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EXHIBIT 10.5
LEASE AND LEASE AGREEMENT
Between
PRINCETON 202 ASSOCIATES LIMITED PARTNERSHIP
The Landlord
And
▇▇▇▇▇▇ COMMUNICATIONS, INC.
The Tenant
For Leased Premises In
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
JUNE , 1995
Prepared by:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(xxx) xxx-xxxx
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TABLE OF CONTENTS
Article Page
1. Definitions 1
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2. Lease of the Leased Premises 1
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3. Rent 1
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4. Term 3
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5. Preparation of the Leased Premises 4
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6. Options 5
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7. Use and Occupancy 6
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8. Utilities, Services, Maintenance and Repairs 9
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9. Allocation of the Expense of Utilities,
Services, Maintenance, Repairs and Taxes 11
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10. Computation and Payment of Allocated
Expenses of Utilities, Services, Maintenance,
Repairs, Taxes and Capital Expenditures 12
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11. Leasehold Improvements, Fixtures
and Trade Fixtures 21
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12. Alterations, Improvements and
Other Modifications by the Tenant 21
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13. Landlord's Rights of Entry and Access 24
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14. Liabilities and Insurance Obligations 25
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15. Casualty Damage to Building or Leased Premises 29
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16. Condemnation 30
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17. Assignment or Subletting by Tenant 30
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18. Signs, Displays and Advertising 34
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19. Quiet Enjoyment 35
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20. Relocation 35
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21. Surrender 36
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22. Events of Default 36
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23. Rights and Remedies 38
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24. Termination of the Term 43
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25. Mortgage and Underlying Lease Priority 45
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26. Transfer by Landlord 46
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27. Indemnification 47
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28. Parties' Liability 49
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29. Security Deposit 51
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30. Representations 51
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31. Reservation in Favor of Tenant 53
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32. Tenant's Certificates and Mortgagee
Notice Requirements 53
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33. Waiver of Jury Trial and Arbitration 56
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34. Severability 57
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35. Notices 57
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36. Captions 57
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37. Counterparts 57
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38. Applicable Law 58
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39. Exclusive Benefit 58
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40. Successors 58
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41. Amendments 58
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42. Waiver 58
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43. Course of Performance 59
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44. Landlord's Concessions 59
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TABLE OF EXHIBITS
Exhibit
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Leased Premises Floor Space Diagram A
Property Description B
Work Letter C
Building Rules and Regulations D
Definitions and Index of Definitions E
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LEASE AND LEASE AGREEMENT, dated as of June __, 1995, between PRINCETON 202
ASSOCIATES LIMITED PARTNERSHIP, a New Jersey limited partnership, with offices
at Suite 100, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Landlord"),
and ▇▇▇▇▇▇ COMMUNICATIONS, INC., a Delaware corporation, with its office at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Tenant").
Subject to all the terms and conditions set forth below, the Landlord and the
Tenant hereby agree as follows:
1. Definitions.
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Certain terms and phrases used in this Agreement (generally those whose first
letters are capitalized) are defined in Exhibit E attached hereto and, as used
in this Agreement, they shall have the respective meanings assigned or referred
to in that exhibit.
2. Lease of the Leased Premises.
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2.1. The Landlord shall, and hereby does, lease to the Tenant, and the
Tenant shall, and hereby does, accept and lease from the Landlord, the
Leased Premises during the Term. The Leased Premises consist of 6761
square feet of gross rentable floor space on the first floor of 202
Carnegie Center, as more fully described in the definition of Leased
Premises set forth in Exhibit E attached hereto.
2.2. The Landlord shall, and hereby does, grant to the Tenant,
and the Tenant shall, and hereby does, accept from the
Landlord, the non-exclusive right to use the Common
Facilities during the Term for itself, its employees, other
agents and Guests in common with the Landlord, any tenants
of Other Leased Premises, any of their respective employees,
other agents and guests and such other persons as the
Landlord may, in the Landlord's sole discretion, determine
from time to time.
3. Rent.
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3.1. The Tenant shall punctually pay the Rent for the Leased Premises for
the Term to the Landlord in the amounts and at the times set forth
below, without ▇▇▇▇ or other demand and without any offset, deduction
or, except as may be otherwise specifically set forth in this
Agreement, abatement whatsoever.
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3.2. The Basic Rent for the Leased Premises during the Initial Term shall be
at the rate per year set forth below.
ANNUAL RATE MONTHLY RATE
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$138,600.48 $11,550.04
The annual rate of Basic Rent for the Leased Premises during any
Renewal Term shall be calculated as set forth in subsection 6.3 of this
Agreement for the respective Renewal Term.
3.3. The Tenant shall punctually pay the applicable Basic Rent in
equal monthly installments in advance on the first day of
each month during the Term, subject to the concession
provided by the terms of subsection 44.2 of this Agreement
for the first four calendar months of the Initial Term. The
Tenant shall pay the Basic Rent for the fifth full calendar
month of the Initial Term upon execution and delivery of
this Agreement. The Tenant also shall punctually pay the
Basic Rent for a period of less than a full calendar month
at the beginning of the Term on the Commencement Date.
3.4. The Basic Rent and the Additional Rent for any period of less than a
full calendar month shall be prorated. In the event that any
installment of Basic Rent cannot be calculated by the time payment is
due, such portion as is then known or calculable shall be then due and
payable; and the balance shall be due upon the Landlord's giving notice
to the Tenant of the amount of the balance due.
3.5. The Additional Rent for the Leased Premises during the Term shall be
promptly paid by the Tenant in the respective amounts and at the
respective times set forth in this Agreement.
3.6. That portion of any amount of Rent or other amount due under
this Agreement which is not paid on the day it is first due
shall incur a late charge equal to the sum of: (i) five
percent of that portion of any amount of Rent or other
amount due under this Agreement which is not paid on the day
it is first due and (ii) interest on that portion of any
amount of Rent or other amount due under this Agreement
which is not paid on the day it is first due at the Base
Rate(s) in effect from time to time plus two additional
percentage points from the day such portion is first due
through the day of receipt thereof by the Landlord. Any such
late charge due from the Tenant shall be due immediately.
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4. Term.
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4.1. The Initial Term shall commence on the Commencement Date and
shall continue for five years from the beginning of the
Initial Year, unless sooner terminated in accordance with
section 24 of this Agreement. The Term shall commence on the
Commencement Date and shall continue until the later of the
conclusion of the Initial Term or the conclusion of any
Renewal Term, unless sooner terminated in accordance with
section 24 of this Agreement.
4.2. Unless one or more of the conditions contemplated by subsection 4.3 of
this Agreement occurs, the Commencement Date shall be the later of:
4.2.1. the Target Date; or
4.2.2. the date that the last of each of the following conditions set
forth in this subsection 4.2.2 of the Agreement that is
specifically applicable shall have occurred:
4.2.2.1. if the Leased Premises is being prepared
exclusively by contractors selected and
retained by the Landlord, the date the
Leased Premises can first be legally
occupied for its intended use;
4.2.2.2. preparation of the Leased Premises in
accordance with the Tenant Plan is
substantially completed (except for (i) any
long lead time items that may be required by
the Tenant Plan that can not be delivered to
the Leased Premises in sufficient time to be
incorporated into the work in proper
sequence and (ii) any preparation work that
is not being performed exclusively by
contractors selected and retained by the
Landlord); and
4.3. In the event one or more of the conditions contemplated by this
subsection 4.3 of the Agreement occurs, notwithstanding anything to the
contrary set forth in subsection 4.2 of this Agreement, the
Commencement Date shall be the earliest applicable date specified
below:
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4.3.1. the earliest date the Tenant takes any of the
following actions shall be the Commencement Date
in the event the Tenant takes possession of,
occupies or moves any furniture, furnishings,
equipment (with the exception of equipment
required for tele-communications hook-ups),
supplies or other possessions into, the Leased
Premises or any portion thereof earlier than the
date otherwise determined in accordance with
subsection 4.2 of this Agreement;
4.3.2. the Target Date in the event the Tenant does not timely: (i)
sign and return the notice contemplated by the last sentence
of subsection 5.4 of this Agreement to the Landlord and (ii)
make the initial payment contemplated by the next to last
sentence of subsection 5.4 of this Agreement to the Landlord;
or
4.3.3. the date that the last of the conditions set forth in
subsection 4.2.2 of this Agreement that is specifically
applicable shall have occurred if (i) the Tenant shall have
requested the Landlord or any contractors selected and
retained by the Landlord to complete their work before the
Target Date and (ii) they shall have done so.
4.4. Once it is ascertained in accordance with subsections 4.2 and 4.3 of
this Agreement, the Landlord shall give prompt notice of the
Commencement Date to the Tenant; and if the Tenant does not object
thereto by notice given to the Landlord within 10 days of the
Landlord's notice, the date set forth in the Landlord's notice shall
thereafter be conclusively presumed to be the Commencement Date.
5. Preparation of the Leased Premises.
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5.1. The Landlord shall give notice to the Tenant of the
Landlord's price to the Tenant to supply or perform, or
both, the work contemplated by the Tenant Plan being
provided by the Landlord or the Landlord's contractors. Such
price shall include 15% of the Landlord's contractors'
aggregate price as the Landlord's general contracting fee
and shall be net of any credit for work being provided by
the Landlord without charge to the Tenant in accordance with
the Work Letter. If acceptable to the Tenant, the Tenant
shall sign a copy of the notice and return it to the
Landlord, together with payment of 33-1/3% of such price,
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within one week after it was given authorizing the Landlord and the
Landlord's contractors to supply or perform the work contemplated by
both the Tenant Plan and the notice at the price set forth in the
notice. The Tenant shall pay the balance of such price to the Landlord
in proportion to the progress of such work, as and when billed by the
Landlord at convenient intervals, with payment of any remaining final
balance due from the Tenant prior to the Commencement Date.
5.2. The Landlord shall build the Leased Premises in accordance with the
Tenant Plan expending up to a maximum of $12.00 per square foot of
usable floor space.
6. Options.
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6.1. If, prior to the respective date of exercise thereof, (a)(i)
no Event of Default shall have occurred or (ii) if an Event
of Default shall have occurred, the Tenant shall have
previously cured it in full and the Landlord shall have
waived it (b) there shall not have been a History of
Recurring Events of Default and (c) the Term has not been
terminated pursuant to the provisions of subsection 24.1.7
of this Agreement, the Tenant shall have one option,
exercisable exclusively at the time and in the manner set
forth below in subsection 6.2 of this Agreement, to extend
the Term for one additional period of five years' duration.
If the option is properly exercised, the period to which it
relates shall commence upon the end of the Expiring Term.
The option is an "Option to Renew."
6.2. In the event the Tenant is interested in exercising the
Option to Renew, the Tenant shall give timely notice of the
Tenant's interest to the Landlord no earlier than nine, and
no later than eight, months prior to the end of the Expiring
Term. Within four weeks of the giving of such notice, the
Landlord shall give notice of the Tenant of the Market
Rental Rate in effect eight months prior to end of the
Expiring Term. In the event the Tenant desires to exercise
the Option to Renew, the Tenant shall do so exclusively by
giving timely notice thereof to the Landlord no earlier than
seven, and no later than six, months prior to the end of the
Expiring Term, and indicating in that notice whether or not
the Market Rental Rate in effect eight months prior to the
end of the Expiring Term is acceptable. In the event the
Tenant fails timely to notify the Landlord of its interest
in exercising the Option to Renew or timely to exercise the
Option to Renew, that Option to Renew shall thereupon
expire.
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6.3. The Basic Rent for the Leased Premises during the Renewal
Term shall be the Market Rental Rate, as set forth in the
Landlord's notice to the Tenant of the Market Rental Rate,
unless the Tenant, in the Tenant's notice contemplated by
the third sentence of subsection 6.2 of this Agreement
affirmatively indicates that the Market Rental Rate for the
Renewal Term is not acceptable, in which case the Basic Rent
for the Leased Premises during the Renewal Term shall be the
greater of:
6.3.1. that amount which is the product of the annual rate of Basic
Rent in effect during the last 12 months of the Expiring Term
multiplied by the sum of the following two amounts: (a) one
and (b) the amount obtained by multiplying five-hundredths
(.05) by the number of full calendar months in the Expiring
Term and dividing the result by 12; or
6.3.2. that amount which bears the same ratio to the annual rate of
Basic Rent in effect during the Expiring Term as the Index for
the ninth month before the end of the Expiring Term bears to
the Index for the ninth month before the first full calendar
month at the beginning of the Expiring Term.
6.4. Except in the case of an assignment or sublease in accordance with the
provisions of subsection 17.6 of this Agreement, in the event the
Tenant assigns this Agreement or sublets, or licenses the use or
occupancy of, the Leased Premises or any portions thereof in accordance
with section 17 of this Agreement or otherwise, or attempts to do so:
6.4.1. any Option to Renew which the Tenant has theretofore
properly exercised with respect to a Renewal Term
that has not yet actually commenced shall be
rescinded, if the Landlord so elects by notice to the
Tenant, to the same extent as if it had not been
exercised at all; and
6.4.2. any Option to Renew or any other type of option or
optional right exercisable by the Tenant not
theretofore timely and otherwise properly exercised
by the Tenant shall thereupon expire.
7. Use and Occupancy.
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7.1. The Tenant shall continuously occupy and use the Leased Premises during
the Term exclusively as an office for its business of health care
marketing services, medical education, medical advertising and related
services.
7.2. In connection with the Tenant's use and occupancy of the Leased
Premises and use of the Common Facilities, the Tenant shall observe,
and the Tenant shall cause the Tenant's employees, other agents and
Guests to observe, each of the following:
7.2.1. the Tenant shall not do, or permit or suffer the
doing of, anything which might have the effect of
creating not insignificantly increased risk of, or
damage from, fire, explosion or other casualty;
7.2.2. the Tenant shall not do, or permit or suffer the
doing of, anything which would have the effect of
(a) increasing any premium for any liability,
property, casualty or excess coverage insurance
policy otherwise payable by the Landlord or any
tenant of Other Leased Premises or (b) making any
such types or amounts of insurance coverage
unavailable or less available to the Landlord or
any tenant of Other Leased Premises;
7.2.3. to the extent they are not inconsistent with this
Agreement, the Tenant and Tenant's employees,
other agents and Guests shall comply with the
Building Rules and Regulations attached hereto as
Exhibit D, and with any changes made therein by
the Landlord if, with respect to any such changes,
the Landlord shall have given notice of the
particular changes to the Tenant and such changes
shall not materially adversely affect the conduct
of the Tenant's business in the Leased Premises;
7.2.4. the Tenant and the Tenant's employees, other agents
and Guests shall not create, permit or continue any
Nuisance in or around the Carnegie Center Complex,
the Leased Premises, the Other Leased Premises, the
Building, the Common Facilities and the Property;
7.2.5. The Tenant and the Tenant's employees, other agents
and Guests shall not permit the Leased Premises to be
regularly occupied by more than one individual per
200 square feet of usable floor space of the Leased
Premises;
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7.2.6. the Tenant and the Tenant's employees, other
agents and Guests shall comply with all Federal,
state and local statutes, ordinances, rules,
regulations and orders as they pertain to the
Tenant's use and occupancy of the Leased Premises,
to the conduct of the Tenant's business and to the
use of the Common Facilities, except that this
subsection shall not require the Tenant to make
any structural changes that may be required
thereby that are generally applicable to the
Building as a whole;
7.2.7. the Tenant and the Tenant's employees, other
agents and Guests shall comply with the
requirements of the Board of Fire Underwriters (or
successor organization) and of any insurance
carriers providing liability, property, casualty
or excess insurance coverage regarding the
Property, the Building, the Common Facilities or
any portions thereof, any other improvements on
the Property and the Carnegie Center Complex,
except that this subsection shall not require the
Tenant to make any structural changes that may be
required thereby that are generally applicable to
the Building as a whole;
7.2.8. the Tenant and the Tenant's employees, other
agents and Guests shall not bring or discharge any
substance (solid liquid or gaseous), or conduct
any activity, in or on the Carnegie Center
Complex, the Property, the Building, the Common
Facilities or the Leased Premises that shall have
been identified by the scientific community or by
any Federal, state or local statute (including,
without limiting the generality of the foregoing,
the Spill Compensation and Control Act (58
N.J.S.A. _23.11 et seq.) and the Industrial Site
Recovery Act (13 N.J.S.A. _1 K-6 et seq.), as they
may be amended), ordinance, rule, regulation or
order as toxic or hazardous to health or to the
environment;
7.2.9. the Tenant and the Tenant's employees, other agents
and Guests shall not draw electricity in the Leased
Premises in excess of the rated capacity of the
electrical conductors and safety devices including,
without limiting the generality of the foregoing,
circuit breakers and fuses, by
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which electricity is distributed to and throughout
the Leased Premises and, without the prior written
consent of the Landlord in each instance, shall not
connect any fixtures, appliances or equipment to the
electrical distribution system serving the Building
and the Leased Premises other than typical
professional office equipment such as minicomputers,
microcomputers, typewriters, copiers, telephone
systems, coffee machines and table top microwave
ovens, none of which, considered individually and in
the aggregate, overall and per fused or circuit
breaker protected circuit, shall exceed the above
limits;
7.2.10. on a timely basis the Tenant shall pay directly and
promptly to the respective taxing authorities any
taxes (other than Taxes) charged, assessed or levied
exclusively on the Leased Premises or arising
exclusively from the Tenant's use and occupancy of
the Leased Premises; and
7.2.11. the Tenant shall not initiate any appeal or
contest of any assessment or collection of Taxes
for any period without, in each instance, the
prior written consent of the Landlord which,
without being deemed unreasonable, the Landlord
may withhold if the Building was not 90% occupied
by paying tenants throughout that period or if the
Tenant is not joined by tenants of Other Leased
Premises that leased throughout that period, and
that are then leasing, at least 80% of all Other
Leased Premises, determined by their gross
rentable floor space.
