EXHIBIT 10.10
OFFICE LEASE
THE HARBORSIDE FINANCIAL CENTER
JERSEY CITY, NEW JERSEY
-----------------------
AGREEMENT 0F LEASE
between
CAL - HARBOR II & III URBAN RENEWAL ASSOCIATES L.P., Landlord
and
EXODUS COMMUNICATIONS. Tenant
Dated: December 30, 1996
TABLE OF CONTENTS
ARTICLE 1 RENT............................................................ 1
ARTICLE 2 TERM............................................................ 2
ARTICLE 3 ADDITIONAL RENT................................................. 3
ARTICLE 4 ELECTRICITY..................................................... 21
ARTICLE 5 USE............................................................. 22
ARTICLE 6 ALTERATIONS AND INSTALLATIONS................................... 22
ARTICLE 7 REPAIRS......................................................... 27
ARTICLE 8 REQUIREMENTS OF LAW............................................. 29
ARTICLE 9 INSURANCE, LOSS, REIMBURSEMENT, LIABILITY....................... 30
ARTICLE 10 DAMAGE BY FIRE OR OTHER CAUSE.................................. 32
ARTICLE 11 ASSIGNMENT, MORTGAGING, SUBLETTING, ETC........................ 34
ARTICLE 12 CERTIFICATE OF OCCUPANCY....................................... 41
ARTICLE 13 ADJACENT EXCAVATION - SHORING.................................. 41
ARTICLE 14 CONDEMNATION................................................... 41
ARTICLE 15 ACCESS TO DEMISED PREMISES; CHANGES............................ 43
ARTICLE 16 CONDITIONS OF LIMITATION....................................... 44
ARTICLE 17 RE-ENTRY BY LANDLORD, INJUNCTION............................... 46
ARTICLE 18 DAMAGES........................................................ 46
ARTICLE 19 LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS............... 48
ARTICLE 20 QUIET ENJOYMENT................................................ 48
ARTICLE 21 SERVICES AND EQUIPMENT......................................... 49
ARTICLE 22 DEFINITIONS.................................................... 51
ARTICLE 23 INVALIDITY OF ANY PROVISION.................................... 52
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ARTICLE 24 BROKERAGE...................................................... 53
ARTICLE 25 SUBORDINATION.................................................. 53
ARTICLE 26 CERTIFICATE OF TENANT.......................................... 55
ARTICLE 27 LEGAL PROCEEDINGS, WAIVER OF JURY TRIAL, WAIVER OF
TERMINATION RIGHTS............................................. 56
ARTICLE 28 SURRENDER OF PREMISES.......................................... 56
ARTICLE 29 RULES AND REGULATIONS.......................................... 57
ARTICLE 30 CONSENTS AND APPROVALS......................................... 57
ARTICLE 31 NOTICES........................................................ 58
ARTICLE 32 NO WAIVER...................................................... 58
ARTICLE 33 CAPTIONS....................................................... 59
ARTICLE 34 INABILITY TO PERFORM........................................... 59
ARTICLE 35 NO REPRESENTATIONS BY LANDLORD................................. 60
ARTICLE 36 NAME OF COMPLEX/BUILDING....................................... 60
ARTICLE 37 PARKING........................................................ 60
ARTICLE 38 INDEMNITY...................................................... 61
ARTICLE 39 MEMORANDUM OF LEASE............................................ 62
ARTICLE 40 SECURITY....................................................... 62
ARTICLE 41 MISCELLANEOUS.................................................. 63
ARTICLE 42 INTENTIONALLY OMITTED.......................................... 65
ARTICLE 43 ARBITRATION.................................................... 65
ARTICLE 44 OPTION TO RENEW................................................ 66
ARTICLE 45 RIGHT OF FIRST OFFER........................................... 68
ARTICLE 46 ROOF EQUIPMENT................................................. 72
ARTICLE 47 FUEL TANK SPACE................................................ 74
SCHEDULES
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TABLE OF CONTENTS
A - I 4th Floor Plan
A - II 8th Floor Plan
B - Description of Land
C - Landlord's Work
D - Arcade Area and Second Floor Space
E - Cleaning and Janitorial Services
F - Form of Estoppel Certificate
G - Rules and Regulations
H - Form of Letter of Credit
I - PR Newswire Space Plan
J - Roof Plan
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AGREEMENT OF LEASE made as of the 30th day of December, 1996, between Cal-Harbor
II and III Urban Renewal Associates L.P., a New Jersey limited partnership
having an address at c/o Institutional Realty Management, LLC, Plaza III,
Harborside Financial Center, Jersey City, New Jersey 0731l ("Landlord") and,
Exodus Communications, Inc., a _________ corporation having an address at
______________________ ("Tenant").
W I T N E S S E T H
- - - - - - - - - -
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord
(a) the portion of the fourth (4th) floor shown hatched on the plans annexed
hereto as Schedule A-I in the building known as Plaza II (the "Fourth Floor
Space"), and (b) the portion of the eighth (8th) floor shown hatched on the
plans annexed hereto as Schedule A-II in the building known as Plaza III (the
"Eighth Floor Space," the Fourth Floor Space and the Eighth Floor Space are
collectively the "Demised Premises"), in the office complex (the "Complex")
known as Harborside Financial Center consisting as of the date hereof of Plazas
I, II and III and the parking areas and other common areas serving same located
in Jersey City, New Jersey on the land (the "Land") described in Schedule B
annexed hereto (the Land together with all of the improvements now or hereafter
located thereon being hereinafter referred to as the "Property"), for a term
(the "Term'') of approximately 10 years commencing on the "Commencement Date"
and ending on the "Expiration Date" (as said terms are defined in Article 2
hereof), unless the Term shall sooner cease and terminate as hereinafter
provided. Unless otherwise specified herein, Plazas II and III are collectively
called the ''Building.''
The parties hereby covenant and agree as follows:
ARTICLE 1
RENT
1.01. (a) Tenant hereby agrees to pay to Landlord a basic annual
rent (the "Basic Annual Rent") at an annual rate equal to (i) for the period
(the "First Period") commencing on the Rent Commencement Date (as such term is
defined in Article 2 hereof) and ending on the day immediately preceding the
fifth (5th) anniversary of the Rent Commencement Date, the product of (x) Twenty
and 50/100 Dollars ($20.50) multiplied by (y) the number of rentable square feet
contained in the Demised Premises, and (ii) for the period commencing on the day
after the First Period and ending on the Expiration Date, the product of (x)
Twenty-three and 00/100 Dollars ($23.00) multiplied by (y) the number of
rentable square feet contained in the Demised Premises. Basic Annual Rent shall
be paid by Tenant in equal monthly installments in advance on the first day of
each calendar month during the Term from and after the Rent Commencement Date
(as said term is defined in Article 2 hereof), at the office of Landlord or such
other place as Landlord may designate, without any set off or deduction
whatsoever, except such deductions as are specifically referred to herein. The
first full month's installment of Basic Annual Rent and the security deposit
described in Article 40 hereof shall be paid by Tenant to
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Landlord upon the execution of this Lease. Should the Rent Commencement Date
fall on any day other than the first day of a month, then the Basic Annual Rent
for such month shall be prorated on a per diem basis, and Tenant agrees to pay
the amount thereof for such partial month on the Rent Commencement Date.
(b) The parties hereby acknowledge that for all purposes of
this Lease the Fourth Floor Space shall be deemed to contain 2,900 rentable
square feet, the Eighth Floor Space shall be deemed to contain 8,661 rentable
square feet and the Demised Premises shall be deemed to contain 11,561 rentable
square feet.
1.02. Tenant shall pay the Basic Annual Rent and all additional rent
payable hereunder in lawful money of the United States by check (subject to
collection) drawn to Landlord's order on a bank which is a member of the New
York Clearinghouse Association or a successor thereto or a New Jersey bank. All
sums, other than Basic Annual Rent, payable by Tenant hereunder shall be deemed
additional rent and shall be payable on demand unless other payment dates are
hereinafter provided. Landlord shall have the same right and remedies
(including, without limitation, the right to commence a summary dispossess
proceeding) for a default in the payment of additional rent as for a default in
the payment of Basic Annual Rent notwithstanding the fact that Tenant may not
then also be in default in the payment of Basic Annual Rent.
1.03. (a) If Tenant shall fail to pay when due any installment of
Basic Annual Rent or any payment of additional rent and any such failure shall
continue for 5 business days, then Tenant shall pay Landlord, as additional
rent, a late charge equal to three (3%) percent of such installment or payment
as compensation for Landlord's additional administrative expenses relating to
such late payment.
(b) If Tenant shall fail to pay when due any installment of
Basic Annual Rent or any payment of additional rent and such failure shall
continue beyond the 5 business day period specified in paragraph (a) above,
Tenant shall pay in addition to the late charge provided in said paragraph (a)
interest on all such amounts (including the late charge) at the Interest Rate
(as said term is defined in Article 22 hereof), from the date when such
installment or payment shall have become due to the date of payment thereof, and
such interest shall be deemed additional rent.
(c) The provisions of this Section 1.03 are in addition to all
other remedies available to Landlord for nonpayment of Basic Annual Rent or
additional rent.
ARTICLE 2
TERM
2.01. (a) Subject to the provisions of paragraph (b) below, the
"Commencement Date" of the Term shall be (i) the date of this Lease with respect
to the Eighth Floor Space and
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(ii) the date that Landlord's Agent (hereinafter defined) vacates the Fourth
Floor Space in accordance with Section 2.01(b) below in the case of the Fourth
Floor Space.
(b) Tenant accepts the Demised Premises in its "as is"
condition as of the Commencement Date and Landlord shall have no obligation to
perform any work or make any contribution to prepare the Demised Premises for
occupancy by Tenant. Tenant acknowledges that the Fourth Floor Space is
currently occupied by landlord's agent and its employees (collectively
"Landlord's Agent"). Landlord's Agent shall vacate the Fourth Floor Space within
fourteen (14) days after the date of this Lease.
(c) The "Rent Commencement Date" shall be April 1, 1997.
(d) The "Expiration Date" of the Term shall be March 31, 2007,
as the same may be extended by reason of the exercise of any extension or
renewal option contained in this Lease.
2.02. Except for Landlord's Work (as defined below), all
installations, materials and work which may be undertaken by Tenant to prepare,
equip, decorate and furnish the Demised Premises for Tenant's occupancy
(collectively, "Tenant's Work") shall be performed by Tenant at Tenant's expense
in accordance with Article 6 and the other applicable provisions of this Lease.
2.03. Landlord shall diligently perform (or cause to be performed)
the work described on Schedule C attached hereto ("Landlord's Work").
ARTICLE 3
ADDITIONAL RENT
3.01. A. Forpurposes hereof, the following definitions shall apply:
(a) The term "Tax Year" shall mean each period of twelve
months which includes any part of the period commencing on the date hereof and
ending upon the expiration of the Term which now or hereafter is or may be duly
adopted as the fiscal year for real estate tax purposes for Jersey City, New
Jersey. The term "Base Tax Year" shall mean the calendar year commencing January
1, 1997.
(b) The term "Taxes" shall mean (i) all real estate taxes,
assessments and special assessments, payments in lieu of any such taxes,
assessments or special assessments (including, without limitation, any payments
or charges of any kind or nature whatsoever imposed pursuant to N.J.S.A. (S)
40:55C-40 et seq. (West 1967 & Supp. 1987), as the same may be amended or
supplemented (collectively "Xxx Xxxxx Charges")), and any other governmental
levy, tax, charge or imposition (including any interest imposed thereon by
reason of Landlord's election to pay same in installments), general or special,
ordinary or extraordinary, unforeseen as well as foreseen, of any kind or nature
whatsoever, which are or may be assessed, levied or imposed by any Governmental
Authority (as defined in Section 22.04) upon, or become a lien or
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due and payable in respect of, a particular portion of the Property as
hereinafter provided, or the sidewalks, plazas and streets adjacent thereto, and
(ii) any customary expenses incurred by Landlord, including payments to
attorneys, accountants and appraisers, in contesting any of the items set forth
in clause (i) of this sentence or the assessed valuations of such portion of the
Property or in achieving any tax abatement for such portion of the Property.
Except for any Xxx Xxxxx Charges which are based in whole or in part on income
(which shall be included in Taxes) and except as provided in the following
sentence with respect to changes in the method of taxation or in the taxing
authority, the term "Taxes" shall not include any income, franchise, transfer,
inheritance, capital stock, estate, profit or succession tax levied against
Landlord. If due to a future change in the method of taxation or in the taxing
authority, (x) a new or additional real estate tax or (y) a new income,
franchise, transfer, inheritance, capital stock, estate, profit or succession
tax or other tax or governmental imposition, however designated, shall be levied
against Landlord and/or the Property, in addition to or in substitution in whole
or in part for any tax which would constitute Taxes, or in lieu of additional
Taxes, such tax or imposition shall be deemed for the purposes hereof to be
included within the term "Taxes." In no event, shall Tenant be liable or
responsible for any Taxes, for any period prior to the Commencement Date.
(c) The term "Existing Building Taxes" shall mean the Taxes on
Plaza II and Plaza III (for purposes of this Article III, sometimes referred to
as the "Ancillary Building") and the land on which such buildings are located
including all sidewalks, plazas, streets and land adjacent to such buildings,
and all replacements thereof, and constituting a part of the same tax lot or
lots (i.e., tax lot A 14 and any replacement tax lot or lots). There shall also
be included in Existing Building Taxes any Taxes allocable to the so-called
"Arcade Area" and the "Second Floor Space" located in Plaza I as more
particularly shown on Schedule D annexed hereto (collectively, the "Retained
Premises") pursuant to such agreements as may be in effect from time to time
covering the payment of such Taxes by Landlord between Landlord (or any
Affiliated Entity (as defined in paragraph (i) below)) and the owner or net
lessee of Plaza I, as the case may be (collectively, the "Retained Premises
Agreements").
(d) The term "Plaza I Taxes" shall mean the Taxes on Plaza I and
the land on which such building is located including all sidewalks, plazas,
streets and land adjacent to such building, and all replacements thereof, and
constituting a part of the same tax lots (i.e., tax lots B 1, A13, and S-1, and
any replacement tax lot or tax lots), excluding, however, those Taxes allocable
to the Retained Premises pursuant to the Retained Premises Agreement and which
are included in Existing Building Taxes pursuant to paragraph (c) above.
(e) The term "Common Area Taxes" shall mean (x) the Common Area
Tax Share (as defined in paragraph (f) below) of all Taxes allocable to the
Property plus (y) any appraisal fees incurred and paid by Landlord pursuant to
any agreements as may be in effect from time to time affecting all or part of
the Property and relating in whole or in part to the payment of Common Area
Taxes and/or Common Area Expenses (as defined in Section 3.02(A)(c))
(collectively, "Reciprocal Agreements") or pursuant to this Lease, excluding,
however, the following items of Taxes:
(i) all Taxes included in Existing Building Taxes and in Plaza I
Taxes;
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(ii) all Taxes payable with respect to any portion of the Property
that is hereafter conveyed to a third party (other than to an
Affiliated Entity), except, however, that if any portion of the
Property so conveyed constitutes a parking structure, and if Landlord
both retains the right to use all or a portion of the parking spaces
within such structure for tenants of the Complex and pays all or a
portion of the Taxes allocable to such conveyed parking structure,
then such Taxes so payable by Landlord with respect to such conveyed
parking structure shall be included in Common Area Taxes;
(iii) all Taxes imposed or assessed (a) against any buildings or
structures constructed on either of the two piers (the "Piers") now
forming a part of the Property, against the portion of the Land on
which such buildings or structures are located, and against such areas
of the Property adjacent thereto which become unavailable for the
general use of the tenants of the Complex during the construction of
such buildings or structures by reason of such construction (such
exclusion to become effective from and after the time, if any, after
the date hereof, of "Commencement of Construction" (as hereinafter
defined) of such buildings or structures) and (b) against any
buildings or structures constructed on any portion of the Complex
other than Plaza I, Plaza II, Plaza III and the Piers, against the
portion of the Land on which such buildings or structures are located,
and against such areas of the Property adjacent thereto which become
unavailable for the general use of the tenants of the Complex during
the construction of such buildings or structures by reason of such
construction (such exclusion to become effective from and after the
time, if any, after the date hereof, of Commencement of Construction
of such buildings or structures), it being understood, however, that
if any such buildings or structures shall be parking structures, all
Taxes with respect to same and the land underlying same shall be
included within Common Area Taxes, provided that if such buildings or
structures are used for both parking and other uses, only the Taxes
allocable to the portion of such structures used for parking (and an
equitable allocation of the underlying land) shall be included in
Common Area Taxes, such allocation to be made on the basis set forth
in the balance of this paragraph (e). For purposes of this Lease,
"Commencement of Construction" shall mean the date on which, with
respect to a certain portion of the Property, significant excavation
commences in preparation for the installation of foundations and
footings, and in the case of the Piers, the date on which installation
of new pilings commences in contemplation of supporting a new building
or structure. At such time during or following construction of any
such building or structure when a portion of the Land (and/or any
buildings or structures constructed thereon), the Taxes allocable to
which had been excluded from Common Area Taxes as of the Commencement
of Construction, again becomes available for the general use of all
tenants of the Complex (or to a certain tenant or tenants of the
Complex for use as a so-called "Limited Common Area" (a Common Area
subject to certain additional restrictions as to use imposed by
Landlord, but which restrictions do not generally prohibit the use
thereof by other tenants of the Complex, and which for purposes of
this Article 3 shall nonetheless
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be deemed to be "available for the general use of all tenants of the
Complex"), the Taxes allocable to such portion of the Land (and to any
improvements thereon similarly available for the general use of all
tenants of the Complex) shall again be included in Common Area Taxes;
and
(iv) all Taxes imposed or assessed against the common areas on the
Piers developed in conjunction with the development of any buildings
or structures constructed on the Piers, provided (x) such buildings or
structures are utilized predominantly as hotel or residential space
and the residents and employees thereof have sufficient parking
located on the Pier on which such development was constructed (or on
the other Pier) so that, in the aggregate, they park predominantly on
such Pier (or on the other Pier) (such development being hereinafter
referred to as a "Self-Contained Pier Development"), and (y) the gross
area of such Self-Contained Pier Development shall not be included in
the denominator of the fraction used in computing Common Area Tax
Share.
If any item of Taxes (or allocable portion thereof) which pursuant to
this paragraph (e) is to be included in, or excluded from, Common Area Taxes is
not wholly within a separate tax lot, then the amount of such item of Taxes (or
allocable portion thereof) to be so included in or excluded from Common Area
Taxes shall be (x) with respect to the land, in the same proportion which the
square footage of the land to be so included or excluded bears to the square
footage of the entire tax lot in which such land is located, and (y) with
respect to buildings or structures, be included or excluded, as applicable, in
the same proportion which the current appraised value of the buildings or
structures to be so included or excluded bears to the current appraised value of
all of the buildings or structures included within the tax lot of which the
footprint of land in question is a part. If any item of Taxes (or allocable
portion thereof) which pursuant to this paragraph (e) is to be included in
Common Area Taxes because it is allocable to land which is improved with a
parking structure shall also be improved with buildings or structures used for
purposes other than parking, then the amount of such item of Taxes (or allocable
portion thereof) to be so included in Common Area Taxes shall be in the same
proportion which the current appraised value of the parking structure on such
land bears to the current appraised value of all of the buildings or structures
on such land. All appraisals hereunder shall be determined by an appraiser
selected and paid for by Landlord, who shall be a member in good standing of the
American Institute of Real Estate Appraisers and shall have at least ten (10)
years experience appraising major office buildings in northern New Jersey and/or
in the Borough of Manhattan, City, County and State of New York. The fees and
expenses of any such appraiser shall be deemed a part of Common Area Taxes.
(f) The Term "Common Area Tax Share" shall mean the share of
Common Area Taxes allocated to Plaza II, Plaza III and the Retained Premises, as
such share is determined from time to time as hereinafter set forth. The Common
Area Tax Share shall be determined as of the first day of each calendar year
(each, a "Tax Share Determination Date") and shall be equal to a fraction
(expressed as a percentage), the numerator of which shall be the aggregate gross
square footage contained in Plaza II, the Retained Premises and Plaza III, as of
the applicable Tax Share Determination Date, and the denominator of which shall
be the aggregate gross square footage contained in Plaza I, Plaza II and Plaza
III as of the applicable Tax Share Determination Date. If, at any time
hereafter, there is constructed (1) on any portion of the Land other than on the
Piers, any new buildings, or (2) on the Piers, any new building other than a
Self-Contained Pier Development, and in any of such cases, the tenants or
occupants thereof are permitted generally by Landlord to use the Common Areas
(as defined in Section 22.06 below), then the Common Area Tax Share shall be
modified to include in the denominator thereof, in addition to the aggregate
gross square footage contained in each of Plaza I, Plaza II and Plaza III as of
the applicable
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Tax Share Determination Date, that portion of the gross square footage contained
in each such new building which either (i) on the applicable Tax Share
Determination Date is subject to a lease (other than a so-called "master lease"
to an Affiliated Entity in which event the terms hereof shall apply to any
subtenant of such master lessee) and the lessee under such lease is occupying
the Demised Premises thereunder and has begun making payments of base rent
thereunder, or (ii) at any time prior to the applicable Tax Share Determination
Date was subject to a lease described in clause (i) above, or (iii) in the case
of a residential condominium development, was sold for the first time to an
owner-occupier which is not an Affiliated Entity. Without limiting the
provisions of clause (ii) above, in no event shall the denominator of the Common
Area Tax Share ever be reduced by reason that any space which was subject to a
lease described in clause (i) above is no longer subject to such a lease. If at
any time hereafter any building located on the Land, the gross square footage of
which is then included in the denominator of the Common Area Tax Share, shall be
conveyed to a third party (other than to an Affiliated Entity), and if after
such conveyance the tenants or occupants of such building are no longer
permitted generally to use the Common Areas, then from and after the next
succeeding Tax Share Determination Date, the Common Area Tax Share shall be
modified by excluding from the denominator thereof the gross square footage
contained in such conveyed building. Landlord and Tenant agree that as of the
date of this Lease, Plaza I (exclusive of the Retained Premises) contains
385,000 gross square feet, the Retained Premises contain 23,922 gross square
feet, Plaza II contains 726,078 gross square feet and Plaza III contains 750,000
gross square feet, and based upon such amounts, the Common Area Tax Share is
79.58%. The gross square footage of any other building located on the Land shall
be determined hereinafter in the same manner as the determination of gross
square footage reflected in the immediately preceding sentence.
(g) The term "Tenant's Tax Share" shall mean .77% constituting
the percentage resulting from dividing the number of rentable square feet from
time to time included in the Demised Premises and with respect to which Tenant
is obligated to make Tenant's Tax Payments pursuant to Section 3.01 (b) by the
number of rentable square feet in Plaza II, Plaza III and the Retained Premises,
which the parties agree is 1,500,000 rentable square feet as of the date of this
Lease. If at any time after the date hereof rentable square footage of office,
retail or other commercial space (exclusive of storage space that is an adjunct
to such space) shall be added to or subtracted from Plaza II, the Retained
Premises and/or Plaza III, Tenant's Tax Share shall be equitably adjusted so
that Tenant pays its proportionate share of Existing Building Taxes in the same
proportion which the rentable square feet from time to time included in the
Demised Premises as set forth herein bears to the total rentable area of office,
retail or other commercial space (exclusive of such storage space) in the
improvements as to which such Existing Building Taxes relate, using the same
standard of measurement to compute the rentable area of the new or additional
space or the subtracted space as that used to compute the rentable area of the
Demised
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Premises for purposes of this Lease. In the event of such adjustment,
Landlord and Tenant shall, at either party's request, execute an instrument
confirming such adjustment and making the appropriate change in Tenant's Tax
Share, but no such instrument shall be necessary to make the same effective.
(h) Tenant acknowledges that Landlord may transfer legal
ownership of portions of the Property to entities affiliated with Landlord for
purposes of obtaining tax abatements for the Property, for income tax planning
purposes or otherwise, and neither the definition of Common Area Taxes, nor of
Common Area Tax Share, nor of Existing Building Taxes nor of Tenant's Tax Share
shall be affected by reason of any such transfers to affiliated entities; all of
which shall be deemed for purposes hereof to continue to be owned by Landlord.
For purposes hereof an "Affiliated Entity" shall mean any entity which controls,
is under common control with, or is under the control of, Landlord and the term
"control" shall mean the direct or indirect ownership of 50% or more of the
outstanding voting stock in a corporation or equivalent ownership interest in a
non-corporate entity .
(i) If Landlord (or any Affiliated Entity) shall acquire any
additional land in the immediate vicinity of the Complex (each, an "Additional
Parcel"), then, at Landlord's election, exercisable by written notice to Tenant,
(a) the Taxes allocable to such Additional Parcel (or the portion thereof to be
used as Common Areas) shall be included in Common Area Taxes in accordance with
paragraph (e) above to the extent applicable, (b) the gross square footage of
any buildings then or thereafter constructed on such Additional Parcel, the
tenants or occupants of which are permitted generally to use the Common Areas,
shall, as of the applicable Tax Share Determination Date, be added to the
denominator of the Common Area Tax Share for purposes of calculating the Common
Area Tax Share in accordance with paragraph (f) above, using the same standard
of measurement to compute the rentable area of the new or additional buildings
as that used to compute the rentable area of the Demised Premises for purposes
of this Lease, and (c) such Additional Parcel shall thereafter be deemed a part
of the Land for all purposes of this Lease.
(j) In the event Tenant objects to any adjustment which may be
required under this Section 3.01 (a) with respect to Existing Building Taxes,
Common Area Taxes, Common Area Tax Share or Tenant's Tax Share, such objection
must be made in writing by Tenant within thirty (30) days after receipt of
Landlord's determination of such adjustment, specifying in detail the nature of
such objection, and failing such notice Landlord's determination shall be
conclusive. If Tenant does so object, either party may submit such dispute to
arbitration in accordance with the provisions of Article 43, but pending the
resolution of such dispute, Landlord's determination of Existing Building Taxes,
Common Area Taxes, Common Area Tax Share and Tenant's Tax Share shall control
and Tenant shall pay Tenant's Tax Payment (as defined in Section 3.01 (B)) in
accordance with such determination as a condition precedent to its right to
invoke the arbitration process herein provided without prejudice to Tenant's
position. In the event of the resolution of such dispute so that there shall
have been an overpayment of Tenant's Tax Payment, Landlord shall permit Tenant
to credit the amount of such overpayment against the next subsequent rental
payments under this Lease. After the termination of this Lease and the payment
to Landlord of the balance, if any, of all Basic Annual Rent and additional rent
due hereunder, Landlord shall pay to Tenant the amount of any credit not
previously applied by
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Tenant. In the event any such dispute shall involve more than one Tenant of the
Property, all of such disputes shall, at Landlord's election, be resolved in one
arbitration proceeding designated by Landlord.
(k) The term "Escalation Statement" shall mean a statement
setting forth the amount payable by Tenant for a specified Tax Year or Operating
Year (as defined in Section 3.02), as the case may be, or for some portion
thereof pursuant to this Article 3.
B. Tenant shall pay to Landlord as additional rent for each Tax Year
or partial Tax Year commencing from and after January 1, 1997, an amount equal
to Tenant's Tax Share of the excess of the Existing Building Taxes for such Tax
Year over the Existing Building Taxes for the Base Tax Year and Tenant's Tax
Share of the excess of the Common Area Taxes for such Tax Year over the Common
Area Taxes for the Base Tax Year (collectively, "Tenant's Tax Payment").
Landlord shall furnish Tenant an annual Escalation Statement (subject to
revision as hereinafter provided) for each Tax Year setting forth Tenant's Tax
Payment (or, if Landlord has not yet received bills evidencing the full amount
of Taxes payable during such Tax Year, Landlord's good faith estimate of
Tenant's Tax Payment, which shall for all purposes hereof be deemed to be the
Taxes for such Tax Year payable hereunder until such Taxes are finally
determined) for such Tax Year. Tenant's Tax Payment (determined as above
provided) shall be payable in the same number of installments as Landlord pays
(or is deemed to have paid, as hereinafter set forth) Taxes, each such
installment to be in such amount and due at such time (but not more frequently
than monthly) such that Landlord shall have received Tenant's Tax Share of (i)
all installments of Existing Building Taxes and (ii) all installments of Common
Area Taxes payable, in either case, to a Governmental Authority, or to any
designated party under any applicable Reciprocal Agreements (a "Responsible
Party"), or as tax escrow payments to any superior ground lessor or mortgagee,
not less than thirty (30) days prior to the date such installment of Existing
Building Taxes or Common Area Taxes is payable to such Governmental Authority,
Responsible Party or superior ground lessor or mortgagee, as applicable. If an
annual Escalation Statement is furnished to Tenant after the commencement of the
Tax Year to which it relates, then (i) until such Escalation Statement is
rendered, Tenant shall pay Tenant's Tax Payment for such Tax Year in
installments based upon the last Escalation Statement rendered to Tenant with
respect to Existing Building Taxes and Common Area Taxes, (ii) Tenant shall,
within ten (10) days after such annual Escalation Statement is furnished to
Tenant, pay to Landlord an amount equal to any underpayment of the installments
of Tenant's Tax Payment theretofore paid by Tenant for such Tax Year and (iii)
thereafter Tenant shall pay Tenant's Tax Payment in installments based on such
annual Escalation Statement. In the event of an overpayment by Tenant, Landlord
shall permit Tenant to credit the amount of such overpayment against the next
subsequent rental payments under this Lease. After the termination of this Lease
and the payment to Landlord of the balance, if any, of all Basic Annual Rent and
additional rent due hereunder, Landlord shall pay to Tenant the amount of any
credit not previously applied by Tenant. If there shall be any increase or
decrease in Existing Building Taxes or Common Area Taxes for any Tax Year,
whether during or after such Tax Year, Landlord shall furnish a revised
Escalation Statement for such Tax Year to Tenant, and Tenant's Tax Payment for
such Tax Year shall be adjusted and paid or credited, as appropriate, in the
same manner as hereinabove provided.
9
C. If Landlord shall receive a refund of Existing Building
Taxes or Common Area Taxes for any Tax Year, Landlord shall promptly notify
Tenant and shall permit Tenant to credit against subsequent rental payments
under this Lease, Tenant's Tax Share of the refund, but not in excess of
Tenant's Tax Payment paid for such Tax Year. After the termination of this Lease
and the payment to Landlord of the balance, if any, of all Basic Annual Rent and
additional rent due hereunder, Landlord shall pay Tenant the amount of any
credit not previously applied by Tenant.
3.02. A. For purposes hereof the following definitions shall apply:
(a) The term "Operating Year" shall mean each calendar year
which includes any part of the period commencing on January 1, 1997 and ending
upon the expiration of the Term. The term "Base Operating Year" shall mean the
calendar year commencing January 1, 1997.
(b) The term "Tenant's Expense Share" shall mean .81%
constituting the percentage resulting from dividing the number of rentable
square feet from time to time included in the Demised Premises and with respect
to which Tenant is obligated to make Tenant's Expense Payments pursuant to
Section 3.02(b) by the number of rentable square feet in the Retained Premises,
Plaza II, Plaza III and the Retained Premises, exclusive of space leased to
retail tenants, which the parties agree is 1,430,000 rentable square feet as of
the date of this Lease. If at any time after the date hereof additional rentable
square footage of office space (exclusive of storage space that is an adjunct to
such space) shall be added to or subtracted from the Retained Premises, Plaza II
and/or Plaza III, Tenant's Expense Share shall be equitably adjusted so that
Tenant pays its proportionate share of Operating Expenses in the same proportion
which the rentable square feet from time to time included in the Demised
Premises as set forth herein bears to the total rentable area of office space
(exclusive of such storage space) in the improvements as to which such Operating
Expenses relate, using the same standard of measurement to compute the rentable
area of the new or additional space or subtracted space as that used to compute
the rentable area of the Demised Premises for purposes of this Lease. In the
event of such adjustment, Landlord and Tenant shall, at either party's request,
execute an instrument confirming such adjustment and making the appropriate
change in Tenant's Expense Share, but no such instrument shall be necessary to
make the same effective.
