be necessary for the reputation, safety, care or
appearance of the Land and Building, or the preservation of good order therein,
or the operation or maintenance of the Building or its equipment and fixtures,
or the Common Areas; provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations, the provisions of this Lease shall control. Landlord shall not
discriminatorily enforce any Rule or Regulation against Tenant, which Landlord
is not enforcing, to the extent applicable, against the other tenants in the
Building. Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations against any
other tenant or any employees or agents of any other tenant, and Landlord shall
not be liable to Tenant for violation of the Rules and Regulations by any other
tenant or its employees, agents, invitees or licensees.
ARTICLE 15 - ALTERATIONS
15.01. Tenant shall not make any structural alterations or additions to
the Demised Premises, or make any holes or cuts in the walls, ceilings, roofs,
or floors thereof, or change the exterior color or architectural treatment of
the Demised Premises, or make any non-structural alterations costing Fifty
Thousand Dollars ($50,000.00) or more (exclusive of the cost of carpeting or
decoration), without on each occasion first obtaining the consent of Landlord,
which consent with respect to non-structural
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interior alterations shall not be unreasonably withheld or delayed or
conditioned. Landlord's consent shall not be required for proposed interior
non-structural alterations costing less than Fifty Thousand Dollars
($50,000.00); provided however that in all events Tenant shall submit to
Landlord plans and specifications for such work at the time Landlord's consent
is sought, or if no consent is required, prior to commencement of such proposed
alterations. In the event Landlord engages an outside architect or other
professional to review Tenant's plans and specifications, Tenant shall pay to
Landlord upon demand the reasonable cost and expense of Landlord actually
incurred in (a) reviewing said plans and specifications and (b) inspecting the
alterations to determine whether the same are being performed in accordance with
the approved plans and specifications and all Legal Requirements and Insurance
Requirements, including, without limitation, the fees of any architect or
engineer employed by Landlord for such purpose. Before proceeding with any
permitted alteration which will cost more than $50,000 (exclusive of the costs
of decorating work and items constituting Tenant's Property), as estimated by a
reputable contractor designated by Landlord, Tenant shall obtain and deliver to
Landlord either (i) a performance bond and a labor and materials payment bond
(issued by a corporate surety licensed to do business in New Jersey), each in an
amount equal to 125% of such estimated cost and in form satisfactory to
Landlord, or (ii) such other security as shall be reasonably satisfactory to
Landlord. Tenant shall fully and promptly comply with and observe the Rules and
Regulations then in force in respect of the making of alterations. Any review or
approval by Landlord of any plans and/or specifications with respect to any
alterations is solely for Landlord's benefit, and without any representation or
warranty whatsoever to Tenant in respect of the adequacy, correctness or
efficiency thereof or otherwise. Tenant shall fully and promptly comply with and
observe the Rules and Regulations then in force in respect of the making of
alterations. Any review or approval by Landlord of any plans and/or
specifications with respect to any alterations is solely for Landlord's benefit,
and without any representation or warranty whatsoever to Tenant in respect of
the adequacy, correctness or efficiency thereof or otherwise.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith and with all applicable Legal Requirements and
Insurance Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of (a) the original installations of the Building, or
(b) the then standards for the Building established by Landlord. Alterations
shall be performed by contractors first approved by Landlord; provided, however,
that any alterations in or to the mechanical, electrical, sanitary, heating,
ventilating, air conditioning or other systems of the Building shall be
performed only by the contractor(s) designated by Landlord. Alterations shall be
made in such manner as not to unreasonably interfere with or delay and as not to
impose any additional expense upon Landlord in the construction, maintenance,
repair or operation of the Building; and if any such additional expense shall be
incurred by Landlord as a result of Tenant's making of any alterations, Tenant
shall pay any such additional expense within thirty (30) days after demand.
Throughout the making of alterations, Tenant shall carry, or cause to be
carried, worker's compensation insurance in statutory limits and general
liability insurance, with completed operation endorsement, for any occurrence in
or about the Building, under which Landlord and its managing agent and any
Superior Lessor whose name and address shall previously have been furnished to
Tenant shall be named as parties insured, in such limits as Landlord may
reasonably require, with insurers reasonably satisfactory to Landlord. Tenant
shall furnish Landlord with
25
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of alterations and, on request, at reasonable intervals
thereafter during the making of alterations.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01 All fixtures, equipment, improvements and appurtenances attached to
or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 16.02. Further, any
carpeting or other personal property in the Demised Premises on the Commencement
Date, unless installed and paid for by Tenant, shall be and shall remain
Landlord's property and shall not be removed by Tenant.
16.02. All movable partitions, 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 structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises, the
Building or the Common Areas resulting from the installation and/or removal
thereof. Any equipment or other property for which Landlord shall have granted
any allowance or credit to Tenant shall not be deemed to have been installed by
or for the account of Tenant without expense to Landlord, shall not be
considered as the Tenant's Property and shall be deemed the property of
Landlord.
16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property (except such items thereof as Landlord shall have expressly
permitted to remain, which property shall become the property of Landlord if not
removed), and Tenant shall repair any damage to the Demised Premises, the
Building and the Common Areas resulting from any installation and/or removal of
the Tenant's Property. Any items of the Tenant's Property 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 Landlord, be
deemed to have been abandoned, and in such case such items may be retained by
Landlord as its property or disposed of by Landlord, without accountability, in
such manner as Landlord shall determine at Tenant's Expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein. Tenant shall be responsible
for all repairs, interior and exterior, structural and nonstructural, ordinary
and extraordinary, in and to the Demised Premises, and the Building (including
the facilities and systems thereof) and the Common Areas the need for which
arises out of
26
(a) the performance or existence of the Tenant's Work or alterations, (b) the
installation, use or operation of the Tenant's Property in the Demised
Premises, (c) the moving of the Tenant's Property in or out of the Building, or
(d) the act, omission, misuse or neglect of Tenant or any of its subtenants or
its or their employees, agents, contractors or invitees. Tenant shall promptly
replace all scratched, damaged or broken doors and glass in and 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 sanitary and electrical fixtures and equipment
therein. Tenant shall promptly make all repairs in or to the Demised Premises
for which Tenant is responsible, and any repairs required to be made by Tenant
to the mechanical, electrical, sanitary, heating, ventilating, air-conditioning
or other systems of the Building shall be performed only by contractor(s)
designated by Landlord. Any other repairs in or to the Building and the
facilities and systems thereof for which Tenant is responsible shall be
performed by Landlord at Tenant's expense; but Landlord may, at its option,
before commencing any such work or at any time thereafter, require Tenant to
furnish to Landlord such security, in form (including, without limitation, a
bond issued by a corporate surety licensed to do business in New Jersey) and
amount, as Landlord shall deem necessary to assure the payment for such work by
Tenant. Tenant shall not permit or suffer the overloading of the floors of the
Demised Premises beyond 80 pounds per square foot.
17.02. So long as Tenant is not in monetary default under this Lease,
Landlord shall make all structural repairs and replacements, including, the
facilities and systems thereof (except as hereinabove provided in Section 17.01
and except for those repairs and maintenance for which Tenant is responsible
pursuant to any of the provisions of this Lease) and the cost thereof shall be
included in Operating Expenses, for which Tenant shall pay Tenant's Fraction.
17.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, 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.
17.04 Landlord shall warrant Landlord's Work against defects in
workmanship or materials included in Landlord's Work for a period of one (1)
year from the Commencement Date, of which Landlord is provided timely notice
within thirty (30) days after the expiration of such one (1) year period.
Landlord shall non-exclusively assign (without recourse) such longer warranties
as may be provided by the manufacturer or installer of any item of equipment or
material furnished in the Demised Premises by Landlord to Tenant, or, if the
same are not assignable, shall non-exclusively assign to Tenant the right to
enforce the same. Nothing contained herein shall be construed as a waiver by
Landlord of any right it may have to reimbursement from any insurance or
warranty or other source of payment for such item.
ARTICLE 18 - ELECTRIC ENERGY
18.01. Tenant shall purchase the electric energy required by it in the
Demised Premises at its own expense on a sub-metered basis or, if applicable, on
a direct-metered basis from the public utility
27
servicing the Building, and Landlord shall permit the risers, conduits and
feeders in the Building, to the extent available, suitable and safely capable,
to be used for the purpose of transmitting such electric energy to the Demised
Premises. Landlord shall not be liable for any failure, inadequacy or defect in
the character or supply of electric current furnished to the Demised Premises.