8. Utilities, Services, Maintenance and Repairs.
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8.1. The Landlord shall provide or arrange for the provision of:
8.1.1. such maintenance and repair of the Building
(except the Leased Premises and Other Leased
Premises); the Common Facilities; and the heating,
ventilation and air conditioning systems, any
plumbing systems and the electrical systems in the
Building, the Common Facilities, the Leased
Premises and Other Leased Premises as is
customarily provided for first class office
buildings in the immediate area;
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8.1.2. such garbage removal from the Building and the Common
Facilities and such janitorial services for the Building, the
Leased Premises and Other Leased Premises as is customarily
provided for first class office buildings in the immediate
area;
8.1.3. water to the Building and, if the appropriate plumbing has
been installed therein, the Leased Premises and Other Leased
Premises;
8.1.4. sewage disposal for the Building;
8.1.5. passenger elevator service for the Building;
8.1.6. snow clearance from, and sweeping of, Parking Facilities and
private access roads which are part of the Property or the
Common Facilities; and
8.1.7. the maintenance of landscaping which is part of the Property
or the Common Facilities.
8.2. The Landlord shall provide or arrange for the provision of:
8.2.1. such maintenance and repair of the Leased Premises, except for
refinishing walls and wall treatments, base, ceilings, floor
treatments and doors in general from time to time or for
gouges, spots, marks, damage or defacement caused by anyone
other than the Landlord, its employees and other agents, and
except for the Tenant's furniture, furnishings, equipment and
other property;
8.2.2. such maintenance and repair of the Other Leased Premises,
except for refinishing walls and wall treatments, base,
ceilings, floor treatments and doors in general from time to
time or for gouges, spots, marks, damage or defacement caused
by anyone other than the Landlord, its employees and other
agents, and except for the respective tenants' furniture,
furnishings, equipment and other property;
8.2.3. the electricity required for the operation of the Building,
the Property and the Common Facilities during Regular Business
Hours and, on a reduced service basis, during other than
Regular Business Hours, and, at all times, the electricity
required for the Leased Premises and Other Leased Premises;
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8.2.4. such heat, ventilation and air conditioning for the
Building, the Leased Premises and Other Leased
Premises as is customarily provided for first class
office buildings in the immediate area for the
comfortable use of the Building during Regular
Business Hours; and
8.2.5. heated water to the Building (except the Leased
Premises and Other Leased Premises, unless the
appropriate plumbing, fixtures and hot water heating
units have been installed therein).
8.3. Except as specifically set forth in subsections 8.1 and 8.2.1 of this
Agreement, the Tenant shall maintain and repair the Leased Premises and
keep the Leased Premises in as good condition and repair, reasonable
wear and use excepted, as the Leased Premises are upon the completion
of any improvements contemplated by section 5 of this Agreement.
9. Allocation of the Expense of Utilities, Services, Maintenance, Repairs
and Taxes.
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9.1. All Tenant Electric Charges shall be borne by the Tenant.
9.2. Between the Commencement Date and the end of the No Pass Through
Period, the Tenant's Share of all Operational Expenses and Taxes
incurred during such period shall be borne by the Landlord.
9.3. Between the day after the end of the No Pass Through Period and the end
of the Term, the Tenant's Share of Operational Expenses and Taxes
incurred during each annual or shorter period ending on (a) December 31
of each year and (b) the end of the Term shall be borne as follows:
9.3.1. the Tenant's Share of: Operational Expenses and
Taxes incurred during each such period of 12
months (or shorter period), up to the amounts of
Base Year Operational Expenses and Base Year
Taxes, respectively (or proportional amount
thereof for periods shorter than 12 months), shall
be borne by the Landlord; and
9.3.2. the Tenant's Share of: the amounts by which
Operational Expenses and Taxes incurred during
each such period of 12 months (or shorter period)
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exceed Base Year Operational Expenses and Base Year
Taxes, respectively (or proportional amount thereof
for periods shorter than 12 months) shall be
allocated to, and borne by, the Tenant as more
specifically set forth in section 10 of this
Agreement.
10. Computation and Payment of Allocated Expenses of Utilities,
Services, Maintenance, Repairs, Taxes and Capital
Expenditures.
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10.1. The Tenant shall promptly pay the following additional amounts to the
Landlord at the respective times set forth below:
10.1.1. commencing with the first day after the end of the
No Pass Through Period, and on the first day of
each month thereafter during the Term, one-twelfth
of the Tenant's Share of the amount by which Taxes
for the then current calendar year exceeds Base
Year Taxes, but only after Tenant receives a ▇▇▇▇
therefor computed in accordance with subsection
10.5 of this Agreement;
10.1.2. within 20 days of the Landlord's giving notice to
the Tenant after the close of each calendar year
closing during the Term, commencing with the first
calendar year closing after the close of the No
Pass Through Period, and after the end of the
Term, the Tenant's Share of the difference between
the Landlord's previously projected amount of
Taxes for such period and the actual amount of
Taxes for such period, in either case in excess of
Base Year Taxes, computed in accordance with
subsection 10.6 of this Agreement (unless such
difference is a negative amount, in which case the
Landlord shall credit such difference against any
amounts next due from the Tenant under subsections
10.1.1 and 10.5 of this Agreement);
10.1.3. commencing with the first day after the end of the
No Pass Through Period, and on the first day of
each month thereafter during the Term, one-twelfth
of the Tenant's Share of the amount by which
Operational Expenses for the then current calendar
year exceed Base Year Operational Expenses, but
only after Tenant receives a ▇▇▇▇ therefor
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computed in accordance with subsection 10.7 of
this Agreement;
10.1.4. within 20 days of the Landlord's giving notice to
the Tenant after the close of each calendar year
closing during the Term, commencing with the first
calendar year closing after the close of the No
Pass Through Period, and after the end of the
Term, the Tenant's Share of the difference between
the Landlord's previously projected amount of
Operational Expenses for such period and the
actual amount of Operational Expenses for such
period, in either case in excess of Base Year
Operational Expenses, computed in accordance with
subsection 10.8 of this Agreement (unless such
difference is a negative amount, in which case the
Landlord shall credit such difference against any
amounts next due from the Tenant under subsections
10.1.5 and 10.7 of this Agreement);
10.1.5. commencing with the first day of the first month
after the Landlord gives any notice contemplated
by subsection 10.9 of this Agreement to the Tenant
and continuing on the first day of each month
thereafter until the earlier of (a) the end of the
Term or (b) the last month of the useful life set
forth in the respective notice, one-twelfth of the
Tenant's Share of any Annual Amortized Capital
Expenditure, computed in accordance with
subsection 10.9 of this Agreement;
10.1.6. on the first day of each month during the Term,
the monthly Tenant Electric Charges, computed in
accordance with subsection 10.10 of this
Agreement; and
10.1.7. promptly as and when billed therefor by the
Landlord, the amount of any expense which would
otherwise fall within the definition of
Operational Expenses, but which is specifically
paid or incurred by the Landlord for operation and
maintenance of the Building, the Common Facilities
or the Property outside Regular Business Hours at
the specific request of the Tenant or the amount
of any expenditure incurred for maintenance or
repair of damage to the Building, the Common
Facilities, the Property, the Leased Premises or
the Other Leased Premises caused directly or
indirectly, in whole or in part, by the active or
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passive negligence or intentional act of the
Tenant or any of its employees, other agents or
Guests.
10.2. "Operational Expenses" means all expenses paid or incurred by
the Landlord in connection with the Property, the Building,
the Common Facilities and any other improvements on the
Property and their operation and maintenance (other than Taxes
(which are separately allocated to the Tenant in accordance
with subsections 10.1.1 and 10.1.2 of this Agreement), Capital
Expenditures (which are separately allocated to the Tenant in
accordance with subsection 10.1.5 of this Agreement) and those
expenses contemplated by subsections 10.1.6 and 10.1.7 of this
Agreement)) including, without limiting the generality of the
foregoing:
10.2.1. Utilities Expenses;
10.2.2. the expense of providing the services, maintenance
and repairs contemplated by subsections 8.1, 8.2.1 and 8.2.2
of this Agreement, whether furnished by the Landlord's
employees or by independent contractors or other agents;
10.2.3. wages, salaries, fees and other compensation and
payments and payroll taxes and contributions to any social
security, unemployment insurance, welfare, pension or similar
fund and payments for other fringe benefits required by law or
union agreement (or, if the employees or any of them are not
represented by a union, then payments for benefits comparable
to those generally required by union agreement in first class
office buildings in the immediate area which are unionized)
made to or on behalf of any employees of Landlord performing
services rendered in connection with the operation and
maintenance of the Building, the Common Facilities and the
Property, including, without limiting the generality of the
foregoing, elevator operators, elevator starters, window
cleaners, porters, janitors, maids, miscellaneous handymen,
watchmen, persons engaged in patrolling and protecting the
Building, the Common Facilities and the
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Property, carpenters, engineers, firemen, mechanics,
electricians, plumbers, other tradesmen, other
persons engaged in the operation and maintenance of
the Building, Common Facilities and Property,
Building superintendent and assistants, Building
manager, and clerical and administrative personnel;
10.2.4. the uniforms of all employees and the
cleaning, pressing and repair thereof;
10.2.5. premiums and other charges incurred by
Landlord with respect to all insurance
relating to the Building, the Common
Facilities and the Property and the operation
and maintenance thereof, including, without
limitation: property and casualty, fire and
extended coverage insurance, including
windstorm, flood, hail, explosion, other
casualty, riot, rioting attending a strike,
civil commotion, aircraft, vehicle and smoke
insurance; public liability insurance;
elevator, boiler and machinery insurance;
excess liability coverage insurance; use and
occupancy insurance; workers' compensation
and health, accident, disability and group
life insurance for all employees; and
casualty rent insurance;
10.2.6. sales and excise taxes and the like upon any
Operational Expenses and Capital
Expenditures;
10.2.7. management fees of any independent managing
agent for the Property, the Building or the
Common Facilities; and if there shall be no
independent managing agent, or if the
managing agent shall be a person affiliated
with the Landlord, the management fees that
would customarily be charged for the
management of the Property, the Building and
the Common Facilities by an independent,
first class managing agent in the immediate
area;
10.2.8. the cost of replacements for tools, supplies
and equipment used in the operation, service,
maintenance, improvement, inspection, repair
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and alteration of the Building, the Common
Facilities and the Property;
10.2.9. the cost of repainting or otherwise
redecorating any part of the Building or the
Common Facilities;
10.2.10. decorations for the lobbies and other Common
Facilities in the Building;
10.2.11. the cost of licenses, permits and similar
fees and charges related to operation, repair
and maintenance of the Building, the Property
and the Common Facilities;
10.2.12. an allocable share of service, replacement, repair,
maintenance and other charges assessed from time to
time by the Carnegie Center Owner's Association II to
the Building; and
10.2.13. any and all other expenditures of the Landlord in
connection with the operation, alteration, repair or
maintenance of the Property, the Common Facilities or
the Building as a first-class office building and
facilities in the immediate area which are properly
treated as an expense fully deductible as incurred in
accordance with generally applied real estate
accounting practice.
10.3. "Capital Expenditures" means the following expenditures incurred or
paid by the Landlord in connection with the Property, the Building, the
Common Facilities and any other improvements on the Property:
10.3.1. all costs and expenses incurred by the
Landlord in connection with retro-fitting the
entire Building or the Common Facilities, or
any portion thereof, to comply with any
change in Federal, state or local statute,
rule, regulation, order or requirement which
change takes effect after the original
completion of the Building;
10.3.2. all costs and expenses incurred by the
Landlord to replace and improve the Property,
the Building or the Common Facilities or
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portions thereof for the purpose of continued
operation of the Property, the Building and the
Common Facilities as a first class office complex in
the immediate area; and
10.3.3. all costs and expenses incurred by the Landlord in
connection with the installation of any energy, labor
or other cost saving device or system on the Property
or in the Building or the Common Facilities.
10.4. Neither "Operational Expenses" nor "Capital Expenditures" shall include
any of the following:
10.4.1. principal or interest on any mortgage
indebtedness on the Property, the Building or
any portion thereof;
10.4.2. any capital expenditure, or amortized portion
thereof, other than those included in the definition
of Capital Expenditures set forth in subsection 10.3
above;
10.4.3. expenditures for any leasehold improvement which
is made in connection with the preparation of any
portion of the Building for occupancy by a new
tenant or which is not made generally to or for
the benefit of the Leased Premises and all Other
Leased Premises or generally to the Building or
the Common Facilities;
10.4.4. to the extent the Landlord actually receives
proceeds of property and casualty insurance
policies on the Building, other improvements on
the Property or the Common Facilities,
expenditures for repairs or replacements
occasioned by fire or other casualty to the
Building or the Common Facilities;
10.4.5. expenditures for repairs, replacements or
rebuilding occasioned by any of the events
contemplated by section 16 of this Agreement;
10.4.6. expenditures for costs, including advertising and
leasing commissions, incurred in connection with
efforts to lease portions of the Building and to
procure new tenants for the Building;
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10.4.7. legal fees and expenses incurred in enforcing any
of Landlord's rights or remedies against tenants
of Other Leased Premises;
10.4.8. expenditures for the salaries and benefits of the
executive officers, if any, of the Land-lord; and
10.4.9. depreciation (as that term is used in the accounting
sense in the context of generally applied real estate
accounting practice) of the Building, the Common
Facilities and any other improvement on the Property.
10.5. As soon as practicable after the close of the No Pass Through Period
and December 31 of each year thereafter, any portion of which is during
the Term, the Landlord shall furnish the Tenant with a notice setting
forth:
10.5.1. Taxes billed, or if a ▇▇▇▇ has not then been received
for the entire period, the Landlord's projection of
Taxes to be billed, for the then current calendar
year;
10.5.2. the amount of Base Year Taxes;
10.5.3. the amount, if any, by which item 10.5.1
above exceeds item 10.5.2 above; and
10.5.4. the Tenant's Share of item 10.5.3 above.
10.6. As soon as practicable after December 31 of each year during the Term
and after the end of the Term, the Landlord shall furnish the Tenant
with a notice setting forth:
10.6.1. the actual amount of Taxes for the preceding calendar
year in excess of Base Year Taxes (or proportional
amount thereof for shorter periods during the Term);
10.6.2. the Landlord's previously projected amount of Taxes
for the preceding calendar year in excess of Base
Year Taxes (or proportional amount thereof for
shorter periods during the Term);
10.6.3. the difference obtained by substracting item
10.6.2 above from item 10.6.1 above; and
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10.6.4. the Tenant's Share of item 10.6.3 above.