(c) The term "Common Area Expense Share" shall mean the share
of Common Area Operating Expenses allocated to Plaza II, Plaza III and the
Retained Premises, as such share is determined from time to time as hereinafter
set forth. The Common Area Expense Share shall be determined as of the first day
of each calendar year (each, an "Expense Share Determination Date") and shall be
equal to a fraction (expressed as a percentage), the numerator of which shall be
the aggregate gross square footage contained in Plaza II, the Retained Premises
and Plaza III, as of the applicable Expense Share Determination Date, and the
denominator of which shall be the aggregate gross square footage contained in
Plaza I, Plaza II and Plaza III as of the applicable Expense Share Determination
Date (the "Expense Share Fraction"). If, at any time hereafter, there is
constructed (1) on any portion of the Land other than on the Piers any new
buildings, or (2) on the Piers, any new building other than a Self-Contained
Pier Development, and in any of such cases, the tenants or occupants thereof are
permitted by Landlord generally to
10
use the Common Areas, then the Expense Share Fraction shall be modified to
include in the denominator thereof, in addition to the aggregate of the gross
square footage contained in each of Plaza I, Plaza II and Plaza III as of the
applicable Expense Share Determination Date, the gross square footage contained
in that portion of each such new building which either (i) on the applicable
Expense Share Determination Date is subject to a lease (other than a so-called
"master lease" to an Affiliated Entity in which event the terms hereof shall
apply to any subtenant of such master lessee) and the lessee under such lease is
either occupying the Demised Premises thereunder, or has begun making payments
of base rent thereunder or (ii) at any time prior to the applicable Expense
Share Determination Date was subject to a lease described in clause (i) above,
or (iii) in the case of a residential condominium development, was sold for the
first time to an owner-occupier which is not an Affiliated Entity. Without
limiting the provisions of clause (ii) above, in no event shall the denominator
of the Expense Share Fraction ever be reduced by reason that any space which was
subject to a lease described in clause (i) above is no longer subject to such a
lease. If at any time hereafter any building located on the Land, the gross
square footage of which is then included in the denominator of the Expense Share
Fraction, shall be conveyed to a third party (other than to an Affiliated
Entity), and if after such conveyance the tenants or occupants of such building
are no longer permitted generally to use the Common Areas, then from and after
the next succeeding Expense Share Determination Date, the Expense Share Fraction
shall be modified by excluding from the denominator thereof the gross square
footage contained in such conveyed building. Landlord and Tenant agree that as
of the date of this Lease Plaza I (exclusive of the Retained Premises) contains
385,000 gross square feet, the Retained Premises contains 23,922 gross square
feet, Plaza II contains 726,078 gross square feet and Plaza III contains 750,000
gross square feet, and based upon such amounts, the Common Area Expense Share is
79.58%. The gross square footage of any other building located on the Land shall
be determined hereinafter in the same manner as the determination of gross
square footage reflected in the immediately preceding sentence.
(d) The term "Common Area Operating Expenses" shall mean the
Common Area Expense Share of the total of all unreimbursed (other than pursuant
to this Article 3) costs and expenses (including taxes thereon, if any),
computed on an accrual basis, incurred by Landlord in connection with operating,
maintaining, repairing and replacing the Common Areas (as defined in Section
22.05), including, without limitation, the cost and expense of the following
items to the extent they relate solely to or are reasonably allocable to the
Common Areas (Tenant hereby acknowledging that it is not possible to make such
allocation with mathematical certainty and that any such good faith allocation
made by Landlord shall be binding upon Tenant): gardening, landscaping,
planting, replanting, and replacing flowers and shrubbery; public liability,
property damage and fire insurance with such extended coverage and vandalism
endorsements required by the holder of any mortgage covering all or any portion
of the Common Areas or customarily carried with respect to mixed use office and
retail projects similar to the Complex in northern New Jersey; repairs; painting
and decorating; striping; the cost of electricity for lighting and maintenance
and replacements of lighting fixtures, tubes and bulbs; regulating automobile
and pedestrian traffic; sanitary control; removal of rubbish, garbage and other
refuse; removal of snow and ice, and sanding and salting; security, which shall
include special security undertakings for the common use and enjoyment of all
tenants and owners of all or a portion of the Complex; actions to prevent
unauthorized use of certain of the Common Areas; supplies used
11
in the operation and maintenance of the Common Areas (including the cost of
inspection thereof); drainage; music program services and loud speaker systems,
including electricity therefor; heating, ventilating and air-conditioning
enclosed sidewalks, if any; cleaning all enclosed sidewalks, if any, including
carpeting or other floor covering; maintenance of decorations, if any; cost of
personnel to implement all of the aforementioned (including worker's
compensation insurance covering such personnel); all administrative and overhead
costs, excluding executive salaries above the grade of building manager; all
water and sewer charges; outside contractor snow removal costs; and any other
fees and expenses related solely to or which are reasonably allocable to the
operation, maintenance and repair of the Common Areas; provided, however, that
the foregoing costs and expenses shall exclude or have deducted from them, or
shall include in the specific circumstances hereinafter provided, as the case
may be, the following:
(i) Taxes;
(ii) interest, principal and refinancing and other charges on or
with respect to indebtedness;
(iii) amounts received by Landlord through proceeds of insurance to
the extent they are compensation for sums previously included in
Common Area Operating Expenses hereunder;
(iv) costs of repairs incurred by reason of fire or other casualty
or condemnation to the extent Landlord is compensated therefor by
insurance proceeds or condemnation award;
(v) advertising and promotional expenses;
(vi) leasing commissions and similar fees;
(vii) rent under any ground lease;
(viii) depreciation, except that if any equipment is purchased for
maintenance and operation of the Common Areas which is not ordinarily
expensed, then such equipment shall be depreciated on a straight-line
basis over the lesser of (i) the useful life of such equipment or (ii)
ten (10) years, and there shall be included in Common Area Operating
Expenses in each Operating Year the amount of such depreciation
attributable to such Operating Year, provided, however, that all
amounts thereof included in Common Area Operating Expenses in
Operating Years subsequent to the year paid shall have added thereto
interest at the Prime Rate (as defined in Section 22.03) (determined
as of the date on which such expense was incurred) plus one percent
(1%) from the date each such expense was incurred by Landlord;
(ix) as to salaries and other compensation and professional fees of
persons employed or retained at or for the Common Areas and at
additional locations other than the Common Areas, only a pro rata
allocation (based on an equitable time
12
allocation) of the foregoing expenses incurred on behalf of the Common
Areas shall be included in Common Area Operating Expenses;
(x) costs and expenses payable to any Affiliated Entity or its
partners or stockholders to the extent that such costs and expenses
exceed, in any material respect, competitive costs and expenses
generally charged for materials or services rendered by persons or
entities (other than any Affiliated Entity or its partners or
stockholders) of similar skill, competence and experience;
(xi) all costs and expenses included in Operating Expenses;
(xii) all costs and expenses allocable to any portion of the Common
Areas that is hereafter conveyed to a third party (other than to an
Affiliated Entity), except, however, that if any portion of the Common
Areas so conveyed constitutes a parking structure, and if Landlord
both retains the right to use all or a portion of the parking spaces
within such structure for tenants of the Complex and pays all or a
portion of the costs and expenses allocable to such conveyed parking
structure then such costs and expenses payable by Landlord with
respect to such conveyed parking structure shall be included in Common
Area Operating Expenses;
(xiii) all costs and expenses allocable to (a) any buildings or
structures constructed on either of the Piers, or allocable to any
portions of the Common Areas adjacent thereto which become unavailable
for the general use of the tenants of the Complex during the
construction of such buildings or structures by reason of such
construction (such exclusion to become effective from and after the
time, if any, of Commencement of Construction (of such buildings or
structures) and (b) any buildings or structures constructed on any
portion of the Complex other than Plaza I, Plaza II, Plaza III and the
Piers, or allocable to any portions of the Common Areas adjacent
thereto which become unavailable for the general use of the tenants of
the Complex during the construction of such buildings or structures by
reason of such construction (such exclusion to become effective from
and after the time, if any, after the date hereof, of Commencement of
Construction of such buildings or structures). During construction of
any such building or structure, as and when any portion of the land
(and any improvements constructed thereon), the costs and expenses
allocable to which had been excluded from Common Area Operating
Expenses as of the Commencement of Construction, again becomes
available for the general use of all tenants of the Complex, the costs
and expenses allocable to such land (and to any improvements thereon
similarly available for the general use of all tenants of the Complex
including, without limitation, parking structures) shall again be
included in Common Area Operating Expenses; and
(xiv) all costs and expenses allocable to the common areas of a Self-
Contained Pier Development.
13
If any of the costs and expenses which, pursuant to the terms of this
paragraph (d) are to be included in or excluded from Common Area Operating
Expenses depending upon the portion of the Property to which they relate, are
incurred with respect to both such included and excluded portions of the
Property, then Landlord shall make a good faith estimate of the amount of such
cost or expense allocable to such included or excluded portion of the Property,
and only the pro rata allocation (based on Landlord's estimate) of such cost or
expense incurred on behalf of the included portion of the Property shall be
included in Common Area Operating Expenses. Such allocation shall be binding on
Landlord and Tenant unless Tenant shall dispute same in accordance with Section
3.07 within thirty (30) days after Landlord gives Tenant notice of such
allocation. Tenant shall only be able to challenge such allocation if Tenant
can establish in arbitration in accordance with the provisions of this Lease
that such allocation was arbitrary and made in bad faith, giving due
consideration to the fact that it is not possible to make such allocation with
mathematical certainty. Pending such arbitration, Landlord's allocation shall
control and Tenant shall make Tenant's Expense Payments based thereon.
(e) The term "Operating Expenses" shall mean, subject to the
provisions of paragraphs (f) and (g) below, the total of all costs and expenses
(including taxes thereon, if any), computed on an accrual basis, incurred by
Landlord in connection with operating, repairing and maintaining Plaza II, Plaza
III and the Retained Premises (the "Existing Buildings") in a manner customary
for mixed use office/retail complexes in northern New Jersey similar to the
Complex including, without limitation, the costs and expenses with respect to:
steam, gas and any other fuel or utilities; water rates (including without
limitation, for public drinking facilities and bathrooms), water charges and
sewer rents; operation of the heating, ventilation and cooling systems;
electricity and other utilities for areas other than those leased or available
for lease to individual tenants as indicated by meter, or if there be no meter,
as determined by Landlord's electrical consultant (as defined in Section 4.08);
elevators and escalators; metal, elevator cab, lobby, interior mall and other
interior public area maintenance and cleaning; painting and decoration of non
tenant areas; window cleaning; sanitary control; security; maintenance and
replacement of lighting fixtures, tubes and bulbs in non tenant areas; music
program services and loud speaker system; depreciation of hand tools and other
movable equipment used in the operation or maintenance of the Existing
Buildings; maintenance of conduits in the Existing Buildings as necessary for
shared tenant systems; flood, fire, extended coverage, boiler and machinery,
sprinkler apparatus, public liability and property damage, loss of rental,
fidelity and plate glass insurance and any other insurance required by the
holder of any mortgage or ground lease covering all or any portion of the
Existing Buildings or customarily carried with respect to mixed use
office/retail complexes in northern New Jersey similar to the Property; wages,
salaries, bonuses, disability benefits, hospitalization, medical, surgical,
dental, optical, psychiatric, legal, union and general welfare benefits
(including group life insurance), any pension, retirement or life insurance plan
and other benefit or similar expense respecting employees of Landlord (or its
agents) up to and including the building manager, provided that to the extent
that Landlord employs the services of any such persons at the Existing Buildings
and at additional locations other than the Existing Buildings, then only a pro
rata allocation (based on an equitable time allocation) of the foregoing
expenses incurred on behalf of the Existing Buildings shall be included in
Operating Expenses; uniforms and working clothes for such employees and the
cleaning and replacement thereof; expenses imposed on Landlord pursuant to law
or to any
14
collective bargaining agreement with respect to such employees; workmen's
compensation insurance, payroll, social security, unemployment and other similar
taxes with respect to such employees; salaries of bookkeepers and accountants,
provided that to the extent that Landlord employs the services of any such
persons at the Existing Buildings and at additional locations other than the
Existing Buildings, then only a pro rata allocation (based on an equitable time
allocation) of the foregoing expenses incurred on behalf of the Existing
Buildings shall be included in Operating Expenses; professional and consulting
fees, including legal and accounting fees; charges for independent contractors
performing work included within the definition of Operating Expenses;
association fees or dues; telephone and stationery; directory; building
telephone; repairs, replacements and improvements of the electrical, mechanical,
plumbing and HVAC systems and other systems and portions of the Existing
Buildings, which are necessary or appropriate for the continued operation of the
Existing Buildings in a manner customary for mixed use office/retail complexes
in northern New Jersey similar to the Complex or are otherwise imposed upon
Landlord by any Governmental Authority; and management fees for the management
of the Existing Buildings, or if no managing agent is employed by Landlord, a
sum in lieu thereof which is not in excess of the then prevailing rates for
management fees in northern New Jersey for mixed use office/retail complexes
similar to the Property. There shall also be included in Operating Expenses (but
only to the extent the same are not otherwise included therein) any items
described in the definition of Common Area Operating Expenses which are
performed to the exterior of Plaza II and Plaza III, but which, by reason of
their relating to areas adjacent to Plaza II and Plaza III, are not included in
Common Area Operating Expenses and are performed and paid for directly by the
owner of Plaza II and Plaza III. If any of the costs and expenses includible in
Operating Expenses are incurred by Landlord with respect to both the Existing
Buildings and other portions of the Property, then Landlord shall make a good
faith estimate of the amount of such cost or expense allocable to the Existing
Buildings and the amount thereof allocable to such other portions of the
Property, and only the pro rata allocation (based on Landlord's estimate) of
such cost or expense incurred on behalf of the Existing Buildings shall be
included in Operating Expenses. Such allocation shall be binding on Landlord and
Tenant unless Tenant shall dispute same in accordance with Section 3.07 within
thirty (30) days after Landlord gives Tenant notice of such allocation. Tenant
shall only be able to challenge such allocation if Tenant can establish in
arbitration in accordance with the provisions of this Lease that such allocation
was arbitrary and made in bad faith, giving due consideration to the fact `that
it is not possible to make such allocation with mathematical certainty. Pending
such arbitration, Landlord's allocation shall control and Tenant shall make
Tenant's Expense Payments based thereon. It is understood and agreed that
Landlord shall not be permitted to include the same item of expense in both
Operating Expenses and Common Area Expenses except to the extent such item of
expense is allocated between them as expressly contemplated hereby.
(f) If any repair, replacement or improvement within the
definition of Operating Expenses must be capitalized under generally accepted
accounting principles as determined by the accountants who prepare the accounts
with respect to the Existing Buildings, then, unless same is necessary to comply
with a Legal Requirement (in which case the same shall be included within
Operating Expenses in the year incurred) or except as otherwise provided in
paragraph (g) below, the cost thereof shall be amortized on a straight line
basis over the lesser of (i) the useful life of such repair, replacement or
improvement or (ii) a period of ten (10) years,
15
and there shall be included in Operating Expenses in each Operating Year for
such portion of the amortization period which occurs during the Term, the amount
so amortized attributable to such Operating Year, provided, however, that all
amounts thereof included in Operating Expenses in Operating Years subsequent to
the year paid shall have added thereto interest at the Prime Rate plus one
percent (1%) from the date Landlord incurred such cost.
(g) The following shall be excluded or deducted from, or, in
the specific circumstances hereinafter provided, included in, as appropriate,
the costs and expenses otherwise included in Operating Expenses:
(i) the cost of electricity and other utilities furnished to the
Demised Premises and other space leased or available for lease to
tenants as measured by meters, or if there be no meters, as determined
by Landlord's electrical consultant (as defined in Section 4.08);
(ii) leasing commissions and similar fees;
(iii) salaries, fringe benefits and other compensation for Landlord's
executives above the grade of building manager;
(iv) amounts received by Landlord through proceeds of insurance to
the extent the proceeds are compensation for expenses which were
previously included in Operating Expenses;
(v) cost of repairs or replacements incurred by reason of fire or
other casualty or condemnation to the extent Landlord is compensated
therefor by insurance proceeds or a condemnation award;
(vi) advertising and promotional expenditures;
(vii) Taxes;
(viii) costs for performing tenant installations for any individual
tenant or for performing work or furnishing services to or for
individual tenants at such tenant's expense and any other contribution
by Landlord to the cost of tenant improvements;
(ix) capital expenditures incurred for the initial renovation of the
improvements constituting the Existing Buildings (e.g., the erection
of a new facade, new windows and a new elevator core);
(x) rent under any ground leases;
(xi) financing and refinancing costs and mortgage debt service;
16
(xii) costs of furnishing services to other tenants or occupants to
the extent such services are materially in excess of services Landlord
offers to all tenants at Landlord's expense;
(xiii) amounts otherwise includible in Operating Expenses but
reimbursed directly by Tenant or other tenants to Landlord other than
by escalation provisions similar to this Article 3;
(xiv) costs and expenses payable to any Affiliated Entity, to the
extent that such costs and expenses exceed in any material respect
competitive costs and expenses for materials and services by unrelated
persons or entities (other than and Affiliated Entity or its partners
or stockholders) of similar skill, competence and experience;
(xv) franchise, income, inheritance or estate taxes (but not sales
and use taxes) imposed on Landlord;
(xvi) all amounts included in Common Area Operating Expenses; and
(xvii) depreciation, except that if any equipment is purchased for
maintenance and operation of the Existing Buildings which is not
ordinarily expensed, then such equipment shall be depreciated on a
straight-line basis over the lesser of (i) the useful life of such
equipment or (ii) ten (10) years, and there shall be included in
Operating Expenses in each Operating Year the amount of such
depreciation attributable to such Operating Year, provided, however,
that all amounts thereof included in Operating Expenses in Operating
Years subsequent to the year paid shall have added thereto interest at
the Prime Rate (as defined in Section 22.03) (determined as of the
date on which such expense was incurred) plus one percent (1 %) from
the date each such expense was incurred by Landlord.
(h) If during all or part of any Operating Year, Landlord
shall not furnish any particular item(s) of work or service (which would
constitute an Operating Expense) to portions of the Existing Buildings, due to
the fact such portions are not occupied or leased, or because such item of work
or service is not required or desired by the tenant of such portion, or such
tenant is itself obtaining and providing such item of work or service, then, for
the purpose of computing the additional rent payable hereunder, the amount of
Operating Expenses for such item for such period shall be increased by an amount
equal to the actual incremental cost which would reasonably have been incurred
during such period by Landlord if it had at its own expense furnished such item
of work or services to such portion of the Existing Buildings.
(i) Tenant acknowledges that Landlord may transfer legal
ownership of portions of the Property to an Affiliated Entity for purposes of
obtaining tax abatements for the Property, for tax planning purposes or
otherwise, and neither the definition of Operating Expenses nor of Tenant's
Expense Share nor of Common Area Expenses, nor of Common Area Expense Share
shall be affected by reason of any such transfers to Affiliated Entities; all of
which shall be deemed for purposes hereof to continue to be owned by Landlord.
17
(j) If Landlord (or any Affiliated Entity) shall acquire an
Additional Parcel, then, at Landlord's election, exercisable by written notice
to Tenant (a) the Common Area Operating Expenses allocable to such Additional
Parcel (or the portion thereof to be used as Common Areas) shall be included in
Common Area Operating Expenses in accordance with paragraph (d) above to the
extent applicable, (b) the gross square footage of any improvements then or
thereafter constructed on such Additional Parcel, the tenants or occupants of
which are permitted generally to use the Common Areas, shall, as of the
applicable Expense Share Determination Date, be added to the denominator of the
Expense Share Fraction for purposes of calculating the Common Area Expense Share
in accordance with paragraph (c) above, and (c) such Additional Parcel shall
thereafter be deemed a part of the Land for all purposes of this Lease.
(k) In the event Tenant objects to any adjustment which may be
required under this Section 3.02(a) with respect to Operating Expenses, Common
Area Operating Expenses, Tenant's Expense Share or Common Area Expense Share,
such objection must be made in writing by Tenant within thirty (30) days after
receipt of Landlord's determination of such adjustment, specifying in detail the
nature of such objection, and failing such notice Landlord's determination shall
be conclusive. If Tenant does so object, either party may submit such dispute
to arbitration in accordance with the provisions of Article 43, but pending the
resolution of such dispute, Landlord's determination of Operating Expenses,
Common Area Operating Expenses, Tenant's Expense Share and Common Area Expense
Share shall control and Tenant shall pay Tenant's Expense Payment (as defined in
Section 3.02(b) below) in accordance with such determination as a condition
precedent to its right to invoke such arbitration process without prejudice to
Tenant's position. In the event of the resolution of such dispute so that there
shall have been an overpayment of any of Tenant's Expense Payment, Landlord
shall permit Tenant to credit the amount of such overpayment against the next
subsequent rental payments under this Lease. After the termination of this
Lease and the payment to Landlord of the balance, if any, of all Basic Annual
Rent and additional rent due hereunder, Landlord shall pay Tenant the amount of
any credit not previously applied by Tenant. In the event any such dispute
shall involve more than one tenant of the Property, all of such disputes shall,
at Landlord's election, be resolved in one arbitration proceeding designated by
Landlord.
B. Tenant shall pay to Landlord as additional rent for each
Operating Year an amount equal to Tenant's Expense Share of the excess of the
Operating Expenses for such Operating Year over the Operating Expenses for the
Base Operating Year and Tenant's Expense Share of the excess of the Common Area
Operating Expenses for such Operating Year over the Common Area Operating
Expenses for the Base Operating Year (collectively, "Tenant's Expense Payment").
C. Landlord shall furnish to Tenant for each Operating Year an
Escalation Statement (subject to revision as hereinafter provided) setting forth
Landlord's estimate of Tenant's Expense Payment for such Operating Year. Tenant
shall pay to Landlord on the first day of each month during such Operating Year
an amount equal to one-twelfth (1/12) of Landlord's estimate of Tenant's Expense
Payment for such Operating Year. If Landlord shall furnish such estimate for an
Operating Year after the commencement thereof, then (i) until the first day of
the month following the month in which such estimate is furnished to Tenant,
Tenant
18
shall pay to Landlord on the first day of each month an amount equal to the
monthly sum payable by Tenant to Landlord under this paragraph (c) for the last
month of the preceding Operating Year; (ii) on the first day of the month
following the month in which such estimate is furnished to Tenant and monthly
thereafter for the balance of such Operating Year, Tenant shall pay to Landlord
an amount equal to one-twelfth (1/12) of Tenant's Expense Payment as shown on
such estimate; and (iii) Landlord shall notify Tenant in the Escalation
Statement containing such estimate whether the installments of Tenant's Expense
Payment previously paid for such Operating Year were more or less than the
installments which should have been paid for such Operating Year pursuant to
such estimate. If there shall be an underpayment, Tenant shall pay the amount
thereof within ten (10) days after being furnished with such Escalation
Statement or (ii) if there shall be an overpayment, Tenant shall be entitled to
a credit in the amount thereof against the next subsequent rental payments under
this Lease. After the termination of this Lease and the payment to Landlord of
the balance, if any, of all Basic Annual Rent and additional rent due hereunder,
Landlord shall pay Tenant the amount of any credit not previously applied by
Tenant. Landlord may at any time and from time to time (but not more often than
three times in any Operating Year) furnish to Tenant an Escalation Statement
setting forth Landlord's revised estimate of Tenant's Expense Payment for a
particular Operating Year and Tenant's Expense Payment for such Operating Year
shall be adjusted and paid or credited, as applicable, in the same manner as
provided in the preceding sentence.
D. After the end of each Operating Year Landlord shall submit to
Tenant an annual Escalation Statement prepared by Landlord or its agent setting
forth the Operating Expenses and Common Area Operating Expenses for the
preceding Operating Year and the balance of Tenant's Expense Payment, if any,
due to Landlord from Tenant for such Operating Year. If such annual Escalation
Statement shall show that the sums paid by Tenant under Section 3.02(c) exceeded
Tenant's Expense Payment for such Operating Year, Tenant shall be entitled to a
credit in the amount of such excess against the next subsequent rental payments
under this Lease. After the termination of the Lease and the payment to
Landlord of the balance, if any, of all Basic Annual Rent and additional rent
due hereunder, Landlord shall pay Tenant the amount of any credit not previously
applied by Tenant. If an annual Escalation Statement shall show that the sums
so paid by Tenant were less than Tenant's Expense Payment for such Operating
Year, Tenant shall pay the amount of such deficiency to Landlord within ten (10)
days after being furnished with such annual Escalation Statement.
E. The annual Escalation Statements with respect to Operating
Expenses and Common Area Operating Expenses to be furnished by Landlord or its
agent as provided above may be unaudited but shall be in reasonable detail.
Landlord and its agent may rely on Landlord's operating cost allocations and
estimates if such allocations or estimates are required for this Section 3.02.
F. Upon Tenant's written request, Landlord shall permit Tenant
or its representatives to inspect the books and records relating to the
operation of the Property for the Operating Year to which an Escalation
Statement relates at the office of Landlord's managing agent at such time or
times during normal business hours as Landlord shall reasonably designate.
Tenant shall have the right to obtain copies or make such abstracts thereof as
it may reasonably require in order to verify any Escalation Statement. If, based
upon Tenant's inspection, it is
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determined (either by agreement of the parties or by a final unappealable
arbitration award) that Landlord's annual Escalation Statement for Operating
Expenses for a particular Operating Year was overstated by more than 5%, then
Landlord will reimburse Tenant for the reasonable costs it incurred to outside,
independent auditors to conduct such inspection within ten (10) days after
demand based upon reasonable substantiation by Tenant of such costs.
3.03. Tenant shall pay to the appropriate Governmental Authority on
or before the due date thereof all taxes, assessments and other charges which
are or may be assessed, levied or imposed by any Governmental Authority upon, or
become a lien or due and payable in respect of, any leasehold interest of
Tenant, any investment of Tenant in the Demised Premises, any right of Tenant to
occupy the Demised Premises or any personal property of any kind owned,
installed or used by Tenant at or in connection with the operation of the
Demised Premises or in connection with Tenant's business conducted at the
Demised Premises and, at Landlord's request, furnish Landlord with reasonable
evidence, within ten (10) days after demand, that the same have been paid.
3.04. If the Commencement Date shall be other than the first day of a
Tax Year or an Operating Year or if the Expiration Date shall be a day other
than the last day of a Tax Year or an Operating Year, then Tenant's Tax Payment
and/or Tenant's Expense Payment for such partial year shall be equitably
adjusted taking into consideration the portion of such Tax Year or Operating
Year falling within the Term. Landlord shall, as soon as reasonably practicable,
cause an Escalation Statement with respect to Existing Building Taxes and Common
Area Taxes for the Tax Year and/or Operating Expenses and Common Area Operating
Expenses for the Operating Year in which the Term expires to be prepared and
furnished to Tenant. Such Escalation Statement shall be prepared as of the
Expiration Date of the Term if such date is December 31, and if not, as of the
first to occur of June 30 or December 31 after the Expiration Date of the Term.
Landlord and Tenant shall thereupon make appropriate adjustments of amounts then
owing.
3.05. In no event shall the Basic Annual Rent ever be reduced by
operation of this Article 3. The rights and obligations of Landlord and Tenant
under the provisions of this Article 3 shall survive the termination of this
Lease, and payments shall be made pursuant to this Article 3 notwithstanding the
fact that an Escalation Statement is furnished to Tenant after the expiration or
other termination of the Term.
3.06. Landlord's failure to render an Escalation Statement with
respect to any Tax Year or Operating Year shall not prejudice Landlord's right
to thereafter render an Escalation Statement with respect thereto or with
respect to any subsequent Tax Year or Operating Year.
3.07. Each Escalation Statement shall be conclusive and binding upon
Tenant unless within thirty (30) days after receipt of such Escalation Statement
Tenant shall notify Landlord that it disputes the correctness of such Escalation
Statement, specifying the particular respects in which such Escalation Statement
is claimed to be incorrect. Any such dispute may be submitted to arbitration in
accordance with Article 43 by either party, but pending the resolution of such
dispute, and as a condition precedent to Tenant's right to invoke such
arbitration process, Tenant shall make its payments in accordance with such
Escalation Statement without prejudice
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to Tenant's position. In the event of the resolution of such dispute so that
there shall have been an overpayment of any of Tenant's Tax Payment and/or
Tenant's Expense Payment, Landlord shall permit Tenant to credit the amount of
such overpayment against the next subsequent rental payments under this Lease.
After the termination of this Lease and the payment to Landlord of the balance,
if any, of all Basic Annual Rent and additional rent due hereunder, Landlord
shall pay to Tenant the amount of any credit not previously applied by Tenant.
Tenant agrees, at Landlord's request, to be a party to any arbitration between
Landlord and any other tenant of the Property concerning the interpretation of
any provision similar to a provision in this Article 3 in such other tenant's
lease. Tenant shall not be responsible for the cost of any such arbitration,
except that Tenant shall bear the cost of its own counsel, experts and
presentation of proof, if any.
3.08. Tenant will cooperate with Landlord in all reasonable respects
in obtaining and retaining any tax abatement or exemption for which the Property
may be eligible. Tenant will execute and file within ten (10) days after demand
any and all documents and instruments reasonably necessary to obtain and retain
such abatement or exemption.
ARTICLE 4
ELECTRICITY
4.01. Landlord agrees that prior to the Commencement Date risers,
feeders and wiring will be installed in the Building by Landlord to furnish
electrical service to the Demised Premises in accordance with work required
pursuant to No. 1 of Schedule C. After the Commencement Date any additional
risers, feeders or other equipment or service proper or necessary to supply
Tenant's electrical requirements, upon written request of Tenant, will be
installed by Landlord at the sole cost and expense of Tenant, if in Landlord's
sole judgment the same are available and necessary for Tenant's use and will not
cause permanent damage or injury to the Property or the Demised Premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expense or interfere with or disturb other
tenants or occupants.
4.02. Tenant covenants and agrees to pay directly to the utility
company supplying electricity to the Demised Premises the amounts due for
electric current consumed by Tenant as indicated by meters measuring Tenant's
consumption thereof.
4.03. Tenant's use of electric current in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. The electrical
conductor's and equipment for the Fourth Floor Space have a capacity of six (6)
xxxxx per square foot, exclusive of heating, ventilation and air conditioning
equipment. Tenant shall not make or perform or permit the making or performing
of, any alterations to wiring, installations or other electrical facilities in
or serving the Demised Premises without the prior consent of Landlord in each
instance, and then only in accordance with the provisions of Article 6.
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4.04. Landlord shall not be liable in any way to Tenant for any
failure or defect in the supply or character of electric energy furnished to the
Demised Premises by reason of any requirement, act or omission of the public
utility providing the Building with electricity or for any other reason
whatsoever (other than Landlord's gross negligence or willful misconduct).
Without limiting the foregoing, in no event shall Landlord be liable to Tenant
for any consequential damages arising from any such failure or defect.
4.05. At Landlord's option, Tenant shall purchase from Landlord,
Landlord's agent or Landlord's cleaning contractor all lighting tubes, lamps,
bulbs and ballasts used in the Demised Premises and Tenant shall pay Landlord's
reasonable charges (not to exceed the standard rate generally charged to other
tenants at the Building) for providing and installing same on demand as
additional rent.
ARTICLE 5
USE
5.01. The Demised Premises shall be used solely as and for executive
and general offices, including as a data center, and for no other purpose.
5.02. Tenant shall not use or permit the use of the Demised Premises
or any part thereof in any way which would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or for any unlawful
purposes or in any unlawful manner or in violation of the certificate of
occupancy for the Demised Premises or the Building, and Tenant shall not permit
the Demised Premises or any part thereof to be used in any manner or anything to
be done, brought into or kept therein which, in Landlord's good faith judgment
shall impair or interfere with (i) the character, reputation or appearance of
the Building as a first class office building, (ii) any of the Property services
or the proper and economic heating, cleaning, air conditioning or other
servicing of the Property or the Demised Premises, or (iii) the use of any of
the other areas of the Property by, or occasion discomfort, inconvenience or
annoyance to, any of the other tenants or occupants of the Property. Tenant
shall not install any electrical or other equipment of any kind which, in the
judgment of Landlord, might cause any such impairment, interference, discomfort,
inconvenience or annoyance or which might overload the risers or feeders
servicing the Demised Premises or other portions of the Building.
ARTICLE 6
ALTERATIONS AND INSTALLATIONS
6.01. Tenant shall make no alterations, installations, additions or
improvements in or to the Demised Premises without Landlord's prior written
consent and then only by contractors or mechanics who are approved by Landlord
beforehand or who are on the list of approved contractors for the Complex
prepared by Landlord and furnished to Tenant upon request. Landlord hereby
approves Nova Interiors, Xxxx Electric and Aztec Corporation to
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perform Tenant's Work with respect to the initially Demised Premises. All such
work, alterations, installations, additions and improvements shall be done at
Tenant's sole expense and at such times and in such manner as Landlord may from
time to time reasonably designate.