If Landlord is permitted by law to provide electric energy to the Demised
Premises by re-registering meters or otherwise and to collect any charges for
electric energy, Landlord shall have the right to do so, in which event Tenant
shall pay to Landlord upon receipt of bills therefor charges for meter reading
billing, and maintaining the meters, transformers and switches and charges for
electric energy provided the rates for such electric energy shall not be more
than the rates Tenant would be charged for electric energy if furnished directly
to Tenant by the public utility which would otherwise have furnished electric
energy.
18.02. 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.). In order to insure
that such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld or delayed), make any
alteration or addition to the electric system of the Demised Premises existing
on the Commencement Date. Should Landlord grant such consent, all additional
risers or other equipment required therefor shall be provided by Landlord and
the cost thereof shall be paid by Tenant to Landlord on demand.
ARTICLE 19 - HEAT, VENTILATION AND AIR-CONDITIONING
19.01. So long as Tenant is not in monetary default under this Lease,
Landlord shall maintain and operate the heating, ventilating and
air-conditioning systems ("HVAC") serving the Demised Premises, and shall
furnish HVAC in the Demised Premises as may be reasonably required (except as
otherwise provided in this Lease and except for any special requirements of
Tenant arising from its particular use of the Demised Premises) for reasonably
comfortable occupancy of the Demised Premises, during Business Hours on Business
Days within the limits prescribed by the Legal Requirements. If Tenant shall
require HVAC at any other time, Landlord shall furnish such service for such
times upon not less than six (6) hours advance notice from Tenant, and Tenant
shall pay to Landlord upon demand Landlord's then established charges therefor.
19.02. The performance by Landlord of its obligation under Section 19.01
in respect of HVAC is conditioned on the connected electric load within the
Demised Premises not exceeding three and one- half (3 1/2) watts per usable
square foot in the Demised Premises and the occupancy of the Demised Premises
not exceeding one (1) person for each two hundred (200) usable square feet. Use
of the Demised Premises, or any part thereof, in a manner exceeding the HVAC
design conditions (including occupancy and connected electrical load), or
rearrangement of partitioning which interferes with normal operation of the HVAC
in the Demised Premises, or the use of computer or data processing machines or
other machines or equipment, may require changes in the HVAC systems servicing
the Demised Premises, in order to provide comfortable occupancy. Such changes,
so occasioned, shall be made by Tenant, at its expense, as alterations in
accordance with the provisions of Article 15, but only to the extent permitted
and upon the conditions set forth in Article 15.
28
ARTICLE 20 - OTHER SERVICES; SERVICE INTERRUPTION
20.01. So long as Tenant is not in monetary default under this Lease,
Landlord shall provide elevator service to the Demised Premises during Business
Hours on Business Days, and Landlord shall have at least one (1) elevator
subject to call at all other times. The use of the elevators shall be subject to
the Rules and Regulations.
20.02. So long as Tenant is not in monetary default under this Lease,
Landlord shall cause the Demised Premises, including the exterior and the
interior of the windows thereof, to be cleaned in a manner standard to the
Building and in accordance with the standards set forth in Exhibit E. 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 subtenants or its or their employees or visitors,
(ii) use of portions of the Demised Premises for preparation, serving,
consumption of food or beverages, training rooms, data processing or reproducing
operations, private lavatories or toilets or other special purposes requiring
greater or more difficult cleaning work than office areas, (iii) interior glass
partitions or unusual quantity of interior glass surfaces, and (iv) non-
building standard materials or finishes installed by Tenant or at its request,
and (b) removal from the Demised Premises and the Building of any refuse and
rubbish of Tenant in excess of that ordinarily accumulated in business office
occupancy or at times other than Landlord's standard cleaning times, and (c) the
use of the Demised Premises by Tenant other than during Business Hours on
Business Days.
20.03. Landlord, its cleaning contractor and their employees shall have
access to the Demised Premises after 5:30 P.M. and before 8:00 A.M. and shall
have the right to use, without charge therefor, all light, power and water in
the Demised Premises reasonably required to clean the Demised Premises as
required under Section 20.02.
20.04. So long as Tenant is not in monetary default under this Lease,
Landlord shall furnish adequate hot and cold water to the Demised Premises for
drinking, lavatory and cleaning purposes. If Tenant uses water for any other
purpose Landlord may install and maintain, at Tenant's expense, meters to
measure Tenant's consumption of cold water and/or hot water for such other
purpose. Tenant shall reimburse Landlord for the quantities of cold water and
hot water shown on such meters on demand.
ARTICLE 21 - ACCESS, CHANGES AND NAME
21.01. Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the Demised Premises, all of the
Building, including, without limitation, exterior Building walls, core corridor
walls and doors and any core corridor entrance, 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 rooms, 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 purpose of operating,
maintenance, decoration and repair, are reserved to Landlord. Landlord also
reserves the right, to install, erect, use and maintain pipes, ducts and
conduits in and through the Demised Premises, provided (i) such are properly
enclosed, (ii) same do not materially interfere with Tenant's use and occupancy
of the Demised Premises, except in a de minimis manner (iii) same do not reduce
the size of the useable area of the Demised Premises, except in a de minimis
manner; and (iv) Landlord shall use
29
reasonable efforts to locate same in "back-room" areas, closets and the like.
21.02. Landlord and its agents shall have the right upon not less than one
(1) day's prior notice (except that no such notice shall be required in cases of
emergency), to enter and/or pass through the Demised Premises at any time or
times (a) to examine the Demised Premises and to show them to actual and
prospective Superior Lessors, Superior Mortgagees, or prospective purchasers of
the Building, and (b) to make such repairs, alterations, additions and
improvements in or to the Demised Premises and/or in or to the Building or its
facilities and equipment as Landlord is required or desires to make. Landlord
shall be allowed to take all materials into and upon the Demised Premises that
may be required in connection therewith, without any liability to Tenant and
without any reduction of Tenant's obligations hereunder. During the period of
twelve (12) months prior to the Expiration Date, Landlord and its agents may
exhibit the Demised Premises to prospective tenants. Landlord shall use its
reasonable efforts to minimize any interference with Tenant's use and occupancy;
provided, however, that nothing contained herein shall be construed, however, as
requiring Landlord to perform any work at times other than Monday through Friday
Business Days and during Business Hours except in cases of emergency.
21.03. If at any time any windows of the Demised Premises are temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building, or if any part of the Building or the
Common Areas, other than the Demised Premises, is temporarily or permanently
closed or inoperable, the same shall not be deemed a constructive eviction and
shall not result in any reduction or diminution of Tenant's obligations under
this Lease.
21.04. If, during the last month of the Term, Tenant has removed all or
substantially all of the Tenant's Property from the Demised Premises, Landlord
may, without notice to Tenant, immediately enter the Demised Premises and alter,
renovate and decorate the same, without liability to Tenant and without reducing
or otherwise affecting Tenant's obligations hereunder.
21.05. Landlord reserves the right, at any time and from time to time, to
make such changes, alterations, additions and improvements in or to the Building
and the fixtures and equipment thereof as Landlord shall deem necessary or
desirable.
21.06. Landlord may adopt any name for the Building. Landlord reserves the
right to change the name and/or address of the Building at any time.
ARTICLE 22 - MECHANICS' LIENS AND OTHER LIENS
22.01. Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to subject
Landlord's interest or estate to any liability under any mechanic's or other
lien law. If any mechanic's or other lien or any notice of intention to file a
lien is filed against the Land, or any part thereof, or the Demised Premises, or
any part thereof, for any work, labor, service or materials claimed to have been
performed or furnished for or on behalf of Tenant or anyone holding any part of
the Demised Premises through or under Tenant, Tenant shall cause the same to be
canceled and discharged of record by payment, bond or order of a court of
30
competent jurisdiction within twenty (20) days after notice by Landlord to
Tenant.
ARTICLE 23 - NON-LIABILITY AND INDEMNIFICATION
23.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the negligence of Landlord, its agents, servants or
employees in the operation or maintenance of the Land or Building without
contributory negligence on the part of Tenant or any of its subtenants or
licensees or its or their employees, agents or contractors. Further, neither
Landlord nor any partner, joint venturer, director, officer, agent, servant or
employee of Landlord shall be liable (a) for any such damage caused by other
tenants or Persons in, upon or about the Land or Building, or caused by
operations in construction of any private, public or quasi-public work; or (b)
even if negligent, for consequential damages arising out of any loss of use of
the Demised Premises or any equipment or facilities therein by Tenant or any
Person claiming through or under Tenant.
23.02. [Intentionally Omitted].