10.7. As soon as practicable after the close of the No Pass Through Period
and December 31 of each year thereafter, any portion of which is during
the Term, the Landlord shall furnish the Tenant with a notice setting
forth:
10.7.1. the Landlord's projection of annual Operational Expenses for
the current period (if any portion thereof is during the
Term);
10.7.2. the amount of the Base Year Operational Expenses;
10.7.3. the amount, if any, by which item 10.7.1 above exceeds item
10.7.2 above; and
10.7.4. the Tenant's Share of item 10.7.3 above.
10.8. As soon as practicable after December 31 of each year during the Term
and after the end of the Term, the Landlord shall furnish the Tenant
with a notice setting forth:
10.8.1. the actual amount of Operational Expenses for the preceding
calendar year in excess of Base Year Operational Expenses (or
proportional amount thereof for shorter periods during the
Term);
10.8.2. the Landlord's previously projected amount of Operational
Expenses for the preceding calendar year in excess of Base
Year Operational Expenses (or proportional amount thereof for
shorter periods during the Term);
10.8.3. the difference obtained by subtracting item 10.8.2 above from
item 10.8.1 above; and
10.8.4. the Tenant's Share of item 10.8.3 above.
10.9. As soon as practicable after incurring any Capital Expenditure, the
Landlord shall furnish the Tenant with a notice setting forth:
10.9.1. a description of the Capital Expenditure and the subject
thereof;
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10.9.2. the date the subject of the respective Capital
Expenditure was first placed into service and the
period of useful life selected by the Landlord in
connection with the determination of the Annual
Amortized Capital Expenditure;
10.9.3. the amount of the Annual Amortized Capital
Expenditure; and
10.9.4. the Tenant's Share of item 10.9.3 above.
10.10. As soon as practicable after the Commencement Date and
from time to time thereafter, the Landlord shall
furnish the Tenant with a notice setting forth its
estimate of Tenant Electric Charges per month. Unless
the Tenant desires to question the Landlord's then most
recent estimate of Tenant Electric Charges exclusively
in the manner set forth below, the Landlord's then most
recent estimate shall be binding and shall continue in
effect until any question raised by the Tenant is
otherwise resolved in accordance with this subsection
10.10 of the Agreement. If the Tenant desires to
question the Landlord's estimate of Tenant Electric
Charges, the Tenant shall give notice to the Landlord
of its desire. Upon receipt of the Tenant's notice, the
Landlord shall obtain, at the Tenant's expense, a
reputable, independent electrical engineer's formal
written estimate and computation of the Tenant Electric
Charges. The engineer's estimate and computation of
Tenant Electric Charges shall thereupon control for a
12 month period commencing with the date as of which it
is given effect as to Tenant Electric Charges, and
until the Landlord furnishes the Tenant with a
subsequent notice setting forth its estimate of Tenant
Electric Charges per month, except to the extent that
the Landlord may increase them in proportion to
increases in Utilities Expenses during the same period.
10.11. Within 60 days after the Landlord gives any notice enumerated
in subsections 10.5 through 10.10 of this Agreement, the
Tenant or the Tenant's authorized agent, upon one week's prior
notice to the Landlord, may inspect the Landlord's books and
records, as they pertain to the particular expense in
question, at the Landlord's office regarding the subject of
any such notice to verify the amount(s) and calculation(s)
thereof. After payment of the Tenant's Share in accordance
with the provisions of section 10 of this
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Agreement, no further audit shall be conducted except with respect to
items which may have been questioned within the 60 day period.
10.12. The mere enumeration of an item within the definitions of Operational
Expenses and Capital Expenditures in subsections 10.2 and 10.3 of this
Agreement, respectively, shall not be deemed to create an obligation on
the part of the Landlord to provide such item unless the Landlord is
affirmatively required to provide such item elsewhere in this
Agreement.
11. Leasehold Improvements, Fixtures and Trade Fixtures.
---------------------------------------------------
All leasehold improvements to the Leased Premises, fixtures installed in the
Leased Premises and the blinds and floor treatments or coverings shall be the
property of the Landlord, regardless of when, by which party or at which party's
cost the item is installed. Movable furniture, furnishings, trade fixtures and
equipment of the Tenant which are in the Leased Premises shall be the property
of the Tenant, except as may otherwise be set forth in section 23 of this
Agreement.
12. Alterations, Improvements and Other
Modifications by the Tenant.
----------------------------
12.1. The Tenant shall not make any alterations, improvements
or other modifications to the Leased Premises which
effect structural changes in the Building or any
portion thereof, change the functional utility or
rental value of the Leased Premises or, except as may
be contemplated by section 5 of this Agreement prior to
the Commencement Date, affect the mechanical,
electrical, plumbing or other systems installed in the
Building or the Leased Premises.
12.2. The Tenant shall not make any other alterations, improvements or
modifications to the Leased Premises, the Building or the Property or
make any boring in the ceiling, walls or floor of the Leased Premises
or the Building unless the Tenant shall have first:
12.2.1. furnished to the Landlord detailed, New Jersey
architect-certified construction drawings,
construction specifications and, if they pertain in
any way to the heating, ventilation and air
conditioning or other systems of the Building,
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related engineering design work and specifications
regarding, the proposed alterations, improvements
or other modifications;
12.2.2. not received a notice from the Landlord objecting
thereto in any respect within 30 days of the
furnishing thereof (which shall not be deemed the
Landlord's affirmative consent for any purpose);
12.2.3. obtained any necessary or appropriate building
permits or other approvals from the Municipality and,
if such permits or other approvals are conditional,
satisfied all conditions to the satisfaction of the
Municipality; and
12.2.4. met, and continued to meet, all the following
conditions with regard to any contractors selected by
the Tenant and any subcontractors, including
materialmen, in turn selected by any of them:
12.2.4.1. the Tenant shall have sole
responsibility for payment of, and
shall pay, such contractors;
12.2.4.2. the Tenant shall have sole
responsibility for coordinating, and
shall coordinate, the work to be
supplied or performed by such
contractors, both among themselves
and with any contractors selected by
the Landlord;
12.2.4.3. the Tenant shall not permit or
suffer the filing of any mechanic's
notice of intention or other lien or
prospective lien by any such
contractor or subcontractor with
respect to the Property, the Common
Facilities, the Building or any
other improvements on the Property;
and if any of the foregoing should
be filed by any such contractor or
subcontractor, the Tenant shall
forthwith obtain and file the
complete discharge and release
thereof or provide such payment
bond(s) from a reputable,
financially sound institutional
surety as will, in the opinions of
the Landlord, the holders of any
mortgage indebtedness on, or other
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interest in, the Property, the
Building, the Common Facilities or
any other improvements on the
Property, or any portions thereof,
and their respective title insurers,
be adequate to assure the complete
discharge and release thereof;
12.2.4.4. prior to any such contractor's
entering upon the Property, the
Building or the Leased Premises or
commencing work the Tenant shall
have delivered to the Landlord (a)
all the Tenant's certificates of
insurance set forth in section 14 of
this Agreement, conforming in all
respects to the requirements of
section 14 of this Agreement, except
that the effective dates of all such
insurance policies shall be prior to
any such contractor's entering upon
the Property, the Building or the
Leased Premises or commencing work
(if any work is scheduled to begin
before the Commencement Date) and
(b) similar certificates of
insurance from each of the Tenant's
contractors providing for coverage
in equivalent amounts, together with
their respective workers'
compensation insurance, employer's
liability insurance and products-
completed operations insurance, the
latter providing coverage in at
least the amount required for the
Tenant's comprehensive general
public liability and excess
insurance;
12.2.4.5. each such contractor shall be a
party to collective bargaining
agreements with those unions that
are certified as the collective
bargaining agents of all bargaining
units of such contractor, of which
all such contractor's workpersons
shall be members in good standing;
12.2.4.6. each such contractor shall perform
its work in a good and
workpersonlike manner and shall not
interfere with or hinder the
Landlord or any other contractor in
any manner;
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12.2.4.7. there shall be no labor dispute of
any nature whatsoever involving any
such contractor or any workpersons
of such contractor or the unions of
which they are members with anyone;
and if such a labor dispute exists
or comes into existence the Tenant
shall forthwith, at the Tenant's
sole cost and expense, remove all
such contractors and their
workpersons from the Building, the
Common Facilities and the Property;
and
12.2.4.8. the Tenant shall have the sole
responsibility for the security of
the Leased Premises and all
contractors' materials, equipment
and work, regardless of whether
their work is in progress or
completed.
12.3. After the Commencement Date, the Tenant shall not apply any wall
covering (except latex based flat paint) or other treatment to the
walls of the Leased Premises without the prior written consent of the
Landlord.
13. Landlord's Rights of Entry and Access.
-------------------------------------
The Landlord and its authorized agents shall have the following rights of entry
and access to the Leased Premises:
13.1. In case of any emergency or threatened emergency, at any time for any
purpose which the Landlord reasonably believes under such circumstances
will serve to prevent, eliminate or reduce the emergency, or the threat
thereof, or damage or threatened damage to persons and property.
13.2. Upon at least one day's prior verbal advice to the Tenant, at any time
for the purpose of erecting or constructing improvements,
modifications, alterations and other changes to the Building or any
portion thereof, including, without limiting the generality of the
foregoing, the Leased Premises, the Common Facilities or the Property
or for the purpose of repairing, maintaining or cleaning them, whether
for the benefit of the Landlord, the Building, all tenants of Other
Leased Premises in the Building, or one or more tenants of Other Leased
Premises, the Carnegie
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Center Complex or others. In connection with any such improvements,
modifications, alterations, other changes, repairs, maintenance or
cleaning, the Landlord may close off such portions of the Property, the
Building and the Common Facilities and interrupt such services as may
be necessary to accomplish such work, without liability to the Tenant
therefor and without such closing or interruption being deemed an
eviction or constructive eviction or requiring an abatement of Rent.
However, in accomplishing any such work, the Landlord shall endeavor
not to materially interfere with the Tenant's use and enjoyment of the
Leased Premises or the conduct of the Tenant's business and to minimize
interference, inconvenience and annoyance to the Tenant.
13.3. At all reasonable hours for the purpose of operating, inspecting or
examining the Building, including the Leased Premises, or the Property.
13.4. At any time after the Tenant has vacated the Leased Premises, for the
purpose of preparing the Leased Premises for another tenant or
prospective tenant.
13.5. If practicable by appointment with the Tenant, at all reasonable hours
for the purpose of showing the Building to prospective purchasers,
mortgagees and prospective mortgagees and prospective ground lessees
and lessors.
13.6. If practicable by appointment with the Tenant, at all reasonable hours
during the last six months of the Term for the purpose of showing the
Leased Premises to prospective tenants thereof.
13.7. The mere enumeration of any right of the Landlord within this section
13 of the Agreement shall not be deemed to create an obligation on the
part of the Landlord to exercise any such right unless the Landlord is
affirmatively required to exercise such right elsewhere in this
Agreement.
14. Liabilities and Insurance Obligations.
-------------------------------------
14.1. The Tenant shall, at the Tenant's own expense, purchase before the
Commencement Date, and maintain in full force and effect throughout the
Term and any other period during which the Tenant may have possession
of
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the Leased Premises, the following types of insurance coverage from
financially sound and reputable insurers, licensed by the State of New
Jersey to provide such insurance and acceptable to the Landlord, in the
minimum amounts set forth below, each of which insurance policies shall
be for the benefit of, and shall name the Landlord, the Landlord's
managing agent and mortgagees and ground lessors known to the Tenant,
if any, of the Building, the Common Facilities, the Property or any
interest therein, their successors and assigns as additional persons
insured, and none of which insurance policies shall contain a
"coinsurance" clause:
14.1.1. commercial general liability insurance (including
"broad form and contractual liability" coverage) and
excess ("umbrella") insurance which, without limiting
the generality of the foregoing, considered together
shall insure against such risks as bodily injury,
death and property damage, with a combined single
limit of not less than $3,000,000.00 for each
occurrence; and
14.1.2. "special" property insurance which, without limiting
the generality of the foregoing, shall insure against
the risk of damage and loss by reason of fire,
explosion and all other casualties.
14.2. With respect to risks:
14.2.1. as to which this Agreement requires either
party to maintain insurance, or
14.2.2. as to which either party is effectively
insured and for which risks the other party
may be liable,
the party required to maintain such insurance and the party
effectively insured shall use its best efforts to obtain a
clause, if available from the respective insurer, in each such
insurance policy expressly waiving any right of recovery, by
reason of subrogation to such party's rights or otherwise, the
respective insurer might otherwise have or obtain against the
other party, so long as such a clause can be obtained in the
respective insurance policy without additional
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premium cost. If such a clause can be obtained in the
respective insurance policy, but only at additional premium
cost, such party shall, by notice to the other party, promptly
advise the other party of such fact and the amount of the
additional premium cost. If the other party desires the
inclusion of such a clause in the notifying party's respective
insurance policy, the other party shall, within 10 days of
receipt of the notifying party's notice, by notice advise the
notifying party of its desire and enclose therewith its check
in the full amount of the additional premium cost; otherwise
the notifying party need not obtain such a clause in the
respective insurance.
14.3. Each party hereby waives any right of recovery against the other party
for any and all damages for property losses and property damages which
are actually insured by either party, but only to the extent:
14.3.1. that the waiver set forth in this subsection 14.3
does not cause or result in any cancellation of, or
diminution in, the insurance coverage otherwise
available under any applicable insurance policy;
14.3.2. of the proceeds of any applicable insurance policy
(without adjustment for any deductible amount set
forth therein) actually received by such party for
such respective loss or damages; and
14.3.3. the substance of the clause contemplated by
subsection 14.2 of this Agreement is actually and
effectively set forth in the respective insurance
policy.
The waiver set forth in this subsection 14.3 of the Agreement
shall not apply with respect to liability insurance policies
(as opposed to property and casualty insurance policies).
14.4. Each party hereby waives any right of recovery against the other party
for any and all damages for property losses and property damages which
are actually insured by either party, but only to the extent of the
proceeds of any applicable insurance policy (without adjustment for any
deductible amount set forth therein) actually received by such party
for such respective loss or damages. The waiver set forth in this
subsection 14.4
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of the Agreement shall not apply with respect to liability insurance
policies (as opposed to property and casualty insurance policies).
14.5. The Landlord shall have no liability whatsoever to the Tenant or the
Tenant's employees, other agents or Guests or anyone else for any
death, bodily injury, property loss or other damages suffered by any of
them or any of their property which is not caused by the negligence or
intentional misconduct of the Landlord.
14.6. Each policy of insurance required under subsection 14.1 of this
Agreement shall include provisions to the effect that:
14.6.1. no act or omission of the Tenant, its employees,
other agents or Guests shall result in a loss of
insurance coverage otherwise available under such
policy to any person required to be named as an
additional insured in accordance with subsection 14.1
of this Agreement; and
14.6.2. the insurance coverage afforded by such
policy shall not be diminished, cancelled,
permitted to expire or otherwise terminated
for any reason except upon 30 days' prior
written notice from the insurer to every
person required to be named as an additional
insured in accordance with subsection 14.1 of
this Agreement.
14.7. With respect to each type of insurance coverage referred to in
subsection 14.1 of this Agreement, prior to the Commencement Date the
Tenant shall cause its insurer(s) to deliver to the Landlord the
certificate(s) of the insurer(s) setting forth the name and address of
the insurer, the name and address of each additional insured, the type
of coverage provided, the limits of the coverage, any deductible
amounts, the effective dates of coverage and that each policy under
which coverage is provided affirmatively includes provisions to the
effect set forth in subsection 14.6 of this Agreement. In the event any
of such certificates indicates a coverage termination date earlier than
the end of the Term or the end of any other period during which the
Tenant may have possession of the Leased Premises, no later than 10
days before any such coverage termination date, the
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Tenant shall deliver to the Landlord respective, equivalent, new
certificate(s) of the insurer(s).
15. Casualty Damage to Building or Leased Premises.
----------------------------------------------
15.1. In the event of any damage to the Building or any portion thereof by
fire or other casualty which was not caused directly or indirectly, in
whole or in part, by the active or passive negligence or intentional
act of the Tenant, its employees, other agents or Guests:
15.1.1. with the result that the Leased Premises are
rendered untenantable in whole or in part,
15.1.2. regarding which, within 60 days after the occurrence
of the casualty, the Landlord gives notice to the
Tenant that the Landlord can restore the Leased
Premises within 180 days after the occurrence of the
casualty to such an extent that the Leased Premises
are then fully tenantable, and
15.1.3. regarding which the Landlord does restore the
Leased Premises within such period of 180 days,
then this Agreement shall remain in full force and effect, but Rent
shall ▇▇▇▇▇ until such time as the Leased Premises are again fully
tenantable and be reduced during such period by the amount which bears
the same proportion to the Rent otherwise payable during such period as
the gross rentable floor space of the Leased Premises which are
rendered untenantable bears to the gross rentable floor space of the
Leased Premises.