Any work in the Demised Premises shall be done solely in accordance
with plans and specifications (prepared by a licensed engineer) first approved
in writing by Landlord. Landlord shall have five (5) days to approve such plans;
provided, that in the event such plans are submitted to third party consultants
for their review, then Landlord shall have ten (10) days to approve such plans,
provided, that in either case, Landlord may extend the time period, as
applicable, by five (5) days by giving notice of same to Tenant by the end of
the original time period, as applicable, provided above. Tenant shall reimburse
Landlord promptly upon demand for any reasonable costs and expenses incurred by
Landlord in connection with Landlord's review of such Tenant's plans and
specifications. Landlord will not unreasonably withhold or delay its consent to
requests for non structural alterations, additions and improvements (provided
they will not interfere with the operation of the Complex nor affect the outside
of the Complex nor adversely affect its structure, electrical, HVAC, plumbing or
mechanical systems).
Any such approved alterations and improvements shall be performed in
accordance with the foregoing and the following provisions of this Article 6:
1. All work shall be done in a good and workmanlike manner.
2. (a) Any contractor employed by Tenant to perform any work
permitted by this Lease, and all of its subcontractors, shall agree to
employ only such labor as will not result in jurisdictional disputes
or strikes or cause disharmony with other workers employed at the
Property. Tenant will inform Landlord in writing of the names of any
contractor or subcontractors Tenant proposes to use in the Demised
Premises at least ten (10) days prior to the beginning of work by such
contractor or subcontractors.
(b) Tenant covenants and agrees to pay to the contractor,
as the work progresses, the entire cost of supplying the materials and
performing the work shown on Tenant's approved plans and
specifications less only customary retentions.
3. All work shall be performed in compliance with all Legal
Requirements.
4. All work shall be performed in accordance with the general
tenant guidelines for the Property regarding such work, which
guidelines Tenant acknowledges are available for its reference and use
in the Property manager's office.
5. Tenant shall keep the Property and the Demised Premises free
and clear of all liens for any work or material claimed to have been
furnished to Tenant or to the Demised Premises on Tenant's behalf, and
all work to be
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performed by Tenant shall be done in a manner which will not
unreasonably interfere with or disturb other tenants or occupants of
the Property.
6. During the progress of the work to be done by Tenant, said
work shall be subject to inspection by representatives of Landlord who
shall be permitted access and the opportunity to inspect, at all
reasonable times, but this provision shall not in any way whatsoever
create any obligation on Landlord to conduct such an inspection.
7. With respect to alteration or improvement work costing more
than $50,000, Tenant agrees to pay to Landlord, as additional rent,
promptly upon being billed therefor, a sum equal to five thousand and
00/100 Dollars ($5,000) together with all reasonable out of pocket
expenses, including but not limited to electrical and structural
engineering costs but excluding attorneys fees and disbursements, for
Landlord's indirect costs, field inspection and coordination in
connection with such work (including, without limitation, to review
Tenant's plans and specifications or to inspect or monitor such
alteration or improvement work).
8. Prior to commencement of any work, Tenant shall furnish to
Landlord certificates of insurance evidencing the existence of:
(a) worker's compensation insurance covering all persons
employed for such work with statutory required limits;
(b) employer's liability coverage including bodily injury
caused by disease with limits of not less than $100,000 per employee;
and
(c) commercial general liability insurance including, but
not limited to, completed operations coverage, products liability
coverage, contractual coverage, broad form property damage,
independent contractor's coverage and personal injury coverage naming
Landlord as well as such representatives and consultants of Landlord
as Landlord shall reasonably specify (collectively "Landlord's
Consultants"), including, without limitation, as of the date hereof,
Institutional Realty Management LLC and Xxxxx Lang Wootton Realty
Advisors, as well as Tenant, as additional insureds, with coverage of
not less than $3,000,000 combined single limit coverage (or such
higher limits as Landlord may from time to time impose in its
reasonable judgment).
Such insurance shall be placed with solvent and responsible companies
reasonably satisfactory to the Landlord and licensed or authorized to
do business in the State of New Jersey, and the policies shall provide
that they may not be canceled without thirty (30) days' prior notice
in writing to Landlord.
9. Tenant shall require all contractors engaged or employed by
Tenant to indemnify and hold Tenant, Landlord, and Landlord's
Consultants,
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including, but not limited to, as of the date hereof Institutional
Realty Management LLC and Xxxxx Xxxx Xxxxxxx Realty Advisors, harmless
in accordance with the following clauses (with such modifications
therein as may be required from time to time by reason of a change in
the parties constituting Landlord's Consultants):
"The contractor hereby agrees to the fullest extent permitted by law
to assume the entire responsibility and liability for and defense of
and to pay and indemnify Landlord, Tenant and Landlord's Consultants,
against any loss, cost, expense, liability or damage and will hold
each of them harmless from and pay any loss, cost, expense, liability
or damage (including, without limitation, judgments, attorneys' fees,
court costs, and the cost of appellate proceedings), which Landlord
and/or Tenant and/or Landlord's Consultants, incurs because of injury
to or death of any person or on account of damage to property,
including loss of use thereof, or any other claim arising out of, in
connection with, or as a consequence of the performance of the work by
the contractor and/or any acts or omissions of the contractor or any
of its officers, directors, employees, agents sub-contractors or
anyone directly or indirectly employed by the contractor or anyone for
whose acts the contractor may be liable as it relates to the scope of
this contract, except to the extent with respect to any of the persons
or entities indemnified hereunder, such injuries to person or damage
to property are alleged to be due and are held by a final unappealable
order of a court of competent jurisdiction to be due to the negligence
of the such person or entity seeking to be so indemnified."
The contractor's insurance shall specifically insure the foregoing
hold harmless provision verbatim or such other hold harmless provision
as is acceptable to Landlord.
10. Tenant, to the extent permitted by law, shall make
application for all building permits in its own name. Tenant shall
obtain any temporary certificate of occupancy or addendum to the
permanent certificate of occupancy required as a result of Tenant's
alterations and improvements. Landlord shall join in any and all
applications for permits, licenses or other authorizations if required
by any Governmental Authority, and may, in any event, so join in. If
Landlord is required to join in any such application Tenant shall
reimburse Landlord as additional rent for all documented out-of-pocket
expenses (including without limitation reasonable legal fees and
expenses) incurred by Landlord in connection with such application.
11. Within ninety (90) days after completion of any work Tenant
shall, at its sole cost and expense, furnish Landlord with one mylar
set of "as built" plans, drawings and specifications, which plans,
drawings and specifications and all rights therein, to the extent same
does not constitute intellectual property of Tenant and Tenant
notifies Landlord thereof, shall become the property of Landlord. The
transfer of all such rights as to the plans shall be confirmed in
writing by Tenant's architect. If any of the foregoing plans
constitute
25
intellectual property of Tenant and Tenant notifies Landlord thereof,
Landlord agrees to keep same confidential, subject to delivery to
Landlord's agents, employees, attorneys and transactional advisors,
provided such parties agree to keep any plans delivered to them
confidential.
12. With respect to alteration or improvement work (excluding
the purchase and maintenance of equipment used exclusively for the
operation of a data processing center) costing more than $100,000,
prior to commencing same Tenant shall provide Landlord with a letter
of credit in the amount of 125% of the reasonable estimated cost of
such work and otherwise in form and substance reasonably satisfactory
to Landlord, as security for the full and faithful performance and
completion of all such work. Such letter of credit shall be returned
after such work has been 100% completed and Landlord shall have been
furnished with payment receipts, lien waivers and such other documents
as Landlord may reasonably request to assure that such work has been
completed lien free.
6.02. Notice is hereby given that Landlord shall not be liable for
any labor or materials furnished or to be furnished to Tenant upon credit, and
that no mechanic's or other lien for any such labor or materials shall attach to
or affect the reversion or other estate or interest of Landlord in and to the
Demised Premises. Any mechanic's lien filed against the Demised Premises or the
Property for work claimed to have been done for or materials claimed to have
been furnished to Tenant shall be discharged by Tenant at its expense within
thirty (30) days after Tenant receives notice of such filing, by payment, filing
of the bond required by law or otherwise.
6.03. All alterations, installations, additions and improvements made
and installed by Landlord, including without limitation all work referred to in
Article 2 hereof and in Schedule C, shall be the property of Landlord and shall
remain upon and be surrendered with the Demised Premises as a part thereof at
the end of the Term.
6.04. All alterations, installations, additions and improvements made
and installed by Tenant, or at Tenant's expense, upon or in the Demised Premises
which are of a permanent nature and which cannot be removed without damage to
the Demised Premises or the Property shall become and be the property of
Landlord, and shall remain upon and be surrendered with the Demised Premises as
a part thereof at the end of the Term, except that Landlord shall have the right
at any time up to six months prior to the expiration of the Term to serve notice
upon Tenant that any of such alterations, installations, additions and
improvements shall be removed and, in the event of service of such notice,
Tenant will, at Tenant's own cost and expense, remove the same in accordance
with such request, and restore the Demised Premises to its original condition,
ordinary wear and tear and casualty excepted. Notwith-standing the foregoing,
Tenant shall have the right to remove any and all equipment used exclusively for
the operation of a data processing center, provided Tenant repairs any and all
damage to the Demised Premises or the Property in connection with such removal,
if any, such that Tenant restores the Demised Premises and the Property to the
same condition in which it existed immediately prior to the aforementioned
removal.
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6.05. Where furnished by or at the expense of Tenant all furniture,
furnishings and trade fixtures, including without limitation, murals, business
machines and equipment, counters, screens, grille work, special paneled doors,
cages, partitions, metal railings, closets, paneling, free standing lighting
fixtures and equipment, drinking fountains, refrigeration equipment, and any
other movable property (exclusive of supplementary air conditioning equipment
and raised flooring which shall become the property of Landlord) shall remain
the property of Tenant which may at its option remove all or any part thereof at
any time prior to the expiration of the Term. In case Tenant shall decide not to
remove any part of such property, Tenant shall notify Landlord in writing not
less than three (3) months prior to the expiration of the Term, specifying the
items of property which it has decided not to remove. If, within thirty (30)
days after the service of such notice, Landlord shall request Tenant to remove
any of the said property, Tenant shall at its expense remove the same. As to
such property which Landlord does not request Tenant to remove, the same shall
be, if left by Tenant, deemed abandoned by Tenant and thereupon the same shall
become the property of Landlord.
6.06. If any alterations, installations, additions, improvements or
other property which Tenant shall have the right to remove or be requested by
Landlord to remove as provided in Sections 6.04 and 6.05 hereof (herein in this
Section 6.06 called the "Tenant's Property") are not removed on or prior to the
expiration of the Term, Landlord shall have the right to remove the Tenant's
Property and to dispose of the same without accountability to Tenant and at the
sole cost and expense of Tenant. In case of any damage to the Demised Premises
or the Property resulting from the removal of the Tenant's Property, Tenant
shall repair such damage or, in default thereof, shall reimburse Landlord for
Landlord's cost in repairing such damage. This obligation shall survive any
termination of this Lease.
6.07. Tenant shall keep records of Tenant's alterations,
installations, additions and improvements costing in excess of $50,000, and of
the cost thereof. Tenant shall, within forty-five (45) days after demand by
Landlord, furnish to Landlord copies of such records if Landlord shall require
same in connection with any proceeding to reduce the assessed valuation of the
Property, or in connection with any proceeding instituted pursuant to Article 14
hereof.
ARTICLE 7
REPAIRS
7.01. Tenant shall, at its sole cost and expense, be responsible for
the maintenance and repair of the Demised Premises (including all bathrooms and
other sanitary facilities located therein), and keep same in good order and
condition, including all necessary painting and decorating, and make such
repairs to the Demised Premises and the fixtures and appurtenances therein as
and when needed to preserve them in good working order and condition (except
that as to structural repairs Landlord shall be obligated to make same unless
they are necessitated by any act, omission, occupancy or negligence of Tenant or
by the use of the Demised Premises in a manner contrary to the purposes for
which same are leased to Tenant, in which case Tenant shall be so obligated).
Tenant shall keep all glass, including windows, doors and skylights, clean and
in good condition and repair and Tenant shall replace any glass that may
27
be damaged with glass of the same kind and quality. All damage or injury to the
Property caused by Tenant moving property in or out of the Building or by
installation or removal of furniture, fixtures or other property, shall be
repaired, restored or replaced promptly by Tenant at its sole cost and expense,
which repairs, restorations and replacements shall be in quality and class equal
to the original work or installations. Tenant shall promptly make all repairs in
or to the Demised Premises or the Property for which Tenant is responsible,
provided that any repairs required to be made to the mechanical, electrical,
sanitary, heating, ventilating, air-conditioning or other Building systems shall
be performed only by Landlord. If Tenant fails to make such repairs, restoration
or replacements, same may be made by Landlord at the expense of Tenant and such
expense shall be collectible as additional rent and shall be paid by Tenant
within ten (10) days after rendition of a xxxx therefor.
7.02. If the Demised Premises includes loading docks, and or related
facilities, Tenant shall keep the loading docks and areas adjacent thereto and
the driveways and streets within the Property leading to said loading docks free
of all dirt, rubbish and other obstructions arising from Tenant's use or
occupancy of any such facilities or the use of such facilities by Tenant's
officers, agents, employees, suppliers or invitees including independent
contractors making deliveries or pick-ups from such loading docks.
7.03. Tenant shall not place a load upon any floor of the Demised
Premises exceeding the floor load per square foot area which such floor was
designed to carry and which is allowed by law. The floor of the Demised Premises
will carry 150 pounds live load per square foot of floor space.
7.04. Business machines and mechanical equipment used by Tenant which
cause vibration, noise, cold or heat that may be transmitted to the Building
structure or to any leased space to such a degree as to be objectionable to
Landlord or to any other tenant at the Property shall be placed and maintained
by Tenant at its expense in settings of cork, rubber or spring type vibration
eliminators sufficient to absorb and prevent such vibration or noise, or prevent
transmission of such cold or heat. The parties hereto recognize that the
operation of elevators, air conditioning and heating equipment will cause some
vibration, noise, heat or cold which may be transmitted to other parts of the
Building and Demised Premises. Landlord shall be under no obligation to endeavor
to reduce such vibration, noise, heat or cold beyond what is customary in
current good building practice for buildings of the same type as the Building.
7.05. Except as otherwise specifically provided in this Lease, there
shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from the making of any repairs, alterations,
additions or improvements in or to any portion of the Building or the Demised-
Premises or in or to fixtures, appurtenances or equipment thereof. Landlord
shall exercise reasonable diligence so as to minimize any interference with
Tenant's business operations, but shall not be required to perform the same on
an overtime or premium pay basis.
7.06. If Tenant shall install a supplemental air-conditioning system
subject to and in accordance with the requirements of this Lease, Tenant shall
maintain same in good order and condition, shall enter into a contract for the
maintenance thereof with a heating, ventilating
28
and air-conditioning contractor reasonably acceptable to Landlord and shall
deliver to Landlord a copy of such contracts and all amendments thereto promptly
after execution thereof.
ARTICLE 8
REQUIREMENTS OF LAW
8.01. Tenant shall, at Tenant's expense, comply with all Legal
Requirements which shall impose any violation, order or duty upon Landlord or
Tenant with respect to the Demised Premises, or the use or occupation thereof,
whether or not such compliance involves structural repairs or changes, provided
that Tenant shall not be liable for any such compliance relating to
environmental matters, whereby such compliance is required as a direct result of
any act or omission relating to the Demised Premises, which took place prior to
the Commencement Date.
8.02. Notwithstanding the provisions of Section 8.01 hereof, Tenant,
at its own cost and expense, in its name and/or (whenever necessary) Landlord's
name, may contest, in any manner permitted by law (including appeals to a court,
or governmental department or authority having jurisdiction in the matter), the
validity or the enforcement of any Legal Requirements with which Tenant is
required to comply pursuant to this Lease, and may defer compliance therewith
provided that:
(a) such non-compliance shall not subject Landlord to criminal
prosecution or subject the Property to lien or sale;
(b) such non-compliance shall not be in violation of any
mortgage, or of any ground or underlying lease or any mortgage thereon;
(c) Tenant shall first deliver to Landlord a surety bond
issued by a surety company of recognized responsibility, or other security
satisfactory to Landlord, indemnifying and protecting Landlord against any loss
or injury by reason of such non-compliance; and
(d) Tenant shall promptly, diligently and continuously
prosecute such contest. Landlord, without expense or liability to it, shall
cooperate with Tenant and execute any documents or pleadings required for such
purpose, provided that Landlord shall reasonably be satisfied that the facts set
forth in any such documents or pleadings are accurate.
8.03. All work performed pursuant to this Article by Tenant shall be
performed in accordance with the provisions of Article 6 hereof relating to
Alterations.
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ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.01. Tenant shall not do or permit to be done any act or thing upon
the Demised Premises which will invalidate or be in conflict with New Jersey
standard fire insurance policies covering the Property, and fixtures and
property therein, or which would increase the rate of fire insurance applicable
to the Property to an amount higher than it otherwise would be; and Tenant shall
neither do nor permit to be done any act or thing upon the Demised Premises
which shall or might subject Landlord to any liability or responsibility for
injury to any person or persons or to property by reason of any business or
operation being carried on within the Demised Premises.
9.02. If, as a result of any act or omission by Tenant or violation
of this Lease, the rate of fire insurance applicable to the Property shall be
increased to an amount higher than it otherwise would be, Tenant shall reimburse
Landlord for all increases of Landlord's fire insurance premiums so caused; such
reimbursement to be additional rent payable within five (5) days after demand
therefor by Landlord. In any action or proceeding wherein Landlord and Tenant
are parties, a schedule or "make-up" of rates for the Property or Demised
Premises issued by the body making fire insurance rates for the Demised Premises
shall be presumptive evidence of the facts stated therein including the items
and charges taken into consideration in fixing the fire insurance rate then
applicable to the Demised Premises.
9.03. Landlord or its agents shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain or snow or leaks from any part of the
Building, or from the pipes, appliances or plumbing works or from the roof,
street or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature, unless any of the foregoing shall be caused by or
due to the gross negligence of Landlord, its agents, servants and/or employees.
9.04. Landlord or its agents shall not be liable for any damage which
Tenant may sustain if any window of the Demised Premises is broken, or
temporarily or permanently closed, darkened or bricked upon for any reason
whatsoever, except only Landlord's arbitrary acts if the result is permanent or
not remedied within a reasonable time, and Tenant shall not be entitled to any
compensation therefor or abatement of rent or to any release from any of
Tenant's obligations under this Lease, nor shall the same constitute an eviction
or constructive eviction.
9.05. Tenant shall reimburse Landlord for all expenses, damages or
fines incurred or suffered by Landlord by reason of any breach, violation or
non-performance by Tenant, or its agents, servants or employees, of any covenant
or provision of this Lease, or by reason of damage to persons or property caused
by moving property of or for Tenant in or out of the Building, or by the
installation or removal of furniture or other property of or for Tenant, or by
reason of or arising out of the carelessness, negligence or improper conduct of
Tenant, or its agents, servants or employees, in the use or occupancy of the
Demised Premises. Subject to compliance with the provisions of Section 8.02
hereof, where applicable, Tenant shall have the right, at Tenant's own cost and
expense, to participate in the defense of any action or proceeding
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brought against Landlord, and in negotiations for settlement thereof if,
pursuant to this Section 9.05, Tenant would be obligated to reimburse Landlord
for reasonable expenses, damages or fines incurred or suffered by Landlord.
9.06. Tenant shall give Landlord written notice in case of fire or
accidents in the Demised Premises promptly after Tenant is aware of such event.
9.07. Tenant agrees to look solely to Landlord's interest in the
Property for the satisfaction of any right or remedy of Tenant for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord, its partners, officers or shareholders, in the event of any
liability by Landlord, and no other property or assets of Landlord, its
partners, officers or shareholders shall be subject to levy, execution,
attachment, or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this Lease, the relationship of Landlord, its
partners, officers or shareholders and Tenant hereunder, or Tenant's use and
occupancy of the Demised Premises, or any other liability of Landlord, its
partners, officers or shareholders to Tenant.
9.08. (a) Notwithstanding anything to the contrary contained in this
Lease, Tenant agrees that it will, at its sole cost and expense, include in its
property insurance policies appropriate clauses pursuant to which the insurance
companies (i) waive all right of subrogation against Landlord and any tenant of
space in the Property with respect to losses payable under such policies and
(ii) agree that such policies shall not be invalidated should the insured waive
in writing prior to a loss any or all right of recovery against any party for
losses covered by such policies. Tenant shall furnish Landlord upon demand
evidence satisfactory to Landlord evidencing the inclusion of said clauses in
Tenant's insurance policies.
(b) Provided that Landlord's right of full recovery under its
fire insurance policies is not adversely affected or prejudiced thereby,
Landlord hereby waives any and all right of recovery which it might otherwise
have against Tenant, its servants, agents and employees, for loss or damage
occurring to the Property and the fixtures, appurtenances and equipment therein,
to the extent the same is covered by Landlord's insurance, notwithstanding that
such loss or damage may result from the negligence or fault of Tenant, its
servants, agents or employees. Provided that Tenant's right of full recovery
under its fire insurance policies is not adversely affected or prejudiced
thereby, Tenant hereby waives any and all right of recovery which it might
otherwise have against Landlord, its servants, and employees, and against every
other tenant at the Property who shall have executed a similar waiver as set
forth in this Section 9.08(b) for loss or damage to Tenant's furniture,
furnishings, fixtures and other property removable by Tenant under the
provisions hereof to the extent that same is covered by Tenant's insurance,
notwithstanding that such loss or damage may result from the negligence or fault
of Landlord, its servants, agents or employees, or such other tenant and the
servants, agents or employees thereof.
9.09. Tenant covenants and agrees to provide, at its expense, on or
before the Commencement Date and to keep in force during the Term, naming
Landlord, its agents (which as of the date hereof are Institutional Realty
Management LLC and Xxxxx Xxxx Xxxxxxx Realty Advisors), and Tenant as insured
parties, (a) a commercial general liability insurance policy written on an
occurrence form (hereinafter referred to as a "Liability Policy"), including,
without
31
limitation, blanket contractual liability coverage, premises-operation,
products/completed operations hazard, broad form property damage, independent
contractor's coverage and personal injury coverage protecting Landlord, its
agents, Institutional Realty Management LLC and Xxxxx Lang Wootton Realty
Advisors, and Tenant against any liability whatsoever, occasioned by any
occurrence on or about the Demised Premises or any appurtenances thereto, (b) a
fire and other casualty policy (a "Fire Policy") insuring the full replacement
value of Tenant's Extra Work and all of the furniture, trade fixtures and other
personal property of Tenant located in the Demised Premises against loss or
damage by fire, theft, sprinkler leakage, boiler and machinery and such other
risks or hazards as are insurable under present and future forms of "All Risk"
insurance policies, (c) plate glass insurance, (d) business interruption
insurance and (e) workers compensation and employees liability insurance. Such
policies are to be written by good and solvent insurance companies licensed or
authorized to do business in the State of New Jersey satisfactory to Landlord
with a minimum A.M. Best's rating of A-VI, and shall be in such limits as
Landlord may reasonably require. Landlord reserves the right to increase limits
and adjust coverages as industry standards change. As of the date of this Lease
Landlord reasonably requires limits of liability under (i) the Liability Policy
of not less than $5,000,000 combined single limit per occurrence for bodily or
personal injury (including death) and property damage and (ii) the Fire Policy
equal to the full replacement cost of Tenant's Extra Work, Tenant's Finish Work,
if any, and furniture, trade fixtures and other personal property of Tenant
located at the Property with a deductible of no more than $1,000. Tenant will
furnish Landlord with such information as Landlord may reasonably request from
time to time as to the value of the items specified in clause (ii) above within
ten (10) days after request therefor. Such insurance may be carried (x) under a
blanket policy covering the Demised Premises and other locations of Tenant, if
any, provided that each such policy shall in all respects comply with this
Article and shall specify that the portion of the total coverage of such policy
that is allocated to the Demised Premises is in the amounts required pursuant to
this Section 9.09 and (y) under a primary liability policy of not less than
$1,000,000 and the balance under an umbrella policy. Prior to the time such
insurance is first required to be carried by Tenant and thereafter, at least
fifteen (15) days prior to the effective date of any such policy Tenant shall
deliver to Landlord a certificate evidencing such insurance. Said certificate
shall contain an endorsement that such insurance may not be canceled except upon
thirty (30) days' prior notice to Landlord. All insurance policies carried by
Tenant shall be written as primary policies, not contributing with or secondary
to coverage which Landlord carries. Tenant's failure to provide and keep in
force the aforementioned insurance shall be regarded as a material default
hereunder entitling Landlord to exercise any or all of the remedies provided in
this Lease in the event of Tenant's default. Notwithstanding anything to the
contrary contained in this Lease, the carrying of insurance by Tenant in
compliance with this Section 9.09 shall not modify, reduce, limit or impair
Tenant's obligations and liability under Article 38 hereof.
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE
10.01. If Plaza II or Plaza III or the Demised Premises shall be
partially or totally damaged or destroyed by fire or other cause (and if this
Lease shall not have been terminated as
32
in this Article 10 hereinafter provided), Landlord shall repair the damage and
restore and rebuild the Building and/or the Demised Premises, except for
Tenant's Work and Tenant's personal property, at its expense with reasonable
dispatch after notice to it of the damage or destruction and the collection of
the insurance proceeds attributable to such damage.
10.02. If Plaza II or Plaza III or the Demised Premises shall be
damaged or destroyed by fire or other cause, then unless such fire or damage
shall have resulted from the negligence of Tenant or its employees, agents or
contractors, the rents payable hereunder shall be abated to the extent that the
Demised Premises shall have been rendered untenantable for the period from the
date of such damage or destruction to the date the damage shall be repaired or
restored, such abatement to be granted on a pro rata basis if only a portion of
the Demised Premises is rendered untenantable; provided, however, that should
Tenant reoccupy a portion of the Demised Premises as to which the abatement is
in effect during the period the restoration work is taking place and prior to
the date that the whole of said Demised Premises are made tenantable, Basic
Annual Rent and additional rent allocable to such portion shall be payable by
Tenant from the date of such occupancy.
10.03. If Plaza II or Plaza III shall be so damaged or destroyed by
fire or other cause (whether or not the Demised Premises are damaged or
destroyed) as to require a reasonably estimated expenditure made by Landlord or
a reputable contractor designated by Landlord of more than twenty percent (20%)
of the full insurable value of the Building immediately prior to the casualty
(or ten percent (10%) if such casualty occurs during the last two years of the
Term) then Landlord may terminate this Lease by giving Tenant notice to such
effect within one hundred eighty (180) days after the date of the casualty and
upon such notice this Lease and the estate hereby granted, whether or not the
Term shall have theretofore commenced, shall terminate as if that date was the
Expiration Date. In case of any damage or destruction mentioned in this Article
10 which Landlord is required to repair and restore, Tenant may terminate this
Lease by notice to Landlord if Landlord has not completed the making of the
required repairs and restorations within eighteen (18) months after the date of
such damage or destruction, or within such period after such date (not exceeding
six (6) months) as shall equal the aggregate period Landlord may have been
delayed in doing so by Force Majeure Causes (as defined in Article 34).
10.04. No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Demised Premises or of Plaza II or
Plaza 1972 III or of the Complex arising from damage or destruction caused by
fire or other casualty and Landlord shall not be required to do any such repair
or restoration except on Business Days from 9:00 A.M. to 5:00 P.M. Landlord
agrees to use reasonable efforts to perform any such work at such times (between
9:00 A.M. and 5:00 P.M.) and in such a manner as to minimize disturbance to
Tenant's business.
10.05. Notwithstanding any of the foregoing provisions of this
Article 10, if Landlord or the lessor of any superior lease or the holder of any
superior mortgage shall be unable to collect all of the insurance proceeds
(including rent insurance proceeds) applicable to damage or destruction of the
Demised Premises or the Property by fire or other cause by reason of some action
or inaction on the part of Tenant or any of its officers, partners, directors,
employees, agents or contractors, then, without prejudice to any other remedies
which may be
33
available against Tenant, there shall be no abatement of Tenant's rent, but the
total amount of such rent not abated (which would otherwise have been abated)
shall not exceed the amount of uncollected insurance proceeds.
10.06. Landlord will not carry separate insurance of any kind on
Tenant's property (including, without limitation, any property of Tenant's which
shall become the property of Landlord as provided in Article 6), and, except as
provided by law or otherwise expressly provided herein, shall not be obligated
to repair any damage thereto or replace or clean the same, or any decorations,
installations, equipment or fixtures installed by or for Tenant at Tenant's
expense.
10.07. The provisions of this Article 10 shall be considered an
express agreement governing any cause of damage or destruction of the Demised
Premises by fire or other casualty and any law providing for such a contingency
now or hereinafter erected shall have no application in such case.
ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.01. Except as otherwise expressly provided in this Article 11,
Tenant shall not, whether voluntarily, involuntarily or by operation of law,
without in each instance obtaining the prior consent of Landlord, (a) assign or
otherwise transfer this Lease or the term and estate hereby granted, (b) sublet
all or part of the Demised Premises or allow the same to be used or occupied by
anyone other than Tenant, or (c) mortgage, pledge or encumber this Lease or all
or part of the Demised Premises in any manner by reason of any act or omission
on the part of Tenant. For purposes of this Article 11, (i) the transfer,
directly or indirectly, of a majority of any class of the issued and outstanding
capital stock of any corporate tenant or subtenant, or the transfer of a
majority of the total interest in any other entity (partnership or otherwise)
which is a tenant or subtenant, however accomplished, whether in a single
transaction or in a series of related or unrelated transactions (including,
without limitation, and by way of example only, the transfer of a majority of
the outstanding capital stock of a company which company owns 100% of a second
tier company, which in turn owns more than 50% of the outstanding capital stock
of a corporate tenant hereunder), shall be deemed an assignment of this Lease,
or of such sublease, as the case may be, (ii) a so-called "takeover" agreement
(i.e. an agreement where another entity agrees to become responsible for all or
a portion of Tenant's obligations under this Lease without actually entering
into an assignment or sublease) shall be deemed a transfer of this Lease, (iii)
any person or legal representative of Tenant, to whom Tenant's interest under
this Lease passes by operation of law, or otherwise, shall be bound by the
provisions of this Article 11, and (iv) a modification, amendment or extension
without Landlord's prior written consent of a sublease previously consented to
by Landlord shall be deemed a new sublease. Tenant agrees to furnish to Landlord
upon demand at any time and from time to time such information and assurances as
Landlord may reasonably request that neither Tenant, nor any subtenant, is in
violation of the provisions of this Section 11.01.
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11.02. (a) The provisions of clauses (a) and (b) of Section 11.01
hereof shall not apply to transactions entered into by Tenant with (i) an
"affiliate" (as hereinafter defined) or (ii) a corporation into or with which
Tenant is merged or consolidated or with an entity to which substantially all of
Tenant's assets are transferred, provided (a) such merger, consolidation or
transfer of assets is for a good business purpose and not principally for the
purpose of transferring the leasehold estate created hereby, and (b) the
assignee or successor entity (upon consummation of such transaction) has a net
worth at least equal to or in excess of the net worth of Tenant either (i)
immediately prior to such merger, consolidation or transfer or (ii) as of the
date hereof, whichever is greater.
(b) For purposes of this Article 11, an affiliate means (i)
a corporation controlled by, controlling or under common control with Tenant (an
"affiliated corporation") or (ii) a partnership or joint venture in which Tenant
or an affiliated corporation owns more than 50% of the general partnership or
joint venture interest therein. Without limiting the generality of the
foregoing, a corporation shall not be deemed controlled by another entity unless
more than 50% of each class of its outstanding capital stock is owned, both
beneficially and of record, by such entity.
(c) The provisions regarding the transfer of the capital
stock of a corporate tenant set forth in Section 11.01 shall not apply to any
corporation where all of its outstanding capital stock is listed on a national
securities exchange (as defined in the Securities Exchange Act of 1934, as
amended) or is traded in the "over the counter" market with quotations reported
by the National Association of Securities Dealers.