23.03. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Land and Building
(or the proceeds received by Landlord on a sale of such estate and property but
not the proceeds of any financing or refinancing thereof) in the event of any
claim against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas, and Tenant agrees that the liability of Landlord arising out
of or in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas shall be limited to
such estate and property of Landlord (or sale proceeds). No other properties or
assets of Landlord or any partner, joint venturer, director, officer, agent,
servant or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgement (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of,
or in connection with, this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas and if Tenant shall
acquire a lien on or interest in any other properties or assets by judgment or
otherwise, Tenant shall promptly release such lien on or interest in such other
properties and assets by executing, acknowledging and delivering to Landlord an
instrument to that effect prepared by Landlord's attorneys. Tenant hereby waives
the right of specific performance and any other remedy allowed in equity if
specific performance or such other remedy could result in any liability of
Landlord for the payment of money to Tenant, or to any court or governmental
authority (by way of fines or otherwise) for Landlord's failure or refusal to
observe a judicial decree or determination, or to any third party.
ARTICLE 24 - DAMAGE OR DESTRUCTION
24.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 24
31
hereinafter provided), Landlord shall repair the damage and restore and rebuild
the Building and/or the Demised Premises (except for the Tenant's Property) with
reasonable dispatch after notice to it of the damage or destruction and the
collection of the insurance proceeds attributable to such damage.
24.02. Subject to the provisions of Section 24.05, if all or part of the
Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises,
for the period from the date of the damage or destruction to (a) the date the
damage to the Demised Premises shall be substantially repaired, or (b) if the
Building and not the Demised Premises is so damaged or destroyed, the date on
which the Demised Premises shall be made tenantable; provided, however, should
Tenant reoccupy a portion of the Demised Premises during the period the repair
or restoration work is taking place and prior to the date that the Demised
Premises are substantially repaired or made tenantable the Rent allocable to
such reoccupied portion, based upon the proportion which the area of the
reoccupied portion of the Demised Premises bears to the total area of the
Demised Premises, shall be payable by Tenant from the date of such occupancy.
24.03. If (a) the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other casualty, or (b) the Building shall be so
damaged or destroyed by fire or other casualty (whether or not the Demised
Premises are damaged or destroyed) that its repair or restoration requires the
expenditure, as estimated by a reputable contractor or architect designated by
Landlord, of more than twenty percent (20%) (or ten percent [10%] if such
casualty occurs during the last two [2] years of the Term) of the full insurable
value of the Building immediately prior to the casualty, or (c) the Building
shall be damaged or destroyed by fire or other casualty (whether or not the
Demised Premises are damaged or destroyed) and either the loss shall not be
covered by Landlord's insurance or the net insurance proceeds (after deducting
all expenses in connection with obtaining such proceeds) shall, in the
estimation of a reputable contractor or architect designated by Landlord be
insufficient to pay for the repair or restoration work, then in either such case
Landlord may terminate this Lease by giving Tenant notice to such effect within
ninety (90) days after the date of the fire or other casualty. In the event that
there shall occur a casualty during the last two (2) years of the Term such that
Landlord shall have the right to terminate this Lease pursuant to subsection (b)
of this Section 24.03, because the cost of restoration would exceed ten (10%)
percent of the full insurable value of the Building immediately prior to the
casualty, but not more than twenty (20%) percent of such insurable value;
provided, that Tenant shall not then be in default under this Lease beyond any
applicable notice or cure period, Tenant may, subject to the terms and
provisions of Paragraph R2 hereof, and not later than ninety (90) days following
the date of casualty, irrevocably elect to exercise its then remaining renewal
option (if any) pursuant to Paragraph R2, whereupon the threshold percentage
under subsection (b) above shall be deemed to be twenty (20%) percent until the
last two years of the applicable Extended Period.
24.04. Tenant shall not be entitled to terminate this Lease and 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 of the Demised Premises or of the Building pursuant to this Article 24.
Landlord shall use its best efforts to make such repair or restoration promptly
and in such manner as not unreasonably to interfere with Tenant's use and
occupancy of the Demised Premises, but Landlord shall not be required to do such
repair or restoration work except during Business Hours on
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Business Days.
24.05. Notwithstanding any of the foregoing provisions of this Article 24,
if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, Landlord or any Superior Lessor or any Superior Mortgagee
shall be unable to collect all of the insurance proceeds (including, without
limitation, rent insurance proceeds) applicable to damage or destruction of the
Demised Premises or the Building by fire or other casualty, then, without
prejudice to any other remedies which may be available against Tenant, there
shall be no abatement or reduction of the Rent. Further, nothing contained in
this Article 24 shall relieve Tenant from any liability that may exist as a
result of any damage or destruction by fire or other casualty. Notwithstanding
anything to the contrary set forth herein, nothing contained in this Section
24.05 shall vitiate the waiver of subrogation contained in Section 13.05 hereof
with respect to insured risks.
24.06. Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage to
or replace the Tenant's Property.
24.07. The provisions of this Article 24 shall be deemed an express
agreement governing any case of damage or destruction of the Demised Premises
and/or Building by fire or other casualty, and any law providing for such a
contingency in the absence of an express agreement, now or hereafter in force,
shall have no application in such case.
24.08 In the event of damage or destruction with respect to the Demised
Premises the repair or restoration of which requires the expenditure, as
estimated by a reputable contractor or architect designated by Landlord, of more
than forty percent (40%) of the full insurable value of the Building immediately
prior to the casualty (or twenty percent [20%] if such casualty occurs during
the last two [2] years of the Term), then in either of such events Tenant
(provided such damage or destruction prevents the use and occupancy of the
Demised Premises by Tenant) shall have the right to request within thirty (30)
days after such event the Architect to determine the estimated time for
restoration. The Landlord shall cause the Architect to provide notice to
Landlord and Tenant of such determination (the "Architect's Notice") within
thirty (30) days after notice from Landlord or Tenant requesting such
determination. If the Architect determines that the restoration of same is
estimated to take more than eighteen (18) months from the date of the casualty
(or more than six (6) months if such damage or destruction occurs in the last
year of the Term), Landlord and Tenant shall each (provided, however that
Tenant's right shall be conditioned upon (i) Tenant not being in monetary or
material non-monetary default under this Lease beyond any applicable notice and
cure period (and in any event curing such default(s) prior to termination) and
(ii) Tenant being prevented from using and occupying the Demised Premises for a
period of not less than eighteen (18) months as estimated by the Architect (or
more than six (6) months if such damage or destruction occurs in the last year
of the Term) have the right to terminate this Lease, upon thirty (30) days prior
written notice to the other, given within thirty (30) days of the Architect's
Notice. Landlord's right to terminate the Lease pursuant to this Section shall
be in addition to and not in limitation of Landlord's other rights pursuant to
this Article 24. Nothing contained herein shall be construed as limiting
Landlord's right to collect the full amount of the proceeds of rent insurance or
business interruption insurance.
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ARTICLE 25 - EMINENT DOMAIN
25.01 If the whole of the Demised Premises shall be taken by any public or
quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority. If 25% or less of the Floor Space of the
Demised Premises shall be so taken or conveyed, this Lease shall terminate only
in respect of the part so taken or conveyed as of the day possession shall be
taken by such authority. If more than 25% of the Floor Space of the Demised
Premises shall be so taken or conveyed, this Lease shall terminate only in
respect of the part so taken or conveyed as of the day possession shall be taken
by such authority, but either party shall have the right to terminate this Lease
upon notice given to the other party within 30 days after such taking
possession. If more than 25% of the Floor Space of the Building shall be so
taken or conveyed, Landlord may, by notice to Tenant, terminate this Lease as of
the day possession shall be taken. If so much of the parking facilities shall be
so taken or conveyed that the number of parking spaces necessary, in Landlord's
judgment, for the continued operation of the Building shall not be available,
Landlord shall, by notice to Tenant, terminate this Lease as of the day
possession shall be taken. If this Lease shall continue in effect as to any
portion of the Demised Premises not so taken or conveyed, the Rent shall be
computed as of the day possession shall be taken on the basis of the remaining
Floor Space of the Demised Premises. Except as specifically provided herein, in
the event of any such taking or conveyance there shall be no reduction in Rent.