15.2. In the event of casualty damages in the circumstances set forth in
subsection 15.1 of this Agreement which do not result in a termination
of the Term, the Landlord shall cause restoration to proceed diligently
and expediently to the extent the Landlord has received proceeds of any
property, casualty or liability insurance on the damaged portions. If
the Landlord does not complete the restoration within the permitted
time then the Term shall terminate thirty (30) days after written
notice from the Tenant unless the restoration is completed within the
thirty (30) day interval.
15.3. The Tenant shall promptly advise the Landlord by the quickest means of
communication of the occurrence or threatened occurrence of any
casualty damage to the
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Building or the Leased Premises of which the Tenant becomes aware.
16. Condemnation
------------
If the Leased Premises, or any portion thereof, or the Building or the Common
Facilities, or any substantial portion of any of the foregoing, shall be
acquired for any public or quasi-public use or purpose by statute, right of
eminent domain or private sale in lieu thereof, with the result the Tenant can
not use and occupy the Leased Premises for the purpose set forth in subsection
7.1 of this Agreement, the Tenant hereby waives any claim against the Landlord,
the condemning authority or other person acquiring same for any thing of value,
tangible or intangible, including, without limiting the generality of the
foregoing, the putative value of any leasehold interest or loss of the use of
same, except for any right the Tenant might have to make a claim, independent
of, and without reference to or having any effect on, any award or claim of the
Landlord, against the condemning authority or other acquiring party regarding
the value of the Tenant's installed trade fixtures and other installed equipment
which are not removable from the Leased Premises or for ordinary and necessary
moving expenses occasioned thereby.
17. Assignment or Subletting by Tenant.
----------------------------------
17.1. Except as may be specifically set forth in this section 17 of the
Agreement, the Tenant shall not:
17.1.1. assign, or purport to assign, this Agreement
or any of the Tenant's rights hereunder;
17.1.2. sublet, or purport to sublet, the Leased
Premises or any portion thereof;
17.1.3. license, or purport to license, the use or
occupancy of the Leased Premises or any
portion thereof;
17.1.4. otherwise transfer, or attempt to transfer any
interest including, without limiting the generality
of the foregoing, a mortgage, pledge or security
interest, in this Agreement, the Leased Premises or
the right to the use and occupancy of the Leased
Premises; or
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17.1.5. indirectly accomplish, or permit or suffer
the accomplishment of, any of the foregoing
by merger or consolidation with another
entity, by acquisition or disposition of
assets or liabilities outside the ordinary
course of the Tenant's business or by
acquisition or disposition, by the Tenant's
equity owners or subordinated creditors, of
any of their respective interests in the
Tenant.
17.2. The Tenant shall not assign this Agreement or any of the Tenant's
rights hereunder or sublet the Leased Premises or any portion thereof
without first giving 45 days' prior notice to the Landlord of its
desire to assign or sublet and requesting the Landlord's consent and
without first receiving the Landlord's prior written consent. The
Tenant's notice to the Landlord shall include:
17.2.1. the full name, address and telephone number
of the proposed assignee or sublessee;
17.2.2. a description of the type(s) of business in
which the proposed assignee or sublessee is
engaged and proposes to engage;
17.2.3. a description of the precise use to which the
proposed assignee or sublessee intends to put
the Leased Premises or portion thereof;
17.2.4. the proposed assignee's or subtenant's most recent
quarterly and annual financial statements prepared in
accordance with generally accepted accounting
principles and any other evidence of financial
position and responsibility that the Tenant or
proposed assignee or sublessee may desire to submit;
17.2.5. by diagram and measurement of the actual square feet
of floor space, the precise portion of the Leased
Premises proposed to be subject to the assignment of
this Agreement or to be sublet;
17.2.6. a complete, accurate and detailed description
of the terms of the proposed assignment or
sublease including, without limiting the
generality of the foregoing, all
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consideration paid or given, or proposed to be paid
or to be given, by the proposed assignee, sublessee
or other person to the Tenant and the respective
times of payment or delivery; and
17.2.7. any other information reasonably requested by
the Landlord.
17.3. By the expiration of the notice period contemplated by
subsection 17.2 of this Agreement, the Landlord, in its sole
discretion, shall take one of the following actions by notice
to the Tenant:
17.3.1. grant consent on the terms and conditions set forth
in subsection 17.4 of this Agreement and such other
reasonable terms and conditions set forth in the
Landlord's notice;
17.3.2. refuse to grant consent for any of the reasons set
forth in subsection 17.5 of this Agreement or for any
other reasonable reason set forth in the Landlord's
notice; or
17.3.3. elect to terminate the Term as of (a) the end of the
third full month after the Tenant has given notice of
the Tenant's desire to assign or sublet or (b) the
proposed effective date of the proposed assignment or
sublease.
17.4. The Landlord's consent to the Tenant's proposed assignment or
sublease, if granted under subsection 17.3.1 of this
Agreement, shall be subject to all the following terms and
conditions (and to any other terms and conditions permitted by
that subsection):
17.4.1. any proposed assignee or sublessee shall, by document
executed and delivered forthwith to the Landlord,
agree to be bound by all the obligations of the
Tenant set forth in this Agreement;
17.4.2. the Tenant shall remain liable under this Agreement,
jointly and severally with any proposed assignee or
sublessee, for the timely performance of all
obligations of the Tenant set forth in this
Agreement;
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17.4.3. the Tenant shall forthwith deliver to the
Landlord manually executed copies of all
documents regarding the proposed assignment
or sublease and a written, accurate and
complete description, manually executed both
by the Tenant and the proposed assignee or
sublessee, of any other agreement,
arrangement or understanding between them
regarding the same;
17.4.4. with respect to any consideration or other
thing of value received or to be received by
the Tenant in connection with any such
assignment or sublease (other than those
payable in equal monthly installments each
month during the proposed term of any such
assignment or sublease), the Tenant shall pay
to the Landlord one-half of any such amount
and one-half of the fair market value of any
other thing of value within 10 days of
receipt of same; and
17.4.5. with respect to any amount payable to the
Tenant in equal monthly installments each
month during the proposed term of any such
assignment or sublease in connection with
such assignment or sublease, which amount is
in excess of the amount which bears the same
ratio to the monthly installment of Rent due
from the Tenant as the usable floor space of
the Leased Premises subject to the assignment
or sublease bears to the usable floor space
of the entire Leased Premises, the Tenant
shall pay one-half of such excess to the
Landlord together with the Tenant's monthly
installment of Rent.
17.5. The Landlord's refusal to grant consent under subsection
17.3.2 of this Agreement shall not be deemed an unreasonable
withholding of consent if based upon any of the following
reasons (or any other reason permitted by that subsection):
17.5.1. the Landlord desires to take one of the other
actions enumerated in subsection 17.3 of this
Agreement;
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17.5.2. there is already another assignee, sublessee
or licensee of all or a portion of the Leased
Premises;
17.5.3. the proposed sublease is for a term of less
than one year;
17.5.4. the proposed sublease is for a term which
would expire after the Term;
17.5.5. less than one year remains in the Term as of
the proposed effective date of the proposed
assignment or sublease;
17.5.6. the general reputation, financial position or
ability or type of business of, or the
anticipated use of the Leased Premises by,
the proposed assignee or proposed sublessee
is unsatisfactory to the Landlord or is
inconsistent with those of tenants of Other
Leased Premises or of the Carnegie Center
Complex or inconsistent with any commitment
made by the Landlord to any such other
tenant;
17.5.7. the proposed consideration to be paid to the
Tenant during any period of 12 months is less
than the amount of the Market Rental Rate
divided by the gross rentable floor space of
the Leased Premises and multiplied by that
portion of the gross rentable floor space of
the Leased Premises proposed to be subject to
the proposed assignment or sublease; or
17.5.8. the gross rentable floor space of the portion of the
Leased Premises proposed to be sublet is less than
one-third of the gross rentable floor space of the
Leased Premises.
17.6. An assignment or sublease to a parent, subsidiary, affiliate, or
successor in interest by acquisition or merger of Tenant may be done
without consent provided that (i) the Tenant complies with the
requirements of subsection 17.4 of this Agreement; and (ii) the
assignment is not to an entity formed for the purpose of avoiding the
provisions of section 17 of this Agreement.
18. Signs, Displays and Advertising.
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-------------------------------
18.1. The Tenant shall have one sign identifying the
Landlord's assigned number for the Leased Premises at
the principal entrance to the Leased Premises. The
Tenant may identify itself in or on each of: the sign
at the principal entrance to the Leased Premises, the
Building directory and the directory, if, any, on the
floor of the Building on which the Leased Premises is
located. All such signs, and the method and materials
used in mounting and dismounting them, shall be in
accordance with the Landlord's specifications. All such
signs shall be provided and mounted by the Landlord at
the Landlord's expense, except that the Tenant shall
bear any expense of identifying itself on the sign at
the principal entrance to the Leased Premises.
18.2. No other sign, advertisement, fixture or display shall be used
by the Tenant on the Property or in the Building or the Common
Facilities. Any signs other than those specifically permitted
under subsection 18.1 of this Agreement shall be removed
promptly by the Tenant or by the Landlord at the Tenant's
expense.
19. Quiet Enjoyment.
---------------
The Landlord is the owner of the Building, the Property and those Common
Facilities located on the Property. The Landlord has the right and authority to
enter into and execute and deliver this Agreement with the Tenant. So long as an
Event of Default shall not have occurred and be continuing, the Tenant shall and
may peaceably and quietly have, hold and enjoy the Leased Premises during the
Term in accordance with this Agreement.
20. Relocation.
----------
At any time and from time to time during the Term, on at least one hundred
twenty (120) days prior notice to Tenant, the Landlord shall have the right to
move the Tenant out of the Leased Premises and into premises having at least
equal square footage as the Leased Premises located in the Building or in any
other comparable building in the Carnegie Center Complex for the duration of the
Term. In the event that there is not comparable space located in the Building,
the Landlord shall use its best efforts to relocate the Tenant into a 200 Series
building in the Carnegie Center Complex. If comparable space is not available in
a 200 Series building, the Landlord may relocate the Tenant to
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another building in the Carnegie Center Complex. In connection with the
relocation of the Tenant, the Landlord shall pay (i) all costs and expenses of
preparing and decorating the new premises so that such premises will be
substantially similar to the Leased Premises; (ii) all costs and expenses of
removing, relocating and installing Tenant's furniture, trade fixtures,
furnishings and equipment to the new premises; and (iii) other expenses incurred
by Tenant including, but not limited to, the reprinting of stationery and
business cards. The use and occupancy by Tenant of the new premises shall be
under and pursuant to the same terms, conditions and provisions of this Lease
except that the description of the Leased Premises, building (if applicable) and
the Property which, upon completion of such relocation, shall be deemed amended
to describe the substitute new premises, building and property respectively, to
which Tenant shall have been relocated in accordance with this Section 20.
Notwithstanding the foregoing, upon receipt of the written notice of the
Landlord's intention to relocate the Tenant, the Tenant may, upon written notice
to Landlord, elect not to relocate to such other premises and, in lieu thereof,
may terminate this Lease effective on the date the proposed relocation would
have been effective.
21. Surrender.
---------
Upon termination of the Term, or at any other time at which the Landlord, by
virtue of any provision of this Agreement or otherwise has the right to re-enter
and re-take possession of the Leased Premises, the Tenant shall surrender
possession of the Leased Premises; remove from the Leased Premises all property
owned by the Tenant or anyone else other than the Landlord; remove from the
Leased Premises any alterations, improvements or other modifications to the
Leases Premises that the Landlord may request by notice; make any repairs
required by such removal; clean the Leased Premises; leave the Leased Premises
in as good order and condition as it was upon the completion of any improvements
contemplated by section 5 of this Agreement, ordinary wear and use excepted;
return all copies of all keys and passes to the Leased Premises, the Common
Facilities and the Building to the Landlord; and receive the Landlord's written
acceptance of the Tenant's surrender. The Landlord shall not be deemed to have
accepted the Tenant's surrender of the Leased Premises unless and until the
Landlord shall have executed and delivered the Landlord's written acceptance of
surrender to the Tenant, which shall not be unreasonably withheld or delayed.
22. Events of Default.
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The occurrence of any of the following events shall constitute an Event of
Default under this Agreement:
22.1. the Tenant's failure to pay any installment of Basic
Rent or any amount of Additional Rent when it is first
due;
22.2. the Tenant's failure to perform any of its obligations under
this Agreement if such failure has caused, or may cause, loss
or damage that can not promptly be cured by subsequent act of
the Tenant;
22.3. the Tenant's failure to complete performance of any of
the Tenant's obligations under this Agreement (other
than those contemplated by subsections 22.1 and 22.2 of
this Agreement) within 30 days after the Landlord shall
have given notice to the Tenant specifying which of the
Tenant's obligations has not been performed and in what
respects, unless completion of performance within such
period of 30 days is not possible using diligence and
expedience, then within a reasonable time of the
Landlord's notice so long as the Tenant shall have
commenced substantial performance within the first
three days of such period of 30 days and shall have
continued to provide substantial performance,
diligently and expediently, through to completion of
performance;
22.4. the discovery that any representation made by the Tenant in
this Agreement shall have been in-accurate or incomplete in
any material respect either on the date it was made or the
date as of which it was made;
22.5. the sale, transfer or other disposition of any interest
of the Tenant in the Leased Premises by way of
execution or other legal process;
22.6. with the exception of those of the following events to which
section 365 of the Bankruptcy Code shall apply in the context
of an office lease (in which case subsection 22.7 of this
Agreement shall apply):
22.6.1. the Tenant's becoming a "debtor," as that
term is defined in section 101 of the
Bankruptcy Code;
22.6.2. any time when either the value of the
Tenant's liabilities exceed the value of the
Tenant's assets or the Tenant is unable to
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pay its obligations as and when they
respectively become due in the ordinary
course of business;
22.6.3. the appointment of a receiver or trustee of
the Tenant's property or affairs; or
22.6.4. the Tenant's making an assignment for the
benefit of, or an arrangement with or among,
creditors or filing a petition in insolvency
or for reorganization or for the appointment
of a receiver;
22.7. in the event of the occurrence of any of the events
enumerated in subsection 22.6 of this Agreement to
which section 365 of the Bankruptcy Code shall apply in
the context of an office lease, the earlier of the
bankruptcy trustee's rejection or deemed rejection (as
those terms are used in section 365 of the Bankruptcy
Code) of this Agreement; or
22.8. the Tenant's abandoning the Leased Premises before
expiration of the Term without the prior written
consent of the Landlord.
23. Rights and Remedies.
-------------------
23.1. Upon the occurrence of an Event of Default the Landlord shall
have all the following rights and remedies:
23.1.1. to elect to terminate the Term by giving
notice of such election, and the effective
date thereof, to the Tenant and to receive
Termination Damages;
23.1.2. to elect to re-enter and re-take possession of the
Leased Premises, without thereby terminating the
Term, by giving notice of such election, and the
effective date thereof, to the Tenant and to receive
ReLeasing Damages;
23.1.3. if the Tenant remains in possession of the Leased
Premises after the Tenant's obligation to surrender
the Leased Premises shall have arisen, to remove the
Tenant and the Tenant's and any others' possessions
from the Leased Premises by any of the following
means
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without any liability to the Tenant therefor, any
such liability to the Tenant therefor which might
otherwise arise being hereby waived by the Tenant:
legal proceedings (summary or otherwise), writ of
dispossession and any other means and to receive
Holdover Damages and, except in the circumstances
contemplated by section 20 of this Agreement, to
receive all expenses incurred in removing the Tenant
and the Tenant's and any others' possessions from the
Leased Premises, and of storing such possessions if
the Landlord so elects;
23.1.4. to be awarded specific performance, temporary
restraints and preliminary and permanent injunctive
relief regarding Events of Default where the
Landlord's rights and remedies at law may be
inadequate, without the necessity of proving actual
damages or the inadequacy of the rights and remedies
at law;
23.1.5. to receive all expenses incurred in securing,
preserving, maintaining and operating the
Leased Premises during any period of vacancy,
in making repairs to the Leased Premises, in
preparing the Leased Premises for re-leasing
and in re-leasing the Leased Premises
including, without limiting the generality of
the foregoing, any brokerage commissions;
23.1.6. to receive all legal expenses, including without
limiting the generality of the foregoing, attorneys'
fees incurred in connection with pursuing any of the
Landlord's rights and remedies, including
indemnification rights and remedies;
23.1.7. if the Landlord, in its sole discretion, elects to
perform any obligation of the Tenant under this
Agreement (other than the obligation to pay Rent)
which the Tenant has not timely performed, to receive
all expenses incurred in so doing;
23.1.8. to elect to pursue any legal or equitable
right and remedy available to the Landlord
under this Agreement or otherwise; and
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23.1.9. to elect any combination, or any sequential
combination of any of the rights and remedies set
forth in subsection 23.1 of this Agreement.