11.03. Any assignment or transfer, whether made with Landlord's
consent as required by Section 11.01 or without Landlord's consent pursuant to
Section 11.02, shall not be effective unless and until (a) the assignee shall
execute, acknowledge and deliver to Landlord a recordable agreement, in form and
substance reasonably satisfactory to Landlord, whereby the assignee shall (i)
assume the obligations and performance of this Lease and agree to be personally
bound by all of the covenants, agreements, terms, provisions and conditions
hereof on the part of Tenant to be performed or observed on and after the
effective date of any such assignment and (ii) agree that the provisions of this
Article 11 shall, notwithstanding such assignment or transfer, continue to be
binding upon it in the future, and (b) in the case of an assignment or transfer
pursuant to Section 11.02, Tenant or its successor shall have delivered to
Landlord financial statements certified by a reputable firm of certified public
accountants evidencing satisfaction of the net worth requirements referred to in
Section 11.02. Tenant covenants that, notwithstanding any assignment or
transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of Basic Annual Rent by Landlord from an assignee
or transferee or any other party, Tenant shall remain fully and primarily and
jointly and severally liable for the payment of the Basic Annual Rent and all
additional rent due and to become due under this Lease and for the performance
and observance of all of the covenants, agreements, terms, provisions and
conditions of this Lease on the part of Tenant to be performed or observed.
11.04. The liability of Tenant, and the due performance by Tenant of
the obligations on its part to be performed under this Lease, shall not be
discharged, released or
35
impaired in any respect by an agreement or stipulation made by Landlord or any
grantee or assignee of Landlord in connection with a mortgage or any other
agreement with a third party extending the time of or modifying any of the
obligations contained in this Lease, or by any waiver or failure of Landlord to
enforce any of the obligations on Tenant's part to be performed under this
Lease, and Tenant shall continue liable hereunder. If any such agreement or
modification operates to increase the obligations of Tenant under this Lease,
the liability under this Section 11.04 of the tenant named in the Lease or any
of its successors in interest (unless such party shall have expressly consented
in writing to such agreement or modification) shall continue to be no greater
than if such agreement or modification had not been made.
11.05. (a) If Tenant desires to assign or sublet all or part of the
Demised Premises, other than as provided in Section 11.02, it shall notify
Landlord in writing of its intention to do so specifying in such notice whether
it wishes to assign or sublet and if to sublet whether it is for all or part of
the Demised Premises and if for only a part thereof specifying on a plan such
portion thereof ("Notice of Intent"). Landlord shall have the right, but not the
obligation, (i) with respect to a proposed assignment of this Lease or
subletting of the entire Demised Premises, to terminate this Lease as of the
"Termination Date" (as hereinafter defined) as to all of the Demised Premises,
(ii) with respect to a proposed subletting of only a portion of the Demised
Premises for substantially the balance of the Term, to terminate this Lease with
respect to such portion of the Demised Premises as of the Termination Date and
(iii) with respect to a proposed subletting of only a portion of the Demised
Premises for less than substantially the balance of the Term, accept a sublease
from Tenant of such portion as of the Termination Date. Within thirty (30) days
after Landlord receives Tenant's Notice of Intent, Landlord shall notify Tenant
whether it elects to terminate this Lease as to all or the applicable portion of
the Demised Premises or sublease a portion of the Demised Premises, as the case
may be ("Response Notice"). If Landlord elects to so terminate this Lease or
sublease a portion of the Demised Premises, the Response Notice shall set forth
the date (the "Termination Date") as of which this Lease shall so terminate or
such sublease shall be effective, which date shall not be earlier than six
months nor later than one year after the date Landlord delivers the Response
Notice. For purposes hereof a sublease shall be deemed to be for substantially
the balance of the Term if the term thereof, together with any renewal terms to
which the subtenant is entitled in the event it exercises all options granted to
it by Tenant, shall be for substantially the balance of the Term of this Lease.
(b) (i) If in the Response Notice Landlord elects to
terminate this Lease with respect to the entire Demised Premises, Tenant shall
promptly execute and deliver to Landlord an instrument in form satisfactory to
Landlord modifying this Lease so that the Term shall expire as of the
Termination Date.
(ii) If in the Response Notice Landlord elects to terminate this
Lease with respect to only a portion of the Demised Premises, (x)
Tenant shall promptly execute and deliver to Landlord an appropriate
modification of this Lease (including the adjustment of Basic Annual
Rent and the additional rent payable pursuant to Article 3 in
proportion to that portion of the Demised Premises affected by such
termination) in form satisfactory to Landlord providing for such
termination as of the Termination Date and (y) Landlord shall, at
Tenant's sole cost and expense,
36
perform all work, including the erection of demising walls, necessary
to physically separate the portion of the Demised Premises so released
from the Lease from the remainder of the Demised Premises. In
addition, if the portion of the Demised Premises so released from the
Lease does not have direct access to a public corridor in the Building
Landlord shall construct, at Tenant's sole cost and expense, such a
means of access. All amounts payable to Landlord hereunder shall be
paid simultaneously with the execution of any instrument confirming
the termination of the Lease as to all or part of the Demised Premises
contemplated hereby.
(iii) If in the Response Notice Landlord elects to sublease a portion
of the Demised Premises, Tenant shall promptly execute and deliver to
Landlord a sublease with Landlord or Landlord's designee in form
reasonably satisfactory to Landlord's and Tenant's counsel and on all
the terms contained in this Lease, except that:
(A) the rental terms shall be those specified in this
Lease on a per rentable square foot basis;
(B) the sublease shall not provide for any work to be
done for the subtenant or for any initial rent concessions or
contain provisions inapplicable to a sublease, except that Tenant
shall pay to subtenant the cost of performing all work, including
the erection of demising walls, necessary to physically separate
the subleased premises from the remainder of the Demised Premises
and to provide direct access thereto from a public corridor in
the Building (if the subleased premises does not have such
access);
(C) the subtenant thereunder shall have the right to
underlet the subleased premises, in whole or in part, or assign
the sublease, without Tenant's consent;
(D) the subtenant thereunder shall have the right to
make, or cause to be made, any changes, alterations, decorations,
additions and improvements that such subtenant may desire or
authorize;
(E) the sublease shall expressly negate any intention
that any estate created by or under such sublease be merged with
any other estate held by either of the parties thereto;
(F) any consent required of Tenant, as lessor under
that sublease, shall be deemed granted if consent with respect
thereto is granted by Landlord;
(G) there shall be no limitation as to the use of the
sublet premises by the subtenant thereunder;
37
(H) any failure of the subtenant thereunder to comply
with the provisions of the sublease, other than with respect to
the payment of rent to Tenant, shall not constitute a default
thereunder if Landlord has consented to such non-compliance by
subtenant or a default by Tenant hereunder; and
(I) such sublease shall provide that Tenant's
obligations with respect to vacating the Demised Premises and
removing any changes, alterations, decorations, additions or
improvements made in the subleased premises shall be limited to
those which accrued and related to such of the foregoing as were
made prior to the effective date of the sublease.
(c) Tenant shall reimburse Landlord on demand for any costs
incurred by Landlord to review a Notice of Intent, including without limitation
any reasonable attorneys' fees, which payment shall be payable even if Tenant
subsequently withdraws same.
(d) If Landlord shall not elect to terminate this Lease or
sublease a portion of the Demised Premises as set forth in paragraph (a) above,
Landlord shall not unreasonably withhold or delay its consent to an assignment
of this Lease or subletting of all or a portion of the Demised Premises as set
forth in the Notice of Intent provided the provisions of Section 11.06 are
complied with and provided further that such assignment or subletting is
accomplished within 180 days following the giving of the Response Notice failing
which Tenant must again comply with the provisions of this Section 11.05.
11.06. Landlord shall not unreasonably withhold or delay its consent
to an assignment of this Lease or a subletting of the whole or a part of the
Demised Premises provided:
(a) Tenant shall have complied with the provisions of Section
11.05 and Landlord shall not have made any of the termination elections provided
for therein.
(b) Tenant shall furnish Landlord with the name and business
address of the proposed subtenant or assignee, information with respect to the
nature and character of the proposed subtenant's or assignee's business, or
activities, such references and current financial information with respect to
net worth, credit and financial responsibility as are reasonably satisfactory to
Landlord;
(c) The proposed subtenant or assignee is a reputable party
whose financial net worth, credit and financial responsibility is, considering
the responsibilities involved and the standards of Landlord in those respects
for the Building, reasonably satisfactory to Landlord;
(d) Tenant shall deliver an executed assignment or sublease to
Landlord at the time Landlord's consent is requested;
(e) The nature and character of the proposed subtenant or
assignee, its business or activities and intended use of the Demised Premises
are, in Landlord's reasonable
38
judgment, in keeping with the standards of the Building and the floor or floors
on which the Demised Premises are located;
(f) The proposed subtenant or assignee is not then an occupant
of any part of the Complex or a party who dealt with Landlord or Landlord's
agent (directly or through a broker) with respect to space in the Complex,
during the 12 months immediately preceding Tenant's request for Landlord's
consent;
(g) All costs incurred with respect to providing reasonably
appropriate means of ingress and egress from the sublet space or to separate the
sublet space from the remainder of the Demised Premises shall, subject to the
provisions of Article 6 with respect to alterations, installations, additions or
improvements, be borne by Tenant;
(h) Each assignment or sublease shall specifically state that
(i) it is subject to all of the terms, covenants, agreements, provisions, and
conditions of this Lease, (ii) the subtenant or assignee, as the case may be,
will not have the right to further assign or sublet all or part of the Demised
Premises or to allow same to be used by others, without the consent of Landlord
in each instance in accordance with this Article 11, (iii) a consent by Landlord
thereto shall not be deemed or construed to modify, amend or affect the terms
and provisions of this Lease, or Tenant's obligations hereunder, which shall
continue to apply to the premises involved, and the occupants thereof, as if the
sublease or assignment had not been made, (iv) if Tenant defaults in the payment
of any rent, Landlord is authorized to collect any rents due or accruing from
any assignee, subtenant or other occupant of the Demised Premises and to apply
the net amounts collected to the Basic Annual Rent and additional rent due
hereunder, (v) the receipt by Landlord of any amounts from an assignee or
subtenant, or other occupant of any part of the Demised Premises shall not be
deemed or construed as releasing Tenant from Tenant's obligations hereunder or
the acceptance of that party as a direct tenant;
(i) Tenant shall reimburse Landlord on demand for any costs
incurred by Landlord to review the proposed assignment or sublease in connection
with the requested consent, including without limitation the cost of making
investigations as to the acceptability of the proposed assignee or subleases and
any reasonable attorneys' fees incurred by Landlord;
(j) The proposed subtenant or assignee is not (i) a bank or
trust company, safe deposit business, savings and loan association or loan
company; (ii) employment or recruitment agency; (iii) school, college,
university or educational institution whether or not for profit; or (iv) a
government or any subdivision or agency thereof;
(k) In the case of a subletting of a portion of the Demised
Premises, the portion so sublet shall be regular in shape and suitable for
normal renting purposes;
(l) INTENTIONALLY DELETED;
(m) The subletting or assignment shall not be advertised at a
lower rental rate than that being charged by Landlord at the time for similar
space then available in the Building; and
39
(n) Landlord and Tenant shall have agreed on the computation
required by Section 11.07 hereof.
11.07. If Landlord shall give its consent to any assignment of this
Lease or to any sublease, Tenant shall in consideration therefor, pay to
Landlord, as additional rent:
(i) in the case of an assignment, an amount equal to fifty percent
(50%) of all sums and other consideration paid to Tenant by the
assignee for or by reason of such assignment (including, but not
limited to, sums paid for the sale or rental of Tenant's fixtures,
leasehold improvements, equipment, furniture, furnishings or other
personal property, less, in the case of the sale thereof, the net
unamortized cost thereof determined on the basis of Tenant's federal
income tax returns), and less any expenses reasonably incurred by
Tenant in connection with such assignment, including without
limitation, costs of altering and preparing the Demised Premises for
new tenants, brokerage commissions and reasonable attorneys' fees and
disbursements; and
(ii) in the case of a sublease, fifty percent (50%) of any rents,
additional charges and other consideration payable under the sublease
to Tenant by the subtenant which is in excess of the Basic Annual Rent
and additional rent accruing during the term of the sublease in
respect of the subleased space (at the rate per square foot payable by
Tenant hereunder) pursuant to the terms hereof (including, but not
limited to, sums paid for the sale or rental of Tenant's fixtures,
leasehold improvements, equipment, furniture, furnishings or other
personal property, less, in the case of the sale thereof, the net
unamortized cost thereof determined on the basis of Tenant's federal
income tax returns), and less any expenses reasonably incurred by
Tenant in connection with such subletting, including without
limitation, costs of altering and preparing the Demised Premises for
subtenants, brokerage commissions and reasonable attorneys' fees and
disbursements, provided that for purposes of computing amount payable
to Landlord hereunder such alteration costs, brokerage commissions and
attorneys' fees and disbursements shall be amortized on a straight
line basis over the term of the sublease.
The sums payable under this Section 11.07 shall be paid to Landlord as
and when paid by the assignee or subtenant to Tenant.
11.08. If Landlord exercises any of its options under Section 11.05,
Landlord shall be free to, and shall have no liability to Tenant, if Landlord
shall lease the Demised Premises or any portion thereof with respect to which
one of such options exercised, to Tenant's proposed assignee or subtenant, as
the case may be if any such proposed assignee or subtenant shall exist.
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ARTICLE 12
CERTIFICATE OF OCCUPANCY
12.01. Tenant shall promptly and diligently proceed to obtain a
building permit for Tenant's Work and a temporary certificate of occupancy
(which Tenant shall cause to remain in effect until a permanent certificate of
occupancy is obtained) to use the Demised Premises for general, executive and
administrative office purposes, including as a data center and Tenant shall
provide Landlord with a copy of each such permit and certificate promptly after
receipt thereof. Landlord shall reasonably cooperate with Tenant to the extent
reasonably necessary to enable Tenant to obtain such building permit and
certificate of occupancy, at Tenant's cost and expense.
ARTICLE 13
ADJACENT EXCAVATION - SHORING
13.01. If an excavation or other substructure work shall be made upon
the Land or the land adjacent to the Land, or shall be authorized to be made,
Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the Demised Premises for the purpose of doing
such work as shall be necessary to preserve the wall of the Building from injury
or damage and to support the same by proper foundations without any claim for
damages or indemnity against Landlord, or diminution or abatement of rent.
ARTICLE 14
CONDEMNATION
14.01. (a) If all or substantially all of the Demised Premises shall
be lawfully condemned or taken by any Governmental Authority (as defined in
Article 22 (hereinafter "Condemned")), this Lease and the estate granted hereby
shall terminate as of the date of vesting of title in such Governmental
Authority.
(b) If less than all or substantially all of the rentable
area of the Demised Premises shall be Condemned, then this Lease shall continue
in effect as to the remaining portion of the Demised Premises but shall
terminate as to the portion so Condemned as of the date of vesting of title in
the Governmental Authority; provided, however, that if 25% or more of the
rentable area of the Demised Premises shall be Condemned, either Landlord or
Tenant may, at their option, terminate this Lease and the estate granted hereby
by giving written notice to the other within thirty (30) days after Landlord
shall have received notice of the vesting of title in the Governmental Authority
(a copy of which notice Landlord shall deliver to Tenant promptly after receipt
thereof) in which event this Lease and the estate granted hereby shall terminate
as of the last day of the month next succeeding the month in which such notice
is given.
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(c) If twenty five percent (25%) or more of Plaza II or Plaza
III or of the Complex (whether or not the Demised Premises is affected) shall be
Condemned or if so much of the parking area located on the Land shall be
Condemned so that the number of parking spaces remaining shall in Landlord's
judgment be insufficient for the continued operation of the Building or the
Complex, Landlord may, at Landlord's option, terminate this Lease and the estate
granted hereby by written notice given to Tenant within thirty (30) days after
Landlord shall have received notice of the vesting of title in the Governmental
Authority (a copy of which notice Landlord shall deliver to Tenant promptly
after receipt thereof) in which event this Lease and the estate granted hereby
will terminate on the last day of the month next succeeding the month in which
such notice is given.
(d) If neither Landlord nor Tenant elects to terminate this
Lease pursuant to paragraph (b) or (c) above, this Lease shall be and remain
unaffected by such condemnation, except that the Basic Annual Rent and the
additional rent payable under Article 3 shall be abated effective as of the date
of the vesting of title in the Governmental Authority in proportion to the
reduction in the rentable area of the Demised Premises resulting from such
condemnation.
14.02. In the event of termination of this Lease in any of the cases
herein before provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date, and the Basic Annual Rent and additional rent payable
hereunder shall be apportioned as of such date.
14.03. In the event of any condemnation of all or a part of the
Property, Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in Tenant. Tenant hereby expressly assigns to Landlord any
and all right, title and interest of Tenant now or hereafter arising in or to
any such award or any part thereof, including, without limitation, any award for
the unexpired portion of the Term and agrees that it shall not be entitled to
receive any part of such award. Tenant shall, however, be entitled to make a
separate claim in such proceeding for loss of good will and moving expenses
provided such award is in addition to and not in reduction of Landlord's award
from the Governmental Authority.
14.04. In the event of any partial taking which does not result in a
termination of this Lease, Landlord, at its expense, shall proceed with
reasonable diligence to repair, alter and restore the remaining parts of the
Building and the Demised Premises to substantially their former condition to the
extent that the same may be feasible and so as to constitute a complete and
tenantable Building and Demised Premises except for Tenant's leasehold
improvements, furniture, furnishings, equipment and decorations, which shall be
repaired, altered and restored by Tenant at its expense. Landlord's obligation
under this Section 14.04 shall be limited in dollar amount to the net award
(after deducting all expenses incurred in obtaining same) available from the
Governmental Authority for the improvements taken or conveyed (exclusive of the
award for the Land or any portion thereof).
14.05. If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or payment
for such taking which represents compensation
42
for the use and occupancy of the Demised Premises (or portion thereof taken) and
for moving expenses, and Landlord shall be entitled to receive that portion
which represents reimbursement for the cost of restoration of the Demised
Premises. This Lease shall be and remain unaffected by such taking and Tenant
shall continue to be responsible for all of its obligations hereunder insofar as
such obligations are not affected by such taking and shall continue to pay Basic
Annual Rent and additional rent in full when due. If the period of temporary use
or occupancy shall extend beyond the Expiration Date, that part of the award or
payment which represents compensation for the use and occupancy of the Demised
Premises (or portion thereof taken) shall be divided between Landlord and Tenant
so that Tenant shall receive so much thereof as represents compensation for the
period up to and including the Expiration Date and Landlord shall receive so
much thereof as represents compensation for the period after the Expiration
Date.
ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES
15.01. Tenant shall permit Landlord to erect, use and maintain pipes,
ducts and conduits in and through the Demised Premises, provided the same are
installed adjacent to or concealed behind walls and ceilings of the Demised
Premises. Landlord shall, to the extent practicable, install such pipes, ducts
and conduits by such methods and at such locations as will not materially
interfere with or impair Tenant's layout or use of the Demised Premises.
Landlord or its agents or designees shall have the right, but only upon notice
to Tenant or any authorized employee of Tenant at the Demised Premises, to enter
the Demised Premises, during and after business hours, at Landlord's option, (a)
for the making of such repairs or alterations or improvements as Landlord may
deem, in its sole judgment, necessary or appropriate for the Building or which
Landlord shall be required to or shall have the right to make by the provisions
of this Lease or any other lease in the Complex and (b) for the purpose of
inspecting them or exhibiting them to existing or prospective purchasers,
mortgagees or lessees of all or part of the Land, Building or Property or to
prospective assignees, agents or designees of any such parties. Landlord shall
be allowed to take all material into and upon the Demised Premises that may be
required for the repairs or alterations or improvements above mentioned and may
take over discrete portions of the Demised Premises not in excess of five
percent (5%) at any one time to the extent necessary to perform such work or to
ensure the safety of Tenant's personnel without the same constituting an actual
or constructive eviction of Tenant in whole or in part, and the rent reserved
hereunder shall not xxxxx while said repairs or alterations or improvements are
being made by reason of loss or interruption of the business of Tenant because
of the prosecution of any such work. Landlord shall exercise reasonable
diligence so as to minimize the disturbance to Tenant but nothing contained
herein shall be deemed to require Landlord to perform the same on an overtime or
premium pay basis.
15.02. Landlord reserves the right, without the same constituting an
actual or constructive eviction and without incurring liability to Tenant
therefor, to change the arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators, stairways, toilets and other
public parts of the Building and common areas of the Complex (including without
limitation the Piers and parking areas); provided, however, that
43
access to the Building shall not be cut off and that there shall be no
unreasonable obstruction of access to the Demised Premises.
15.03. Landlord may, at reasonable times and upon reasonable advance
notice to Tenant, (a) during the twelve (12) months prior to expiration of the
Term exhibit the Demised Premises to prospective tenants and (b) at any time
during the Term, exhibit the Demised Premises to actual and prospective holders
of Superior Instruments or purchasers of all or any portion of the Complex.
15.04. If Tenant shall not be personally present to open and permit
an entry into the Demised Premises at any time when for any reason an entry
therein shall be urgently necessary by reason of fire or emergency, Landlord or
Landlord's agents may forcibly enter the same without rendering Landlord or such
agents liable therefor (if during such entry Landlord or Landlord's agents shall
accord reasonable care to Tenant's property) and without in any manner affecting
the obligations and covenants of this Lease.
ARTICLE 16
CONDITIONS OF LIMITATION
16.01. This Lease and the term and estate hereby granted are subject
to the limitation that whenever Tenant or any guarantor of Tenant's obligations
hereunder shall become insolvent or generally fail to pay, or admit in writing
its inability to pay, debts as they become due; or Tenant or any such guarantor
shall apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver, sequestrator or other custodian for Tenant or such guarantor or any
property of any thereof, or make a general assignment for the benefit of
creditors; or, in the absence of such application, consent or acquiescence, a
trustee, receiver, sequestrator or other custodian shall be appointed for Tenant
or any such guarantor or for a substantial part of the property of any thereof
and not be discharged within 30 days; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or insolvency law,
or any dissolution, winding up or liquidation proceeding, shall be commenced in
respect of Tenant or any such guarantor, and, if not commenced by Tenant or such
guarantor, be consented to or acquiesced in by Tenant or such guarantor, shall
result in the entry of an order for relief or shall remain for thirty (30) days
undismissed; or Tenant or any such guarantor shall take any corporate action to
authorize, or in furtherance of, any of the foregoing, then Landlord may at any
time after receipt of notice of the occurrence of any such event, give Tenant a
notice of intention to end the Term at the expiration of five (5) days from the
date of service of such notice of intention, and upon the expiration of said 5
day period this Lease and the term and estate hereby granted, whether or not the
Term shall theretofore have commenced, shall terminate with the same effect as
if that day were the Expiration Date, but Tenant shall remain liable for damages
as provided in Article 18.
16.02. This Lease and the term and estate hereby granted are subject
to further limitation as follows:
44
(a) whenever Tenant shall fail to pay any installment of Basic
Annual Rent or any additional rent or any other charge payable by Tenant to
Landlord, on the day the same is due and payable pursuant to the terms hereof,
and such default shall continue for five (5) days after Landlord shall have
given Tenant a notice specifying such default, or
(b) whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations hereunder
(except as provided in clauses (a), (c), (d), (e) and (f) of this Section 16.02)
and if such situation shall continue and shall not be remedied by Tenant within
fifteen (15) days after Landlord shall have given to Tenant a notice specifying
the same, or, in the case of a happening or default which cannot with due
diligence be cured within a period of fifteen ( 15) days and the continuation of
the period required for cure will not subject Landlord to the risk of criminal
liability (as more particularly described in Article 8 hereof) or termination of
any superior lease or foreclosure of any superior mortgage, if Tenant shall not
(i) within said fifteen (15) day period advise Landlord of Tenant's intention to
duly institute all steps necessary to remedy such situation and (ii) duly
institute within said fifteen (15) day period, and thereafter diligently and
continuously prosecute to completion, all steps necessary to remedy the same, or
(c) whenever any event shall occur or any contingency shall
arise whereby this Lease or the estate hereby granted or the unexpired balance
of the Term hereof would, by operation of law or otherwise, devolve upon or pass
to any person, firm or corporation other than Tenant, except as expressly
permitted by Article 11, or
(d) whenever Tenant shall vacate or abandon the Demised Premises
for a continuous period of at least thirty (30) days (unless as a result of a
casualty), or
(e) whenever Tenant shall default in complying with the
provisions of Section 6.02 with respect to the discharge of mechanic's liens
within the time period therein provided, or
(f) whenever Tenant shall default in the due keeping, observing
or performance of any covenant, agreement, provision or condition of Article 5
hereof on the part of Tenant to be kept, observed or performed and if such
default shall continue and shall not be remedied by Tenant within three (3)
business days after Landlord shall have given to Tenant a notice specifying the
same, then in any of said cases set forth in the foregoing clauses (a), (b),
(c), (d), (e) and (f), Landlord may give to Tenant a notice of intention to end
the Term at the expiration of five (5) days from the date of the service of such
notice of intention, and upon the expiration of said five (5) days this Lease
and the term and estate hereby granted, whether or not the Term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 18.
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ARTICLE 17
RE-ENTRY BY LANDLORD, INJUNCTION
17.01. If Tenant shall fail to pay any installment of Basic Annual
Rent, or of any additional rent payable by Tenant to Landlord on the date the
same is due and payable, and if such default shall continue for five (5) days
after Landlord shall have given to Tenant a notice specifying such default, or
if this Lease shall terminate as in Article 16 provided, Landlord or Landlord's
agents and employees may immediately or at any time thereafter re-enter the
Demised Premises, or any part thereof, either by summary dispossess proceedings
or by any suitable action or proceeding at law, or otherwise, without being
liable to indictment, prosecution or damages therefrom. The word re-enter, as
herein used, is not restricted to its technical legal meaning.
17.02. In the event of a breach or threatened breach by Tenant of any
of its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled at any time and Landlord
may invoke any remedy allowed at law or in equity as if specific remedies were
not provided for herein.
17.03. If this Lease shall terminate under the provisions of Article
16, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article 17, or in the event of the termination of this Lease, or of re-
entry by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, then (a)
Tenant shall thereupon pay to Landlord the Basic Annual Rent and additional rent
payable by Tenant to Landlord up to the time of such termination of this Lease,
or of such recovery of possession of the Demised Premises by Landlord, as the
case may be, and shall also pay to Landlord damages as provided in Article 18,
and (b) Landlord shall be entitled to retain all moneys, if any, paid by Tenant
to Landlord, whether as advance rent, security or otherwise, but such moneys
shall be credited by Landlord against any Basic Annual Rent or additional rent
due from Tenant at the time of such termination or re-entry or, at Landlord's
option, against any damages payable by Tenant under Articles 16 and 18 or
pursuant to law.
17.04. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the Demised Premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or otherwise
ARTICLE 18
DAMAGES
18.01. If this Lease is terminated under the provisions of Article
16, or if Landlord shall re-enter the Demised Premises under the provisions of
Article 17, or in the event of the termination of this Lease, or of re-entry by
or under any summary dispossess or other
46
proceeding or action or any provision of law by reason of default hereunder on
the part of Tenant, Tenant shall pay to Landlord as damages, at the election of
Landlord, either
(a) a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be, represents the
then value of the excess, if any, of
(1) the aggregate of the Basic Annual Rent and the
additional rent payable hereunder which would have been payable by
Tenant (conclusively presuming the additional rent to be the same as
was payable for the year immediately preceding such termination except
that additional rent on account of Taxes and Property Expenses shall
be presumed to increase at the average of the rates of increase
thereof previously experienced by Landlord during the period (not to
exceed 3 years) prior to such termination) for the period commencing
with such earlier termination of this Lease or the date of any such
re-entry, as the case may be, and ending with the Expiration Date, had
this Lease not so terminated or had Landlord not so re-entered the
Demised Premises, over
(2) the aggregate rental value of the Demised Premises for
the same period, or
(b) sums equal to the Basic Annual Rent and the additional rent
payable hereunder which would have been payable by Tenant had this Lease not so
terminated, or had Landlord not so re-entered the Demised Premises, payable upon
the due dates therefor specified herein following such termination or such re-
entry and until the Expiration Date; provided, however, that if Landlord shall
re-let the Demised Premises during said period, Landlord shall credit Tenant
with the net rents received by Landlord from such re-letting, such net rents to
be determined by first deducting from the gross rents as and when received by
Landlord from such reletting, the expenses incurred or paid by Landlord in
terminating this Lease or in re-entering the Demised Premises and in securing
possession thereof, as well as the expenses of re-letting, including altering
and preparing the Demised Premises for new tenants, brokers' commissions, legal
fees, and all other expenses properly chargeable against the Demised Premises
and the rental thereof; it being understood that any such re-letting may be for
a period shorter or longer than the remaining term of this Lease. In no event
shall Tenant be entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder for the period of such re-letting, nor
shall Tenant be entitled in any suit for the collection of damages pursuant to
this subsection to a credit in respect of any net rents from a re-letting,
except to the extent that such net rents are actually received by Landlord. If
the Demised Premises or any part thereof should be re-let in combination with
other space, then proper apportionment on a square foot basis shall be made of
the rent received from such re-letting and of the expenses of re-letting.
If the Demised Premises or any part thereof be re-let by Landlord for
the unexpired portion of the term of this Lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent payable pursuant to such re-letting shall, prima facie, be the
fair and reasonable rental value for the Demised Premises, or part thereof, so
re-let during the term of the re-letting.
47
18.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 16, or under any provision of law,
or had Landlord not re-entered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as liquidated damages by
reason of the termination of this Lease or re-entry of the Demised Premises for
the default of Tenant under this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved whether or not such amount
be greater, equal to, or less than any of the sums referred to in Section 18.01.
ARTICLE 19
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
19.01. If Tenant shall default in the observance or performance of
any term or covenant on Tenant's part to be observed or performed under any of
the terms or provisions of this Lease, (a) Landlord may, but in no event shall
be required to, remedy such default for the account of Tenant, immediately and
without notice in case of emergency, or in any other case if Tenant shall fail
to remedy such default after Landlord shall have notified Tenant in writing of
such default and the applicable grace period for curing such default shall have
expired; and (b) if Landlord makes any expenditures or incurs any obligations
for the payment of money in connection with such default, including without
limitation, reasonable attorneys' fees in instituting, prosecuting or defending
any action or proceeding, such sums paid or obligations incurred, with interest
at the Interest Rate from the date paid or incurred, shall be deemed to be
additional rent hereunder and shall be paid by Tenant to Landlord upon rendition
of a xxxx to Tenant therefor. The provisions of this Article 19 shall survive
the expiration or other termination of this Lease.
ARTICLE 20
QUIET ENJOYMENT
20.01. Landlord covenants and agrees that subject to the terms and
provisions of this Lease, if, and so long as, Tenant keeps and performs each and
every covenant, agreement, term, provision and condition herein contained on the
part or on behalf of Tenant to be kept or performed, then Tenant's rights under
this Lease shall not be cut off or ended before the expiration of the term of
this Lease, subject however, to the provisions of this Lease (including without
limitation, the provisions of Article 25 hereof with respect to Superior
Instruments (as defined in Article 25 hereof) which affect this Lease).
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ARTICLE 21
SERVICES AND EQUIPMENT
21.01. Landlord shall:
(a) Provide necessary passenger elevator facilities on
Business Days from 8:00 A.M. to 6:00 P.M. and shall have at least one elevator
subject to call at all other times. At Landlord's option, the elevators shall be
operated by automatic control or by manual control, or by a combination of both
of such methods. Tenant shall use passenger elevators solely for the
transportation of its employees and invitees and not for freight handling, the
delivery of packages requiring hand trucks or other similar items or the removal
of refuse.
(b) Provide freight elevator service on Business Days from
9:00 A.M. to 12:00 Noon and 12:30 P.M. to 5:00 P.M. All deliveries to Tenant
shall be made at freight docks located on the ground floor or at such other
locations as Landlord may from time to time designate.