If this Lease shall continue in effect, Landlord shall, at its expense, but
shall be obligated only to the extent of the net award or other compensation
(after deducting all expenses in connection with obtaining same) available to
Landlord for the improvements taken or conveyed (excluding any award or other
compensation for land or for the unexpired portion of the term of any Superior
Lease), make all necessary alterations so as to constitute the remaining
Building a complete architectural and tenantable unit, except for the Tenant's
Property, and Tenant shall make all alterations or replacements to the Tenant's
Property and decorations in the Demised Premises. All awards and compensation
for any taking or conveyance, whether for the whole or a part of the Land or
Building, the Demised Premised or otherwise, shall be the property of Landlord,
and Tenant hereby assigns to Landlord all of Tenant's right, title and interest
in and to any and all such awards and compensation, including, without
limitation, any award or compensation for the value of the unexpired portion of
the Term. Tenant shall be entitled to claim, prove and receive in the
condemnation proceeding such award or compensation as may be allowed for the
Tenant's Property and for loss of business, good will, and depreciation or
injury to and cost of removal of the Tenant's Property, but only if such award
or compensation shall be made by the condemning authority in addition to, and
shall not result in a reduction of, the award or compensation made by it to
Landlord.
25.02. If the temporary use or occupancy of all or any part of the Demised
Premises shall be taken during the Term, Tenant shall be entitled, except as
hereinafter set forth, to receive that portion of the award or payment for such
taking which represents compensation for the use and occupancy of the Demised
Premises, for the taking of the 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 continue to be
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay the Rent in full when due.
If the period of temporary use or occupancy shall extend beyond the Expiration
Date, that part of the award or payment which
34
represents compensation for the use and occupancy of the Demised Premises (or a
part thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive (except as otherwise provided below) so much thereof as represents
compensation for the period up to and including the Expiration Date and Landlord
shall receive so much thereof as represents compensation for the period after
the Expiration Date. All monies to be paid to Tenant as, or as part of, an award
or payment for temporary use and occupancy for a period beyond the date to which
the Rent has been paid shall be received, held and applied by the first Superior
Mortgagee (or if there is no Superior Mortgagee, by Landlord as a trust fund)
for payment of the Rent becoming due hereunder.
ARTICLE 26 - SURRENDER
26.01. On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord "broom-clean" and in good
order, condition and repair, except for ordinary wear and tear and such damage
or destruction as Landlord is required to repair or restore under this Lease,
and Tenant shall remove all of Tenant's Property therefrom except as otherwise
expressly provided in this Lease.
26.02. If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises at the sufferance of Landlord subject to all of the provisions of this
Lease, except that the monthly Fixed Rent shall be twice the Fixed Rent in
effect during the last month of the Term.
26.03. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 27 - CONDITIONS OF LIMITATION
27.01. This Lease is subject to the limitation that whenever Tenant or any
Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for relief
under any chapter of the Federal Bankruptcy Code (Title 11 of the United States
Code) or any similar order or decree under any federal or state law, now in
existence, or hereafter enacted having the same general purpose, and such order
or decree shall have not been stayed or vacated within 30 days after entry, or
(c) shall cause, suffer, permit or consent to the appointment of a receiver,
trustee, administrator, conservator, sequestrator, liquidator or similar
official in any federal, state or foreign judicial or nonjudicial proceeding, to
hold, administer and/or liquidate all or substantially all of its assets, and
such appointment shall not have been revoked, terminated, stayed or vacated and
such official discharged of his duties within 30 days of his appointment, then
Landlord, at any time after the occurrence of any such event, may give Tenant a
notice of intention to end the Term 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, whether or not the Term shall theretofore have commenced,
this Lease shall terminate with the same effect as if that day were the
expiration date of this Lease, but Tenant shall remain liable for damages as
provided in Article 29.
35
27.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Rent, or (b) if Tenant shall, whether
by action or inaction, be in default of any of its obligations under this Lease
(other than a default in the payment of Rent) and such default shall continue
and not be remedied within fifteen (15) days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a default which cannot
with due diligence be cured within a period of fifteen (15) days and the
continuance of which for the period required for cure will not subject Landlord
or any Superior Lessor to prosecution for a crime (as more particularly
described in the last sentence of Section 12.02) or termination of any Superior
Lease or foreclosure of any Superior Mortgage, if Tenant shall not, (i) within
said fifteen (15) day period advise Landlord of Tenant's intention to take all
steps necessary to remedy such default, (ii) duly commence within said fifteen
(15) day period, and thereafter diligently prosecute to completion all steps
necessary to remedy the default, and (iii) complete such remedy within a
reasonable time after the date of said notice by Landlord, or (c) if any event
shall occur or any contingency shall arise whereby this Lease 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 11, or
(d) if Tenant shall abandon the Demised Premises, or (e) if there shall be any
default by Tenant (or any person which, directly or indirectly, controls, is
controlled by, or is under common control with Tenant) under any other lease
with Landlord (or any person which, directly or indirectly, controls, is
controlled by, or is under common control with Landlord) which shall not be
remedied within the applicable grace period, if any, provided therefor under
such other lease, then in any of said cases Landlord may give to Tenant a notice
of intention to end the Term at the expiration of five (5) days from the date of
the service of such notice of intention, and upon the expiration of said five
(5) days, whether or not the Term shall theretofore have commenced, this Lease
shall terminate with the same effect as if that day were the expiration date of
this Lease, but Tenant shall remain liable for damages as provided in Article
29.
ARTICLE 28 - RE-ENTRY BY LANDLORD
28.01. If Tenant shall default in the payment of any Rent beyond any
applicable notice and/or cure period set forth in Section 27.02 (a) above, or if
this Lease shall terminate as provided in Article 27, Landlord or Landlord's
agents and employees may immediately or at any time thereafter re-enter the
Demised Premises, or any part thereof, 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 Person therefrom, to the end that Landlord may have, hold and enjoy
the Demised Premises. The word "re-enter," as used herein, is not restricted to
its technical legal meaning. If this Lease is terminated under the provisions of
Article 27, or if Landlord shall re-enter the Demised Premises under the
provisions of this Article 28, or in the event of the termination of this Lease,
or of re-entry, by or under any summary dispossess or other proceedings or
action or any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall thereupon pay to Landlord the Rent payable up to the time
of such termination of this Lease, or of such recovery of possession of the
Demised Premises by Landlord, as the case may be, and shall also pay to Landlord
damages as provided in Article 29.
28.02. In the event of a breach or threatened breach by Tenant of any of
its obligations under
36
this Lease, Landlord shall also have the right of injunction. The special
remedies to which Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies to which Landlord may lawfully be
entitled at any time and Landlord may invoke any remedy allowed at law or in
equity as if specific remedies were not provided for herein.
28.03. If this Lease shall terminate under the provisions of Article 27,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article 28, 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, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
Advance Rent, security or otherwise, but such monies shall be credited by
Landlord against any 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 29 or pursuant to law.
ARTICLE 29 - DAMAGES
29.01. If this Lease is terminated under the provisions of Article 27, or
if Landlord shall re-enter the Demised Premises under the provisions of Article
28, 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 pay as
Additional Charges to Landlord, at the election of Landlord, either or any
combination of:
(a) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the
then value of the excess, if any, of (i) the aggregate amount of the Rent
which would have been payable by Tenant (conclusively presuming the
average monthly Additional Charges to be the same as were the average
monthly Additional Charges payable for the year, or if less than 365 days
have then elapsed since the Rent Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period
commencing with such earlier termination of this Lease or the date of any
such re-entry, as the case may be, and ending with the Expiration Date,
over (ii) the aggregate rental value of the Demised Premises for the same
period; or
(b) sums equal to the Fixed Rent and the Additional Charges 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, without limitation, altering
and preparing the Demised Premises for new tenants, brokers' commissions,
legal fees, 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 period
37
ending on the Expiration Date; 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 (b) to a credit in
respect of any rents from a reletting, except to the extent that such net
rents are actually received 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; or
(c) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the
aggregate amount of the Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges to be the
same as were the average monthly Additional Charges payable for the year,
or if less than 365 days have then elapsed since the Rent Commencement
Date, the partial year, immediately preceding such termination or
re-entry) for the period commencing with such earlier termination of this
Lease or the date of any such re-entry, as the case may be, and ending
with 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, without limitation, altering and preparing the Demised Premises
for new tenants, brokers' commissions, legal fees, 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 period ending on the Expiration Date; but in no event
shall Landlord have to account to Tenant for any rents in excess of the
total damages recovered by Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this
subdivision (c) to a credit in respect of any rents from a reletting,
except to the extent that such net rents are actually received 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 should be relet by Landlord
before presentation of proof of such damages to any court, commission or
tribunal, the amount of rent reserved upon such 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 shall not be liable in any
way whatsoever for its failure to relet the Demised Premises or any part
thereof, or if the Demised Premises or any part thereof are relet, for its
failure to collect the rent under such reletting, and no such failure to relet
or failure to collect rent shall release or affect Tenant's liability for
damages or otherwise under this Lease. Furthermore, Tenant, on behalf of itself
and any and all persons claiming through or under Tenant, does hereby waive and
surrender all right and privilege which it, they or any of them might have under
or by reason of any present or future law or applicable governmental or judicial
authority, to require that Landlord mitigate damages sustained or to be
sustained by Landlord hereunder as a result of a default by Tenant and/or any
and all persons claiming through or under Tenant under this Lease. In the event
Tenant, on behalf of itself or any and all persons claiming through or under
Tenant, attempts to
38
raise a defense or assert any affirmative obligations on Landlord's part to
mitigate such damages or relet the Demised Premises, Tenant shall reimburse
Landlord for any costs and expenses incurred by Landlord as a result of any such
defense or assertion, including but not limited to Landlord's attorneys' fees
incurred in connection therewith.