23.2. In the event the Landlord elects the right and remedy set
forth in subsection 23.1.1 of this Agreement, Termination
Damages shall be equal to the amount which, at the time of
actual payment thereof to the Landlord, is the sum of:
23.2.1. all accrued but unpaid Rent;
23.2.2. the present value (calculated using the most
recently available (at the time of
calculation) published weekly average yield
on United States Treasury securities having
maturities comparable to the balance of the
then remaining Term) of the sum of all
payments of Rent remaining due (at the time
of calculation) until the date the Term would
have expired (had there been no election to
terminate it earlier) less the present value
(similarly calculated) of all payments of
rent to be received through the end of the
Term (had there been no election to terminate
it earlier) from a lessee, if any, of the
Leased Premises at the time of calculation
(and it shall be assumed for purposes of such
calculations that (i) the amount of future
Additional Rent due per year under this
Agreement will be equal to the average
Additional Rent per month due during the 12
full calendar months immediately preceding
the date of any such calculation, increasing
annually at a rate of eight percent
compounded, (ii) if any calculation is made
before the first anniversary of the end of
the No Pass Through Period, the average
Additional Rent due for any month after the
end of the No Pass Through Period will be
equal to nine percent of the sum of the Base
Year Operating Expenses, Base Year Taxes and
Tenant Electric Charges (considered on an
annual basis), (iii) if any calculation is
made before the beginning of the Base Year,
the sum of Base Year Taxes and Base Year
Operational Expenses shall be assumed to be
$5.00 per gross rentable square foot and (iv)
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if any calculation is made before the end of the Base
Year, Base Year Taxes and Base Year Operational
Expenses may be extrapolated based on the year to
date experience of the
Landlord);
23.2.3. the Landlord's reasonably estimated cost of
demolishing any leasehold improvements to the
Leased Premises; and
23.2.4. that amount, which as of the occurrence of
the Event of Default, bears the same ratio to
the costs, if any, incurred by the Landlord
(and not paid by the Tenant) in building out
the Leased Premises in accordance with
section 5 of this Agreement as the number of
months remaining in the Term (immediately
before the occurrence of the Event of
Default) bears to the number of months in the
entire Term (immediately before the
occurrence of the Event of Default).
23.3. In the event the Landlord elects the right and remedy
set forth in subsection 23.1.2 of this Agreement, Re-
Leasing Damages shall be equal to the Rent less any
rent actually and timely received by the Landlord from
any lessee of the Leased Premises or any portion
thereof, payable at the respective times that Rent is
payable under the Agreement plus the cost, if any, to
the Landlord of building out or otherwise preparing the
Leased Premises for, and leasing the Leased Premises
to, any such lessee.
23.4. In the event the Landlord elects the right and remedy
set forth in subsection 23.1.3 of this Agreement,
Holdover Damages shall mean damages at the rate per
month or part thereof equal to the greater of: (a) one
and one-half times one-twelfth of the then Market
Rental Rate plus all Additional Rent as set forth in
this Agreement or (b) double the average amount of all
payments of Rent due under this Agreement during each
of the last 12 full calendar months prior to the
Landlord's so electing or, in the event the Term shall
have terminated by expiration under subsection 24.1.1
of this Agreement, the last full 12 calendar months of
the Term, in either case payable in full on the first
day of each holdover month or part thereof.
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23.5. In connection with any summary proceeding to dispossess and
remove the Tenant from the Leased Premises under subsection
23.1.3 of this Agreement, the Tenant hereby waives:
23.5.1. any notices for delivery of possession thereof, of
termination, of demand for removal therefrom, of the
cause therefor, to cease, to quit and all other
notices that might otherwise be required pursuant to
2A N.J.S.A. Section 18-53 et seq.;
23.5.2. any right the Tenant might otherwise have to cause a
termination of the action or proceeding by paying to
the Landlord or into court or otherwise any Rent in
arrears;
23.5.3. any right the Tenant might otherwise have to a period
of waiting between issuance of any warrant in
execution of any judgment for possession obtained by
the Landlord and the execution thereof;
23.5.4. any right the Tenant might otherwise have to transfer
or remove such proceeding from the court (or the
particular division or part of the court) or other
forum in which it shall have been instituted by the
Landlord to another court, division or part;
23.5.5. any right the Tenant might otherwise have to redeem
the Tenant's former leasehold interest between the
entry of any judgment and the execution of any
warrant issued in connection therewith by paying to
the Landlord or into Court or otherwise any Rent in
arrears; and
23.5.6. any right the Tenant might otherwise have to appeal
any judgment awarding possession of the Leased
Premises to the Landlord.
23.6. The enumeration of rights and remedies in this section
23 of the Agreement is not intended to be exhaustive or
exclusive of any rights and remedies which might
otherwise be available to the Landlord, or to force an
election of one or more rights and remedies to the
exclusion of others, concurrently, consecutively or
sequentially. On the contrary, each right and remedy
enumerated in this section 23 of the Agreement is
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intended to be cumulative with each other right and remedy
enumerated in this section 23 of the Agreement and with each
other right and remedy that might otherwise be available to
the Landlord; and the selection of one or more of such rights
and remedies at any time shall not be deemed to prevent resort
to one or more others of such rights and remedies at the same
time or a subsequent time, even with regard to the same
occurrence sought to be remedied.
23.7. It is expressly understood and agreed that the Landlord
shall have no duty to mitigate damages. In the event
the Landlord elects the right and remedy set forth in
subsection 23.1.2 of this Agreement, Re-Leasing Damages
shall be equal to the Rent less any rent actually and
timely received by the Landlord from any lessee of the
Leased Premises or any portion thereof, payable at the
respective times that Rent is payable under the
Agreement plus the cost, if any, to the Landlord of
building out or otherwise preparing the Leased Premises
for, and leasing the Leased Premises to, any such
lessee. The Landlord may relet some or all of the
Leased Premises but shall have no duty to do so. The
Tenant shall retain its rights to sublet or assign the
Leased Premises, or portions thereof, pursuant to
Article 17 hereof and the right to exercise the Option
to Renew in connection therewith except to the extent
that the Landlord shall have already relet the same
which shall abrogate the Tenant's rights, pro tanto.
23.8 Notwithstanding the provisions of section 23.1 of this
Agreement, if notice of Landlord's election is served
because of a failure to pay Basic Rent or Additional
Rent, and the Tenant pays the Basic Rent or Additional
Rent and other charges due as a result of the Event of
Default within five days of the service of the notice
then the notice shall be withdrawn and the Term or
right to possession shall continue as though no Event
of Default had occurred. The Tenant may not avail
itself of this grace provision more than twice in any
twelve month period.
24. Termination of the Term.
-----------------------
24.1. The Term shall terminate upon the earliest of the following
events to occur:
24.1.1. expiration of the Term;
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24.1.2. in connection with a transaction contemplated by
section 16 of this Agreement, the later of (a) the
vesting of the acquiring party's right to possession
or (b) the Tenant's vacating the Leased Premises;
24.1.3. under the circumstances contemplated by
subsection 15.1 of this Agreement, upon the
Tenant's giving prompt notice of the failure
of the Landlord to give, on a timely basis,
the notice contemplated by subsection 15.1.2
of this Agreement and that the Tenant desires
termination of the Term (which termination
shall be effective as of the date of the
subject casualty with respect to those
portions of the Leased Premises rendered
untenantable and as of the date of the
Tenant's giving notice with respect to those
portions of the Leased Premises which were
not rendered untenantable);
24.1.4. under the circumstances contemplated by
subsection 15.1 of this Agreement, upon the
expiration of 45 additional days (without the
Landlord's completion of restoration in the
interim) after the Tenant shall have given
prompt notice that the Landlord has not
restored the Leased Premises on a timely
basis and that the Tenant desires termination
of the Term (which termination shall be
effective as of the date of the subject
casualty with respect to those portions of
the Leased Premises rendered untenantable and
as of the date of the Tenant's giving notice
with respect to those portions of the Leased
Premises which were not rendered
untenantable);
24.1.5. the effective date of any election by the Landlord
under subsection 17.3.3 of this Agreement in response
to the Tenant's notice of the Tenant's desire to
assign this Agreement or to sublet all or a portion
of the Leased Premises; or
24.1.6. the effective date of any election by the Landlord to
terminate the Term under subsection 23.1.1 of this
Agreement.
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24.2. No termination of the Term shall have the effect of releasing
the Tenant from any obligation or liability theretofore or
thereby incurred and, until the Tenant shall have surrendered
the Leased Premises in accordance with section 21 of this
Agreement, from any obligation or liability thereafter
incurred.
25. Mortgage and Underlying Lease Priority.
--------------------------------------
25.1. This Agreement and the estate, interest and rights
hereby created for the benefit of the Tenant are, and
shall always be, subordinate to any mortgage (other
than a mortgage created by the Tenant or a sale,
transfer or other disposition by the Tenant in the
nature of a security interest in violation of
subsections 17.1.4 and 22.5, respectively, of this
Agreement) already or afterwards placed on the Carnegie
Center Complex, the Property, the Common Facilities,
the Building or any estate or interest therein
including, without limiting the generality of the
foregoing, any new mortgage or any mortgage extension,
renewal, modification, consolidation, replacement,
supplement or substitution. This Agreement and the
estate, interest and rights hereby created for the
benefit of the Tenant are, and shall always be,
subordinate to any ground lease already or afterwards
made with regard to the Carnegie Center Complex, the
Property, the Common Facilities, the Building or any
estate or interest therein including, without limiting
the generality of the foregoing, any new ground lease
or any ground lease extension, renewal, modification,
consolidation, replacement, supplement or substitution.
The provisions of this section 25 of the Agreement
shall be self-effecting; and no further instrument
shall be necessary to effect any such subordination.
Nevertheless, the Tenant hereby consents that any
mortgagee or mortgagee's successor in interest may, at
any time and from time to time, by notice to the
Tenant, subordinate its mortgage to the estate and
interest created by this Agreement; and upon the giving
of such notice, the subject mortgage shall be deemed
subordinate to the estate and interest created by this
Agreement regardless of the respective times of
execution or delivery of either or of recording the
subject mortgage.
25.2. Notwithstanding anything to the contrary that may be
set forth in subsection 25.1 of this Agreement, the
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Landlord shall obtain from each such mortgagee and ground
lessor its respective standard form of nondisturbance,
attornment and subordination agreement including a provision
to the effect that, in the event of enforcement of any
remedies provided in the respective mortgage or ground lease,
so long as an Event of Default shall not have occurred and be
continuing, the Tenant shall not be disturbed in its
possession of the Leased Premises in accordance with this
Agreement.
26. Transfer by Landlord.
--------------------
26.1. The Landlord shall have the right at any time and from time to
time to sell, transfer, lease or otherwise dispose of the
Carnegie Center Complex, the Property, the Common Facilities
or the Building or any of the Landlord's interest therein, or
to assign this Agreement or any of the Landlord's rights
thereunder.
26.2. Upon giving notice of the occurrence of any transaction
contemplated by subsection 26.1 of this Agreement, the
Landlord shall thereby be relieved of any obligation
that might otherwise exist under this Agreement with
respect to periods subsequent to the effective date of
any such transaction. If, in connection with any
transaction contemplated by subsection 26.1 of this
Agreement the Landlord transfers, or makes allowance
for, any Security Deposit of the Tenant and gives
notice of that fact to the Tenant, the Landlord shall
thereby be relieved of any further obligation to the
Tenant with regard to any such Security Deposit; and
the Tenant shall look solely to the transferee with
respect to any such Security Deposit.
26.3. In the event of the occurrence of any transaction
contemplated by subsection 26.1 of this Agreement the
Tenant, upon written request therefor from the
transferee, shall attorn to and become the tenant of
such transferee upon the terms and conditions set forth
in this Agreement.
26.4. Notwithstanding anything to the contrary that may be set forth
in subsections 26.1, 26.2 and 26.3 of this Agreement, in the
event any mortgage contemplated by section 25 of this
Agreement is enforced by the respective mortgagee pursuant to
remedies provided in the mortgage or otherwise provided by law
or equity and
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any person succeeds to the interest of the Landlord as a
result of, or in connection with, any such enforcement, the
Tenant shall, upon the request of such successor in interest,
automatically attorn to and become the Tenant of such
successor in interest without any change in the terms or
provisions of this Agreement, except that such successor in
interest shall not be bound by: (a) any payment of Basic Rent
or Additional Rent (exclusive of prepayments in the nature of
a Security Deposit) for more than one month in advance or (b)
any amendment or other modification of this Agreement which
was made without the consent of such mortgagee or such
successor in interest; and, upon the request of such successor
in interest, the Tenant shall execute, acknowledge and deliver
any instrument(s) confirming such attornment.
26.5. If this Agreement and the estate, interest and rights hereby
created for the benefit of the Tenant are ever subject and
subordinate to any ground lease contemplated by section 25 of
this Agreement:
26.5.1. upon the expiration or earlier termination of
the term of any such ground lease before the
termination of the Term under this Agreement,
the Tenant shall attorn to, and become the
Tenant of, the lessor under any such ground
lease and recognize such lessor as the
Landlord under this Agreement for the balance
of the Term; and
26.5.2. such expiration or earlier termination of the term of
any such ground lease shall have no effect on the
Term under this Agreement.
27. Indemnification.
---------------
27.1. The Tenant shall, and hereby does, indemnify the
Landlord against any and all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses
including, without limiting the generality of the
foregoing, expenses of investigation, defense and
enforcement thereof or of the obligation set forth in
this section 27 of the Agreement including, without
limiting the generality of the foregoing, attorneys'
fees, imposed on or incurred by the Landlord in
connection with any of the following matters which
occurs during the Term:
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27.1.1. any matter, cause or thing arising out of the use,
occupancy, control or management of the Leased
Premises or any portion thereof which is not caused
by the Landlord's negligence or intentional act;
27.1.2. any negligence or intentional act on the part
of the Tenant or any of its employees, other
agents or Guests;
27.1.3. any accident, injury or damage to any person or
property occurring in or about the Leased Premises
which is not caused by the Landlord's negligence or
intentional act;
27.1.4. any representation made by the Tenant in this
Agreement shall have been inaccurate or incomplete in
any material respect either on the date it was made
or the date as of which it was made;
27.1.5. the imposition of any mechanic's,
materialman's or other lien on the Property,
the Common Facilities, the Building, the
Leased Premises or any portion of any of the
foregoing, or the filing of any notice of
intention to obtain any such lien, in
connection with any alteration, improvement
or other modification of the Leased Premises
made or authorized by the Tenant (which
indemnification obligation shall be deemed to
include the Tenant's obligations set forth in
subsection 12.2.4.3 of this Agreement); or
27.1.6. any failure on the part of the Tenant to perform or
comply with any obligation of the Tenant set forth in
this Agreement.
27.2. Payment of indemnification claims by the Tenant to the
Landlord shall be due upon the Landlord's giving notice
thereof to the Tenant.
27.3. The Landlord shall promptly give notice of any claim
asserted, or action or proceeding commenced, against it
as to which it intends to claim indemnification from
the Tenant and, upon notice from the Tenant so
requesting, shall forward to the Tenant copies of all
claim or litigation documents received by it. Upon
receipt of such notice the Tenant may, by notice to the
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Landlord, participate therein and, to the extent it may
desire, assume the defense thereof through independent counsel
selected by the Tenant and reasonably satisfactory to the
Landlord. The Landlord shall not be bound by any compromise or
settlement of any such claim, action or proceeding without its
prior written consent.