(c) Maintain and keep in good order and repair (i) the air
conditioning, heating and ventilating unit existing on the date of this Lease in
the Fourth Floor Space and (ii) the other base building structural systems in
accordance with Section 7.01; it being understood that in no event shall
Landlord be responsible for the maintenance or repair of any other air
conditioning, heating or ventilating systems (on portions thereof) (whether
installed by Landlord or Tenant), including, without limitation, systems that
are installed to service Tenant's data processing, computer or telephone
operations. Landlord shall provide reasonable amounts of condenser water to the
Demised Premises from locations designated by Landlord 24 hours per day, 7 days
per week. Tenant shall have the right to tap into the Building's condenser
water riser via the tap currently located on the 0xx xxxxx xx Xxxxx XXX;
provided, that the performance of such work shall be performed in accordance
with Article 6 and all other applicable provisions of this Lease. Tenant
acknowledges that Tenant shall be responsible for installing, at its sole cost
and expense, heating, ventilation and air conditioning equipment in the Demised
Premises (other than the existing 4th floor unit). Landlord has informed Tenant
that the windows of the Demised Premises and the Building are sealed, and that
the Demised Premises may become uninhabitable and the air therein may become
unbreathable without such equipment or during the hours or days when Landlord is
not able to furnish condenser water to the Demised Premises. Any use or
occupancy of the Demised Premises without such equipment or during such hours
shall be at the sole risk, responsibility and hazard of Tenant, and Landlord
shall have no responsibility or liability therefor. Such condition of the
Demised Premises shall not constitute nor be deemed to be a breach or a
violation of this Lease or of any provision thereof, nor shall it be deemed an
actual or constructive eviction nor shall Tenant claim or be entitled to claim
any abatement of rent nor make any claim for any damages or compensation by
reason of such condition of the Demised Premises. Nothing contained herein
shall be deemed to require Landlord to furnish at Landlord's expense such
electric energy as is required to operate the air conditioning system serving
the Demised Premises. Subject to the provisions of Article 4 hereof all such
electric energy shall be furnished to Tenant at Tenant's cost and expense.
49
(d) Provide the cleaning and janitorial services described on
Schedule E annexed hereto on Business Days. In the event Landlord's cost of
providing such services to the Existing Buildings shall increase after the date
hereof, Tenant agrees to pay to Landlord as additional rent on the first day of
each and every month after such increase an amount equal to Tenant's Expense
Share of the monthly increase of Landlord's cost of providing such services to
the Existing Buildings. Landlord shall promptly notify Tenant of any such
increase. Tenant shall employ Landlord to provide any cleaning and janitorial
services in excess of those specified in Schedule E and Tenant shall deliver to
Landlord a list setting forth in reasonable detail all such excess cleaning and
janitorial services. Landlord, its cleaning contractor and their employees
shall have access to the Demised Premises at all times after 5:30 P.M. and
before 8:00 A.M. and shall have the right to use, without charge therefor, all
light, power and water in the Demised Premises reasonably required to clean the
Demised Premises as required under this Section 21.01. Tenant shall comply with
any rules Landlord and/or its cleaning contractor and/or any consultant to
Landlord may establish regarding the management and recycling of solid waste, as
may be necessary for Landlord to comply with any Legal Requirements, including
without limitation the New Jersey Department of Environmental Protection Rules
on Coastal Resources and Development (N.J.A.C. 7:7E - 1.1).
(e) Furnish water for lavatory and drinking and office cleaning
purposes. If Tenant requires, uses or consumes water for any other purposes,
Tenant agrees that Landlord may install a meter or meters or other means to
measure Tenant's water consumption, and Tenant further agrees to reimburse
Landlord for the cost of the meter or meters and the installation thereof, and
to pay for the maintenance of said meter equipment and/or to pay Landlord's cost
of other means of measuring such water consumption by Tenant. Tenant shall
reimburse Landlord for the cost of all water consumed in excess of that
estimated to be consumed for lavatory, drinking and office cleaning purposes, as
measured by said meter or meters or as otherwise measured, including sewer
rents.
(f) Maintain the common areas of the Complex in good order and
repair.
(g) Permit Tenant to use sufficient shaft space in Plaza III to
accommodate three 4" diameter conduits for a telecommunication shaftway;
provided, that all work required for Tenant to use such shaftway shall be
subject to Landlord's prior approval and shall be performed at Tenant's expense
in accordance with this Article 6 and the other applicable provisions of this
Lease; provided, further, that Landlord makes no representation or warranty
whatsoever concerning the suitability of such shaft space for such use by Tenant
(Tenant hereby acknowledging that in order to obtain access to such shaft space
Tenant will require access to the premises of other tenants in Plaza III and
Tenant shall be solely responsible for negotiating for such right of access).
21.02. Landlord reserves the right without any liability whatsoever,
or abatement of Basic Annual Rent or additional rent, to stop the heating, air
conditioning, elevator, plumbing, electric and other systems when necessary by
reason of accident or emergency or for repairs, alterations, replacements or
improvements, provided that except in case of emergency, Landlord will notify
Tenant in advance, if possible, of any such stoppage and, if ascertainable, its
estimated duration, and will proceed diligently with the work necessary to
resume such service as
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promptly as possible and in a manner so as to minimize interference with
Tenant's use and enjoyment of the Demised Premises, but Landlord shall not be
obligated to employ overtime or premium labor therefor.
21.03. It is expressly agreed that only Landlord or any one or more
persons, firms or corporations authorized in writing by Landlord (which
authorization shall be granted only if the employment of such person, firm or
corporation would not result in jurisdictional disputes or strikes or cause
disharmony with other workers or servicers employed at the Property or conflict
with the terms of any contract with such workers or servicers) will be permitted
to furnish laundry, drinking water, ice, food or beverages, cable television and
other similar supplies and services to tenants and licensees in the Building.
Landlord may fix, in its reasonable judgment, at any time and from time to time,
the hours during which and the regulations under which such supplies and
services are to be furnished. Landlord expressly reserves the right to act as
or to designate, at any time and from time to time, an exclusive supplier of all
or any one or more of the said supplies and services, provided that the quality
thereof and the charges therefor are reasonably comparable to that of other
suppliers. Landlord expressly reserves the right to exclude from the Building
any messenger service. It is understood, however, that Tenant or regular office
employees or guests of Tenant who are not employed by any supplier of such food
or beverages or by any person, firm or corporation engaged in the business of
purveying such food or beverages, may on an occasional or incidental basis (i)
personally bring food or beverages into the Building for consumption within the
Demised Premises by employees or guests of Tenant, or (ii) order food or
beverages for delivery from take-out or catering establishments, provided that
such deliveries do not materially cause elevator delays nor inconvenience the
other tenants of the Building. No food or beverage may be brought into the
Building for resale to or for consumption by any other tenant.
21.04. Landlord will not be required to furnish any other services,
except as otherwise provided in this Lease.
ARTICLE 22
DEFINITIONS
22.01. "Landlord" means only the owner, or the mortgagee in
possession, for the time being of the Building and land underlying the Building
(or the owner of a lease of the Building or of the Building and said land), so
that in the event of any transfer of title to said land and Building or said
lease, or in the event of a lease of the Building, or of said land and Building,
upon notification to Tenant of such transfer or lease the said transferor
Landlord shall be and hereby is entirely freed and relieved of all future
covenants, obligations and liabilities of Landlord hereunder, and it shall be
deemed and construed as a covenant running with the land without further
agreement between the parties or their successors in interest, or between the
parties and the transferee of title to said land and Building or said lease, or
the said lessee of the Building or of said land and Building, that the
transferee or the lessee, as applicable, has assumed and agreed to carry out any
and all such future covenants, obligations and liabilities of Landlord
hereunder.
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22.02. "Business Days" or "business days" shall exclude Saturdays,
Sundays and all days observed as federal, state and municipal holidays and all
other days recognized as holidays under any union contract affecting the
Property.
22.03. "Interest Rate" means a rate per annum equal to the lesser of
(a) two percent (2%) above the prime commercial lending rate of Citibank N.A.,
as published from time to time in the New York Times (the "Prime Rate") or (b)
the maximum rate of interest, if any, which Tenant may legally contract to pay.
22.04. "Legal Requirements" means laws, statutes and ordinances,
including environmental laws and regulations, building codes and zoning
regulations and ordinances and the orders, rules, regulations, directives and
requirements of all federal, state, county, city and borough departments,
bureaus, boards including boards of fire underwriters, New Jersey fire insurance
rating organizations and all similar organizations, agencies, offices,
commissions and other subdivisions thereof, or of any official thereof, or of
any other governmental, public or quasi-public authority (each, a "Governmental
Authority"), whether now or hereafter in force, which may be applicable to the
Property or the Demised Premises or any part thereof, or the sidewalks, curbs or
areas adjacent thereto and all requirements, obligations and conditions of all
instruments of record on the date of this Lease.
22.05. "Common Areas" means those portions of the Land and/or the
Property intended at the applicable point in time at which the Common Areas are
to be delineated to be for the common use by the tenants and/or owners of the
Complex, or any portion thereof, and their respective customers, employees,
lessees, licensees and invitees, which Common Areas shall include, without
limitation, any so-called "Limited Common Areas" i.e., areas adjacent to one or
more of the buildings at the Complex, the use of which Common Areas may be
restricted in whole or in part to the tenant(s) of such building or buildings.
Common Areas shall include, without limitation, those portions of The Harborside
Financial Center designated from time to time by Landlord as (i) plaza areas,
(ii) pedestrian walkways, (iii) parking premises including, without limitation,
any parking garages, and (iv) those roads, exits, entrances, driveways, ramps,
streets, curb cuts, pedestrian walkways and sidewalks which are intended for use
as pedestrian and/or vehicle access, ingress and egress from various portions of
the Complex to the parking premises, other portions of the Complex and public
streets.
ARTICLE 23
INVALIDITY OF ANY PROVISION
23.01. If any term, covenant, condition or provision of this Lease or
the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease shall not be affected
thereby and each remaining term, covenant, condition and provision of this Lease
shall be valid and shall be enforceable to the fullest extent permitted by law.
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ARTICLE 24
BROKERAGE
24.01. (a) Tenant covenants, represents and warrants that Tenant has
had no dealings or negotiations with any broker or agent other than Xxxxx Xxxx
Xxxxxx (representing Landlord's agent, Institutional Realty Management LLC) and
Xxxxxxx & Wakefield, Inc. (representing Tenant) in connection with the
consummation of this Lease, and Tenant covenants and agrees to pay, hold
harmless and indemnify Landlord from and against any and all cost, expense
(including reasonable attorneys' fees and court costs), loss and liability for
any compensation, commissions or charges claimed by any broker or agent, other
than the brokers set forth in this Section 24.01 (a), with respect to this Lease
or the negotiation thereof if such claim or claims by any such broker or agent
are based in whole or in part on dealing with Tenant or its representatives.
Landlord agrees to pay to the brokers specified in this Section 24.01(a) such
compensation, commissions or charges to which they are entitled pursuant to the
separate agreements between said brokers and Landlord.
(b) Landlord covenants and agrees to pay, hold harmless and
indemnify Tenant from and against any and all cost, expense (including
reasonable attorneys' fees and court costs), loss and liability for any
compensation, commissions or charges in connection with this Lease or the
negotiation thereof, claimed under any circumstances by the brokers specified in
Section 24.01 (a), or claimed by any other broker or agent if the claims by such
other brokers or agents are based in whole or part on dealing with Landlord or
its representatives and not with Tenant or its representatives.
ARTICLE 25
SUBORDINATION
25.01. This Lease is and shall be subject and subordinate to all
ground or underlying leases which may now or hereafter affect the Land, the
Building or the Complex and to all mortgages which may now or hereafter affect
such leases, the Land, the Building or the Complex, and to all renewals,
refinancings, modifications, replacements and extensions thereof (hereinafter
called "Superior Instruments"). The provisions of this Section 25.01 shall be
selfoperative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute and deliver at
its own cost and expense any instrument, in recordable form if required, that
Landlord, the holder of any Superior Instrument or any of their respective
successors in interest may request to evidence such subordination, within seven
(7) business days after such request.
25.02. In the event of a termination of any ground or underlying
lease, or if the interests of Landlord under this Lease are transferred by
reason of, or assigned in lieu of, foreclosure or other proceedings for
enforcement of any mortgage, or if the holder of any mortgage acquires a lease
in substitution therefor, then Tenant will, at the option to be exercised in
writing by the holder of any such Superior Instrument or any purchaser, assignee
or lessee, as
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the case may be, either (i) attorn to it and perform for its benefit all the
terms, covenants and conditions of this Lease on Tenant's part to be performed
with the same force and effect as if it were the landlord originally named in
this Lease, or (ii) enter into a new lease with it for the remaining term of
this Lease and otherwise on the same terms and conditions and with the same
options, if any, then remaining. The foregoing provisions of clause (i) of this
Section 25.02 shall inure to the benefit of such holder of a Superior
Instrument, purchaser, assignee or lessee, shall be self-operative upon the
exercise of such option, and no further instrument shall be required to give
effect to such option and to said provisions. Tenant, however, upon demand of
any such holder of a Superior Instrument, purchaser, assignee or lessee agrees
to execute, from time to time, within seven (7) business days after a request
therefor, instruments in confirmation of the foregoing provisions of this
Section 25.02, satisfactory to any such holder of a Superior Instrument,
purchaser, assignee or lessee, acknowledging such attainment and setting forth
the terms and conditions of its tenancy.
25.03. Notwithstanding anything contained herein to the contrary
under no circumstances shall any such holder of a Superior Instrument,
purchaser, assignee or lessee, as the case may be, whether or not it shall have
succeeded to the interests of the landlord under this Lease, be
(a) liable for any act, omission or default of any prior
landlord; or
(b) subject to any offsets, claims or defenses which Tenant
might have against any prior landlord; or
(c) bound by any Basic Annual Rent or additional rent which
Tenant might have paid to any prior landlord for more than one month in advance
or for more than three months in advance where such rent payments are payable at
intervals of more than one month; or
(d) bound by any modification, amendment or abridgment of the
Lease, or any cancellation or surrender of the same, made without its prior
written approval.
25.04. If, in connection with the financing of the Building or the
Complex, the holder of any mortgage shall request reasonable modifications in
this Lease as a condition of approval thereof, Tenant will not unreasonably
withhold, delay or defer making such modifications provided the same do not (i)
increase the Basic Annual Rent or additional rent payable by Tenant, (ii) reduce
the term hereof or (iii) extend the Term hereof other than as permitted in
Article 2 hereof.
25.05. Any holder of a Superior Instrument may at any time and from
time to time elect to have this Lease made prior to such Superior Instrument
and, upon notification of such election from such holder to Tenant, this Lease
shall have priority over such Superior Instrument, whether this Lease is dated,
executed, delivered and/or recorded prior or subsequent to the date such
Superior Instrument is dated, executed, delivered and/or recorded.
25.06. Tenant shall give each holder of a Superior Instrument a copy
of any notice of default served upon Landlord, provided that Tenant has been
notified of the address of
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such holder. If Landlord fails to cure any default as to which Tenant is
obligated to give notice pursuant to the preceding sentence within the time
provided for in this Lease, then each such holder shall have an additional
thirty (30) days after receipt of such notice within which to cure such default,
or if such default cannot be cured by such holder within that time (because such
holder must first obtain possession of the Demised Premises or other portions of
the Complex, or otherwise), then such additional time as may be necessary if,
within such 30 days, any such holder has commenced and is diligently pursuing
the remedies reasonably necessary to cure such default, in which event this
Lease shall not be terminated while such remedies are being so diligently
pursued.
ARTICLE 26
CERTIFICATE OF TENANT
26.01. Tenant shall, without charge, at any time and from time to
time, within ten ( 10) days after request by Landlord, execute, acknowledge and
deliver to Landlord, the holder of a Superior Instrument or any other person,
firm or corporation specified by Landlord, a written instrument in the form
attached hereto as Schedule F or such other form as may be required by the
holder of any Superior Instrument. If Tenant believes that any of the
certifications contained therein are inaccurate, said written instrument shall
set forth, in reasonable detail, the basis for Tenant's assertions that such
certifications are inaccurate.
26.02. Tenant agrees that, except for the first month's rent
hereunder, it will pay no rent under this Lease more than thirty (30) days in
advance of its due date, if so restricted by any existing or future Superior
Instrument or by an assignment of this Lease to the holder of such Superior
Instrument, and, in the event of any act or omission by Landlord which would
give Tenant the right to terminate this Lease, Tenant will not exercise such
right until Tenant shall have first given written notice of such act or omission
to the holder of any Superior Instrument who shall have furnished such holder's
last address to Tenant, and until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notices, during which
time such holder shall have the right, but shall not be obligated, to remedy or
cause to be remedied such act or omission. Tenant further agrees not to
exercise any such right if the holder of any such Superior Instrument commences
to cure such act or omission within a reasonable time after having received
notice thereof and diligently prosecutes such cure thereafter.
26.03. Tenant shall, without charge, at any time and from time to
time, deliver to Landlord within ten (10) days after request therefor (a) copies
of the most current financial statements of Tenant and of any guarantor of
Tenant's obligations under this Lease certified by an independent certified
public accountant and (b) such further detailed financial information with
respect to Tenant and any such guarantors as Landlord or the holder of any
Superior Instrument may request.
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ARTICLE 27
LEGAL PROCEEDINGS, WAIVER OF JURY
TRIAL, WAIVER OF TERMINATION RIGHTS
27.01. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way in connection with
this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy
of the Demised Premises, and/or any other claims (except claims for personal
injury or property damage), and any emergency statutory or any other statutory
remedy. It is further mutually agreed that in the event Landlord commences any
summary proceeding for non-payment of rent, Tenant will not interpose and does
hereby waive the right to interpose any counterclaim of whatever nature or
description in any such proceeding, unless Tenant receives an opinion from its
attorneys specifying the basis for the conclusion contained therein, that such
waiver will result in the waiver of its right to bring such claims in a separate
proceeding under applicable law. Tenant waives all rights now or hereafter
conferred by law (including, without limitation, the benefit of New Jersey
Revised Statutes, Title 46, Chapter 8, Sections 6 and 7), (a) to quit, terminate
or surrender this Lease or the Demised Premises or any part thereof, or (b) to
any abatement, suspension, deferment or reduction of the Basic Annual Rent or
additional rent payable under this Lease, regardless of whether such rights
shall arise from any present or future constitution, statute or rule of law.
ARTICLE 28
SURRENDER OF PREMISES
28.01. Upon the expiration or other termination of the Term, Tenant
shall quit and surrender to Landlord the Demised Premises, broom clean, in good
order and condition, ordinary wear and tear and damage by fire, the elements or
other casualty excepted, and Tenant shall remove all of its property as herein
provided. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of the Term.
28.02. If Tenant shall, without the written consent of Landlord, hold
over after the expiration of the Term, such tenancy shall be deemed a month-to-
month tenancy, which tenancy may be terminated as provided by applicable law.
During such tenancy, Tenant agrees to (a) pay to Landlord, each month, the
greater of the fair market rental value for the Demised Premises or one hundred
and fifty percent (150%) during the first thirty days of holding over, one
hundred and seventy five percent ( 175%) during the next thirty days of holding
over and two hundred percent (200%) thereafter of (x) the Basic Annual Rent and
(y) all additional rent payable by Tenant for the last month of the Term and (b)
be bound by all of the terms, covenants and conditions herein specified.
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ARTICLE 29
RULES AND REGULATIONS
29.01. Tenant and Tenant's servants, employees and agents shall
observe faithfully and comply strictly with the Rules and Regulations set forth
in Schedule G hereto entitled "Rules and Regulations" and such other and further
reasonable Rules and Regulations as Landlord or Landlord's agents may from time
to time adopt; provided, however, that in case of any conflict or inconsistency
between the provisions of this Lease and of any of the Rules and Regulations, as
originally or as hereafter adopted, the provisions of this Lease shall control.
Reasonable written notice of any additional Rules and Regulations shall be given
to Tenant.
29.02. Nothing in this Lease contained shall be construed to impose
upon Landlord any duty or obligation to enforce the Rules and Regulations or the
terms, covenants or conditions in any other lease, against any other tenant of
the Complex, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
29.03. No Rule or Regulation shall be enforced against Tenant unless
such Rule or Regulation is being enforced against other tenants or occupants of
the Building under similar circumstances, if a similar rule or regulation is
contained in or promulgated pursuant to the leases and occupancy agreements
between Landlord and such tenants or occupants.
ARTICLE 30
CONSENTS AND APPROVALS
30.01. (a) Whenever Landlord's consent or approval is required in
this Lease, Landlord shall not unreasonably delay notifying Tenant whether its
approval shall be granted or withheld.
(b) When in this Lease Landlord's consent or approval is
required and this Lease provides that Landlord's consent or approval shall not
be unreasonably withheld and Landlord shall refuse such consent or approval, or
in any instance in which Landlord shall delay its consent or approval, Tenant in
no event shall be entitled to make, nor shall Tenant make, any claim, and Tenant
hereby waives any claim, for money damages (nor shall Tenant claim any money
damages by way of set-off, counterclaim or defense) based upon any claim or
assertion by Tenant that Landlord unreasonably withheld or unreasonably delayed
its consent or approval. Tenant's sole remedy shall be an action or proceeding
to enforce any such provision, for specific performance, injunction or
declaratory judgment.
(c) Whenever Landlord's consent or approval is required in
this Lease and this Lease does not provide that such approval or consent shall
not be unreasonably withheld, Landlord may determine in its sole discretion
whether to grant such consent or approval, regardless of whether such refusal to
consent or approve may be deemed arbitrary.
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ARTICLE 31
NOTICES
31.01. Any notice or demand, consent, approval or disapproval, or
statement (collectively called "Notices") required or permitted to be given by
the terms and provisions of this Lease, or by any law or governmental
regulation, either by Landlord to Tenant or by Tenant to Landlord, shall be in
writing and unless otherwise required by such law or regulation, shall be
personally delivered or sent by United States mail postage prepaid as registered
or certified mail, return receipt requested. Any Notice shall be addressed to
Landlord or Tenant, as applicable, at its address set forth on page 1 of this
Lease as said address may be changed from time to time as hereinafter provided.
After Tenant shall occupy the Demised Premises, the address of Tenant for
Notices shall be the Building. By giving the other party at least ten (10) days
prior written notice, either party may, by Notice given as above provided,
designate a different address or addresses for Notices.
31.02. Any Notice shall be deemed given as of the date of delivery as
indicated by affidavit in case of personal delivery or by the return receipt in
the case of mailing; and in the event of failure to deliver by reason of changed
address of which no Notice was given or refusal to accept delivery, as of the
date of such failure as indicated by affidavit or on the return receipt or by
notice of the postal service, as the case may be.
31.03. In addition to the foregoing, either Landlord or Tenant may,
from time to time, request in writing that the other party serve a copy of any
Notice on one other person or entity designated in such request, such service to
be effected as provided in Section 31.01 hereof.
ARTICLE 32
NO WAIVER
32.01. No agreement to accept a surrender of this Lease shall be
valid unless such agreement is in writing and signed by Landlord. No employee
of Landlord or of Landlord's agents shall have any power to accept the keys of
the Demised Premises prior to the termination of this Lease. The delivery of
keys to any employee of Landlord or of Landlord's agent shall not operate as a
termination of this Lease or a surrender of the Demised Premises. In the event
Tenant at any time desires to have Landlord sublet the premises for Tenant's
account, Landlord or Landlord's agents are authorized to receive said keys for
such purpose without releasing Tenant from any of the obligations under this
Lease. The failure of Landlord or Tenant to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease or any of the Rules and Regulations set forth herein, or hereafter adopted
by Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by Landlord, or the payment by Tenant, of rent with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the Rules and
Regulations set forth herein, or hereafter adopted, against Tenant and/or any
other tenant in the
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Complex shall not be deemed a waiver of any such Rules and Regulations. No
provision of this Lease shall be deemed to have been waived by Landlord or
Tenant unless such waiver be in writing signed by such party. No payment by
Tenant or receipt by Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on the account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment of rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
32.02. This Lease, including all schedules and exhibits hereto
contains the entire agreement between the parties, and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
ARTICLE 33
CAPTIONS
33.01. The captions are inserted only as a matter of convenience and
for reference, and in no way define, limit or describe the scope of this Lease
nor the intent of any provision thereof.
ARTICLE 34
INABILITY TO PERFORM
34.01. If, by reason of (1) strike, (2) labor troubles, (3)
governmental preemption in connection with a national emergency, (4) any rule,
order or regulation of any governmental agency, (5) conditions of supply or
demand which are affected by war or other national, state or municipal
emergency, or any other cause, (6) fire or other casualty, (7) adjustment of
insurance claims, (8) acts of God or (9) any other cause beyond Landlord's
reasonable control ("Force Majeure Causes"), Landlord shall be unable to fulfill
its obligations under this Lease or shall be unable to supply any service which
Landlord is obligated to supply, this Lease and Tenant's obligation to pay rent
hereunder shall in no wise be affected, impaired or excused.
34.02 If, by reason of Force Majeure Causes, Tenant shall be unable
to fulfill its obligations under this Lease (other than the obligation to pay
Basic Annual Rent or any other sums due and payable under his Lease), this Lease
and Landlord's obligations under this Lease shall in no wise be affected,
impaired or excused.
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ARTICLE 35
NO REPRESENTATIONS BY LANDLORD
35.01. Tenant accepts the Demised Premises as is, in their present
condition, subject only to the performance of Landlord's Work, if any such work
is provided for in Article 2 hereof, in accordance with this Lease and without
any representation or warranty whatsoever by Landlord or Landlord's Agents as to
the condition of the Demised Premises or the value thereof or the utility
thereof or usefulness for any particular purpose or any other matter or thing
relating in any way to the Demised Premises or the Property other than as
specifically provided in this Lease. Tenant acknowledges that Landlord, has not
made and does not make, and Tenant is not relying upon, any representations or
warranties as to the physical condition, quality, value or character or other
matter relating to or affecting the Demised Premises, the Building or the
Property other than those contained in this Lease.
ARTICLE 36
NAME OF COMPLEX/BUILDING
36.01. The name of the Complex shall be Harborside Financial Center
and the names making up the Building shall be Plaza II and Plaza III,
respectively. Landlord shall have the full right at any time to name and change
the name of the Complex or the Building and to change the designated address of
the Complex or the Building. The Complex or the Building may be named after any
person, firm, or otherwise, whether or not such name is, or resembles, the name
of a tenant of the Complex or the Building.
ARTICLE 37
PARKING
37.01. Landlord shall make 6 parking spaces ("Tenant's Parking
Spaces") available to Tenant and Tenant shall hire same from Landlord, in such
areas (the "Parking Areas") of the Property as Landlord shall periodically
designate for parking. Landlord makes no representations or guarantees
whatsoever as to the specific location of Tenant's Parking Spaces or whether
Tenant's Parking Spaces will be under cover or open. Tenant's Parking Spaces
shall be used exclusively for the parking of standard size passenger cars (or
smaller cars), or such other vehicles as may be otherwise permitted by Landlord
or the independent contractor conducting the parking operation at the Parking
Area, belonging to or leased to or operated by Tenant, any of Tenant's permitted
subtenants, and their respective employees, visitors and invitees, and for no
other purpose. Tenant shall not allow any parking of any cars of Tenant or
Tenant's permitted subtenants, or their employees, visitors or invitees, outside
of the Parking Areas or in parking spaces within the Property designated for use
by Landlord or other tenants or their respective employees, visitors or
invitees. Landlord reserves the right to relocate or alter Tenant's Parking
Spaces if, in Landlord's sole judgment, it becomes desirable to do so during the
Term. Tenant
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shall upon request promptly furnish to Landlord the license numbers of the cars
operated by Tenant and Tenant's permitted subtenants and their employees and
contractors.
37.02. All parking spaces used by Tenant, its employees, visitors and
invitees will be used at their own risk, and Landlord shall not be liable for
any injury to person or property, or for loss or damage to any automobile or its
contents, resulting from theft, collision, vandalism or any other cause
whatsoever, unless such injury or loss is caused by the negligence or willful
act of Landlord.
37.03. Landlord shall have the right to license an independent
operator or conduct a parking operation open to the public with respect to the
Parking Areas or to conduct such operation itself.
37.04. Tenant shall pay to Landlord monthly, as additional rent, on
the first day of each month, without any set-off or deduction whatsoever, or in
lieu thereof, to any parking operator who shall be licensed by Landlord to
conduct a parking operation with respect to the Parking Areas, the amount
obtained by multiplying the number of Tenant's Parking Spaces by the monthly
rate then charged by Landlord or such operator to the general public for an
equivalent space for such month. If Tenant's Parking Spaces shall be first made
available to Tenant other than on the first day of a month, then Tenant shall
make the payments in respect of such Spaces for such month on the date same are
so made available appropriately prorated.
37.05. Landlord, or the parking lot operator, as the case may be,
shall have the right to tow, at Tenant's sole cost and expense, any of Tenant's
or Tenant's permitted subtenants', or their employees', visitors' or invitees',
cars that are parked outside of Tenant's Parking Spaces to the extent specific
spaces are reserved for tenants.
37.06. Landlord shall have the right to require that all cars to be
parked in Tenant's Parking Spaces shall exhibit such identification as Landlord
may from time to time deem reasonably necessary to control the use of the
Parking Areas. Landlord shall have the right to tow, at Tenant's sole cost and
expense, any of Tenant's or Tenant's permitted subtenants' or their employees',
visitors' or invitees', cars not exhibiting such identification if required.
37.07. Landlord shall have the right to institute valet parking, as a
Building service or a service of the parking operator, in which event Tenant
shall comply with all rules promulgated by Landlord or such parking operator
relating thereto.
ARTICLE 38
INDEMNITY
Tenant shall indemnify, defend, pay on behalf of and hold harmless
Landlord and all holders of Superior Instruments, and its and their respective
partners, joint ventures, directors, officers, invitees, agents, servants and
employees (each an "indemnitee" for purposes of this provision), from and
against any loss, damage, liability, cost, claim or expense (including
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reasonable attorneys' fees) arising from or in connection with (a) any act,
omission or negligence of Tenant or any subtenants, or its or their respective
partners, joint ventures, directors, officers, invitees, agents, servants and
employees, (b) any accident, injury or damage whatsoever occurring in the
Demised Premises, (c) the use or occupation of the Demised Premises by Tenant or
anyone claiming under or through Tenant or (d) any breach of this Lease by
Tenant. This provision shall not be construed to exculpate an indemnitee, or to
make Tenant responsible for, any loss, damage, liability, cost, claim or expense
resulting solely from or caused (whether by act or omission) solely by the gross
negligence or willful misconduct of such indemnitee.
ARTICLE 39
MEMORANDUM OF LEASE
39.01. Tenant shall not record this Lease or a memorandum thereof.
Tenant shall, at the request of Landlord, execute and deliver to Landlord a
memorandum of lease in respect of this Lease sufficient for recording, but said
memorandum of this Lease shall not in any circumstances be deemed to modify or
to change any of the provisions of this Lease.
ARTICLE 40
SECURITY
40.01. Tenant has deposited with Landlord an unconditional
irrevocable letter of credit (as hereinafter defined) substantially in the form
attached hereto as Schedule H (as the same may be modified in accordance with
this section, the "letter of credit") in an amount equal to Two Hundred Forty
Thousand and 00/100 Dollars ($240,000), as security for the full and punctual
performance by Tenant of all of the terms of this Lease. In the event Tenant
defaults in the performance of any of the terms of this Lease, Landlord may draw
upon the letter of credit in full and any amounts not applied as hereinafter
provided shall be held by Landlord subject to and in accordance with the
provisions of this Section. Landlord may then apply the whole or any part of
the security so drawn upon to the extent required for the payment of (i) any
rent or (ii) any sum which Landlord may expend or may be required to expend by
reason of Tenant's default including, without limitation, any damages or
deficiency in the re-letting of the Demised Premises, whether accruing before or
after summary proceedings or other re-entry by Landlord. Upon each such
application, Tenant shall, on demand, pay to Landlord the sum so applied in cash
which shall be added to the remaining proceeds from the letter of credit so that
the security held by Landlord shall be restored to the amount first set forth
above. If Tenant shall fully and punctually comply with all of the terms of
this Lease, the letter of credit or the amount of the security deposit, as the
case may be, shall be returned to Tenant after the termination of this Lease,
delivery of exclusive possession of the Demised Premises to Landlord and the
payment to Landlord of all amounts payable hereunder. In the event of a sale or
lease of the Building, Landlord shall have the right to transfer the letter of
credit or the security deposit to the vendee or lessee and Landlord shall ipso
facto be released by Tenant from all liability for the return of such security;
and Tenant agrees to look solely to the new landlord for the return of said
security and it
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is agreed that the provisions hereof shall apply to every transfer or assignment
made of the letter of credit or security to a new landlord. If 30 days prior to
the date of such sale, Landlord shall be holding a letter of credit as Tenant's
security, Tenant will upon five (5) days prior written notice, deliver a
substitute letter of credit naming the new landlord as the new beneficiary
thereof. In the event Tenant shall default in such obligation, Landlord may draw
upon the letter of credit and transfer the proceeds thereof to the new landlord.
Tenant shall not assign or encumber or attempt to assign or encumber the monies
deposited herein as security and neither Landlord nor its successors or assigns
shall be bound by any such assignment, encumbrance, or attempted assignment or
encumbrance. In the event the letter of credit referred to above or any
substitute letter of credit is not renewed so that at all times the letter of
credit held by Landlord hereunder is valid for a period in excess of 30 days,
Landlord may draw upon said letter of credit and hold the proceeds thereof
subject to and in accordance with the terms of this Section.