29.02. Suit or suits for the recovery of such damages or, any installments
thereof, may be brought by Landlord at any time and 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 would have expired if it had not been
so terminated under the provisions of Article 27, 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 prove for and obtain as damages by reason of
the termination of this Lease or re-entry of 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, whether or not such amount be
greater than, equal to, or less than any of the sums referred to in Section
29.01.
29.03. In addition, if this Lease is terminated under the provisions of
Article 27, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 28, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof; and (c) for the breach of any
covenant of Tenant set forth above in this Section 29.03, Landlord shall be
entitled immediately, without notice or other action by Landlord, to recover,
and Tenant shall pay, as and for liquidated damages therefor, the cost of
performing such covenant (as estimated by an independent contractor selected by
Landlord).
29.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 29, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid upon demand therefor, the same shall bear
interest at the Late Payment Rate or the maximum rate permitted by law,
whichever is less, from the due date thereof until paid, and the amounts of such
interest shall be Additional Charges hereunder.
29.05. In addition to any remedies which Landlord may have under this
Lease, if there shall be a default hereunder by Tenant which shall not have been
remedied within the applicable notice and/or grace period, Landlord shall not be
obligated to furnish to Tenant or the Demised Premises any HVAC services outside
of Business Hours or Business Days, or any extra or additional cleaning
services; and the discontinuance of any one or more such services shall be
without liability by Landlord to Tenant and shall not reduce, diminish or
otherwise affect any of Tenant's covenants and obligations under this Lease.
39
ARTICLE 30 - AFFIRMATIVE WAIVERS
30.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, 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 after being dispossessed or ejected from the Demised Premises by process
of law or under the terms of this Lease or after the termination of this Lease
as provided in this Lease.
30.02. 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, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including, without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the Demised
Premises.
ARTICLE 31 - NO WAIVERS
31.01. 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. The receipt by Landlord of Fixed Rent or
Additional Charges with knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.
ARTICLE 32 - CURING TENANT'S DEFAULTS
32.01. 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 fifteen (15) days from
the date Landlord gives Tenant notice of the default. Charges for any expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant, and charges for all costs, expenses and disbursements of
every kind and nature whatsoever, including reasonable attorneys' fees and
expenses, involved in collecting or endeavoring to collect the Rent or any part
thereof or enforcing or endeavoring to enforce any rights against Tenant or
Tenant's obligations hereunder, 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 or in recovering possession of
the Demised Premises after default by Tenant or upon the expiration of the Term
or sooner termination of this Lease, and interest on all sums advanced by
Landlord under this Article at the Late Payment Rate or the maximum rate
permitted by law, whichever is less, shall be payable by Tenant and may be
invoiced by Landlord to Tenant monthly, or immediately, or at any time, at
Landlord's option, and such amounts shall be due and payable upon
40
demand.
ARTICLE 33 - BROKER
33.01. Tenant and Landlord each represents to the other that no broker
except the Broker was instrumental in bringing about or consummating this Lease
and that they respectively had no conversations or negotiations with any broker
except the Broker concerning the leasing of the Demised Premises. Tenant and
Landlord each agrees to indemnify and hold harmless the other against and from
any claims by any Person claiming to have dealt with or on behalf of the
indemnifying party for any brokerage commissions and all costs, expenses and
liabilities in connection therewith, including, without limitation, reasonable
attorneys' fees and expenses, arising out of any conversations or negotiations
had by the indemnifying party with any broker other than the Broker. Landlord
shall pay any brokerage commissions due the Broker pursuant to a separate
agreement between Landlord and the Broker.
ARTICLE 34 - NOTICES
34.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered or sent by a nationally
recognized overnight delivery service (e.g. FedEx), or by United States
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) (a) as to Tenant, to the attention of Chief Executive Officer
with a concurrent notice to the attention of Chief Financial Officer, and (b) as
to Landlord, to the attention of General Counsel with a concurrent notice to the
attention of Controller, and shall be deemed to have been given, rendered or
made when delivered or refused. Either party may, by notice as aforesaid,
designate a different address or addresses for notices, statements, demands,
consents, approvals or other communications intended for it. In addition, upon
and to the extent requested by Landlord, copies of notices shall be sent to the
Superior Mortgagee.
ARTICLE 35 - ESTOPPEL CERTIFICATES
35.01. Tenant shall, at any time and from time to time, as requested by
the Landlord, upon not less than ten (10) days' prior notice, execute and
deliver to the Landlord or a Superior Mortgagee or Superior Lessor 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 Charges have been paid, stating whether or not, to the best
knowledge of the party giving the statement, the requesting party is in default
in performance of any of its obligations under this Lease, and, if so,
specifying each such default of which the party giving the statement shall have
knowledge, and stating whether or not, to the best knowledge of the party giving
the statement, any event has occurred which with the giving of
41
notice or passage of time, or both, would constitute such a default of the
requesting party, and, if so, specifying each such event; any such statement
delivered pursuant hereto shall be deemed a representation and warranty to be
relied upon by the party requesting the certificate and by others with whom such
party may be dealing, regardless of independent investigation. Tenant also shall
include in any such statement such other information concerning this Lease as
Landlord may reasonably request.
ARTICLE 36 - ARBITRATION
36.01. Landlord may at any time request arbitration, and Tenant may at any
time when not in default in the payment of any Rent request arbitration, of any
matter in dispute but only where arbitration is expressly provided for in this
Lease. The party requesting arbitration shall do so by giving notice to that
effect to the other party, specifying in said notice the nature of the dispute,
and said dispute shall be determined in Newark, New Jersey, by a single
arbitrator, in accordance with the rules then obtaining of the American
Arbitration Association (or any comparable organization designated by Landlord).
The award in such arbitration may be enforced on the application of either party
by the order or judgment of a court of competent jurisdiction. The fees and
expenses of any arbitration shall be borne by the parties equally, but each
party shall bear the expense of its own attorneys and experts and the additional
expenses of presenting its own proof. If Tenant gives notice requesting
arbitration as provided in this Article, Tenant shall simultaneously serve a
duplicate of the notice on each Superior Mortgagee and Superior Lessor whose
name and address shall previously have been furnished to Tenant, and such
Superior Mortgagees and Superior Lessor shall have the right to participate in
such arbitration.
ARTICLE 37 - MEMORANDUM OF LEASE
37.01. Tenant shall not record this Lease. However, at the request of
Landlord, Tenant shall promptly execute, acknowledge and deliver to Landlord a
memorandum of lease in respect of this Lease sufficient for recording. Such
memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease. Whichever party records such memorandum
of Lease shall pay all recording costs and expenses, including any taxes that
are due upon such recording.
ARTICLE 38 - [INTENTIONALLY OMITTED]
ARTICLE 39 - MISCELLANEOUS
39.01. 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 or in any other
written agreement(s) which may be made between the parties concurrently with the
execution and delivery of this Lease. All understandings and agreements
heretofore had between the parties are merged in this Lease and any other
written agreement(s) made concurrently herewith,
42
which alone fully and completely express the agreement of the parties and which
are entered into after full investigation. Neither party has relied upon any
statement or representation not embodied in this Lease or in any other written
agreement(s) made concurrently herewith. The submission of this Lease to Tenant
does not constitute by Landlord a reservation of, or an option to Tenant for,
the Demised Premises, or an offer to lease on the terms set forth herein and
this Lease shall become effective as a lease agreement only upon execution and
delivery thereof by Landlord and Tenant.
39.02. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such 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, termination or effectuation of abandonment is
sought.
39.03. If Tenant shall at any time request Landlord to sublet or let the
Demised Premises for Tenant's account, Landlord or its agent is authorized to
receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
39.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Section 39.04
shall not be construed as modifying the conditions of limitation contained in
Article 27.