28. Parties' Liability.
------------------
28.1. None of the following occurrences shall constitute a breach of
this Agreement by the Landlord, a termination of the Term, an
active or constructive eviction or an occurrence requiring an
abatement of Rent:
28.1.1. the inability of the Landlord to provide any
utility or service to be provided by the
Landlord, as described in section 8 of this
Agreement which is due to causes beyond the
Landlord's control, or to necessary or
advisable improvements, maintenance, repairs
or emergency, so long as the Landlord uses
reasonable efforts and diligence under the
circumstances to restore the interrupted
service or utility;
28.1.2. any improvement, modification, alteration or other
change made to the Carnegie Center Complex, the
Property, the Building or the Common Facilities by
the Landlord consistently with the Landlord's
obligations set forth in subsection 13.2 of this
Agreement; and
28.1.3. any change in any Federal, state or local law
or ordinance.
28.2. Except for the commencement, duration or termination of
the Term (other than under the circumstances
contemplated by subsection 15.1 of this Agreement), the
Tenant's obligation to make timely payments of Rent,
the Tenant's obligation to maintain certain insurance
coverage in effect, the Tenant's failure to perform any
of its other obligations under this Agreement if such
failure has caused loss or damage that can not promptly
be cured by subsequent act of the Tenant and the period
within which any Option to Renew or any other type of
option or optional right exercisable by the Tenant must
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be exercised, any period of time during which the Landlord or
the Tenant is prevented from performing any of its respective
obligations under this Agreement because of fire, any other
casualty or catastrophe, strikes, lockouts, civil commotion,
acts of God or the public enemy, governmental prohibitions or
preemptions, embargoes or inability to obtain labor or
material due to shortage, governmental regulation or
prohibition, shall be added to the time when such performance
is otherwise required under this Agreement.
28.3. In the event the Landlord is an individual,
partnership, joint venture, association or a
participant in a joint tenancy or tenancy in common,
the Landlord, the partners, venturers, members and
joint owners shall not have any personal liability or
obligation under or in connection with this Agreement
or the Tenant's use and occupancy of the Leased
Premises; but recourse shall be limited exclusively to
the Landlord's interest in the Building.
28.4. If, at any time during the Term, the payment or
collection of any Rent otherwise due under this
Agreement shall be limited, frozen or otherwise
subjected to a moratorium by applicable law, and such
limitation, freeze or other moratorium shall
subsequently be lifted, whether before or after the
termination of the Term, such aggregate amount of Rent
as shall not have been paid or collected during the
Term on account of any such limitation, freeze or other
moratorium, shall thereupon be due and payable at once.
There shall be added to the maximum period of any
otherwise applicable statute of limitation the entire
period during which any such limitation, freeze or
other moratorium shall have been in effect.
28.5. If this Agreement is executed by more than one person as
Tenant, their liability under this Agreement and in connection
with the use and occupancy of the Leased Premises shall be
joint and several.
28.6. In the event any rate of interest, or other charge in the
nature of interest, calculated as set forth in this Agreement
would lead to the imposition of a rate of interest in excess
of the maximum rate permitted by applicable usury law, only
the maximum rate permitted shall be charged and collected.
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28.7. The rule of construction that any ambiguities that may be
contained in any contract shall be construed against the party
drafting the contract shall be inapplicable in construing this
Agreement.
29. Security Deposit.
----------------
The Tenant shall pay to the Landlord upon execution and delivery of this
Agreement the sum of $11,550.04 as a security deposit to be held by the Landlord
as security for the Tenant's performance of all the Tenant's obligations under
this Agreement. The Landlord may commingle the Security Deposit with its general
funds. Any interest earned on the Security Deposit shall belong to the Landlord.
The Tenant shall not encumber the Security Deposit. The Landlord, in its sole
discretion, may apply the Security Deposit to cure any Event of Default under
this Agreement. If any such application is made, upon notice by the Landlord to
the Tenant, the Tenant shall promptly replace the amount so applied. If there
has been no Event of Default, within 30 days after termination of the Term the
Landlord shall return the entire balance of the Security Deposit to the Tenant.
The Tenant will not look to any foreclosing mortgagee of the Property, the
Building, the Common Facilities or any interest therein for such return of the
balance of the Security Deposit, unless the mortgagee has expressly assumed the
Landlord's obligations under this Agreement or has actually received the balance
of the Security Deposit.
30. Representations.
---------------
30.1. The Tenant hereby represents and warrants that:
30.1.1. its Standard Industrial Classification (SIC) code is
9886 and it will promptly give notice of any change
therein during the Term to the Landlord;
30.1.2. no broker or other agent has shown the Leased
Premises or the Building to the Tenant, or
brought either to the Tenant's attention,
except Princeton Realty Advisors, whose
entire commission therefor is set forth in a
separate document and which commission the
Tenant understands will be paid by the
Landlord directly to the person named;
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30.1.3. the execution and delivery of, the
consummation of the transactions contemplated
by and the performance of all its obligations
under, this Agreement by the Tenant have been
duly and validly authorized by its general
partners, to the extent required by their
partnership agreement and applicable law, if
the Tenant is a partnership or, if the Tenant
is a corporation, by its board of directors
and, if necessary, by its stockholders at
meetings duly called and held on proper
notice for that purpose at which there were
respective quorums present and voting
throughout; and no other approval,
partnership, corporate, governmental or
otherwise, is required to authorize any of
the foregoing or to give effect to the
Tenant's execution and delivery of this
Agreement; and
30.1.4. the execution and delivery of, the
consummation of the transactions contemplated
by and the performance of all its obligations
under, this Agreement by the Tenant will not
result in a breach or violation of, or
constitute a default under, the provisions of
any statute, charter, certificate of
incorporation or bylaws or partnership
agreement of the Tenant or any affiliate of
the Tenant, as presently in effect, or any
indenture, mortgage, lease, deed of trust,
other agreement, instrument, franchise,
permit, license, decree, order, notice,
judgment, rule or order to or of which the
Tenant or any affiliate of the Tenant is a
party, a subject or a recipient or by which
the Tenant, any affiliate of the Tenant or
any of their respective properties and other
assets is bound.
30.2. The Landlord hereby represents and warrants that:
30.2.1. the execution and delivery of, the consummation of
the transactions contemplated by and the performance
of all its obligations under, this Agreement by the
Landlord have been duly and validly authorized by its
general partner, to the extent required by its
partnership agreement and applicable law,
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and no other approval, partnership, governmental or
otherwise, is required to authorize any of the
foregoing except for the approval of Connecticut
General Life Insurance Company, the holder of the
first mortgage, or to give effect to the Landlord's
execution and delivery of this Agreement; and
30.2.2. the execution and delivery of, the
consummation of the transactions contemplated
by and the performance of all its obligations
under, this Agreement by the Landlord will
not result in a breach or violation of, or
constitute a default under, the provisions of
any statute, charter, or partnership
agreement of the Landlord or any affiliate of
the Landlord, as presently in effect, or any
indenture, mortgage, lease, deed of trust,
other agreement, instrument, franchise,
permit, license, decree, order, notice,
judgment, rule or order to or of which the
Landlord or any affiliate of the Landlord is
a party, a subject or a recipient or by which
the Landlord, any affiliate of the Landlord
or any of their respective properties and
other assets is bound, except as above
stated.
31. Reservation in Favor of Tenant.
------------------------------
Neither the Landlord's forwarding a copy of this document to any prospective
tenant nor any other act on the part of the Landlord prior to execution and
delivery of this Agreement by the Landlord shall give rise to any implication
that any prospective tenant has a reservation, an option to lease or an
outstanding offer to lease any premises.
32. Tenant's Certificates and
Mortgagee Notice Requirements.
------------------------------
32.1. Promptly upon request of the Landlord at any time or
from time to time, but in no event more than five days
after the Landlord's respective request, the Tenant
shall execute, acknowledge and deliver to the Landlord
or its designee an estoppel or other certificate,
satisfactory in form and substance to the Landlord and
any of its mortgagees, ground lessors or lessees or
transferees or prospective mortgagees, ground lessors
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or lessees or transferees, with respect to any of or
all the following matters:
32.1.1. whether this Agreement is then in full force
and effect;
32.1.2. whether this Agreement has not been amended,
modified, superseded, canceled, repudiated or
revoked;
32.1.3. whether the Landlord has satisfactorily completed all
construction work, if any, required of the Landlord
or contractors selected and retained by the Landlord
in connection with readying the Leased Premises for
occupancy by the Tenant in accordance with section 5
of this Agreement;
32.1.4. whether the Tenant is then in actual
possession of the Leased Premises;
32.1.5. whether the Tenant then has no defenses or
counterclaims under this Agreement or otherwise
against the Landlord or with respect to the Leased
Premises;
32.1.6. whether Landlord is not then in breach of
this Agreement in any respect;
32.1.7. whether the Tenant then has no knowledge of any
assignment of this Agreement, the pledging or
granting of any security interest in this Agreement
or in Rent due and to become due under this
Agreement;
32.1.8. whether Rent is not then accruing under this
Agreement in accordance with its terms;
32.1.9. whether any Rent is not then in arrears;
32.1.10. whether Rent due or to become due under this
Agreement has not been prepaid by more than
one month;
32.1.11. if the response to any of the foregoing
matters is in the negative, a specification
of all the precise reasons that necessitated
the negative response in each instance; and
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32.1.12. any other matter reasonably requested by the Landlord
or any of its mortgagees, ground lessors or lessees
or transferees or prospective mortgagees, ground
lessors or lessees or transferees, including, without
limiting the generality of the foregoing, such
information as the Landlord may request for purposes
of assuring compliance with the Industrial Site
Recovery Act (13 N.J.S.A. Section 1K-6 et seq.), as
it may be amended, and any other applicable Federal,
state or local statute, ordinance, rule, regulation
or order concerned with environmental matters.
32.2. If, in connection with the Landlord's or a prospective
transferee's obtaining financing or refinancing of the
Carnegie Center Complex, the Property, the Building,
the Common Facilities, any portion thereof or any
interest therein, the Landlord or a prospective lender
shall so request, the Tenant shall furnish to the
requesting party within 15 days of the request:
32.2.1. its written consent to any requested
modifications of this Agreement provided
that, in each such instance, the requested
modification does not increase the Rent
otherwise due or, in the reasonable judgment
of the Tenant, otherwise materially increase
the obligations of the Tenant under this
Agreement or materially adversely affect the
Tenant's leasehold interest created hereby or
the Tenant's use and enjoyment of the Leased
Premises (except in the circumstances
contemplated by section 16 of this
Agreement); and
32.2.2. summary financial information regarding its
financial position as of the close of its
most recently completed fiscal year and its
most recently completed interim fiscal period
and regarding its results of operations for
the periods then ended and comparable year
earlier periods, certified by Tenant's chief
financial officer to be a complete, accurate
and fair presentation of the summary
financial information purporting to be set
forth therein.
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32.3. If the Landlord or any of its mortgagees gives notice
to the Tenant of any of their respective names and
addresses from time to time, the Tenant shall give
notice to each such mortgagee of any notice of breach
or default previously or afterwards given by the Tenant
to the Landlord under this Agreement and provide in
such notice that if the Landlord has not cured such
breach or default within any permissible cure period
then such mortgagee shall have the greater of (a) an
additional period of 30 days or (b) if such default
cannot practically be cured within such period, such
additional period as is reasonable under the
circumstances, within which to cure such default. Upon
request of the Landlord at any time or from time to
time, the Tenant shall execute, acknowledge and deliver
to the Landlord or its designee an acknowledgment of
receipt of any such notice, an acknowledgment of
receipt of any notice of assignment of this Agreement
or rights hereunder by the Landlord to any of its
mortgagees and the Tenant's agreement to the foregoing
effect on the respective forms, if any, furnished by
the Landlord or the respective mortgagees.
32.4. Approximately (i) 90 days prior to the termination of
the Term and (ii) 30 days prior to any relocation of
the Tenant from the Leased Premises (as constituted on
the Commencement Date), the Tenant shall obtain from
the New Jersey Department of Environmental Protection,
and deliver to the Landlord, the Department's
unconditional certificate of non-applicability or
approval of the Tenant's negative declaration or clean-
up plan, together with copies of all documents
furnished to the Department in connection with
obtaining such certificate or approval.
33. Waiver of Jury Trial and Arbitration.
------------------------------------
The parties hereby waive any right they might otherwise have to a trial by jury
in connection with any dispute arising out of or in connection with this
Agreement or the use and occupancy of the Leased Premises; and they hereby
consent to arbitration of any such dispute in Princeton, New Jersey, in
accordance with the rules for commercial arbitration of the American Arbitration
Association or successor organization, except that the Landlord, in its sole
discretion, may, with respect to any dispute involving either (i) the Landlord's
right to re-enter and re-take possession of the Leased Premises or (ii) the
determination of money damages following the occurrence of an Event of Default
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under this Agreement, elect to pursue any of or all its rights in any court of
competent jurisdiction. Judgment upon any arbitration award may be entered in
any court of competent jurisdiction.
34. Severability.
------------
In the event that any provision of this Agreement, or the application of any
provision in any instance, shall be conclusively determined by a court of
competent jurisdiction to be illegal, invalid or otherwise unenforceable, such
determination shall not affect the validity or enforceability of the balance of
this Agreement.
35. Notices.
-------
All notices contemplated by, permitted or required by this Agreement shall be in
writing. All notices required by this Agreement shall be personally delivered or
forwarded by certified mail--return receipt requested, addressed to the intended
party at its address first set forth above (adding, in the case of notices to
the Landlord after the Commencement Date, "Attention: Lease Administration") or,
in the case of notices to the Tenant during the Term or any other period during
which the Tenant shall be in possession of the Leased Premises, at the Leased
Premises. Either party may from time to time change the address prescribed in
this Agreement for notices to it by notice to the other. All notices required
under this Agreement shall be deemed given upon their deposit, properly
addressed and postage prepaid, in a postal depository or upon personal delivery
to the intended party, regardless of whether delivery shall be refused.
36. Captions.
--------
Captions have been inserted at the beginning of each section of this Agreement
for convenience of reference only and such captions shall not affect the
construction or interpretation of any such section of this Agreement.
37. Counterparts.
------------
This Agreement may be executed in more than one counterpart, each of which shall
constitute an original of this Agreement but all of which, taken together, shall
constitute one and the same Agreement.
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38. Applicable Law.
--------------
This Agreement and the obligations of the parties hereunder shall be governed by
and construed in accordance with the laws of the State of New Jersey.
39. Exclusive Benefit.
-----------------
Except as may be otherwise specifically set forth in this Agreement, this
Agreement is made exclusively for the benefit of the parties hereto and their
permitted assignees and no one else shall be entitled to any right, remedy or
claim by reason of any provision of this Agreement.
40. Successors.
----------
This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.
41. Amendments.
----------
This Agreement contains the entire agreement of the parties hereto, subsumes all
prior discussions and negotiations and, except as may otherwise be specifically
set forth in this Agreement, this Agreement may not be amended or otherwise
modified except by a writing signed by all the parties to this Agreement.
42. Waiver.
------
Except as may otherwise be specifically set forth in this Agreement, the failure
of any party at any time or times to require performance of any provision of
this Agreement shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition, or of the breach of any term,
covenant, representation or warranty set forth in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach, or
as a waiver of any other condition or of the breach of any other term, covenant,
representation or warranty set forth in this Agreement. The Landlord's
acceptance of, or endorsement on, any partial payment of Rent or any late
payment of Rent from the Tenant shall not operate as a waiver of the Landlord's
right to the balance of
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the Rent due on a timely basis regardless of any writing to the contrary on, or
accompanying, the Tenant's partial payment or the Landlord's putative
acquiescence therein.
43. Course of Performance.
---------------------
No course of dealing or performance by the parties, or any of them, shall be
admissible for the purpose of obtaining an interpretation or construction of
this Agreement at variance with the express language of the Agreement itself.