40.02. So long as Tenant is not then in default under this Lease and
no monetary default or material non-monetary default under this Lease shall have
previously occurred, Tenant shall have the right, by notice (a "Reduction
Notice") given to Landlord at any time after each Reduction Date (as defined
below) to reduce the amount of security held by landlord pursuant to this
Article 40 by $24,000.00. If Tenant properly gives a Reduction Notice to
Landlord, Landlord shall return such letter of credit to Tenant; provided, that
Tenant has delivered to Landlord a substitute letter of credit in an amount
equal to the difference between the amount of the letter of credit which
Landlord is returning to Tenant less $24,000.00. Anything to the contrary
contained in this Section 40.02 notwithstanding, in no event shall the amount of
security held by Landlord pursuant to this Article 40 be less than $120,000.00.
"Reduction Date" means March 31, 1999, March 31, 2000, March 31, 2001, March 31,
2002 and March 31, 2003. Landlord agrees to reasonably cooperate with Tenant to
substitute any letter of credit in accordance with this Section 40.02; provided,
that such cooperation shall be without expense or liability to Landlord. If at
any time Tenant shall be in monetary default or material non-monetary default
under this Lease, this Section 40.02 shall be null and void and of no further
force and effect and Tenant shall have no further right to reduce the amount of
security held by Landlord pursuant to the Article 40.
ARTICLE 41
MISCELLANEOUS
41.01. Irrespective of the place of execution or performance, this
Lease shall be governed by and construed in accordance with the laws of the
State of New Jersey.
41.02. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
41.03. Except as otherwise expressly provided in this Lease, each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed shall be deemed and construed as a separate and independent
covenant of Tenant, not dependent on any other provision of this Lease.
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41.04. All terms and words used in this Lease, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require.
41.05. Time shall be of the essence with respect to the exercise of
any option granted under this Lease.
41.06. Except as otherwise provided herein whenever payment of
interest is required by the terms hereof it shall be at the Interest Rate
41.07. If the Demised Premises or any additional space to be included
within the Demised Premises shall not be available for occupancy by Tenant on
the specific date herein before designated for the commencement of the term of
this Lease or for the inclusion of such space for any reason whatsoever, then
this Lease shall not be affected thereby but, in such case, said specific date
shall be deemed to be postponed until the date when the Demised Premises or such
additional space shall be available for occupancy by Tenant, and Tenant shall
not be entitled to possession of the Demised Premises or such additional space
until the same are available for occupancy by Tenant; provided, however, Tenant
shall have no claim against Landlord, and Landlord shall have no liability to
Tenant by reason of any such postponement of said specific date, and the parties
hereto further agree that any failure to have the Demised Premises or such
additional space available for occupancy by Tenant on said specific date or on
the Commencement Date shall in no wise affect the obligations of Tenant
hereunder nor shall the same be construed in any wise to extend the Term.
41.08. In the event that Tenant is in arrears in payment of Basic
Annual Rent or additional rent hereunder, Tenant waives Tenant's right, if any,
to designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
41.09. All Schedules and Exhibits referred to in this Lease are
hereby incorporated in this Lease by reference.
41.10. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this Lease, their assigns.
41.11. Tenant hereby acknowledges that in order to avoid delay, this
Lease has been prepared and submitted to Tenant for signature with the
understanding that it shall not be deemed an offer by Landlord or bind Landlord
unless and until it is executed and delivered by Landlord.
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41.12. The exterior walls of the Building, the portions of any window
xxxxx outside the windows and the windows are not part of the premises demised
by this Lease and Landlord reserves all rights to such parts of the Building.
41.13. INTENTIONALLY DELETED
41.14. Upon the expiration or sooner termination of this Lease or
upon the closure of Tenant's operations in the Demised Premises or upon the sale
or other disposition of all or any part of the Building or land thereunder by
Landlord, Tenant shall, at its sole cost and expense, comply with all applicable
provisions of all Legal Requirements relating to environmental laws and
regulations, including, without limitation, the New Jersey Industrial Site
Recovery Act (and all amendments and successors thereto) (including, without
limitation, obtaining a letter of non-applicability within three months after
the Expiration Date confirming that Tenant is not an industrial establishment)
with respect to the Demised Premises and any other portion of the Property
affected by Tenant's operations. Notwithstanding the foregoing, Tenant shall
not be liable for any such compliance relating to environmental matters, whereby
such compliance is required as a direct result of any act or omission relating
to the Demised Premises, which took place prior to the Commencement Date.
Tenant shall indemnify and hold harmless Landlord and any holder of a Superior
Instrument, and its and their respective partners, joint venturers, directors,
officers, agents, servants and employees from and against any loss, damage,
liability, cost, claim or expense (including reasonable attorneys' fees) arising
from or in connection with Tenant's failure to so comply with all such
provisions.
41.15. This Lease constitutes the entire agreement of the parties
with respect to the matters hereof, and may not be modified except by a written
instrument executed by Landlord and Tenant.
ARTICLE 42
INTENTIONALLY OMITTED
ARTICLE 43
ARBITRATION
43.01. Landlord may at any time request arbitration, and Tenant may
at any time when not in default in the payment of any Basic Annual Rent or
additional rent request arbitration, of any matter in dispute with respect to
which arbitration is expressly provided for in this Lease. The party requesting
arbitration shall do so by giving notice to that effect to the other party
specifying the nature of the dispute. Said dispute shall be determined in
Newark, New Jersey, by a single arbitrator, in accordance with the rules then
obtaining of the American Arbitration Association (or any organization which is
the successor thereto). The award in such arbitration may be enforced on the
application of either party by the order or judgment of a court of competent
jurisdiction. The fees and expenses of any arbitration shall be borne by the
parties
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equally, but each party shall bear the expense of its own attorneys and experts
and the additional expenses of presenting its own proof.
ARTICLE 44
OPTION TO RENEW
44.01. (a) Provided that (i) the PR Newswire Tenant (as defined
below) renews or extends the PR Newswire Lease (as defined below) beyond March
31, 2007 and (ii) both when it exercises the option to extend described below
and when the Extended Term (as defined below) commences (a) this Lease is in
full force and effect and (b) the party executing this Lease occupies at least
90% of the Demised Premises, Tenant shall have the option to extend the term of
this Lease for an additional term which is coterminous with the term for which
the PR Newswire Tenant renews or extends the PR Newswire Lease (the "Extended
Term"). If the PR Newswire Tenant renews or extends the PR Newswire Lease
beyond March 31, 2007, Landlord shall notify Tenant thereof (the "PR Extension
Notice"). If the PR Newswire Lease is terminated prior to the termination date
provided for in the PR Newswire Lease, Landlord shall notify Tenant thereof.
Such option to extend the term of this Lease may be exercised only by Tenant
giving written notice to Landlord on or before the date that is sixty (60) days
after Landlord gives the PR Extension Notice to Tenant. It is expressly agreed
that Tenant shall not have an option to extend the term of this Lease beyond the
expiration of the Extended Term. If this Lease shall be terminated before the
commencement of the Extended Term, Tenant's option to extend the term of this
Lease, or its exercise thereof, or the Extended Term or lease created by any
such exercise, shall be abrogated and rendered null and void. If Tenant fails
to timely give such notice, Tenant's option to extend this Lease shall be
terminated and be deemed waived by Tenant. The "PR Newswire Tenant" means PR
Newswire Association, Inc. and its successors and assigns under that certain
lease dated April 9, 1982, as amended, pursuant to which PR Newswire
Association, Inc. leases certain space on the 8th floor of Plaza III (the "PR
Newswire Lease").
(b) Upon Tenant's giving notice of its election to extend the
term of this Lease for the Extended Term, pursuant to paragraph (a) above, this
Lease shall be deemed automatically amended as of the date following the
Expiration Date as follows: (i) the Basic Annual Rent shall be the greater of
(x) the Basic Annual Rent payable under this Lease immediately prior to the
original Expiration Date or (y) the fair market rent for the Demised Premises
for the Extended Term as determined pursuant to Section 44.02; and (ii) the
Expiration Date of the Extended Term shall be the last day of the term for which
the PR Newswire Tenant renews or extends the PR Newswire Lease. Tenant and
Landlord shall promptly execute and deliver an appropriate modification of this
Lease to evidence said amendment.
44.02. (a) For purposes of this Article 44, in such instances that
it is provided that Tenant shall pay a "fair market rent" as Basic Annual Rent,
such fair market rent shall be proposed by Landlord giving notice therefor (a
"FMR Notice"), not later than the later of (i) January 1, 2007 and (ii) thirty
(30) days after Tenant exercises the option to extend the term of this Lease
pursuant to this Article 44.
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(b) Within thirty (30) days after Landlord gives a FMR
Notice, Tenant shall notify Landlord as to whether or not it agrees with
Landlord's proposed fair market rent, and if it does not so agree, Tenant shall
in such notice submit to Landlord its proposed fair market rent. If Tenant fails
to respond as aforesaid within said 30 day period, Tenant hereby agrees that it
shall be deemed conclusively to have agreed to the fair market rent proposed by
Landlord.
(c) If Landlord and Tenant do not agree upon the fair market
rent, the matter shall be submitted to arbitration in accordance with the
provisions of Article 43 hereof, subject, however, to the following
modifications
(i) the arbitrator selected shall have at least five years'
experience in the leasing or management of office space in the
northern New Jersey office market. The fees and expenses of the
arbitrator and all other expenses (not including the attorneys' fees,
witness fees and similar expenses of the parties which shall be borne
separately by each of the parties) of the arbitration shall be borne
equally by the parties hereto;
(ii) within two business days after the appointment of the
arbitrator, there shall be submitted to the arbitrator the FMR Notice
containing Landlord's proposed fair market rent and a copy of Tenant's
response thereto containing Tenant's proposed fair market rent;
(iii) within ten (10) business days thereafter, the arbitrator shall
select either the fair market rent proposed by Landlord or Tenant,
whichever the arbitrator determines is closest to his determination of
the fair market rent for the Demised Premises.
(iv) in rendering such decision, the arbitrator shall determine the
fair market rent that would be agreed upon by Landlord and a new
unrelated third party tenant, and in connection therewith shall assume
all of the following: (A) the Landlord and prospective tenant are
typically motivated; (B) the Landlord and prospective tenant are well
informed and well advised and each is acting in what it considers its
own best interest; (C) a reasonable time under then-existing market
conditions is allowed for exposure of the Demised Premises on the open
market; (D) the rent is unaffected by concessions, special financing
amounts and/or terms, or unusual services, fees, costs or credits in
connection with the leasing transaction; (E) the Demised Premises are
fit for immediate occupancy and use "as-is" and require no additional
work by Landlord and that no work has been carried out thereon by the
Tenant, its subtenant, or their predecessors in interest during the
term which has diminished the rental value of the Demised Premises;
(F) in the event the Demised Premises have been destroyed or damaged
by fire or other casualty, they have been fully restored; (G) that the
demised premises are to be let with vacant possession and subject to
the provisions of this Lease for a term equal to the Extensino Term;
(H) market rents then being charged for comparable space in other
similar office buildings in the same area; (I) the computation of the
number of rentable square feet contained in the Demised Premises shall
be based on the
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standard of measurement for such square footage then obtaining in the
Building but in no event less than the square footage specified in
Section 1.01(b); (J) the Base Tax Year and the Base Operating Year
shall be as stated herein and (K) a full brokerage commission shall be
payable by Landlord, on then market terms. In rendering such decision
and award, the arbitrator shall not modify the provisions of this
Lease.
(v) the decision and award of the arbitrator shall be in writing and
be final and conclusive on all parties and counterpart copies thereof
shall be delivered to each of said parties. Judgment may be had on
the decision and award of the arbitrator so rendered in any court of
competent jurisdiction.
(d) In the event that any payment of Basic Annual Rent is due
hereunder prior to the determination of the arbitrator Tenant shall pay as the
Basic Annual Rent it is obligated to pay under this Lease the amount set forth
in the FMR Notice. If the arbitrator determines that the Basic Annual Rent
payable pursuant to this Article 44 is less than that set forth in the FMR
Notice, then Tenant shall be entitled to a credit in the amount of its
overpayment for such period against subsequent payments of Basic Annual Rent or
additional rent due hereunder.
(e) Nothing contained in this Section 44.02 shall be deemed
in any way to alter or modify the provisions of Article 3 hereof.
44.03. If the PR Newswire Tenant does not renew the PR Newswire Lease
beyond March 31, 2007 and Landlord fails to notify Tenant thereof (the "PR Non-
Extension Notice") at least 180 days prior to the Expiration Date (unless Tenant
otherwise knew that the PR Newswire Tenant did not renew or extend the PR
Newswire Lease), then the Expiration Date shall be automatically extended for an
extension period commencing on the day after the originally scheduled Expiration
Date and ending on the date that is the earliest to occur of (i) the date that
is 180 days after Landlord gives the PR Non-Extension Notice to Tenant, (ii) the
date that is 180 days after Tenant first knew that the PR Newswire Tenant did
not renew or extend the PR Newswire Lease and (iii) the date that is 180 days
after the originally scheduled Expiration Date and such extension period shall
be upon all of the terms and conditions of this Lease existing prior to the
originally scheduled Expiration Date, except that Tenant shall have no right to
extend the term of this Lease beyond such extension period.
ARTICLE 45
RIGHT OF FIRST OFFER
45.01 Offer Space Option. (a) As used herein:
"Available" as used in this Section 45.01 means that the PR Newswire
Space is free of any present or future possessory right now existing in favor of
any third party (other than the possessory right of the PR Newswire Tenant
through March 31, 2007). Tenant's right of first
68
offer is subordinate to any right of offer, refusal right, extension right or
similar right or option in favor of any third party existing as of the date of
this Lease.
"Offer Space" as used in this Section 45.01 means all of the Demised
Premises and all of the PR Newswire Space. Landlord and Tenant confirm that the
Offer Space is conclusively deemed to contain 41,178 rentable square feet.
"PR Newswire Space" means all of the space on the eighth (8th) floor
of Plaza III substantially as shown hatched on the floor plan annexed as Exhibit
I. Landlord and Tenant confirm that the PR Newswire Space is conclusively
deemed to contain 29,326 rentable square feet.
(b) Provided (i) the PR Newswire Tenant shall not have
renewed or extended the PR Newswire Lease beyond Xxxxx 00, 0000, (xx) this Lease
shall not have been terminated and (iii) Tenant shall not be in default under
this Lease, then if the PR Newswire Space becomes, or Landlord reasonably
anticipates that within the next 12 months the PR Newswire Space will become
Available as of April 1, 2007, Landlord shall give to Tenant notice (an "Offer
Notice") thereof, specifying (a) the fixed annual rental ("Offer Rental") which
Landlord is then considering for the lease of the Offer Space, (b) the proposed
term of the lease for such Offer Space and (c) such other matters as Landlord
may deem appropriate for such Offer Notice. It is understood that if the PR
Newswire Space becomes, or Landlord reasonably anticipates that the PR Newswire
Space will become Available prior to April 1, 2007, the Offer Space Option
contained in this Section 45.01 shall not be applicable thereto and the Offer
Space Option contained in Section 45.02 shall be applicable thereto subject to
the terms and provisions set forth therein.
(c) Provided that on the date that Tenant exercises the Offer
Space Option under this Section 45.01 and on the Offer Space Inclusion Date (i)
this Lease shall not have been terminated and (ii) Tenant shall not be in
default under this Lease, Tenant shall have the option (the "Offer Space
-----------
Option"), exercisable by notice (an "Acceptance Notice") given to Landlord on or
------ -----------------
before the date that is 30 days after the giving of the Offer Notice (time being
of the essence) to lease all (but not less than all) of the Offer Space upon all
of the terms and conditions specified herein.
(d) If Tenant timely delivers the Acceptance Notice, then,
effective as of April 1, 2007 (the "Offer Space Inclusion Date"), Tenant shall
--------------------------
lease the Offer Space upon all of the terms and conditions set forth in this
Lease, except (i) Basic Annual Rent shall be the Offer Rental, (ii) Tenant's Tax
Share and Tenant's Expense Share shall be proportionately increased based on the
rentable square feet of the Offer Space, (iii) the term of Tenant's leasing of
the Offer Space shall commence on the Offer Space Inclusion Date and expire on
the date set forth in the Offer Notice, (iv) Landlord shall not be required to
perform Landlord's Work or any other work, pay any contribution or any other
amount, or render any services to make the Building or the Offer Space ready for
Tenant's use or occupancy, and Tenant shall accept the Offer Space in its "as
is" condition on the Offer Space Inclusion Date, (v) all references in this
Lease to the Demised Premises shall mean the Offer Space and (vi) as may be
otherwise set forth in the Offer Notice.
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(e) If Tenant fails to give an Acceptance Notice within the
period provided in paragraph (c) above, time of the essence, then (i) Landlord
may enter into one or more leases of the Offer Space with third parties on such
terms and conditions as Landlord shall determine, the Offer Space Option under
this Section 45.01 and the Offer Space Option under Section 45.02 shall be null
and void and of no further force and effect and Landlord shall have no further
obligation to offer the Offer Space to Tenant, and (ii) Tenant shall, upon
demand by Landlord, execute an instrument confirming Tenant's waiver of, and
extinguishing, the Offer Space Option under this Section 45.01 and the Offer
Space Option under Section 45.02, but the failure by Tenant to execute any such
instrument shall not affect the provisions of clause (i) above.
----------
(f) Promptly after the occurrence of the Offer Space
Inclusion Date, Landlord and Tenant shall confirm the occurrence thereof and
Tenant's leasing of the Offer Space by executing an instrument reasonably
satisfactory to Landlord and Tenant; provided, that failure by Landlord or
Tenant to execute such instrument shall not affect Tenant's leasing of the Offer
Space in accordance with this Article.
(g) If Landlord is unable to deliver possession of any
portion of the PR Newswire Space to Tenant for any reason on or before April 1,
2007, the Offer Space Inclusion Date with respect to any such portion shall be
the date on which Landlord is able to so deliver possession and Landlord shall
have no liability to Tenant therefor and this Lease shall not in any way be
impaired. This Section 45.01(g) constitutes "an express provision to the
contrary" within the meaning of Section 223(a) of the New York Real Property Law
and any other law of like import now or hereafter in effect.
(h) Anything in this Lease to the contrary notwithstanding,
this Article 45 shall be null and void and of no force or effect if Exodus
Communications is no longer the Tenant under this Lease.
45.02 Offer Space Option. (a) As used herein:
"Available" as used in this Section 45.02 means that the PR Newswire
Space is free of any present or future possessory right now existing in favor of
any third party. Tenant's right of first offer is subordinate to any right of
offer, refusal right, extension right or similar right or option in favor of any
third party existing as of the date of this Lease.
"Offer Period" means the period commencing on the Commencement Date to
and including March 30, 2007.
"Offer Space" as used in this Section 45.02 means the PR Newswire
Space.
(b) Provided (i) the PR Newswire Tenant shall not have
renewed or extended the PR Newswire Lease beyond Xxxxx 00, 0000, (xx) this Lease
shall not have been terminated and (iii) Tenant shall not be in default under
this Lease, if the Offer Space becomes, or Landlord reasonably anticipates that
within the next 12 months (but not later than the last day of the Offer Period),
such Offer Space will become Available, Landlord shall give to Tenant
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notice (an "Offer Notice") thereof, specifying (a) the fixed annual rental
("Offer Rental") which Landlord is then considering for the lease of the Offer
Space, (b) the date or estimated date that the Offer Space has or shall become
Available and (c) such other matters as Landlord may deem appropriate for such
Offer Notice.
(c) Provided that on the date that Tenant exercises the Offer
Space Option under this Section 45.02 and on the Offer Space Inclusion Date (i)
this Lease shall not have been terminated and (ii) Tenant shall not be in
default under this Lease, Tenant shall have the option (the "Offer Space
Option"), exercisable by notice (an "Acceptance Notice") given to Landlord on or
before the date that is 30 days after the giving of the Offer Notice (time being
of the essence) to include all (but not less than all) of the Offer Space in the
Premises.
(d) If Tenant timely delivers the Acceptance Notice, then, on
the date on which Landlord delivers vacant possession of the Offer Space to
Tenant, (the "Offer Space Inclusion Date"), the Offer Space shall become part of
the Premises upon all of the terms and conditions set forth in this Lease,
except (i) Basic Annual Rent with respect to the Offer Space shall be the Offer
Rental, (ii) Tenant's Tax Share and Tenant's Expense Share shall be
proportionately increased to reflect the additional rentable square feet of the
Offer Space, (iii) Landlord shall not be required to perform Landlord's Work or
any other work, pay any contribution or any other amount, or render any services
to make the Building or the Offer Space ready for Tenant's use or occupancy, and
Tenant shall accept the Offer Space in its "as is" condition on the Offer Space
Inclusion Date, (iv) all references in this Lease to the Demised Premises shall
include the Offer Space and (v) as may be otherwise set forth in the Offer
Notice.
(e) If Tenant fails to give an Acceptance Notice within the
period provided in paragraph (c) above, time of the essence, then (i) Landlord
may enter into one or more leases of the Offer Space with third parties on such
terms and conditions as Landlord shall determine, the Offer Space Option under
this Section 45.02 and the Offer Space Option under Section 45.01 shall be null
and void and of no further force and effect and Landlord shall have no further
obligation to offer the Offer Space to Tenant, and (ii) Tenant shall, upon
demand by Landlord, execute an instrument confirming Tenant's waiver of, and
extinguishing, the Offer Space Option under this Section 45.02 and the Offer
Space Option under Section 45.01, but the failure by Tenant to execute any such
instrument shall not affect the provisions of clause (i) above.
----------
(f) Promptly after the occurrence of the Offer Space
Inclusion Date, Landlord and Tenant shall confirm the occurrence thereof and the
inclusion of the Offer Space in the Premises by executing an instrument
reasonably satisfactory to Landlord and Tenant; provided, that failure by
Landlord or Tenant to execute such instrument shall not affect the inclusion of
the Offer Space in the Premises in accordance with this Article.
(g) If Landlord is unable to deliver possession of any
portion of the Offer Space to Tenant for any reason on or before the date on
which Landlord anticipates that the Offer Space shall be Available as set forth
on the Offer Notice, the Offer Space Inclusion Date with respect to any such
portion shall be the date on which Landlord is able to so deliver possession and
Landlord shall have no liability to Tenant therefor and this Lease shall not in
any way be
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impaired. This Section 45.01(g) constitutes "an express provision to the
contrary" within the meaning of Section 223(a) of the New York Real Property Law
and any other law of like import now or hereafter in effect.
(h) Anything in this Lease to the contrary notwithstanding,
this Article 45 shall be null and void and of no force or effect if Exodus
Communications is no longer the Tenant under this Lease.
ARTICLE 46
ROOF EQUIPMENT
46.01. Subject to Landlord's prior approval, not to be unreasonably
withheld or delayed, Tenant shall have the right, subject to and in accordance
with the provisions of this Article 46, to use a portion of the roof of Plaza
III as designated on Exhibit J attached hereto and made a part hereof consisting
of approximately 20' x 28' to install, maintain and operate, at its sole cost
and expense, a back-up generator and day tank (the "Roof Equipment"). Tenant
shall furnish detailed plans and specifications for the Roof Equipment (or any
modification thereof) to Landlord for its approval. Tenant's use of the rooftop
of Plaza III shall be a non-exclusive use and Landlord may permit the use of any
other portion of the roof to any other person for any use including without
limitation installation of communication equipment or other generators or tanks.
Tenant shall use its reasonable efforts to insure that its use of the rooftop
does not impair such other person's data transmission and reception via its
respective communication equipment. If Tenant's construction, installation,
maintenance, repair, operation or use of the Roof Equipment shall interfere with
the rights of Landlord (including, without limitation, Landlord's right to use
the remainder of the roof) or other tenants in the Building, Tenant shall
cooperate with Landlord or such other tenants in eliminating such interference;
provided, however, the cost of remedying such interference shall be borne by the
party which is suffering such interference, unless such party was using the
affected equipment prior to the use of the Roof Equipment by Tenant, in which
case the cost of remedying such interference shall be borne by Tenant. Tenant
shall secure and keep in full force and effect, from and after the time Tenant
begins construction and installation of the Roof Equipment, such supplementary
insurance with respect to the Roof Equipment as Landlord may reasonably require.
Tenant shall pay any additional or increased insurance premiums incurred by
Landlord with respect to the Roof Equipment.
46.02. In connection with the installation, maintenance and operation
of the Roof Equipment, Tenant, at Tenant's sole cost and expense, shall comply
with all Legal Requirements, including, without limitation, any requirement to
install screening surrounding such installations, and shall procure, maintain
and pay for all permits required therefor, and Landlord makes no warranties
whatsoever as to the permissibility of Roof Equipment under applicable Legal
Requirements or the suitability of the roof of Plaza III for the installation
thereof. If Landlord's structural engineer deems it advisable that there be
structural reinforcement of the roof in connection with the installation of the
Roof Equipment Landlord shall perform same at Tenants' cost and expense and
Tenant shall not perform any such installation prior to the completion of any
such structural reinforcement. The installation of the Roof Equipment shall be
subject to the
72
provisions of Article 6 applicable to alterations and installations. For the
purpose of installing, servicing or repairing the Roof Equipment, Tenant shall
have access to the rooftop of Plaza III at reasonable times upon reasonable
notice to Landlord and Landlord shall have the right to require, as a condition
to such access, that Tenant (or its employee, contractor or other
representative) at all times be accompanied by a representative of Landlord,
whom Landlord agrees to make available upon reasonable notice. Landlord agrees
to use reasonable efforts to cooperate with Tenant in order to grant Tenant
access to the rooftop in the event of an emergency. Tenant shall pay for all
electrical service required for Tenant's use of the Roof Equipment, to be
measured and charged in accordance with the provisions set forth in Article 4
hereof.
46.03. Tenant, at its sole cost and expense, shall promptly repair
any and all damage to the rooftop or to any other part of the Building caused by
the installation, maintenance, repair, operation or removal of the Roof
Equipment. Tenant shall be responsible for all costs and expenses for repairs
and maintenance of the roof which result from Tenant's use of the roof for the
construction, installation, maintenance, repair, operation and use of the Roof
Equipment. All installations made by Tenant on the rooftop or in any other part
of the Building pursuant to the provisions of this Article 46 shall be at the
sole risk of Tenant, and neither Landlord, nor any agent or employee of
Landlord, shall be responsible or liable for any injury or damage to, or arising
out of, the Roof Equipment. Tenant's indemnity under Section 38.01 shall apply
with respect to the installation, maintenance, operation, repair, presence or
removal of the Roof Equipment.
46.04. Upon the expiration of the Term, the Roof Equipment shall be
removed by Tenant at its sole cost and expense, and Tenant shall repair any
damage to and restore the rooftop or any other portions of the Building to their
condition existing immediately prior to Tenant's installation of the Roof
Equipment.
46.05. Tenant shall not be required to pay rent for the use of such
Roof Equipment or use of the rooftop or any shaft space in connection with the
use of rooftop for the purposes permitted herein and none of the same shall be
included in the calculation of Tenant's Tax Share or Tenant's Expense Share.
46.06. Notwithstanding anything to the contrary contained in this
Article 46, Landlord shall have the right, at Landlord's expense, on not less
than thirty (30) days' prior notice, to relocate the Roof Equipment to another
location on the roof of the Building, and Tenant shall cooperate in all
reasonable respects with Landlord in any such relocation; provided, that if such
relocation is done pursuant to any Legal Requirement, the cost thereof charged
at Landlord's actual cost shall be borne by Tenant.
46.07. The rights granted in this Article 46 are given in connection
with, and as part of the rights created under, this Lease and are not separately
transferable or assignable but shall inure to and benefit Tenant and its
permitted successors and assigns.
46.08. If the installation of the Roof Equipment or act or omission
relating thereto should revoke, negate or in an any manner impair or limit any
roof warranty or guaranty obtained by Landlord, then Tenant shall reimburse
Landlord for any loss or damage sustained or costs or
73
expenses incurred by Landlord as a result of such impairment or limitation,
provided Landlord shall use reasonable efforts to give Tenant reasonable notice
of any anticipated impairment and the opportunity to take any action necessary
to avoid or eliminate such impairment..
ARTICLE 47
FUEL TANK SPACE
47.01. (a) Landlord hereby leases to Tenant and Tenant hereby rents
from Landlord a portion of the first floor of Plaza III to be designated by
Landlord (not to exceed 100 square feet) (the "First Floor Space") for a term
(the "First Floor Term") commencing on the date of this Lease and expiring on
the Expiration Date (unless the Term shall sooner cease and terminate as herein
before provided) and otherwise upon the terms and conditions hereinafter set
forth.
(b) The basic annual rent for the First Floor Space shall be
at an annual rate equal to the product of [$10.00] multiplied by the number of
square feet contained in the First Floor Space, payable in equal monthly
installments appropriately prorated for any partial year and otherwise payable
in the same manner as the Basic Annual Rent with respect to the Demised
Premises.
(c) Tenant shall not be obligated to pay Tenant's share of
Existing Building Taxes, Common Area Taxes, Operating Expenses or Common Area
Operating Expenses with respect to the First Floor Space.
(d) Payment of basic annual rent with respect to the First
Floor Space shall commence as of the date of this Lease. If the date of this
Lease is not the first day of a month, then the basic annual rent with respect
to the First Floor Space shall be prorated on a per diem basis, and Tenant
agrees to pay the amount thereof for such partial month on the date of this
Lease.
(e) Tenant shall accept the First Floor Space on its "as is"
condition on the date of this Lease and Landlord shall have no obligation to
perform any work or make any contribution to ready the First Floor Space for
Tenant's use.
(f) Tenant shall not be entitled to any additional parking
spaces in connection with its leasing of the First Floor Space.
(g) Tenant shall pay, in accordance with the provisions of
Article 4 hereof, the amounts due for electrical current consumed by Tenant with
respect to the First Floor Space and shall pay to Landlord, as additional rent,
the costs of installing meters in the First Floor Space to measure such
consumption to the extent such meters have not already been installed.
(h) Tenant shall use the First Floor Space for the
installation, maintenance and operation of a fuel tank, and for no other
purpose.
74
(i) Except as otherwise specifically provided in this Article
47, all references in this Lease to the Demised Premises shall be deemed to
include the First Floor Space, and all of the terms, provisions and conditions
of this Lease shall apply to the First Floor Space.
(j) Tenant shall construct and maintain in compliance with
all Legal Requirements a tank room in the First Floor Space in accordance with
Article 6 and all other applicable provisions of this Lease.
(k) Landlord shall not be required to provide any services
with respect to the First Floor Space.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Lease as of the day and year first above written.
CAL HARBOR II & III URBAN RENEWAL ASSOCIATES L.P.