39.05. Except for Tenant's obligations to pay Rent, the time for Landlord
or Tenant, as the case may be, to perform any of its respective obligations
hereunder shall be extended if and to the extent that the performance thereof
shall be prevented due to any Unavoidable Delay. Except as expressly provided to
the contrary, the obligations of Tenant hereunder shall not be affected,
impaired or excused, nor shall Landlord have any liability whatsoever to Tenant,
(a) because Landlord is unable to fulfill, or is delayed in fulfilling, any of
its obligations under this Lease due to any of the matters set forth in the
first sentence of this Section 39.05, or (b) because of any failure or defect in
the supply, quality or character of electricity, water or any other utility or
service furnished to the Demised Premises for any reason beyond Landlord's
reasonable control.
39.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration of the Term or
earlier termination of this Lease.
39.07. If Tenant shall request Landlord's consent and Landlord shall fail
or refuse to give such consent, Tenant shall not be entitled to any damages for
any withholding by Landlord of its consent; Tenant's sole remedy shall be an
action for specific performance or injunction, and such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold or delay its consent or where as a matter of law
Landlord may not unreasonably withhold its consent.
43
39.08. If an excavation shall be made upon land adjacent to or under the
Building, or shall be authorized to be made, Tenant shall afford to the Person
causing or authorized to cause such excavation, license to enter the Demised
Premises for the purpose of performing such work as said Person shall reasonably
deem necessary or desirable to preserve and protect the Building from injury or
damage and to support the same by proper foundations, without any claim for
damages or liability against Landlord and without reducing or otherwise
affecting Tenant's obligations under this Lease.
39.09. Tenant shall not exercise its rights under Article 15 or any other
provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing, labor disruption or dispute or
any interference with the business of Landlord or any tenant or occupant of the
Building.
39.10. Tenant shall give prompt notice to Landlord of (a) any occurrence
in or about the Demised Premises for which Landlord might be liable, (b) any
fire or other casualty in the Demised Premises, (c) any damage to or defect in
the Demised Premises, including the fixtures and equipment thereof, for the
repair of which Landlord might be responsible, and (d) any damage to or defect
in any part of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator or other systems located in or passing through the
Demised Premises or any part thereof.
39.11. This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. Tenant hereby irrevocably agrees that any
legal action or proceeding arising out of or relating to this Lease may be
brought in the Courts of the State of New Jersey, or the Federal District Court
for the District of New Jersey, as Landlord may elect. By execution and delivery
of this Lease, Tenant hereby irrevocably accepts and submits generally and
unconditionally for itself and with respect to its properties, to the
jurisdiction of any such court in any such action or proceeding, and hereby
waives in the case of any such action or proceeding brought in the courts of the
State of New Jersey, or Federal District Court for the District of New Jersey,
any defenses based on jurisdiction, venue or forum non conveniens. If any
provision of this Lease shall be invalid or unenforceable, the remainder of this
Lease shall not be affected and shall be enforced to the extent permitted by
law. The table of contents, captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. If
any words or phrases in this Lease shall have been stricken out or otherwise
eliminated, whether or not any other words or phrases have been added, this
Lease shall be construed as if the words or phrases so stricken out or otherwise
eliminated were never included in this Lease and no implication or inference
shall be drawn from the fact that said words or phrases were so stricken out or
otherwise eliminated. Each covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed, shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent on any other
provision of this Lease. All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require. Tenant
specifically agrees to pay all of Landlord's costs, charges and expenses,
including reasonable attorneys' fees, incurred in connection with any document
review requested by Tenant and upon submission of bills therefor; provided,
however, that Landlord's charges therefor (exclusive of actual third-party
costs, including but not limited to any fees or charges imposed by any Superior
Mortgagee or Superior Lessor or their attorneys) shall not exceed $1,500 per
document review request
44
(which $1,500 cap may be increased by $1,000 every five years). In the event
Landlord permits Tenant to examine Landlord's books and records with respect to
any Additional Charge imposed under this Lease, such examination shall be
conducted at Tenant's sole cost and expense and shall be conditioned upon Tenant
retaining an independent accounting firm for such purposes which shall not be
compensated on any type of contingent fee basis with respect to such
examination. Wherever in this Lease or by law Landlord is authorized to charge
or recover costs and expenses for legal services or attorneys' fees, same shall
include, without limitation, the costs and expenses for in-house or staff legal
counsel or outside counsel at rates not to exceed the reasonable and customary
charges for any such services as would be imposed in an arms length third party
agreement for such services.
39.12. Within thirty (30) days after request of Landlord, Tenant shall
furnish to Landlord a copy of its then current financial statement (audited, if
available) which shall be employed by Landlord for purposes of financing the
Premises and not distributed otherwise without prior authorization of Tenant.
The delivery of such financial statement, upon Tenant's request, if the same are
not otherwise publicly available, shall be subject to the execution by Landlord
and Tenant of a confidentiality agreement in form and substance reasonably
acceptable to Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the
day and year first above written.
("Landlord")
500 PLAZA DRIVE CORP.
BY: /s/ Irwin A. Horowitz
-------------------------------------
Irwin A. Horowitz
Executive Vice President
[Corporate Seal]
("Tenant")
ALGORX PHARMACEUTICALS, INC.
BY: /s/ Jeffrey Rona
-------------------------------------
Name: Jeffrey Rona
Title: CFO
[Corporate Seal]
Copyright (C) Hartz Mountain Industries, Inc. 2004. All Rights Reserved. No
portion of this document may be reproduced without the express written consent
of Hartz Mountain Industries, Inc.
45
RIDER TO LEASE DATED MAY 10, 2004, BETWEEN 500 PLAZA DRIVE CORP., AS LANDLORD
AND ALGORX PHARMACEUTICALS, INC., AS TENANT.
R1. If any of the provisions of this Rider shall conflict with any of the
provisions, printed or typewritten, of this Lease, such conflict shall resolve
in every instance in favor of the provisions of this Rider.
R2. Provided Tenant is in compliance with all of the terms and conditions
contained herein, and provided Tenant has not assigned this Lease or sublet all
or any portion of the Demised Premises and is itself in occupation and
conducting business in the whole of the Demised Premises in accordance with the
terms of this Lease, Tenant expressly acknowledging and agreeing that the option
rights contained herein are personal to the original named Tenant, Tenant shall
have one (1) option to extend the Term of its lease of the Demised Premises,
from the date upon which this Lease would otherwise expire for one (1) extended
period of five (5) years (herein referred to as the "Extended Period"), upon the
following terms and conditions:
1. If Tenant elects to exercise said option, it shall do so by
giving notice of such election to Landlord on or before the date which is
nine (9) months before the beginning of the Extended Period for which the
Term is to be extended by the exercise of such option. Tenant agrees that
it shall have forever waived its right to exercise any such option if it
shall fail for any reason whatsoever to give such notice to Landlord by
the time provided herein for the giving of such notice, whether such
failure is inadvertent or intentional, time being of the essence as to the
exercise of such option.
2. If Tenant elects to exercise said option, the Term shall be
automatically extended for the Extended Period covered by the option so
exercised without execution of an extension or renewal lease. Within ten
(10) days after request of either party following the effective exercise
of such option, however, Landlord and Tenant shall execute, acknowledge
and deliver to each other duplicate originals of an instrument in
recordable form confirming that such option was effectively exercised.
3. The Extended Period shall be upon the same terms and conditions
as are in effect immediately preceding the commencement of such Extended
Period; provided, however, that Tenant shall have no right or option to
extend the Term for any period of time beyond the expiration of the
Extended Period and, provided further, that in the Extended Period the
Fixed Rent shall be as follows: The Fixed Rent during the Extended Period
shall be at Fair Market Value ("FMV"). FMV shall be determined by mutual
agreement of the parties. If the parties are unable to agree on the FMV
within thirty (30) days of Tenant's exercise of its option, the parties
shall choose a licensed Real Estate Appraiser who shall determine the FMV.
The cost of said Real Estate Appraiser shall be borne equally by the
parties. If the parties are unable to agree on a licensed Real Estate
Appraiser within forty-five (45) days of Tenant's exercise of its option,
each party shall select one Appraiser to appraise the FMV. All appraisals
shall be rendered within thirty (30) days of appointment of the respective
Appraiser appointed under this
46
paragraph. If the difference between the two appraisals is 20% or less of
the lower appraisal, then the FMV shall be the average of the two
appraisals. If the difference between the two appraisals is greater than
20% of the lower appraisal, the two Appraisers shall select a third
licensed Real Estate Appraiser to appraise the FMV. The FMV shall in such
case be the average of the three appraisals. The cost of the third
appraisal shall be borne equally by the parties.