44. Landlord's Concessions.
-----------------------
44.1. Notwithstanding anything to the contrary that may be
set forth in section 5.1 of this Agreement, (a)(i) if
no Event of Default shall have occurred or (ii) if an
Event of Default shall have occurred, the Tenant shall
have previously cured it in full and the Landlord shall
have waived it and (b) if there shall not have been a
History of Recurring Events of Default, the Landlord
shall credit against any amount otherwise due from the
Tenant in accordance with subsection 5.1 of this
Agreement an amount equal to the lesser of: (i) $68,148
or (ii) such amount as is otherwise due from the Tenant
in accordance with subsection 5.1 of this Agreement.
44.2. Notwithstanding anything to the contrary that may be
set forth in section 3 of this Agreement, (a)(i) if no
Event of Default shall have occurred or (ii) if an
Event of Default shall have occurred, the Tenant shall
have previously cured it in full and the Landlord shall
have waived it and (b) if there shall not have been a
History of Recurring Events of Default, the Landlord
hereby waives its right to receive one-half of the
Basic Rent otherwise due and payable for the first four
calendar months of the Initial Term.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
LANDLORD:
PRINCETON 202 ASSOCIATES LIMITED PARTNERSHIP
By: ABL Funding Corp.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
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TENANT:
▇▇▇▇▇▇ COMMUNICATIONS, INC.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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[EXHIBIT A - LEASED PREMISES FLOOR SPACE DIAGRAM]
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EXHIBIT B
DESCRIPTION OF ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
All that certain tract and parcel of land located in the Township of West
Windsor, County of ▇▇▇▇▇▇ and State of New Jersey.
BEGINNING at a point, said point being the most northwesterly corner of ▇▇▇ ▇▇,
▇▇▇▇▇ ▇-▇, as shown on a Map entitled: "Major Subdivision ▇▇▇ ▇, ▇▇▇▇▇ ▇-▇",
situated in West Windsor Township, ▇▇▇▇▇▇ County, New Jersey, dated 7-25-85,
latest revision 5-05- 86, prepared by Lynch, Carmody, Giuliano & Karol, P.E.,
and filed in the ▇▇▇▇▇▇ County Clerk's Office as Map No. 2800 on November 24,
1986: From said BEGINNING POINT thence running;
1) North 870 48' 22" east, 531.11 feet to a point; thence
2) South 020 11' 38" east, 335.00 feet to a point; thence
3) South 420 48' 22" west, 640.00 feet to a point; thence
4) North 470 11' 38" west, 500.00 feet to a point; thence
5) North 420 48' 22" east, 306.05 feet to a point of curvature;
thence
6) Northerly along a curve to the left having a radius of 200.00 feet, an
arc length of 157.08 feet to a point of tangency; thence
7) North 020 11' 38" west, 76.17 feet to the point and place of
BEGINNING.
Containing 8.9363 Acres.
BEING known and designated as ▇▇▇ ▇▇, ▇▇▇▇▇ ▇-▇ as shown on a Map entitled:
"Major Subdivision ▇▇▇ ▇, ▇▇▇▇▇ ▇-▇", situated in West Windsor Township, ▇▇▇▇▇▇
County, New Jersey, dated 7-25-85, latest revision 5-05-86, prepared by Lynch,
Carmody, Giuliano & Karol, P.E., and filed in the ▇▇▇▇▇▇ County Clerk's Office
as Map No. 2800 on November 24, 1986.
The above description being in accordance with a survey prepared by Fellows,
Read & Associates, Inc. dated December 5, 1989, as revised January 23, 1990.
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EXHIBIT C
WORK LETTER
The following is the Work Letter provided for in the Agreement of which this
exhibit is a part.
The Building's structure is a three-story office building of Construction Type
2C with a steel frame, a metal deck floor system, a granite and concrete
exterior facade and insulated glass. The floors will sustain a live load of 100
pounds per square foot of usable floor space plus an allowance of 20 pounds per
square foot for partitions and will have a typical bay size of 30 feet by 30
feet.
Among other Common Facilities, the Building contains one men's and one women's
bathroom on each floor, one drinking fountain on each floor and two hydraulic
elevators with a capacity of 2,500 pounds each and has Parking Facilities with
approximately 400 lined parking spaces.
As used in this Work Letter, "building standard" shall mean the type and grade
of material, equipment or device designated by the Landlord as standard for
leased premises in the Building.
The Tenant will include the following information as part of its Tenant Plan:
1. The location and extent of floor loading, if any, in excess of the
building standard specified above.
2. Special air conditioning requirements, if any, in excess of the
building standard specified above by location and general description
of special requirements.
3. Plumbing requirements, if any.
4. Estimated total electrical load, including lighting requirements,
lighting switch requirements and electrical outlet requirements, if
any, in excess of the building standard specified above and being
provided by the Landlord, setting forth the amount of the load,
locations and types.
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EXHIBIT D
BUILDING RULES AND REGULATIONS
The following are the Building Rules and Regulations adopted in accordance with
subsection 7.2.3 of the Agreement of which this exhibit is a part; and the
Tenant and the Tenant's employees, other agents and Guests shall comply with
these Building Rules and Regulations:
1. The sidewalks, driveways, entrances, passages, courts,
lobby, esplanade areas, plazas, elevators, vestibules,
stairways, corridors, halls and other Common Facilities
shall not be obstructed or encumbered or used for any
purpose other than ingress and egress to and from the Leased
Premises. The Tenant shall not permit or suffer any of its
employees, other agents or Guests to congregate in any of
the said areas. No door mat of any kind whatsoever shall be
placed or left in any public hall or outside any entry door
of the Leased Premises.
2. No awnings or other projections shall be attached to the
outside walls of the Building. No curtains, drapes, blinds,
shades or screens shall be attached to, hung in or used in
connection with any window or door of the Leased Premises
without the prior written consent of Landlord. If such
consent is given, such curtains, drapes, blinds, shades or
screens shall be of a quality, type, design and color, and
attached in the manner, approved by Landlord.
3. Except as otherwise specifically provided in subsection 18.1
of the Agreement, no sign, insignia, advertisement, object,
notice or other lettering shall be exhibited, inscribed,
painted or affixed so as to be visible from outside the
Leased Premises or the Building. In the event of the
violation of the foregoing by the Tenant, the Landlord may
remove same without any liability and may charge the expense
incurred in such removal to the Tenant.
4. The sashes, 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 and no bottles, parcels or
other articles shall be placed on the window ▇▇▇▇▇.
5. No showcase or other articles shall be placed in front of or affixed to
any part of the Building or the Common Facilities.
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6. The lavatories, water and wash closets and other plumbing
fixtures shall not be used for any purposes other than those
for which they were designed and constructed, and no
sweepings, rubbish, rags, acids or other substances shall be
thrown or deposited therein. All damages resulting from any
misuse thereof shall be repaired at the expense of the
Tenant that permitted or suffered the violation hereof by
the Tenant, the Tenant's employees, other agents or Guests.
7. The Tenant shall not ▇▇▇▇, paint, drill into or in any way
deface any part of the Leased Premises, the Building, the
Common Facilities or the Property. No boring, cutting or
stringing of wires shall be permitted, except with the prior
written consent of the Landlord, and as the Landlord may
direct. Linoleum and other resilient floor coverings shall
be laid so that the same shall not come in direct contact
with the floor of the Leased Premises; and if linoleum or
other resilient floor coverings are desired, an interlining
of builder's deadening felt shall be first affixed to the
floor by a paste or other material that is, and will remain,
soluble in water. The use of cement or other adhesive
material that either is not, or will not remain, soluble in
water is prohibited.
8. No bicycles, vehicles, animals, reptiles, fish or birds of any kind
shall be brought into or kept in or about the Leased Premises.
9. No noise including, without limiting the generality of the
foregoing, music or the playing of musical instruments,
recordings, radio or television which, in the reasonable
judgment of Landlord, might disturb tenants of Other Leased
Premises shall be made or permitted by the Tenant. Nothing
shall be done or permitted in the Leased Premises by the
Tenant which would impair or interfere with the use or
enjoyment of Other Leased Premises by any tenant thereof.
Nothing shall be thrown out of the doors, windows or
skylights or down the passageways of the Building.
10. The Tenant shall not manufacture any commodity, or prepare or dispense
any foods or beverages, tobacco, flowers or other commodities or
articles without the prior written consent of the Landlord.
11. Duplicates of keys and passes distributed to the Tenant by the Landlord
shall not be made. The Tenant shall provide appropriate security for
keys. Nothing shall be done to render any lock inoperable by the
Building Grand Master Key. No lock shall be installed without the
Landlord's prior
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written consent; and any lock so installed shall be operable by the
Building Grand Master Key. Upon termination of the Term, all keys,
passes and duplicates provided by the Landlord to the Tenant, or
otherwise procured by the Tenant, shall be returned to the Landlord.
Any failure to comply with the foregoing which requires changes in
locks, new or additional keys, passes or duplicates or other services
of a locksmith shall be paid by the Tenant.
12. All deliveries and removals, and the carrying in or out of any safes,
freight, furniture, packages, boxes, crates or any other object or
matter of any description shall take place during such hours, in such
manner and in such elevators and passageways as the Landlord may
determine from time to time. The Landlord reserves the right to inspect
all objects and matter being brought into the Building or the Common
Facilities and to exclude from the Building and the Common Facilities
all objects and matter that violates any of these Building Rules and
Regulations or that are contraband. The Landlord may (but shall not be
obligated to) require any person leaving the Building or the Common
Facilities with any package or object or matter from the Leased
Premises to establish his authority from the Tenant to do so. The
establishment and enforcement of such a requirement shall not impose
any responsibility on the Landlord for the protection of the Tenant
against the removal of property from the Leased Premises. The Landlord
shall not be liable to the Tenant for damages or loss arising from the
admission, exclusion or ejection of any person to or from the Leased
Premises or the Building or the Common Facilities under this rule.
13. The Tenant shall not place any object in any portion of the Building
that is in excess of the safe carrying or designed load capacity of the
structure.
14. The Landlord shall have the right to prohibit any advertising or
display of any identifying sign by the Tenant which in the Landlord's
judgment tends to impair the reputation of the Building or its
desirability; and, on written notice from the Landlord, the Tenant
shall refrain from or discontinue such advertising or display of such
identifying sign.
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15. The Landlord reserves the right to exclude from the Building and the
Common Facilities during hours other than Regular Business Hours all
persons who do not present a pass thereto signed by both the Landlord
and the Tenant. All persons entering or leaving the Building or the
Common Facilities during hours other than Regular Business may be
required to sign a register. The Landlord will furnish passes to
persons for whom the Tenant requests same in writing. The establishment
and enforcement of such a requirement shall not impose any
responsibility on the Landlord for the protection of the Tenant against
unauthorized entry of persons.
16. The Tenant, before closing and leaving the Leased Premises at any time
shall see that all lights and appliances generating heat (other than
the heating system) are turned off. All entrance doors to the Leased
Premises shall be left locked by the Tenant when the Leased Premises
are not in use. At any time when the Building or the Common Facilities
are locked during hours other than Regular Business Hours, the Building
and the Common Facilities locks shall not be defeated by any means,
such as by leaving a door ajar.
17. No person shall go upon the roof of the Building without the prior
written consent of the Landlord.
18. Any requirements of the Tenant may be attended to only upon application
at the office of the Building. The Landlord and its agents shall not
perform any work or do any work or do anything outside of the
Landlord's obligations under the Agreement except upon special
instructions from the Landlord on terms acceptable to the Landlord and
the Tenant.
19. Canvassing, soliciting and peddling in the Building and the Common
Facilities are prohibited and the Tenant shall cooperate to prevent
same.
20. There shall not be used in any space, or in the public halls
or other Common Facilities of the Building, in connection
with the moving or delivery or receipt of safes, freight,
furniture, packages, boxes, crates, paper, office material,
or any other matter or thing, any hand trucks or dollies
except those equipped with rubber tires, side guards and
such other safeguards as the Landlord shall require. No hand
trucks shall be used in passenger elevators, and no
passenger elevators shall be used for the moving, delivery
or receipt of the aforementioned articles. In connection
with moving in or out any furniture, furnishings, equipment,
heavy articles and heavy packages, the Tenant shall take
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such precautions as may be necessary to prevent excessive wear and tear
in the Building's Common Facilities and the Leased Premises including,
without limiting the generality of the foregoing, floor and wall
treatments.
21. The Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the
Leased Premises which might constitute a Nuisance. No cooking shall be
done in the Leased Premises other than as specifically permitted in the
Agreement.
22. The Landlord reserves the right not to enforce any Building Rule or
Regulation against any tenants of Other Leased Premises. The Landlord
reserves the right to rescind, amend or waive any Building Rule and
Regulation when, in the Landlord's reasonable judgment, it appears
necessary or desirable for the reputation, safety, care or appearance
of the Building or the preservation of good order therein or the
operation of the Building or the comfort of tenants or others in the
Building. No rescission, amendment or waiver of any Building Rule and
Regulation in favor of one tenant shall operate as a rescission,
amendment or waiver in favor of any other tenant.
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EXHIBIT E
DEFINITIONS AND INDEX OF DEFINITIONS
In accordance with section 1 of the Agreement of which this exhibit is a part,
throughout the Agreement the following terms and phrases shall have the meanings
set forth or referred to below:
1. "Additional Rent" means all amounts, other than Basic Rent and any
Security Deposit, required to be paid by the Tenant to the Landlord in
accordance with this Agreement.
2. "Agreement" means this Lease and Lease Agreement (including exhibits),
as it may have been amended.
3. "Annual Amortized Capital Expenditure" means the payment
amount determined as an annuity in arrears using the cost
incurred by the Landlord for any Capital Expenditure as the
present value, the number of years of its useful life (not
exceeding 10 years) selected by the Landlord in accordance
with generally applied real estate accounting practice as
the number of periods and the Base Rate in effect when the
respective improvement is first placed into service plus two
additional percentage points as the annual rate of interest.
4. "Base Rate" means the prime commercial lending rate per year as
announced from time to time by The Chase Manhattan Bank (National
Association) at its principal office in New York City.
5. "Base Year" means the full calendar year 1995 with respect to
Operational Expenses and Taxes.
6. "Base Year Operational Expenses" means actual Operational Expenses
incurred by the Landlord during the Base Year.
7. "Base Year Taxes" means the product of the final assessed value, as the
same may subsequently be adjusted in any appeal of the tax assessor's
valuation, of the Property, the Building and any other improvements on
the Property in the Base Year and the Municipality's tax rate for the
Base Year.
8. "Basic Rent" is defined in subsection 3.2 of this Agreement.
9. "Building" means the office building erected on the Property which is
commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as
it may, in the Landlord's sole discretion, be increased, decreased,
modified, altered or
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otherwise changed from time to time before, during or after the Term.
As the Building is presently constructed it consists of 126,745 gross
rentable square feet of floor space.
10. "Capital Expenditure" is defined in subsection 10.3 of this Agreement.
11. "Commencement Date" is defined in section 4 of this Agreement.
12. "Common Facilities" means the areas, facilities and
improvements provided by the Landlord in the Building
(except the Leased Premises and the Other Leased Premises)
and on or about the Property, including, without limiting
the generality of the foregoing, the Parking Facilities and
access roads thereto, for non-exclusive use by the Tenant in
accordance with subsection 2.2 of this Agreement, as they
may, in the Landlord's sole discretion, be increased,
decreased, modified, altered or otherwise changed from time
to time before, during or after the Term.
13. "Common Walls" means those walls which separate the Leased Premises
from Other Leased Premises.
14. "Electric Charges" means all the supplying utility's charges for, or in
connection with, furnishing electricity including charges determined by
actual usage, any seasonal adjustments, demand charges, energy charges,
energy adjustment charges and any other charges, howsoever denominated,
of the supplying utility, including sales and excise taxes and the
like.
15. "Event of Default" is defined in section 22 of this Agreement.
16. "Expiring Term" means, when used in the context of any Option to Renew,
the Term as it is then scheduled to expire (immediately prior to
exercise of the next available Option to Renew).
17. The Tenant's "Guests" shall mean the Tenant's licensees, invitees and
all others in, on or about the Leased Premises, the Building, the
Common Facilities or the Property, either at the Tenant's express or
implied request or invitation or for the purpose of soliciting or
visiting the Tenant.
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18. A "History of Recurring Events of Default" means the occurrence of
three or more Events of Default (whether or not cured by the Tenant) in
any period of 12 months.
19. "Holdover Damages" is defined in subsection 23.4 of this Agreement.