By: Cali Sub X Inc., a Delaware Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx 12/30/96
--------------------------------
Xxxxx X. Xxxxxx
Vice President
EXODUS COMMUNICATIONS, INC., Tenant
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:COO/CFO
75
SCHEDULE A-I
PLAZA II HARBORSIDE
FOURTH FLOOR FINANCIAL CENTER
A XXXXX XXXX XXXXXXX/US WEST PROJECT
XXXXXXX X. XXXXX
XXXX XXXXXXXXX
(000) 000-0000
[Diagram of Plaza II - Fourth Floor Plan]
A-I-1
SCHEDULE A-II
PLAZA III HARBORSIDE
EIGHTH FLOOR FINANCIAL CENTER
A XXXXX LANG WOOTTON/US WEST PROJECT
XXXXXXX X. XXXXX
XXXX XXXXXXXXX
(000) 000-0000
[Diagram of Plaza III - Eighth Floor Plan]
A-II-1
SCHEDULE B
DESCRIPTION OF LAND
All that certain tract or parcel of land and premises situate, lying and
being in the City of Jersey City, County of Xxxxxx and the State of New Jersey,
being more particularly described as follows:
TRACT A
-------
PARCEL I
--------
BEGINNING at the intersection of the northerly line of Xxxxxxxxxxx Xxxxxxxx
Drive with easterly line of Greens Street; running thence
(1) Along said easterly line of Xxxxxx Street, North 8 degrees 43 minutes 40
seconds East 202.03 feet to the center line of Fotmer Pearl Street; thence
(2) Along said center line, South 81 degrees 26 minutes 50 seconds East 294.72
feet; thence
(3) On a curve to the right 22.84 feet, said curve having a radius of 35.00
feet and a chord of South 37 degrees 50 minutes 14 seconds East 22.44 feet;
thence
(4) North 8 degrees 33 minutes 10 seconds East 78.75 feet; thence
(5) North 81 degrees 28 minutes 00 seconds West 136.05 feet; thence
(6) North 8 degrees 49 minutes 51 seconds East 200.00 feet; thence
(7) North 81 degrees 10 minutes 09 seconds West 25.00 feet; thence
(8) North 8 degrees 49 minutes 51 seconds East 393.84 feet; thence
(9) North 10 degrees 55 minutes 09 seconds East 200.00 feet; thence
(10) South 81 degrees 26 minutes 50 seconds East 1575.52 feet to the pierhead
line as approved by the Secretary of War of the United States 31 July 1941
and adopted by the former Board of Commerce and Navigation of the State of
New Jersey 6 April 1942; thence
(11) Along said pierhead line, South 11 degrees 51 minutes 32.2 seconds West,
1207.01 feet; thence
(12) North 81 degrees 26 minutes 50 seconds West 693.49 feet; thence
(13) North 8 degrees 33 minutes 10 seconds East 125.00 feet; thence
B-1
(14) North 81 degrees 26 minutes 50 seconds West 503.80 feet to and along the
northerly line of Xxxxxxxxxxx Xxxxxxxx Drive to the easterly line of Xxxxxx
Street; thence
(15) Along said easterly line of Xxxxxx Street, North 8 degrees 37 minutes 10
seconds East 56.00 feet to the end of northerly line of Xxxxxx Street;
thence
(16) Along said northerly line of Xxxxxx Xxxxxx, Xxxxx 00 degrees, 26 minutes 50
seconds West 70.00 feet to the westerly line of Xxxxxx Street; thence
(17) Along said westerly line of Xxxxxx Street, South 8 degrees 37 minutes 10
seconds West 55.99 feet to the northerly line of Xxxxxxxxxxx Xxxxxxxx
Drive; thence
(18) Along said line, on a curve to the right 401.02 feet to the point
beginning, said curve having a radius of 3960.00 feet and a chord of North
78 degrees 26 minutes 55 seconds West 400.84 feet.
Excepting from the above described premises all that certain plot, place of
parcel of land, with buildings and improvements thereon erected, situate, lying
and being in the City of Jersey City, County of Xxxxxx, State of New Jersey,
known and designated as New Lot A-13 in Block 11, as set forth on that certain
subdivision map entitled "Subdivision of Lot A-10 in Block 11" prepared by Xxxxx
Surveying & Mapping, dated January 1983, being Map No. 3033 recorded in the
Office of the Register of Deeds of Xxxxxx County on June 23, 1983.
TRACT A
-------
PARCEL II
---------
ALL that certain tract or parcel of land and premises, hereinafter more
particularly described, situate, lying and being in the City of Jersey City,
County of Xxxxxx, State of New Jersey:
BEGINNING at the intersection of the northerly line of Xxxxxxxxxxx Xxxxxxxx
Drive with easterly line of Washington Street; thence
(1) Along said easterly line of Washington Street, North 8 degrees 44 minutes
40 seconds East 90.75 feet; thence
(2) South 86 degrees 45 minutes 20 seconds East 346.47 feet; thence
(3) South 83 degrees 52 minutes 45 seconds East 56.87 feet to the westerly line
of Xxxxxx Street; thence
(4) Along said westerly line of Xxxxxx Street, South 8 degrees 43 minutes 40
seconds West 193.94 feet to the northerly line of Xxxxxxxxxxx Xxxxxxxx
Drive; thence
B-2
(5) Along said northerly line of Xxxxxxxxxxx Xxxxxxxx Drive on a curve to the
right 407.55 feet to the point of Beginning, said curve having a radius of
3960.00 feet and a chord of North 71 degrees 44 minutes 07 seconds West
407.36 feet.
TRACT A
-------
PARCEL III
----------
ALL that certain tract or parcel of land and premises, hereinafter more
particularly described, situate, lying and being in the City of Jersey City,
County of Xxxxxx and the State of New Jersey:
BEGINNING at the intersection of the northerly line of Xxxxxxxxxxx Xxxxxxxx
Drive with the westerly line of Xxxxxx Street; running thence
(1) Along said westerly line of Xxxxxx Street, North 8 degrees 37 minutes 10
seconds East 55.99 feet; thence
(2) South 81 degrees 26 minutes 50 seconds East 70.00 feet to the easterly line
of Xxxxxx Street; thence
(3) Along said easterly line of Xxxxxx Street; South 8 degrees 37 minutes 10
seconds West 56.00 feet to the northerly line of Xxxxxxxxxxx Xxxxxxxx
Drive; thence
(4) Along said northerly line of Xxxxxxxxxxx Xxxxxxxx Drive, North 81 degrees
26 minutes 50 seconds West 63.26 feet; thence
(5) Still along the northerly line of Xxxxxxxxxxx Xxxxxxxx Drive, along a curve
to the right 6.74 feet to the point of beginning, said curve having a
radius of 3960 feet, and a chord of North 01 degrees 23 minutes 54 seconds
West 6.74 feet to the place of BEGINNING.
TRACT A
-------
PARCEL IV (DRIVEWAY EASEMENT)
---------
A driveway easement over all that certain tract or parcel of land and
premises, hereinafter more particularly described, situate, lying and being in
the City of Jersey City, County of Xxxxxx and the State of New Jersey:
BEGINNING in the easterly line of Washington Street, distant 90.76 feet
northerly from the intersection of said easterly line of Washington Street with
the northerly line of Xxxxxxxxxxx Xxxxxxxx Drive; running thence
(1) Along said easterly line of Washington Street, North 8 degrees 44 minutes
40 seconds East 60.28 feet; thence
(2) South 86 degrees 45 minutes 20 seconds East 342.20 feet; thence
B-3
(3) South 83 degrees 52 minutes 45 seconds East 167.15 feet; thence
(4) South 81 degrees 28 minutes 00 seconds East 264.86 feet; thence
(5) South 8 degrees 33 minutes 10 seconds West 78.75 feet; thence
(6) Along a curve to the left 38.08 feet, said curve having a radius of 35.00
feet and a chord of North 50 degrees 17 minutes 52 seconds West 34.22 feet;
thence
(7) North 81 degrees 28 minutes 00 seconds West 232.58 feet; thence
(8) North 83 degrees 52 minutes 45 seconds West 164.38 feet; thence
(9) North 86 degrees 45 minutes 20 seconds West 346.47 feet to the point of
Beginning.
END OF TRACT A
--------------
TRACT B
-------
BEGINNING at a point distant 180.61 feet South of the South line of First
Street, and 286.02 feet East of the East line of Xxxxxx Street; running thence
(1) North 8 degrees 33 minutes 10 seconds East, a distance of 47.15 feet to a
point; thence
(2) South 81 degrees 26 minutes 50 seconds East, a distance of 387.00 feet to a
point; thence
(3) South 8 degrees 33 minutes 10 seconds West, a distance of 47.15 feet to a
point; thence
(4) North 81 degrees 26 minutes 50 seconds West, a distance of 387.00 feet to
the point or place of BEGINNING
NOTE FOR INFORMATION: Being known as Lot C-30 in Block 15 on the City of Jersey
City Tax Map.
B-4
TRACT C
-------
ALL those three (3) (Parcels I, II and III) certain pieces or parcels of
land, situate in Jersey City, County of Xxxxxx and State of New Jersey,
separately bounded and described in accordance with a Plat of Survey prepared by
Hermann X.X. Xxxxx, New Jersey Land Surveyor No. 16982 of Xxxxx Surveying and
Mapping, dated October, 1981 and April, 1983, and revised to December 22, 1983
as follows:
PARCEL I
--------
BEGINNING at a point in the southerly line of First Street extended East,
distant 452.10 feet easterly from the intersection of said southerly line of
First Street, with the easterly line of Washington Street; running thence
(1) Along said southerly line of First Street extended East, South 82 degrees
59 minutes 30 seconds East, 64.46 feet; thence
(2) South 21 degrees 41 minutes 43 seconds East, 206.21 feet to the westerly
line of lands known as Harborside Terminal; thence
(3) Along said westerly line of Harborside Terminal, South 10 degrees 31
minutes 36 seconds West 200.00 feet; thence
(4) Still along said line South 8 degrees 26 minutes 18 seconds West 393.83
feet; thence
(5) Still along said line, South 81 degrees 33 minutes 42 seconds East, 25.00
feet; thence
(6) Still along said line, South 8 degrees 25 minutes 18 seconds West, 200.00
feet; thence
(7) South 81 degrees 51 minutes 33 seconds East, 136.04 feet; thence
(8) South 8 degrees 09 minutes 37 seconds West, 78.78 feet; thence
(9) On a curve to the left 22.87 feet, said curve having a radius of 35.00
feet, and a chord of North 38 degrees 11 minutes 55 seconds West 22.47
feet; thence
(10) North 81 degrees 59 minutes 23 seconds West, 322.19 feet; thence
(11) North 84 degrees 16 minutes 18 seconds West, 17.92 feet; thence
(12) On a curve to the right, 54.89 feet, said curve having a radius of 193.00
feet, and a chord of North 00 degrees 15 minutes 43 seconds East, 54.71
feet; thence
(13) North 8 degrees 24 minutes 35 seconds East, 237.97 feet; thence
(14) On a curve to the right, 120.67 feet, said curve having a radius of 513.00
feet, and a chord of North 15 degrees 08 minutes 54 seconds East 120.39
feet; thence
B-5
(15) North 21 degrees 53 minutes 13 seconds East, 109.73 feet; thence
(16) On a curve to the left, 123.96 feet, said curve having a radius of 527.00
feet, and a chord of North 15 degrees 08 minutes 54 seconds East, 123.68
feet; thence
(17) North 8 degrees 24 minutes 35 seconds East, 261.71 feet; thence
(18) On a curve to the left, 133.23 feet, said curve having a radius of 762.00
feet, and a chord of North 3 degrees 24 minutes 03 seconds East, 133.06 to
the point of BEGINNING.
TRACT C
-------
PARCEL II
---------
BEGINNING at a point in the southerly line of First Street distant 252.16
feet easterly from the intersection of said southerly line of First Street, with
the easterly line of Washington Street; running thence
(1) Along said southerly line of First Street and its extension East, South 82
degrees 59 minutes 30 seconds East, 175.66 feet; thence
(2) On a curve to the right, 132.67 feet, said curve having a radius of 738.00
feet and a chord of South 3 degrees 15 minutes 35 seconds West, 132.49
feet; thence
(3) South 8 degrees 24 minutes 35 seconds West, 119.04 feet; thence
(4) North 81 degrees 53 minutes 42 seconds West, 37.33 feet; thence
(5) North 8 degrees 21 minutes 30 seconds East, 103.98 feet; thence
(6) North 37 degrees 59 minutes 28 seconds West, 207.25 feet to the point of
the Beginning.
TRACT C
-------
PARCEL III
----------
BEGINNING at a point in the easterly line of Washington Street, distant
90.76 feet northerly from the intersection of said easterly line of Washington
Street, with the northerly line of Xxxxxxxxxxx Xxxxxxxx Drive; running thence
(1) Along said easterly line of Washington Street, North 8 degrees 21 minutes
18 seconds East, 60.28 feet; thence
(2) South 87 degrees 08 minutes 53 seconds East, 342.20 feet; thence
(3) South 84 degrees 16 minutes 18 seconds East, 44.05 feet; thence
(4) South 8 degrees 24 minutes 35 seconds West, 4.43 feet; thence
B-6
(5) On a curve to the left, 55.92 feet said curve having a radius of 217.00
feet and a chord of South 01 degrees 01 minutes 37 seconds West 55.77 feet;
thence
(6) North 84 degrees 16 minutes 18 seconds West, 46.91 feet; thence
(7) North 87 degrees 08 minutes 53 seconds West 346.47 feet to the point of
Beginning.
TRACT C
-------
PARCEL IV
---------
BEING a railroad spur approximately 24 feet in width running through Block
15 Lots A and C9 on the tax map of the City of Jersey City and more particularly
described as follows:
BEGINNING at a point in the southerly line of First Street extended East
distant 427.82 feet easterly from the intersection of said southerly line of
First Street with the easterly line of Washington Street; running thence
(1) Along said southerly line of First Street extended East South 82 degrees 59
minutes 30 seconds East 24.28 feet; thence
(2) On a curve to the right 133.23 feet, said curve having a radius of 762.00
feet and a chord of South 3 degrees 24 minutes 03 seconds West 133.06 feet;
thence
(3) South 8 degrees 24 minutes 35 seconds West 261.71 feet; thence
(4) On a curve to the right 123.96 feet said curve having a radius of 527.00
feet and a chord of South 15 degrees 08 minutes 54 seconds West 123.68
feet; thence
(5) South 21 degrees 53 minutes 13 seconds West 109.73 feet; thence
(6) On a curve to the left 120.67 feet, said curve having a radius of 513.00
feet and a chord of South 15 degrees 08 minutes 54 seconds West 120.39
feet; thence
(7) South 8 degrees 24 minutes 35 seconds West 237.97 feet; thence
(8) On a curve to the left 54.89 feet, said curve having a radius of 193.00
feet and a chord of South 00 degrees 15 minutes 43 seconds West 54.71 feet;
thence
(9) North 84 degrees 16 minutes 18 seconds West 24.62 feet; thence
(10) On a curve to the right 55.92 feet, said curve having a radius of 217.00
feet and a chord of North 1 degree 1 minute 37 seconds East 55.77 feet;
thence
(11) North 8 degrees 24 minutes 35 seconds East 237.97 feet; thence
(12) On a curve to the right 126.31 feet, said curve having a radius of 537.00
feet and a chord of North 15 degrees 08 minutes 54 seconds East 126.02
feet; thence
B-7
(13) North 21 degrees 53 minutes 13 seconds East 109.73 feet; thence
(14) On a curve to the left 118.32 feet said curve having a radius of 503.00
feet and a chord of North 15 degrees 08 minutes 54 seconds East 118.04
feet; thence
(15) North 8 degrees 24 minutes 35 seconds East 261.71 feet; thence
(16) On a curve to the left 132.67 feet said curve having a radius of 738.00
feet and a chord of North 3 degrees 15 minutes 35 seconds East 132.49 feet
to the point of BEGINNING.
TRACT D
-------
ALL that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the City of Jersey
City, County of Xxxxxx and the State of New Jersey, known and designated as New
Lot A-13 in Block 11, as set forth on that certain subdivision map entitled
"subdivision of Lot A-10 in Block 11" prepared by Xxxxx Surveying & Mapping,
dated January 1983, being Map no. 3033 recorded in the Office of the Register of
Deeds of Xxxxxx County on June 23, 1983.
B-8
SCHEDULE C
LANDLORD'S WORK
1. Tap xxxx bar, provide #4 - 800 amps service and disconnect switch to 480
volts, meter pan and riser to a location in the 8th floor acceptable to
both Landlord and Tenant.
2. Landlord will provide perimeter baseboard heat along the eastern side of
the window line within the 8th Floor Space in the office area of such space
only.
3. The 8th Floor Space will be demised as per Schedule A-II.
4. Landlord will remove the access hatch located on the roof and replace it
with a poured concrete slab which is waterproofed, by December 24, 1996.
5. Landlord shall put up building standard demising walls along the western
side of the Eighth Floor Space, as to divide the Eighth Floor Space from PR
Newswire's space, as shown on Exhibit A-II, by December 18, 1996.
C-1
SCHEDULE D
ARCADE AREA AND SECOND FLOOR SPACE
[Diagrams of Arcade Area and Second Floor Space]
D-1
SCHEDULE E
CLEANING AND JANITORIAL SERVICES
--------------------------------
A. Nightly Personnel:
-----------------
1. All stone, ceramic, tile, marble, terrazzo and other unwaxed flooring
to be swept nightly using approved dust-down preparations; wash
flooring weekly, scrub when necessary.
All unwaxed flooring used as corridors adjacent to the core shall be
cleaned and wet mopped weekly.
2. All linoleum, vinyl, rubber, asphalt, tile and other similar types of
flooring (that may be waxed) to be swept nightly using approved dust-
down preparation. Waxing, if any, shall be done at Tenant's expense.
Mop up and wash floors for spills, smears and foot tracks throughout,
including the Demised Premises, as needed and wash floor in general as
required.
3. All carpeting and rugs to be vacuumed nightly.
4. Hand dust with treated cloth and wipe clean all furniture, fixtures
and custom wooden window enclosures nightly.
5. Empty and clean all waste receptacles nightly and remove from the
Demised Premises wastepaper to designated areas.
6. Empty and clean all ash trays and screen all sand urns nightly.
7. Dust interior of all waste disposal cans and baskets nightly; damp-
dust as necessary.
8. Wash clean all water fountains and coolers nightly.
9. Dust all floor and other ventilating louvres within reach; damp wipe
as necessary.
10. Dust all telephones as necessary.
11. Keep locker and slop sink rooms in a neat and orderly condition at all
times.
12. Wipe clean and polish all brass, if necessary, and other bright work
nightly.
13. Sweep all private staircases nightly.
14. Metal doors of all elevator cars to be properly maintained.
X-0
00. Remove all gum and foreign matter on sight.
16. Clean all glass furniture tops as needed.
17. Collect and remove wastepaper, cardboard boxes and waster material.
18. Dust and wash closet and coat room shelving, coat racks and flooring.
B. Periodic Cleaning:
-----------------
1. Vacuum all furniture fabric and drapes not less than once a month.
2. Wash and remove all finger marks, ink stains, smudges, scuff marks and
other marks from metal partitions, xxxxx, and all vertical surfaces
(doors, walls, window xxxxx) including elevator doors, as necessary.
Clean and sweep all vacant areas as necessary.
3. Dust and clean electric fixtures, all baseboards and other fixtures or
fittings as necessary, but not less than once each month.
C. High Dusting. (To be performed once every three (3) months, unless
------------
otherwise specified), and to include, without limitation:
1. Vacuum and dust all pictures, frames, charts, graphs and similar wall
hangings not reached in nightly cleaning. Damp dust as required.
2. Vacuum and dust all vertical surfaces such as walls, partitions,
doors, bucks, ventilating louvres, grilles, high moldings and other
surfaces not reached in nightly cleaning.
3. Dust all overhead pipes, sprinklers, ventilating and air conditioning
louvres, ducts, high moldings and other high areas not reached in
nightly cleaning.
4. Dust all venetian blinds. Dust all window frames.
5. Dust exterior or lighting fixtures.
6. Wash all furniture glass as needed.
7. Vacuum and dust ceiling tiles around ventilators and clean air
conditioning diffusers as required.
E-2
SCHEDULE F
FORM OF ESTOPPEL CERTIFICATE
The undersigned ______________ ("Tenant"), in consideration of One Dollar
($1.00) and other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, hereby certifies to __________________ ("Landlord"),
[the holder of any mortgage covering the property] (the "Mortgagee") and [the
vendee under any contract of sale with respect to the Property] (the
"Purchaser") as follows:
1. Tenant executed and exchanged with Landlord a certain lease (the
"Lease"), dated ______________, 1996, covering the fourth and eighth floor shown
hatched on the plan annexed hereto as Schedule A (the "Demised Premises") in the
building known as Plazas II and III in the office complex known as the
Harborside Financial Center located in Jersey City, New Jersey (the "Property"),
for a term to commence (or which commenced) on ____________, 1996, and to expire
on _______________.
2. The Lease is in full force and effect and has not been modified,
changed, altered or amended in any respect.
3. Tenant has accepted and is now in possession of the Demised Premises
and is paying the full rental under the Lease.
4. The Basic Annual Rent payable under this Lease is $___________. The
Basic Annual Rent and all additional rent and other charges required to be paid
under the Lease have been paid for the period up to and including
________________.
5. No rent under the Lease has been paid for more than thirty (30) days in
advance of its due date.
6. All work required under the Lease to be performed by Landlord has been
completed to the full satisfaction of Tenant.
7. There are no defaults existing under the Lease on the part of either
Landlord or Tenant.
8. There is no existing basis for Tenant to cancel or terminate the lease.
9. As of the date hereof, there exists no valid defense, offsets, credits,
deductions in rent or claims against the enforcement of any of the agreements,
terms, covenants or conditions of the Lease.
10. Tenant affirms that any disputes with Landlord giving rise to a claim
against Landlord is a claim under this Lease only and is subordinate to the
rights of the holder of the first institutional permanent mortgage of the fee or
leasehold of the building and shall be subject to all
F-1
the terms, conditions and provisions thereof. Any such claims are not offsets to
or defense against enforcement of this Lease.
11. Tenant affirms that any dispute with Landlord giving rise to a claim
against Landlord is a claim under this Lease only and is subordinate to the
rights of the Purchaser pursuant to any contract of sale. Any such claims are
not offsets to or defense against enforcement of this Lease.
12. Tenant affirms that any claims pertaining to matters in existence at
the time Tenant took possession and which are known to or which were then
readily ascertainable by Tenant shall be enforced solely by money judgment
and/or specific performance against the Landlord named in the Lease and may not
be enforced as an offset to or defense against enforcement of this Lease.
13. There are no actions, whether voluntary or otherwise, pending against
the Tenant under the bankruptcy laws of the United State or any state thereof.
14. There has been no material adverse change in Tenant's financial
condition between the date hereof and the date of the execution and delivery of
the Lease.
15. Tenant acknowledges that Landlord has informed Tenant that an
assignment of Landlord's interest in the Lease has been or will be made to the
Mortgagee and that no modification, revision, or cancellation of the Lease or
amendments thereto shall be effective unless a written consent thereto of the
Mortgagee is first obtained, and that until further notice payments under the
Lease may continue as heretofore.
16. Tenant acknowledges that Landlord has informed Tenant that Landlord
has entered into a contract to sell the Property to Purchaser and that no
modification, revision or cancellation of the Lease or amendments thereto shall
be effective unless a written consent thereto of the Purchaser has been
obtained.
17. This certification is made to induce Purchaser to consummate a
purchase of the Property and to induce Mortgagee to make and maintain a mortgage
loan secured by the Property, knowing that said Purchaser and Mortgagee rely
upon the truth of this certification in making and/or maintaining such purchase
of mortgage, as applicable.
18. Except as modified herein, all other provisions of the Lease are
hereby ratified and confirmed.
Date:
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
TENANT
F-2
SCHEDULE G
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, elevators and
escalators of the Building are limited to ingress to and egress from the
tenants' premises for the tenants and their employees, licensees and invitees,
and no tenant shall use, or permit the use of, the entrances, corridors,
escalators or elevators for any other purpose. No tenant shall invite to the
tenant's premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators, Common Areas and other facilities
of the Property by other tenants. Fire exits and stairways are for emergency
use only, and they shall not be used for any other purposes by the tenants,
their employees, licensees or invitees. No tenant shall encumber or obstruct,
or permit the encumbrance or obstruction of any of the sidewalks, plazas,
entrances, corridors, escalators, elevators, Common Areas, fire exits or
stairways of the Property. Landlord reserves the right to control and operate
the Common Areas in such manner as it deems best for the benefit of the tenants
generally.
2. The cost of repairing any damage to the Common Areas or to any
facilities used in common with other tenants, caused by a tenant or the
employees, licensees or invitees of the tenant, shall be paid by such tenant.
3. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchman in charge or not having a
pass issued by the Landlord or not properly identified, and may require all
persons admitted to or leaving the Building outside of ordinary business hours
to register. Tenant's employees, agents and visitors shall be permitted to
enter and leave the Building whenever appropriate arrangements have been
previously made between Landlord and Tenant with respect thereto. Each tenant
shall be responsible for all persons for whom he requests such permission and
shall be liable to the Landlord for all acts of such persons. Any person whose
presence in the Building at any time shall, in the judgment of Landlord, be
prejudicial to the safety, character, reputation and interests of the Building
or its tenants may be denied access to the Building or may be ejected therefrom.
In case of invasion, riot, public excitement or other commotion Landlord may
prevent all access to the Building during the continuance of the same, by
closing the doors or otherwise, for the safety of the tenants and protection of
property in the Building. Landlord may require any person leaving the Building
with any package or other object to exhibit a pass from the tenant from whose
premises the package or object is being removed, but the establishment and
enforcement of such requirements shall not impose any responsibility on Landlord
for the protection of any tenant against the removal of property from the
premises of the tenant. Landlord shall, in no way, be liable to any tenant for
damages or loss arising from the admission, exclusion or ejection of any person
to or from the tenant's premises or the Building under the provisions of this
rule.
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4. Except as permitted in Section 21.03 of the Lease, no tenant shall
obtain or accept or use in its premises ice, drinking water, food, beverage,
barbering, boot blacking, floor polishing, lighting maintenance, cleaning or
other similar services from any persons not authorized by Landlord in writing to
furnish such services, provided always that charges for such services by persons
authorized by Landlord are not excessive. Such services shall be furnished only
at such hours, in such places within the tenant's premises and under such
regulations as may be fixed by Landlord.
5. No awnings or other projections over or around the windows shall be
installed by any tenant and only such window blinds as are supplied or permitted
by Landlord shall be used in a tenant's premises.
6. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise or mail any hand trucks, except those equipped with
rubber tires and side guards. All deliveries to tenants, except mail, shall be
made to such place designated by Landlord and shall be distributed to tenants
only during the hours from 8:00 A.M. to 12:00 noon and 2:00 P.M. to 4:00 P.M.,
Monday through Friday.
7. All entrance doors in each tenant's premises shall be left locked when
the tenant's premises are not in use. Entrance doors shall not be left open at
any time. All windows in each tenant's premises shall be kept closed at all
times and all blinds or drapes therein above the ground floor shall be lowered
or closed when and as reasonably required because of the position of the sun,
during the operation of the Building air conditioning system to cool or
ventilate the tenant's premises.
8. No noise, including the playing of any musical instruments, radio or
television, which, in the judgment of Landlord, might disturb other tenants in
the Complex shall be made or permitted by any tenant and no cooking shall be
done in any tenant's premises except as expressly approved by Landlord. Nothing
shall be done or permitted in any tenant's premises, and nothing shall be
brought into or kept in any tenant's premises, which would impair or interfere
with any of the Building services or the proper and economic heating, cleaning
or other servicing of the Building or the premises, or the use or enjoyment by
any other tenant of any other premises, nor shall there be installed by any
tenant any ventilating air conditioning, electrical or other equipment of any
kind which, in the judgment of the Landlord, might cause any such impairment or
interference. No dangerous, inflammable, combustible or explosive object or
material shall be brought into the Building by any tenant or with the permission
of any tenant.
9. No tenant shall permit any cooking nor food odors emanating from the
tenant's premises to seep into other portions of the Building.
10. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purpose for which they were designed or constructed and
G-2
no sweepings, rubbish, rags, acids or other foreign substances shall be
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by the tenant who, or whose servants, employees, agents, visitors or
licensees, shall have caused the same.
11. No signs, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside or inside
of the premises or the Building without the prior written consent of Landlord.
In the event of the violation of the foregoing by any tenant, Landlord may
remove the same without any liability, and may charge the expense incurred by
such removal to the tenant or tenants violating this rule. Interior signs and
lettering on doors and elevators shall be inscribed, painted, or affixed for
each tenant by Landlord at the expense of such tenant, and shall be of a size,
color and style acceptable to Landlord. Landlord shall have the right to
prohibit any advertising by any tenant which impairs the reputation of the
Building or its desirability as a building for offices, and upon written notice
from Landlord such tenant shall refrain from or discontinue such advertising.
12. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows in any tenant's premises and no lock on any door therein
shall be changed or altered in any respect. Duplicate keys for a tenant's
premises and toilet rooms shall be procured only from Landlord, which may make a
reasonable charge therefor. Upon the termination of a tenant's lease, all keys
to the tenant's premises and toilet rooms shall be delivered to Landlord.
13. Except as provided in Article 6 of the Lease, no tenant shall xxxx,
paint, drill into, or in way deface any part of the Building or the premises
demised to such tenant. No boring, cutting or stringing of wires shall be
permitted, except with the prior written consent of Landlord, and as Landlord
may direct. No tenant shall install any resilient tile or similar floor
covering in the premises demised to such tenant, except in a manner approved by
Landlord.
14. No tenant or occupant shall engage or pay any employees in the
Building, except those actually working for such tenant or occupant in the
Building. No tenant shall advertise for laborers giving an address at the
Building.
15. No premises shall be used, or permitted to be used, at any time, as a
store for the sale or display of goods or merchandise of any kind, or as a
restaurant, shop, booth, bootblack or other stand, or for the conduct of any
business or occupation which involves direct patronage of the general public in
the premises demised to such tenant, or for manufacturing or for other similar
purposes.
16. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of the regular duties, unless under special instructions
from the office of the Landlord.
17. Each tenant shall, at its expense, provide artificial light in the
premises demised to such tenant for Landlord's agents, contractors and employees
while performing janitorial or other cleaning services and making repairs or
alterations in said premises.
G-3
18. No tenant shall permit its employees to loiter around the hallways,
stairways, elevators, front, roof or any other party of the Building used in
common by the occupants thereof.
19. Each tenant, at its sole cost and expense, shall cause its premises to
be exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
20. Any cuspidors or similar containers or receptacles used in any
tenant's premises shall be cared for and cleaned by and at the expense of the
tenant.
21. Tenants shall use only the service elevator for deliveries and only at
hours prescribed by Landlord. Bulky materials, as determined by Landlord, may
not be delivered during usual business hours but only thereafter. Tenants shall
pay for use of the service elevator at rates prescribed by Landlord.
22. The toilets, wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sanitary napkins, sweepings, rubbish, rags, acids or other substances shall be
deposited therein, and the expense of any breakage, stopping, or damage
resulting from the violation of this rule shall be borne by the tenant who, or
whose officers, agents, employees, contractors or invitees, shall have caused
it.
23. No tenant shall sweep or throw or permit to be swept or thrown from
its premises any dirt or materials or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the
Building. If Landlord has specifically agreed to remove a tenant's normal
office waste, same shall be placed in sealed plastic bags and delivered by
tenant to a single location designated by Landlord on tenant's floor.
24. No animals other live creatures may be kept in or about the Building.
25. Smoking or carrying lighted cigars or cigarettes in the elevators of
the Complex is prohibited.
26. All equipment using gas in any form, including without limitation
boilers, heaters, kilns, and cooking ovens, is required to have safety equipment
which will close off gas flow if the constant pilot or main flame is
extinguished. Gas leak detectors and alarms are to be used in all rooms and
areas where gas exists in any form. All areas must be vented and air
circulation guaranteed. All such equipment shall be installed only after
Landlord's written approval shall have been granted for same.
27. The speed limit within The Harborside Financial Center is 5 MPH.
Reckless, careless, or dangerous driving is forbidden. These restrictions will
be enforced by Property security and violators may have their right to drive
within The Harborside Financial Center revoked. Violators should immediately be
reported to the Building manager.
G-4
SCHEDULE H
IRREVOCABLE DOCUMENTARY CREDIT NUMBER _____
APPLICANT
______________________________
______________________________
______________________________
______________________________
______________________________
BENEFICIARY AMOUNT
Institutional Realty Management LLC ______________________________
Plaza II ______________________________
______________________________
Harborside Financial Center EXPIRATION
Xxxxxx Xxxx, Xxx Xxxxxx 00000 ______________________________
Dear Sir(s),
We hereby establish in your favor our Irrevocable Standby Letter of Credit
Number _____ which is available for payment of your drafts at sight, drawn on
the [Name of Bank] and bearing the clause "DRAWN UNDER [NAME OF BANK] CREDIT
NUMBER ___."
it is a condition of this Letter of Credit that it shall be deemed to be
automatically extended for a period of one year from the present or any future
expiration date unless we shall notify you by written notice mailed at least 30
days prior to such expiration date that we elect not to renew for such
additional period. In the event we elect not to renew for such additional
period, the amount of this Credit is available for payment of your draft credit
at sight, drawn on the [Name of Bank], Credit Number
We hereby engage with you that your drawings in conformity with the terms of
this Letter of Credit will be duly honored on presentation.
This Letter of Credit shall be transferable by the Beneficiary without
additional charge.
** This documentary credit is subject to the "Uniform Customs and Practice for
Documentary Credits" (1983 revision) International Chamber of Commerce
(Publication No. 400).