Anything to the contrary contained herein notwithstanding, the Fixed Rent for
such Extended Period shall not be less than the Fixed Rent for the period
immediately preceding the Extended Period for which the Fixed Rent is being
calculated.
4. Any termination, expiration, cancellation or surrender of this Lease
shall terminate any right or option for the Extended Period not yet exercised.
5. Landlord shall have the right, for thirty (30) days after receipt of
notice of Tenant's election to exercise any option to extend the Term, to reject
Tenant's election if Tenant gave such notice while Tenant was in default in the
performance of any of its obligations under the Lease, and such rejection shall
automatically render Tenant's election to exercise such option null and void and
of no effect.
6. The option provided herein to extend the Term of the Lease may not be
severed from the Lease or separately sold, assigned or otherwise transferred.
R3. Gross-up of Operating Expenses. If the Building is not ninety percent
(90%) occupied during the Base Year or any period for which Operating Expenses
are being calculated, Landlord will, for purposes of determining Tenant's
Fraction of Operating Expenses, make a mathematical adjustment to such Operating
Expenses to approximate what they would have been in Landlord's reasonable
judgment had the Building been ninety percent (90%) occupied during such period.
R4. Access: Tenant shall be permitted access to the Building twenty-four
hours per day, seven days per week, subject however to any temporary closure
required do to emergency or to effect repairs or maintenance to the Building in
accordance with the terms of this Lease.
[NO FURTHER TEXT ON THIS PAGE]
47
R5. Parking: Tenant shall be entitled to two (2) reserved parking spaces
under the Building.
("Landlord")
500 PLAZA DRIVE CORP.
BY: /s/ Irwin A. Horowitz
-------------------------------------
Irwin A. Horowitz
Executive Vice President
[Corporate Seal]
("Tenant")
ALGORX PHARMACEUTICALS, INC.
BY: /s/ Jeffrey Rona
-------------------------------------
Name: Jeffrey Rona
Title: CFO
[Corporate Seal]
48
Exhibit A - Demised Premises
EXHIBIT A
[FLOOR PLAN]
Exhibit B - Description of Land
ALL THAT CERTAIN tract, lot and parcel of land, lying and being in the Town of
Secaucus, County of Hudson and State of New Jersey, being more particularly
described as follows:
BEGINNING at a point, said point being the following six courses from the point
of intersection of the easterly side of Harmon Meadow Boulevard with the
northerly side of New Jersey State Highway Route No. 3.
A) North 56 degrees 48 minutes 02 seconds east, 119.48 feet to a point on curve;
thence
B) Along a curve to the left having a radius of 230.00 feet an arc length of
108.38 feet to a point of tangency; thence
C) North 29 degrees 48 minutes 02 seconds east, 429.78 feet to a point; thence
D) North 35 degrees 48 minutes 02 seconds east, 300.00 feet to a point; thence
E) South 54 degrees 11 minutes 58 seconds east, 80.00 feet to a point; thence
F) South 35 degrees 48 minutes 02 seconds west, 20.25 feet to the point of
beginning and running; thence
1. North 35 degrees 48 minutes 02 seconds east, 336.00 feet to a point of
curvature; thence
2. Along a curve to the right having a radius of 40.00 feet an arc length of
62.83 to a point of tangency; thence
3. South 54 degrees 11 minutes 58 seconds east, 149.86 feet to a point; thence
4. South 09 degrees 11 minutes 58 seconds east, 275.77 feet to a point; thence
5. South 35 degrees 48 minutes 02 seconds west, 51.93 feet to a point; thence
6. South 80 degrees 48 minutes 02 seconds west, 182.54 feet to a point; thence
7. North 54 degrees 11 minutes 58 seconds west, 255.78 feet to the point of
BEGINNING.
BEING also known and designated as Lot 6.03 Block 227, as shown on a certain
filed map entitled, "Proposed Minor Subdivision of Block 227 Lots 6.01, 6.02 &
7.01 for Hartz Mountain Development Corp., in the Town of Secaucus, Hudson
County, New Jersey" filed in the Hudson County Register's Office on September
11, 1985 as Filed Map No. 3191.
TOGETHER with the benefit of that certain Parking Easement (as amended and
restated) dated July 12, 1988, and recorded in the Hudson County Register's
Office on July 18, 1988 in Deed Book 3985 page 126.
TOGETHER with the benefits of that certain Restated Access Easement dated July
12, 1988, and
recorded July 18, 1988 in Deed Book 3985 page 139.
TOGETHER with the benefits of that certain Second Restatement Reciprocal
Construction Operation and Easement dated July 18, 1986, and recorded in the
Hudson County Register's Office in Deed Book 3596, page 1, and Amendment to
Second Restatement of Reciprocal Construction, Operation and Easement Agreement
dated October 29, 1987 and recorded in the Hudson County Register's Office in
Deed Book 3624, page 48.
FOR INFORMATION ONLY: Premises are known as 500 Plaza Drive, Secaucus, New
Jersey and designated as Block 227 Lot 6.03 on the Town of Secaucus Tax Map.
Exhibit C - Workletter
ALGORX
500 PLAZA DRIVE
SECAUCUS, NEW JERSEY
1. All carpeting, with the exception of the conference rooms, will be
replaced with a 30 oz. carpeting of Landlord's standard selection.
2. All painted walls will be repainted.
3. Wall surfaces where wall covering is missing will be recovered.
4. The existing internal staircase connecting this unit to the first floor
shall be removed.
Exhibit D - Rules and Regulations
EXHIBIT D
MULTI-OFFICE
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors, elevators and
escalators servicing the Building are limited to ingress and egress from such
tenant's premises for the tenant and its 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
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 any 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.
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. Landlord may refuse admission to the Building outside of Business Hours
on Business Days to any person not known to the watchman in charge, or not
having a pass issued by Landlord or the tenant whose premises are to be entered,
or not otherwise properly identified, and Landlord may require all persons
admitted to or leaving the Building outside of Business Hours on Business Days
to provide appropriate identification. Tenant shall be responsible for all
persons for whom it issues any such pass and shall be liable to Landlord for all
acts or omissions of such persons. Any person whose presence in the Building at
any time shall, in the judgment of Landlord, be prejudicial to the safety,
character or reputation of the Building or of its tenants may be denied access
to the Building or may be ejected therefrom. During any invasion, riot, public
excitement or other commotion, Landlord may prevent all access to the Building
by closing the doors or otherwise for the safety of the tenants and protection
of property in the Building.
3. No tenant shall obtain or accept for use in its premises ice, drinking
water, food, beverage, towel, barbering, bootblacking, floor polishing, cleaning
or other similar services from any persons not authorized by Landlord in writing
to furnish such services, provided that the charges for such services by persons
authorized by Landlord are comparable to similar charges in other first-class
office buildings in Hudson County. Such services shall be furnished only at such
hours, and under such reasonable regulations, as may be fixed by Landlord from
time to time.
4. The cost of repairing any damage to the public portions of the Building
or the
EXHIBIT "D"
public facilities or to any facilities used in common with other tenants, caused
by a tenant or its employees, licensees or invitees, shall be paid by such
tenant.
5. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens shall be attached to or
hung in, or be used in connection with, any window or door of the premises of
any tenant, without the prior written consent of Landlord. Such curtains,
blinds, shades or screens must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
6. 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 premises, or at
any point inside any tenant's premises where the same might be visible outside
of such premises, without the prior written consent of Landlord. In the event of
the violation of the foregoing by any tenant, Landlord may remove the same
without any liability, and may charge the expense incurred in such removal to
the tenant violating this rule. Interior signs, elevator cab designations and
lettering on doors and the Building directory shall, if and when approved by
Landlord, be inscribed, painted or affixed for each tenant by Landlord at the
expense of such tenant, and shall be of a size, color and style acceptable to
Landlord.
7. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window sills or on the
peripheral air conditioning enclosures, if any.
8. No showcase or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
9. Linoleum, tile or other floor covering shall be laid in a tenant's
premises only in a manner first approved in writing by Landlord.
10. No tenant shall mark, paint, drill into, or in any way deface any part
of its premises or the Building. No boring, cutting or stringing of wires shall
be permitted, except with the prior written consent of Landlord, and as Landlord
may direct.
11. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the premises of any tenant of the Building.
12. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted in the premises of
any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any other space in the Building.
EXHIBIT "D"
13. No tenant, nor any tenant's contractors, employees, agents, visitors
or licensees, shall at any time bring into or keep upon the premises or the
Building any inflammable, combustible, explosive or otherwise dangerous fluid,
chemical or substance.