20. The "Index" means the "all items" index figure for the New York
Northeastern New Jersey average of the Consumer Price Index for all
urban wage earners and clerical workers which uses a base period of
1982-84=100, published by the United States Department of Labor, so
long as it continues to be published. If the Index is not published for
a period of three consecutive months, or if its base period is changed,
the term "Index" shall mean that index, as nearly equivalent in
purpose, function and coverage as practicable to the original Index,
which the Landlord shall have designated by notice to the Tenant.
21. "Initial Term" means the period so designated in subsection 4.1 of this
Agreement.
22. "Initial Year" means the first 12 full calendar months of the Initial
Term.
23. "Landlord" means the person so designated at the beginning of this
Agreement and those successors to the Landlord's interest in the
Property and/or the Landlord's rights and obligations under this
Agreement contemplated by section 26 of this Agreement.
24. "Leased Premises" means that portion of the interior of the Building
(as viewed from the interior of the Leased Premises) bounded by the
interior sides of the unfinished floor and the finished ceiling on the
first floor (as the floors have been designated by the Landlord) of the
Building, the centers of all Common Walls and the exterior sides of all
walls other than Common Walls, the outline of which floor space is
designated on the diagram set forth in Exhibit A attached hereto, which
portion contains 5,679 square feet of usable floor space and 6,761
square feet of gross rentable floor space; and references within this
Agreement to the gross rentable floor space and the usable floor space,
respectively, of the Leased Premises shall mean the respective
quantities herein specified.
25. "Legal Holidays" means New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
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26. "Market Rental Rate" means, at the time of reference, the gross
rentable floor space of the Leased Premises multiplied by the greater
of: (a) that annual rate of Basic Rent per square foot of gross
rentable floor space which is then being quoted by the Landlord for
comparable Other Leased Premises (or would then be quoted if comparable
Other Leased Premises were then available) or (b) that annual rate of
Basic Rent per square foot of gross rentable floor space in effect
during the Expiring Term.
27. "Municipality" means the Township of West Windsor in ▇▇▇▇▇▇ County, New
Jersey, or any successor municipality with jurisdiction over the
Property.
28. "No Pass Through Period" means, in the context of Operational Expenses
and Taxes, the period beginning on the Commencement Date and ending on
the first anniversary of the Commencement Date.
29. "Nuisance" means any condition or occurrence which unreasonably or
materially interferes with the authorized use and enjoyment of the
Other Leased Premises and the Common Facilities by any tenant of Other
Leased Premises or by any person authorized to use any Other Leased
Premises or Common Facilities or with the authorized use of any other
areas, buildings or other improvements in the Carnegie Center Complex.
30. "Operational Expenses" is defined in subsection 10.2 of this Agreement.
31. "Option to Renew" is defined in subsection 6.1 of this Agreement.
32. "Other Leased Premises" means all premises within the Building, with
the exception of the Leased Premises, that are, or are available to be,
leased to tenants or prospective tenants, respectively.
33. "Parking Facilities" means the parking area adjacent to the Building,
containing the approximate number of lined parking spaces set forth in
the Work Letter, which parking area is provided as Common Facilities
34. "Person" includes an individual, a corporation, a partnership, a trust,
an estate, an unincorporated group of persons and any group of persons.
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35. "Property" means the parcel of land, as it may, in the Landlord's sole
discretion, be increased, decreased, modified, altered or otherwise
changed from time to time before, during or after the Term, on which
the Building is (or is about to be) erected. As the Property is
presently constituted, it is more particularly described in Exhibit B
attached hereto.
36. "Regular Business Hours" means 8:00 A.M. to 6:00 P.M., Monday through
Friday, except on Legal Holidays.
37. "Re-Leasing Damages" is defined in subsection 23.3.
38. "Renewal Term" means, at the time of reference, any portion of the
Term, other than the Initial Term, as to which the Tenant has properly
exercised an Option to Renew which Option to Renew has not been
rescinded in accordance with subsection 6.4.1 of this Agreement.
39. "Rent" means Basic Rent and Additional Rent.
40. "Security Deposit" is designated in section 29 of this Agreement.
41. "Target Date" means, upon execution and delivery of this Agreement, the
then estimated Commencement Date which is hereby established to be July
7, 1995.
42. "Taxes" means, in any calendar year, the aggregate amount of real
property taxes, assessments and sewer rents, rates and charges, state
and local taxes, transit taxes and every other governmental charge,
whether general or special, ordinary or extraordinary (except corporate
franchise taxes and taxes imposed on, or computed as a function of, net
income or net profits from all sources and except taxes charged,
assessed or levied exclusively on the Leased Premises or arising
exclusively from the Tenant's occupancy of the Leased Premises)
charged, assessed or levied by any taxing authority with respect to the
Property, the Building, the Common Facilities and any other
improvements on the Property and an allocable portion of Taxes with
respect to other portions of the Carnegie Center Complex, less any
refunds or rebates (net of expenses incurred in obtaining any such
refunds or rebates) of Taxes actually received by the Landlord during
such calendar year with respect to any period during the Term for the
benefit of the Tenant, tenants of Other Leased Premises and the
Landlord. If during the Term there shall be a change in the means or
methods of taxing real property generally in effect at the beginning of
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the Term and another type of tax or method of taxation should be
substituted in whole or in part for, or in lieu of, Taxes, the amounts
calculated under such other types of tax or by such other methods of
taxation shall also be deemed to be Taxes. Until such time as the
actual amount of Taxes for any calendar year becomes known, the amount
thereof shall be the Landlord's estimate of Taxes for that calendar
year.
43. "Tenant" means the person so designated at the beginning of this
Agreement.
44. "Tenant Electric Charges" means (a) during Regular Business
Hours, Electric Charges attributable to the Tenant's use of
electricity in the Leased Premises for purposes other than
heating, ventilation and air conditioning provided to the
Leased Premises by the Landlord in accordance with
subsection 8.2.4 of this Agreement and (b) during other than
Regular Business Hours, a charge at the rate of $75.00 per
hour or partial hour of use plus Electric Charges
attributable to the Tenant's use of electricity in the
Leased Premises for all purposes including, without limiting
the generality of the foregoing, heating, ventilation and
air conditioning.
45. "Tenant Plan" means construction drawings and related
construction specifications regarding the build-out of the
Leased Premises (with any construction drawings in a
reproducible diazo sepia mylar form) including, without
limiting the generality of the foregoing, the information
called for by the Work Letter, signed and sealed by a New
Jersey-licensed architect, complying in all respects with
applicable building and fire codes and insurance
underwriting standards in effect and in sufficient detail to
permit the Municipality to issue any required building
permits and to permit skilled contractors to supply and
perform the work called for therein.
46. "Tenant's Share" of any amount means 5.334%.
47. "Term" means the Initial Term plus, at the time of reference, any
Renewal Term.
48. "Termination Damages" is defined in subsection 23.2 of this Agreement.
49. "Utilities Expenses" means Electric Charges (other than Tenant Electric
Charges) and all charges for any other fuel that may be used in
providing electricity and services
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powered by electricity that the Landlord provides in accordance with
section 8 of this Agreement to the Building, the Leased Premises, Other
Leased Premises, the Common Facilities and the Property, including
sales and excise taxes and the like, but excluding charges for
electricity which is recovered by Landlord as tenant electric charges
pursuant to leases for Other Leased Premises.
50. "Work Letter" means Exhibit C attached hereto which generally describes
the type of construction of the Building and, unless the Tenant Plan
does not require any such respective improvement, those improvements
the Landlord will provide or install in the Leased Premises without
installation charge to the Tenant in connection with the preparation of
the Leased Premises contemplated by section 5 of this Agreement.
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ACKNOWLEDGMENT AND AMENDMENT
-----------------------------
PRINCETON 202 ASSOCIATES LIMITED PARTNERSHIP, as Landlord, and ▇▇▇▇▇▇
COMMUNICATIONS, INC., as Tenant, acknowledge and agree as follows:
1. The Tenant Plan referred to in the Lease and Lease Agreement, dated
June , 1995 (the "Agreement") between the Landlord and the Tenant for the Leased
Premises, was received by the Landlord and consists of the following documents
prepared by ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Architects:
PROPOSED OFFICES FOR:
▇▇▇▇▇▇ COMMUNICATIONS, INC.
DRAWING NOS. A1-A2-A3-A4-A5-A6
ALL DATED 5/15/95
2. Through contractors selected by it, the Landlord shall perform
certain work shown on the Tenant Plan as itemized below in a good and
workpersonlike manner and use its best efforts to achieve completion of that
work so that the Leased Premises are ready for occupancy by, and the
Commencement Date will be, the Target Date at a net price to the Tenant of (a)
$-0- (which is net of all credits to the Tenant in accordance with the Agreement
and which includes the Landlord's general contractor's fee) for Basic Work in
accordance with the Cost Estimate dated 5/25/95, and (b) $33,628 for Millwork
Extras in accordance with the Cost Estimate dated 6/14/95, payable in full prior
to the Commencement Date.
(a) A detailed Cost Estimate dated 5/25/95 for Basic Work is attached
hereto and reflects the following:
Total Cost Estimate $ 68,129
Landlord Allowance <68,148 >
---------
1. Tenant Cost $ -0-
Construction Advance < -0- >
-------
BALANCE DUE $ -0-
-------
(b) A detailed Cost Estimate dated 6/14/95 for Millwork Extras is
attached hereto and reflects the following:
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Total Cost Estimate $ 33,628
Landlord Allowance < N/A >
-------
Tenant Cost $ 33,628
Construction Advance < 3,363 >
---------
BALANCE DUE $ 30,265
--------
3. The Tenant hereby authorizes the Landlord to proceed with
preparation of the Added Leased Premises in accordance with this Acknowledgment
and Amendment and the Tenant Plan, as itemized on the Attachments hereto and
reflected in the totals in (2) above, and has enclosed the construction advance
specified in 2(b) above ($3,363). Any subsequent changes in the work shown on
the Tenant Plan, together with related price and schedule adjustments, shall be
authorized only by a written change order signed by the Landlord and the Tenant.
The adjusted net price reflecting the change order shall be paid for on or after
the Commencement Date within ten (10) days after receipt of an invoice for such
change(s).
4. Defined terms used herein shall have the respective meanings
assigned in the Agreement.
5. Except as specifically set forth above, the Agreement shall be in
full force and effect in accordance with its original terms.
Dated: ________________, 1995
LANDLORD:
PRINCETON 202 ASSOCIATES LIMITED PARTNERSHIP
By: Metric Construction & Development, L.P., Its Affiliate
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Director of Construction
Dated: June 21, 1995
TENANT:
▇▇▇▇▇▇ COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. VP HR/Operations
Name:
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Title:
JS:mjm
ATTACHMENTS:
Cost Estimate dated 5/25/95 (Basic Work)
Cost Estimate dated 6/14/95 (Millwork Extras)
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TENANT: ▇▇▇▇▇▇ COMMUNICATIONS
LOCATION: CARNEGIE 202
SQ FT: 5679
PLAN DATE: MAY 15, 1995
ESTIMATE DATE: MAY 25, 1995
COST
TENANT WORK + OR - PER TOTAL TENANT
COD DESC. USED UNIT LETTER QUANTITY UNIT COST EXTRAS
--- ----- ---- ---- ------ -------- ---- ---- ------
1 DEMOLITION 147 LF 147 15.00 2,205
2 DECK HIGH 28 LF 28 68.40 1,915
3 RADIUS WALL 11 LF 11 90.00 990
4 CEILING HIGH PTNS. 219 LF 219 34.40 7,534
5 INSUL. C.H. PTNS. 65 LF 65 41.40 2,691
6 ROUND COLUMN 1 EA 1 600.00 600
7 EXTERIOR WALL 378 LF 378 2.70 1,021
8 EXISTING PARTN. 149 LF 149 5.40 805
STD. ENTR DOOR
9 W/LOCKSE 1 Ea 1 3,888.00 3,888
10 CLOSET DOOR 1 PR 1 900.00 900
STD. OFF DOOR
11 W/Latchset 7 Ea 7 550.00 3,850
12 OFF. DR. & FRONT 7 Ea 7 250.00 1,705
13 EXIT DOOR 1 Ea 1 685.00 685
14 TELEPHONE ROOM 1 Ea 1 95.00 95
15 REKEYING 7 Ea 7 35.00 ▇▇▇
▇▇ ▇▇▇▇. ▇▇▇. CARPET 215 SY 215 17.50 3,763
17 VCT 270 SF 270 1.50 405
18 CLEAN EXIST. CARPET 5680 SF 5,680 0.45 2,556
19 CLOSET SHELF & POLE 15 LF 15 15.00 225
20 RELOC.CAB.9'0 1 LS 1 400.00 400
21 KITCHEN SINK 1 Ea 1 2,350.00 2,350
22 NEW/RELOCATE HEADS 4 Ea 4 125.00 500
23 DIFFUSERS 3 Ea 3 203.00 609
24 RETURNS 3 Ea 3 45.00 135
25 EXIT LIGHTS RELOC. 5 Ea 5 125.00 625
26 WALL OUTLET-DUPLEX 44 Ea 44 78.00 3,432
WALL OUTLET-DOUBLE
27 DUPL 5 Ea 5 88.00 440
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COST
TENANT WORK + OR - PER TOTAL TENANT
COD DESC. USED UNIT LETTER QUANTITY UNIT COST EXTRAS
--- ----- ---- ---- ------ -------- ---- ---- ------
WALL OUTLET-GROUND
28 ▇▇▇▇ 2 Ea 2 97.00 194
29 DEDICATED OUTLETS 5 Ea 5 260.00 1,300
WIRE HOT WATER
30 HEATERS 1 Ea 1 360.00 360
31 SWITCHS-SINGLE POLE 17 Ea 17 75.00 1,275
32 RELOC/REWIRE LIGHTS 44 Ea 44 40.00 1,760
33 REWIRE LIGHTS 18 Ea 18 30.00 540
34 RELOC. HIGH HATS 22 Ea 22 50.00 1,100
35 RELOC. FIRE H/S 2 Ea 2 200.00 400
36 ELECTRIC DEMO 1 LS 1 864.00 864
37 DOOR ▇▇▇▇ W/BUTTON 2 Ea 2 135.00 270
38 PLUMBING DEMOLITION 1 EA 1 250.00 250
39 0
40 0
41 0
42 END OF LIST 0 10.00 0
X X X X X X X X X
SUBTOTAL 52,926
ARCHITECTURE 7,000
CLEANUP & PERMITS 2,646
PROFIT & OVERHEAD 5,557
TOTAL 68,129
======
2
86
Millwork Extras
TENANT: ▇▇▇▇▇▇ COMM.
LOCATION:
SQ FT:
PLAN DATE:
ESTIMATE DATE: JUNE 14, 1995
TENANT WORK + or - COST PER TOTAL TENANT
COD DESC. USED UNIT LETTER QUANITY UNIT COST EXTRAS
--- ----- ---- ---- ------ ------- ---- ---- ------
1 PROJECTION SCHREEN ALLOW 1 EA 1 2,000.00 2,000
2 TACKABLE WALL ALLOW. 1 LS 1 4,000.00 4,000
3 MILLWORK LUMP SUM INCL: 1 LS 1 12,665.00 12,665
3 RM 101 RECEPTION 1 EA 1 0
4 RM 106 COUNTERTOPS 1 EA 1 0
5 RM 102 COUNTERS & ▇▇▇▇▇▇ ▇ ▇▇ ▇ ▇
▇ ▇▇ ▇▇▇ CABINETS/COUNTERS 1 EA 1 0
7 RM 205 ELV. ▇▇/▇-▇ ▇ ▇▇ ▇ ▇
▇ ▇▇ ▇▇▇ ▇▇▇▇. ▇▇/▇-▇ ▇ ▇▇ ▇ ▇
▇ ▇▇ ▇▇▇ ELEV. ▇▇/▇-▇ ▇ ▇▇ ▇ ▇
▇▇ ▇▇▇ ELEV. 19/A-5
10 COUNTERTOP RMS. 107, 108 1 EA 1 0
44 CHANGES & UPPER CAB. 205 1 LS 1 10,450.00 10,450
45
46
47
48 END OF LIST 0 10.00 0
X X X X X X X X X
SUBTOTAL 29,115
CLEANUP & PERMITS 1,456
PROFIT & OVERHEAD 3,057
TOTAL 33,628
======
3