14. Additional locks or bolts of any kind which shall not be operable by
the grand master key for the Building shall not be placed upon any of the doors
or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said grand master
key. Additional keys for a tenant's premises and toilet rooms shall be procured
only from Landlord who may make a reasonable charge therefor. Each tenant shall,
upon the termination of its tenancy, turn over to Landlord all keys of stores,
offices and toilet rooms, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys furnished by Landlord such
tenant shall pay to Landlord the cost thereof.
15. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators and in such
manner as Landlord or its agent may determine from time to time. The persons
employed to move safes and other heavy objects shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a master rigger's license.
Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All labor and
engineering costs incurred by Landlord in connection with any moving specified
in this rule, shall be paid by Tenant to Landlord, on demand.
16. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or this Lease. Landlord
may require any person leaving the Building with any package or other object or
matter to submit a pass, listing such package or object or matter, from the
tenant from whose premises the package or object or matter is being removed, but
the establishment and enlargement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of such tenant. 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 premises or the Building under the
provisions of this RULE or of RULE 2 hereof.
17. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, tobacco in any
form, or as a barber, beauty or manicure shop, or as a school. No tenant shall
use its premises or any part thereof to be used for manufacturing, or the sale
at retail or auction of merchandise, goods or property of any kind.
18. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's judgment, tends to impair
the reputation of the Building or its
EXHIBIT "D"
desirability as a building for others, and upon written notice from Landlord,
such tenant shall refrain from and discontinue such advertising or identifying
sign.
19. 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 any tenant's premises. If, in the judgment of
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 a manner as Landlord shall determine.
20. No machinery or mechanical equipment other than ordinary portable
business machines may be installed or operated in any tenant's premises without
Landlord's prior written consent, and in no case (even where the same are of a
type so excepted 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 equipment which may be permitted to be installed and
used in a tenant's 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.
21. Landlord, its contractors, and their respective employees, shall have
the right to use, without charge therefor all light, power and water in the
premises of any tenant while cleaning or making repairs or alterations in the
premises of such tenant.
22. No premises of any tenant shall be used for lodging or sleeping or for
any immoral or illegal purpose.
23. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
24. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
EXHIBIT "D"
25. No tenant shall cause or permit any unusual or objectionable odors to
emanate from its premises which would annoy other tenants or create a public or
private nuisance. No cooking shall be done in the premises of any tenant except
as is expressly permitted in such tenant's Lease. (The foregoing shall not be
deemed to prohibit an ordinary and customary office coffee station involving the
use of a coffee machine and/or microwave and the like for use by Tenant's
employees).
26. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, cleaning or other servicing of the Building or the premises,
or the use or enjoyment by any other tenant of any other 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 Landlord, might cause
any such impairment or interference.
27. 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. All damages
resulting from any misuse of the fixtures shall be borne by the tenants who, or
whose servants, employees, agents, visitors or licensees shall have, caused the
same. Any cuspidors or containers or receptacles used as such in the premises of
any tenant or for garbage or similar refuse, shall be emptied, cared for and
cleaned by and at the expense of such tenant.
28. All entrance doors in each tenant's premises shall be left locked and
all windows shall be left closed by the tenant when the tenant's premises are
not in use. Entrance doors shall not be left open at any time. Each tenant,
before closing and leaving its premises at any time, shall turn out all lights.
29. Hand trucks not equipped with rubber tires and side guards shall not
be used within the Building.
30. All windows in each tenant's premises shall be kept closed, and all
blinds therein above the ground floor shall be lowered 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 premises.
31. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its judgment, it
deems it necessary, desirable or proper for its best interest and for the best
interests of the tenants, and no alteration or waiver of any rule or regulation
in favor of one tenant shall operate as an alteration or waiver in favor of any
other tenant. Landlord shall not be responsible to any tenant for the
non-observance or violation by any other tenant of any of the rules and
regulations at any time prescribed for the Building.
EXHIBIT E
CLEANING SPECIFICATIONS
NIGHTLY FOR GENERAL OFFICE SPACE
Sweep all hard floors.
Vacuum all carpeted areas and rugs; spot clean rugs as necessary.
Empty and clean all wastepaper baskets, ashtrays, etc. and damp dust.
Sweep and remove waste from all stairways.
Clean all cigarette urns and replace sand and water as necessary.
Remove wastepaper and waste materials and place in plastic bags and store
in designated areas on premises.
Dust and wipe clean all office furniture, paneling and window sills.
Clean all glass furniture tops, removing finger marks.
Dust all chair rails, baseboards and trim.
Wash all water fountains and coolers.
Wipe clean all brass and other brightwork.
Remove all finger marks from private entrance doors, building doors, light
switches and elevator doors and buttons.
Dust all open closet shelving.
Dust all doors and other ventilating louvers.
Properly maintain in a clean condition all service close areas.
NIGHTLY FOR LAVATORY AREAS
Sweep and wash floors using disinfectant.
Wash and polish all mirrors, powder shelves, brightwork, enamel surfaces,
etc. including all exposed piping and toilet seat hinges.
Wipe clean all toilet tissue, soap and towel dispensers and refill with
material furnished by owner.
Remove wastepaper and refuse to a designated area.
NIGHTLY ENTRANCE LOBBY AREAS
Sweep and wash flooring including spray buffing.
Wash all rubber mats.
Clean all cigarette urns and replace sand and water as necessary.
Vacuum floors, dust and rub down walls, metal work and saddles in all
elevator cabs.
NIGHTLY FOR GENERAL CLEANING
Thoroughly vacuum all carpeted areas moving light furniture other than
desks, file cabinets, etc.
Wash all stairways.
MONTHLY HIGH DUSTING
Dust all pictures, frames, charts and other wall hangings not reached in
nightly cleaning.
Dust all vertical surfaces such as walls, partitions, doors, brick,
louvers, not reached in nightly cleaning.
Dust all window frames.
Machine scrub all ceramic tile floors.
Thoroughly wash and polish all wall tile and stalls in toilet Areas.
Dust and wash down lobby walls.
OPTIONAL EXTRA ITEMS PERFORMED ON REQUEST AND TO BE PAID FOR BY TENANT
Wax all hard floors.
Light fixture cleaning.
Shampooing of carpet.
Furniture polishing.
OTHER SPECIAL CHORES NOT DESCRIBED IN NIGHTLY, WEEKLY OR MONTHLY CLEANING
SERVICES
Window washing will be performed TWO times per year.
Exhibit F - Letter of Credit
[NAME AND ADDRESS OF ISSUING BANK]
[INSERT DATE]
IRREVOCABLE LETTER OF CREDIT NO. (insert number)
[Landlord]
[c/o Hartz Mountain Industries, Inc.]
400 Plaza Drive
Secaucus, New Jersey 07096-1515
Ladies and Gentlemen:
At the request and for the account of [TENANT], located at _____________________
(hereinafter called "Applicant"), we hereby establish our Irrevocable Letter of
Credit No. [INSERT NUMBER] in your favor and authorize you and your assigns to
draw on us up to the aggregate amount of US$ [TO BE INSERTED] available by your
draft(s) at sight drawn on us and accompanied by the following:
A statement signed as follows: "The drawer hereunder is entitled to draw
upon this letter of credit pursuant to that certain lease agreement, dated
[INSERT DATE], by and between [LANDLORD], as Landlord, and [TENANT], as
Tenant (the "Lease")."
This Irrevocable Letter of Credit will be duly honored by us at sight upon
delivery of the statement set forth above without inquiry as to the accuracy of
such statement and regardless of whether Applicant disputes the content of such
statement. Partial drawings against this Letter of Credit are permitted.
This Irrevocable Letter of Credit shall automatically renew itself for
successive twelve (12) month periods from the date above, unless we notify you,
by certified mail, return receipt requested, of our intention not to renew at
least sixty (60) days prior to any annual renewal date.
This irrevocable Letter of Credit is transferable at no charge to any transferee
of Landlord upon notice to the undersigned from you and such transferee.
Multiple draws on this Letter of Credit are permitted.
You shall have the right, at your option, to present a photocopy of this Letter
of Credit in lieu of the original and we shall make payment hereunder as if the
original were presented.
At your option, draw requests may be made in person, or by mail, or by courier
service, including but not limited to FedEx, Airborne, or UPS.
At your option draw requests may be made by fax to the following fax number (or
such other number as we may designate upon written notice to you):
Fax number for draws hereunder:
This credit is subject to the Uniform Customs and Practices for Documentary
Credits (1993 Revisions International Chamber of Commerce, Publication #500).
Upon receipt of the documents above described, we shall pay you as requested.
Very truly yours,
Name of Bank Countersigned:
__________________________________ _____________________________________
Vice President Vice President