[NAME OF BANK]
______________________________ ______________________________
For Cashier For Cashier
H-1
SCHEDULE J
ROOF PLAN
[Diagram of Roof Plan]
J-1
AMENDMENT OF LEASE
------------------
Amendment of Lease (this "Amendment"), dated as of April 29, 1997 between
---------
CAL-HARBOR II and III URBAN RENEWAL ASSOCIATES L.P., a New Jersey limited
partnership whose address is c/o Institutional Realty Management, LLC at Plaza
II, Harborside Financial Center, Xxxxxx Xxxx, Xxx Xxxxxx 00000 ("Landlord") and
--------
EXODUS COMMUNICATIONS, INC., a California corporation whose address is at 2350
Mission College Blvd., Xxxxx 000, Xxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000.
WITNESSETH:
----------
WHEREAS, pursuant to that certain Agreement of Lease, dated December 30,
1996, between Landlord and Tenant (the "Lease"), Tenant is leasing from Landlord
-----
2,900 rentable square feet on the fourth floor of Plaza II (the "Fourth Floor
------------
Space") in the office complex (the "Complex") known as "Harborside Financial
----- -------
Center" located in Jersey City, New Jersey and 8,661 rentable square feet on the
eighth floor of Plaza III in the Complex (the "Eighth Floor Space"; the Fourth
------------------
Floor Space and the Eighth Floor Space are collectively the "Original Space");
--------------
and
WHEREAS, Landlord and Tenant desire to amend the Lease to provide, among
other things, that Landlord lease to Tenant and Tenant hire from Landlord
certain space on the seventh (7th) floor of Plaza III in the Complex and that
Tenant surrender to Landlord the Fourth Floor Space, all upon the terms and
conditions set forth herein.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Defined Terms. All capitalized terms used herein but not defined shall
-------------
have the meanings ascribed to them in the Lease.
2. Lease of New Space. (a) Landlord hereby leases to Tenant and Tenant
------------------
hereby hires from Landlord, upon and subject to the terms and conditions of this
Amendment, the portion of the seventh floor of Plaza III substantially as shown
hatched on the floor plan attached hereto as Schedule A (the "New Space"), for a
---------- ---------
term (the "New Space Term") commencing on the date hereof (the "New Space
-------------- ---------
Commencement Date") and ending, unless sooner terminated as provided in the
-----------------
Lease, on March 31, 2007, as the same may be extended by reason of the exercise
of the renewal option contained in Section 6 below. Landlord and Tenant confirm
---------
that the New Space consists of 19,811 rentable square feet. Effective as of the
New Space Commencement Date, the term "Demised Premises" shall mean the Original
----------------
Floor Space and the New Space collectively. Effective as of the New Space
Commencement Date, the rentable area of the Demised Premises set forth in
Section 1.01(b) of the Lease shall be deemed to refer to the Original Space
---------------
only.
(b) Landlord, at its expense, shall perform in the New Space the work
described in Schedule B attached hereto ("Landlords Work"). All other
---------- --------------
installations, materials
and work which may be undertaken by Tenant to prepare, equip, decorate and
furnish the New Space for Tenant's occupancy (including without limitation
putting up demising walls in accordance with plans and specifications to be
approved by Landlord) shall be at Tenant's expense and shall be performed by
Tenant in accordance with Article 6 and all other applicable provisions of the
Lease.
3. Terms Applicable to New Space. The lease of the New Space by Tenant
-----------------------------
shall be on all of the terms and conditions of the Lease, except that:
(a) The term of the lease of the New Space shall be as set forth in
Section 2 above. The term "Expiration Date" shall mean March 31, 2007, as the
--------- ---------------
same may be extended by reason of the exercise of the renewal option contained
in Section 6 below.
---------
(b) Except as set forth in Section 2(b) above, Landlord shall not be
------------
required to perform any work, pay any amount, install any fixtures or equipment
or render any services to make the Building or the New Space ready or suitable
for Tenant's use or occupancy, and Tenant shall accept the New Space in its "as
is" condition on the New Space Commencement Date.
(c) Basic Annual Rent with respect to the New Space shall be payable
from and after the date hereof and shall be payable at the following rates:
(i) with respect to the period commencing on the date (the "New
-------
Space Rent Commencement Date") which is 60 days after the date hereof to and
----------------------------
including October 31, 1997, Fifty-Nine Thousand Four Hundred Fifty and 00/100
Dollars ($59,450.00) per annum payable in equal monthly installments of Four
Thousand Nine Hundred Fifty-Four and 17/100 Dollars ($4,954.17), (ii) with
respect to the period commencing on November 1, 1997 to and including March
31, 2002, Four Hundred Forty Eight Thousand Four Hundred Three and 00/100
Dollars ($448,403) per annum payable in equal monthly installments of Thirty
Seven Thousand Three Hundred Sixty Six and 92/100 Dollars ($37,366.92) and
(iii) with respect to the period commencing on April 1, 2002 to and including
March 31, 2007, Four Hundred Seventy Two Thousand Five Hundred Sixty Four and
00/100 Dollars ($472,564) per annum payable in equal monthly installments of
Thirty Nine Thousand Three Hundred Eighty and 33/100 Dollars ($39,380.33).
The monthly installments of Basic Annual Rent shall be paid by Tenant
in advance on the first day of each calendar month during the New Space Term
from and after the New Space Rent Commencement Date, at the office of Landlord
or such other place as Landlord may designate, without any setoff or deduction
whatsoever, except such deductions as are specifically referred to in the Lease.
If the New Space Rent Commencement Date is other than the first day of a month,
Basic Annual Rent with respect to the New Space for such month shall be pro
rated on a per diem basis and Tenant shall pay the amount thereof for such
partial month on the New Space Rent Commencement Date.
(d) From and after the New Space Commencement Date, the term "Tenant's
--------
Tax Share" shall mean 1.90% (subject to adjustment as provided in Section
---------
3.01A(g) of the Lease).
-2-
(e) From and after the New Space Commencement Date, the term "Tenant's
--------
Expense Share" shall mean 1.99% (subject to adjustment as provided in Section
-------------
3.01A(g) of the Lease).
(f) Except as expressly provided in Section 6(c) below, Article 44 of
------------
the Lease shall not apply to the New Space. Tenant's only right to renew the
Lease with respect to the New Space shall be subject to and in accordance with
Section 6 below and all references in Article 44 of the Lease to the "Demised
---------
Premises" shall not include the New Space.
(g) Except as expressly provided in Section 6(c) below, Article 45 of
------------
the Lease shall not apply to the New Space and all references in Article 45 of
the Lease to the "Demised Premises" shall not include the New Space.
4. Surrender of Fourth Floor Space. With respect to the Fourth Floor
-------------------------------
Space only, the Term shall end on the day immediately preceeding the New Space
Rent Commencement Date, on which day Tenant shall surrender and deliver to
Landlord vacant possession of the Fourth Floor Space and shall, with respect to
the Fourth Floor Space only, comply with all provisions of the Lease applicable
to the end of the Term (including without limitation, the payment to Landlord of
all Basic Annual Rent and Additional Rent applicable to the Fourth Floor Space
to and including such date). If Tenant fails to surrender and deliver vacant
possession of the Fourth Floor Space to Landlord on the New Space Rent
Commencment Date, Tenant shall constitute a holdover tenant in the Fourth Floor
Space and all of the provisions of Section 28.02 of the Lease shall apply to
such holdover by Tenant and, in addition to all of Landlord's rights and
remedies set forth in Section 28.02, Landlord shall have the right to give to
Tenant a notice of intention to end the Term at the expiration of five (5) days
from the date of service of such notice of intention, and upon the expiration of
said five (5) days the Lease (as amended hereby), and the term and estate
granted by the Lease and this Amendment shall terminate with the same effect as
if that day were the Expiration Date, but Tenant shall remain liable for damages
as provided in Article 18 of the Lease. From the New Space Commencement Date
until the later of the day immediately preceeding the New Space Rent
Commencement Date and the date that Tenant surrenders the Fourth Floor Space to
Landlord in accordance with this Section 4, Tenant shall comply with all of the
---------
terms and provisions of the Lease (as amended hereby) with respect thereto
(including without limitation the payment to Landlord of Basic Annual Rent and
Additional Rent).
5. Security. (a) On the date hereof, Tenant has increased the security
--------
deposited with Landlord pursuant to Article 40 of the Lease by delivering to
Landlord an unconditional irrevocable letter of credit (as defined in the Lease)
in an amount equal to Two Hundred Thousand and 00/100 Dollars ($200,000), as
further security for the full and punctual performance by Tenant of all of the
terms of the Lease. Such letter of credit is in addition to the security
previously deposited with Landlord under Article 40 of the Lease. Such letter
of credit shall be held and applied by Landlord in accordance with the
provisions of Section 40.01 of the Lease and such provisions are hereby
incorporated by reference and made a part hereof as if fully set forth herein.
-3-
(b) So long as Tenant is not then in default under the Lease and no
monetary default or material non-monetary default under the Lease shall have
previously occurred, Tenant shall have the right, by a Reduction Notice given to
Landlord at any time after each Reduction Date, to reduce the amount of security
held by Landlord pursuant to this Section 5(b) by $20,000.00. If Tenant
------------
properly gives a Reduction Notice to Landlord, Landlord shall return such letter
of credit to Tenant; provided, that Tenant has delivered to Landlord a
--------
substitute letter of credit in an amount equal to the difference between the
amount of the letter of credit which Landlord is returning to Tenant less
$20,000.00. Anything to the contrary contained in this Section 5(b)
------------
notwithstanding, in no event shall the amount of security held by Landlord
pursuant to this Section 5(b) be less than $100,000.00. Landlord agrees to
------------
reasonably cooperate with Tenant to substitute any letter of credit in
accordance with this Section 5(b); provided, that, such cooperation shall be
------------ -------- ----
without expense or liability to Landlord. If at any time Tenant shall be in
monetary default or material non-monetary default under the Lease, this Section
-------
5(b) shall be null and void and of no further force and effect and Tenant shall
----
have no further right to reduce the amount of security held by Landlord pursuant
to this Sectioh 5(b).
------------
(c) All references in this Section 5 to "the Lease" shall mean the
---------
Lease as amended by this Amendment.
6. Renewal Right. (a) Provided that (i) both when it exercises the
-------------
option to extend described below and when the New Space Extended Term (as
defined below) commences (A) the Lease is in full force and effect and (B) the
party executing this Amendment occupies at least 90% of the New Space and (ii)
Tenant's right to extend the Lease with respect to the New Space pursuant to
this Section 6 shall not have been rendered null and void in accordance with
---------
Section 6(c)(ii) below, Tenant shall have the option to extend the term of the
----------------
Lease with respect to the entire New Space only (it being understood that this
Section 6 is not applicable to the remainder of the Demised Premises) for an
---------
additional term commencing on April 1, 2007 and ending on May 31, 2010 (the "New
---
Space Extended Term"). Such option to extend the term of this Lease with
-------------------
respect to the New Space may be exercised only by Tenant giving written notice
to Landlord on or before March 31, 2006. It is expressly agreed that Tenant
shall not have an option to extend the term of the Lease with respect to the New
Space beyond the expiration of the New Space Extended Term. If the Lease shall
be terminated before the commencement of the New Space Extended Term, Tenant's
option to extend the term of the Lease with respect of the New Space, or its
exercise thereof, or the New Space Extended Term or lease created by any such
exercise, shall be abrogated and rendered null and void. If Tenant fails to
timely give such notice, Tenant's option to extend the Lease with respect to the
New Space shall be terminated and be deemed waived by Tenant.
(b) Upon Tenant's giving notice of its election to extend the term of
the Lease with respect to the New Space for the New Space Extended Term pursuant
to subparagraph (a) above, the Lease shall be deemed automatically amended as of
April 1, 2007 as follows: (i) the Basic Annual Rent with respect to the New
Space shall be the greater of (x) the Basic Annual Rent payable under this
Amendment with respect to the New Space immediately prior to March 31, 2007 or
(y) the fair market rent for the New Space for the New Space Extended Term as
determined pursuant to subparagraph (c) below; and (ii) the Expiration Date of
the New Space
-4-
Extended Term shall be May 31, 2010. Tenant and Landlord shall promptly
execute and deliver an appropriate modification of the Lease to evidence said
amendment.
(c) (i) Notwithstanding anything in this Agreement to the contrary,
if (A) Tenant timely exercises the option to extend the term of the Lease with
respect to the New Space in accordance with this Section 6 and (B) Tenant either
---------
exercises its right of renewal pursuant to Article 44 of the Lease or exercises
its Offer Space Option pursuant to Section 45.01 of the Lease and (C) the AICPA
Tenant (as defined below) does not lease the New Space for a term commencing on
or after July 1, 2010, then effective as of July 1, 2010 the New Space Extended
Term shall automatically be extended for a period commencing on July 1, 2010 and
ending on the last day of the Extended Term if Tenant exercised its right of
renewal pursuant to Section 44 of the Lease or the expiration date set forth in
the Offer Notice if Tenant exercised the Offer Space Option pursuant to Section
45.01 of the Lease. Such extension period shall be upon all of the terms and
provisions applicable to the Extended Term pursuant to Article 44 of the Lease
or the Offer Space Option pursuant to Section 45.01 of the Lease, as applicable,
except that the Basic Annual Rent with respect to the New Space shall be the
greater of the Basic Annual Rent payable under this Amendment with respect to
the New Space immediately prior to July 1, 2010 and the Basic Annual Rent
payable by Tenant with respect to the Extended Term or the Offer Space, as
applicable. "AICPA Tenant" means American Institute of Certified Public
------------
Accountants and its successors and assigns under that certain lease dated May
15, 1991, as amended.
(ii) Landlord shall have the right to inform Tenant in either
the PR Extension Notice or the Offer Notice that the AICPA Tenant has no
further right to lease the New Space. If Landlord so notifies Tenant then
(A) Article 44 or Article 45, as applicable, shall apply to the New
Space, (B) all references in Article 44 or Article 45, as applicable, to
the "Demised Premises" shall include the New Space, (C) Tenant shall only
have the right to extend the term of the Lease for the Extended Term
pursuant to Article 44 for the entire Demised Premises, including,
without limitation, the New Space or to exercise its Offer Space Option
pursuant to Section 45 for the entire Demised Premises, including,
without limitation, the New Space and (D) Tenant's right to extend the
term of the Lease with respect to the New Space only pursuant to this
Section 6 shall be null and void and of no further force and effect.
---------
(d) (i) For purposes of this Section 6, in such instances that it is
---------
provided that Tenant shall pay a "fair market rent" as Basic Annual Rent with
respect to the New Space, such fair market rent shall be proposed by Landlord
giving notice therefor (a "FMR Notice"), not later than October 1, 2006.
----------
(ii) Within thirty (30) days after Landlord gives a FMR Notice,
Tenant shall notify Landlord as to whether or not it agrees with Landlord's
proposed fair market rent, and if it does not so agree, Tenant shall in such
notice submit to Landlord its proposed fair market rent. If Tenant fails to
respond as aforesaid within said 30 day period, Tenant hereby agrees that it
shall be deemed conclusively to have agreed to the fair market rent proposed
by Landlord.
-5-
(iii) If Landlord and Tenant do not agree upon the fair market
rent, the matter shall be submitted to arbitration in accordance with the
provisions of Article 43 of the Lease, subject, however, to the following
modifications:
(A) the arbitrator selected shall have at least five
years' experience in the leasing or management of office space in the northern
New Jersey office market. The fees and expenses of the arbitrator and all
other expenses (not including the attorneys' fees, witness fees and similar
expenses of the parties which shall be borne separately by each of the
parties) of the arbitration shall be borne equally by the parties hereto;
(B) within two business days after the appointment of the
arbitrator, there shall be submitted to the arbitrator the FMR Notice
containing Landlord's proposed fair market rent and a copy of Tenant's
response thereto containing Tenant's proposed fair market rent;
(C) within ten (10) business days thereafter, the
arbitrator shall select either the fair market rent proposed by Landlord or
Tenant, whichever the arbitrator determines is closest to his determination of
the fair market rent for the New Space.
(D) in rendering such decision, the arbitrator shall
determine the fair market rent that would be agreed upon by Landlord and a new
unrelated third party tenant, and in connection therewith shall assume all of
the following: (A) the Landlord and prospective tenant are typically
motivated; (B) the Landlord and prospective tenant are well informed and well
advised and each is acting in what it considers its own best interest; (C) a
reasonable time under then-existing market conditions is allowed for exposure
of the New Space on the open market; (D) the rent is unaffected by
concessions, special financing amounts and/or terms, or unusual services,
fees, costs or credits in connection with the leasing transaction; (E) the New
Space is fit for immediate occupancy and use "as-is" and require no additional
work by Landlord and that no work has been carried out thereon by the Tenant,
its subtenant, or their predecessors in interest during the term which has
diminished the rental value of the New Space; (F) in the event the New Space
has been destroyed or damaged by fire or other casualty, it has been fully
restored; (G) that the New Space is to be let with vacant possession and
subject to the provisions of the Lease for a 5-year term; (H) market rents
then being charged for comparable space in other similar office buildings in
the same area; (I) the computation of the number of rentable square feet
contained in the New Space shall be based on the standard of measurement for
such square footage then obtaining in the Building but in no event less than
the square footage specified in Section 2 above; (J) the Base Tax Year and the
---------
Base Operating Year shall be as stated in the Lease and (K) a full brokerage
commission shall be payable by Landlord, on then market terms. In rendering
such decision and award, the arbitrator shall not modify the provisions of the
Lease.
(E) the decision and award of the arbitrator shall be in
writing and be final and conclusive on all parties and counterpart copies
thereof shall be delivered to each of said parties. Judgment may be had on the
decision and award of the arbitrator so rendered in any court of competent
jurisdiction.
-6-
(iv) In the event that any payment of Basic Annual Rent with respect
to the New Space is due hereunder prior to the determination of the arbitrator,
Tenant shall pay as the Basic Annual Rent with respect to the New Space it is
obligated to pay under the Lease the amount set forth in the FMR Notice. If the
arbitrator determines that the Basic Annual Rent payable pursuant to this
Section 6 is less than that set forth in the FMR Notice, then Tenant shall be
---------
entitled to a credit in the amount of its overpayment for such period against
subsequent payments of Basic Annual Rent or additional rent due under the Lease
with respect to the New Space.
(e) Nothing contained in this Section 6 shall be deemed in any way to
---------
alter or modify the provisions of Article 3 of the Lease.
(f) All references in this Section 6 to "the Lease" shall mean the
---------
Lease as amended by this Amendment.
7. Subject to Landlord's prior approval, not to be unreasonably withheld
or delayed, Tenant shall have the right, subject to and in accordance with
Article 46 of the Lease, to use a portion of the roof of Plaza III as designated
on Schedule C attached hereto consisting of approximately 1,200 usable square
----------
feet to install, maintain and operate, at its sole cost and expense, condensers
serving the Demised Premises. All references in Article 46 to the "Roof
Equipment" shall be deemed to include such condensers and all of the terms and
provisions of Article 46 shall apply hereto with the same force and effect as if
said Article 46 were set forth herein in its entirety. Tenant shall, at its
sole cost and expense, add additional dunnage on two (2) bays of 20' x 20' to
the west of the Roof Equipment existing on the date hereof in the same
configuration as such existing Roof Equipment (with 5' overhangs on each side).
8. Landlord hereby leases to Tenant and Tenant hereby rents from Landlord
150 rentable square feet on the first floor of Plaza III substantially as shown
on the plan attached hereto as Schedule D (the "Additional First Floor Space")
---------- ----------------------------
commencing on the date of this Amendment and expiring on the Expiration Date
(unless the Term shall sooner cease and terminate as provided in the Lease) and
otherwise upon all of the terms and conditions set forth in Article 47 of the
Lease, including, without limitation, that (i) Tenant shall pay to Landlord as
basic annual rent for the Additional First Floor Space an annual amount equal to
$10 per rentable square foot contained in the Additional First Floor Space,
payable from and after the date of this Amendment in equal monthly installments
appropriately pro rated for any partial month and otherwise payable in the same
manner as Basic Annual Rent with respect to the Demised Premises. Tenant agrees
to use its best efforts to use its current First Floor Space to store an
additional fuel tank in accordance with all applicable laws and regulations,
provided, that, if Tenant is unable to use its current First Floor Space as
-------- ----
provided in this sentence, and Tenant so notifies Landlord of such inability
within 10 days of the date of this Agreement (time of the essence), in addition
to the Additional First Floor Space being provided herein, Landlord shall lease
to Tenant and Tenant shall hire from Landlord an additional 100 rentable square
feet substantially as shown cross hatched on Schedule D ,which additional 100
----------
rentable square feet as of the date (the "Additional Inclusion Date") of
-------------------------
Tenant's notice to Landlord provided above, shall constitute part of the
Additional First Floor Space as defined above and shall be subject to
-7-
all the terms and provisions of this paragraph and the Lease including,
without limitation, that Tenant shall pay to Landlord basic annual rent for
such additional space from and after the Additional Space Inclusion Date, an
annual amount equal to ten ($10.00) dollars per rentable square foot therein.
All references in Article 47 to the "First Floor Space" shall be deemed to
include the Additional First Floor Space and all of the terms and provisions
of Article 47 shall apply to the Additional First Floor Space with the same
force and effect as if said Article 47 were set forth herein in its entirety.
9. Landlord agrees that the New Space shall accommodate eight 4" conduits
and four 2" conduits between the New Space and the Eighth Floor Space. If the
conduits pass through the plenum of the adjacent 7th Floor tenant, Tenant shall
be responsible for mounting such conduits flush to the underside of the slab on
a to be determined route, in accordance with the terms of the Lease, including
without limitation Articles 6 and 7, and subject to the rights of other tenants
with in relation to such space. Landlord also agrees to provide such conduits
between the Additional First Floor Space and the New Space as is reasonably
necessary to supply power from Tenant's generator to the New Space.
10. (a) Tenant covenants, represents and warrants that Tenant has had no
dealings or negotiations with any broker or agent other than Institutional
Realty Management, LLC (representing landlord) and Xxxxxxx & Xxxxxxxxx
(representing Tenant) in connection with the consummation of this Amendment, and
Tenant covenants and agrees to pay, hold harmless and indemnify Landlord from
and against any and all cost, expense (including reasonable attorneys' fees and
court costs), loss and liability for any compensation, commissions or charges
claimed by any broker or agent, other than Institutional Realty Management, LLC,
with respect to this Amendment or the negotiation thereof if such claim or
claims by any such broker or agent are based in whole or in part on dealing with
Tenant or its representatives. Landlord agrees to pay to Institutional Realty
Management, LLC such compensation, commissions or charges to which it is
entitled pursuant to a separate agreement between said broker and Landlord.
(b) Landlord covenants and agrees to pay, hold harmless and indemnify
Tenant from and against any and all costs, expenses (including reasonable
attorneys' fees and court costs), loss and liability for any compensation,
commissions or charges in connection with this Amendment or the negotiation
thereof, claimed under any circumstance by Institutional Realty Management, LLC,
or claimed by any other broker or agent if the claims by such other brokers or
agents are based in whole or part on dealings with Landlord or its
representatives and not with Tenant or its representatives.
11. This Amendment shall be binding upon and inure to the benefit of
Landlord and Tenant and their respective permitted successors and assigns.
12. This Amendment represents the understanding of the parties hereto with
respect to the subject matter hereof.
13. As amended hereby, the Lease is hereby ratified and confirmed in all
respects and shall continue in full force and effect. In the event of any
conflict between the terms of the Lease and this Amendment, the terms of this
Amendment shall govern.
-8-
14. This Amendment shall be governed by and construed in accordance with
the laws of the State of New Jersey, without giving effect to the conflicts of
law principles thereof.
15. This Amendment may be executed in counterparts each of which when
taken together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
Cal-Harbor II and III Urban Renewal
Associate L.P., Landlord
Cali Sub X Inc., its general partner
/s/ Xxxxx X. Xxxxxx
By: __________________________________
Xxxxx X. Xxxxxx
Vice-President
Exodus Communications, Inc., Tenant
/s/ Xxxxxxx X. Xxxxxx
By: __________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
-9-
STATE OF NEW JERSEY)
:
COUNTY OF UNION)
On this 30th day of April, 1997, before me personally came Xxxxx X.
Xxxxxx, to me known, who, being duly sworn by me, did depose and say that he
resides in Belmar, New Jersey, that he the Vice-President of Cali Sub X,
Inc., the corporation described in and which executed the above instrument on
behalf of Cal-Harbor II and III urban Renewal Associates L.P. and that he signed
his name thereto by order of the board of directors of said corporation.
/s/ Xxxxxxxx X. Xxxxxxx
______________________________
Notary Public
STATE OF CALIFORNIA)
:
COUNTY OF SANTA XXXXX)
On this 21st day of April, 1997, before me personally came to Xxxxxxx X.
Xxxxxx, to me known, who, being duly sworn, did depose and say that he resides
in California, that he is the Chief Operating Officer/Chief Executive Officer
of Exodus Communications, Inc., the corporation described in and which
executed the above instrument and that he signed his name thereto by order of
the board of directors of said corporation.
/s/ Xxxxx Xxxxxx
______________________________
Notary Public
-10-
SCHEDULE A
[DIAGRAM OF NEW SPACE]
-11-
SCHEDULE B
LANDLORD'S WORK
Landlord shall provide:
. A 13,200 volt riser providing the equivalent of 2,400 AMPS at 460
volts will be brought to the New Space. This riser will service both the New
Space (1,600 AMPS) and the Eighth Floor Space (800 AMPS). Tenant will be
responsible for stepping down and providing panels and will transfer the
existing 800 AMP service off the building xxxx duct and connect it to this new
service [as discussed with Xxxx Xxxxxxx].
. Remove tiles from floor.
. Demolish and remove the power and maintenance rooms on the floor.
. Repair or replace, as necessary perimeter base board heating units
on all sides.
. Repair or replace, as necessary window blinds on all three sides.
-12-
SCHEDULE C
[DIAGRAM OF RENTABLE SQUARE FEET]
-13-
SCHEDULE D
[DIAGRAM OF ADDITIONAL RENTABLE SPACE]
-14-
SECOND AMENDMENT OF LEASE
-------------------------
Second Amendment of Lease (this "Amendment"), dated as of January 27, 1998
---------
between CAL-HARBOR II and III URBAN RENEWAL ASSOCIATES L.P., a New Jersey
limited partnership whose address is c/o Mack/Cali Realty Corporation, 00
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Landlord") and EXODUS
--------
COMMUNICATIONS, INC., a California corporation whose address is at 0000 Xxx
Xxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX, 00000 ("Tenant").
------
WITNESSETH:
----------
WHEREAS, pursuant to that certain Agreement of Lease, dated December 30,
1996, between Landlord and Tenant (the "Original Lease"), which Lease has been
--------------
amended by an Amendment of Lease dated April 29, 1997 (the "First Amendment";
---------------
the Original Lease and the First Amendment collectively referred to as the
"Lease"), Tenant is leasing from Landlord certain space as described in the
------
Lease, on the First floor, Seventh Floor and Eighth Floor in the office complex
(the "Complex") known as "Harborside Financial Center" located in Jersey City,
-------
New Jersey the "Original Space"); and
--------------
WHEREAS, Landlord and Tenant desire to amend the Lease to provide, among
other things, that Landlord lease to Tenant and Tenant hire from Landlord
certain additional space on the first (1st) and seventh (7th) floors of Plaza
III in the Complex, all upon the terms and conditions set forth herein.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Defined Terms. All capitalized terms used herein but not defined shall
-------------
have the meanings ascribed to them in the Lease.
2. Lease of New Space. (a) Landlord hereby leases to Tenant and Tenant
------------------
hereby hires from Landlord, upon and subject to the terms and conditions of this
Amendment, (x) the portion of the seventh floor of Plaza III substantially as
shown hatched on the floor plan attached hereto as Schedule A (the "Supplemental
---------- ------------
Seventh Floor Space") and (y) the portion of the first floor of Plaza III
-------------------
substantially as shown hatched on the floor plan attached hereto as Schedule B
----------
(the "Supplemental First Floor Space"; collectively with the Supplemental
------------------------------
Seventh Floor Space the "New Space"), for a term (the "New Space Term")
--------- --------------
commencing on the date hereof (the "New Space Commencement Date") and ending,
---------------------------
unless sooner terminated or extended as provided in the Lease, on March 31,
2007, upon all of the terms and provisions set forth in the Lease, except Tenant
shall pay to Landlord a basic rent for the New Space as set forth below.
Landlord and Tenant confirm that the Supplemental Seventh Floor Space consists
of 18,250 rentable square feet and that the Supplemental First Floor Space
consists of 792 rentable square feet. Effective as of the New Space
Commencement Date, the term "Demised Premises" shall mean the Original Space and
----------------
the New Space collectively.
(b) Landlord, at its expense, shall perform in the Supplemental Seventh
Floor Space the work described in Schedule C attached hereto ("Landlord's
---------- ----------
Work"). All
other installations, materials and work which may be undertaken by Tenant to
prepare, equip, decorate and furnish the New Space for Tenant's occupancy
shall be at Tenant's expense and shall be performed by Tenant in accordance
with Article 6 and all other applicable provisions of the Lease.
3. Terms Applicable to New Space. The lease of the New Space by Tenant
-----------------------------
shall be on all of the terms and conditions of the Lease, except that:
(a) The term of the lease of the New Space shall be as set forth in
Section 2 above. The term "Expiration Date" shall mean March 31, 2007, as the
---------------
same may be extended by reason of the exercise of the renewal option contained
in Section 6 of the First Amendment.
---------
(b) Section 1.01(b) shall be deleted in its entirety and replaced
with the following:
"The parties hereby acknowledge that for all purposes of this
Lease the demised premises shall be deemed to contain 47,800
rentable square feet."
(c) (i) Basic Annual Rent with respect to the Supplemental Seventh
Floor Space shall be payable on the date occurring in the fifth (5) month after
the New Space Commencement Date which is the same numerical date in the month as
the New Space Commencement Date (the "Supplemental Seventh Floor Rent
-------------------------------
Commencement Date") except that if no same numerical date shall exist in such
-----------------
5th month, the Supplemental Seventh Floor Rent Commencement Date shall be the
last day of such 5th month.
(ii) Basic Annual Rent with respect to the Supplemental First
Floor Space shall be payable on the New Space Commencement Date (the
"Supplemental First Floor Space Rent Commencement Date").
-----------------------------------------------------
(d) (i) Basic Annual Rent with respect to the Supplemental Seventh
Floor Space shall be payable from and after the Supplemental Seventh Floor Space
Rent Commencement Date and shall be payable at the following rates:
(x) with respect to the period commencing on the
Supplemental Seventh Floor Space Rent Commencement Date to and including July
31, 2002, Four Hundred Twenty Eight Thousand Eight Hundred Seventy Five and
00/100 Dollars ($428,875.00) per annum payable in equal monthly installments
of Thirty Five Thousand Seven Hundred Thirty Nine and 58/100 (35,739.58); and
(y) with respect to the period commencing on August 1, 2002
to and including March 31, 2007, Four Hundred Forty Seven Thousand One Hundred
Twenty Five and 00/100 Dollars ($447,125.00) per annum payable in equal
monthly installments of Thirty Seven Thousand Two Hundred Sixty and 42/100
($37,260.42).
2
(ii) Basic Annual Rent with respect to the Supplemental First Floor
Space shall be payable from and after the Supplemental First Floor Rent
Commencement Date to and including March 31, 2007, at the rate of Seven Thousand
Nine Hundred Twenty and 00/100 Dollars ($7,920.00) per annum payable in equal
monthly installments of Six Hundred Sixty and 00/100 Dollars ($660.00).
The monthly installments of Basic Annual Rent shall be paid by Tenant
in advance on the first day of each calendar month during the New Space Term
from and after the Supplemental Seventh Floor Space Rent Commencement Date and
the Supplemental First Floor Space Rent Commencement Date, at the office of
Landlord or such other place as Landlord may designate, without any setoff or
deduction whatsoever, except such deductions as are specifically referred to in
the Lease. If the Supplemental Seventh Floor Space Rent Commencement Date or
the Supplemental First Floor Space Rent Commencement Date is other than the
first day of a month, Basic Annual Rent with respect to the applicable space for
such month shall be pro rated on a per diem basis and Tenant shall pay the
amount thereof for such partial month on the Supplemental Seventh Floor Space
Rent Commencement Date or the Supplemental First Floor Space Rent Commencement
Date, as applicable.
(e) From and after the New Space Commencement Date, the term "Tenant's
--------
Tax Share" shall mean 3.19% (subject to adjustment as provided in Section
---------
3.01A(g) of the Lease).
(f) From and after the New Space Commencement Date, the term "Tenant's
--------
Expense Share" shall mean 3.34% (subject to adjustment as provided in Section
-------------
3.01A(g) of the Lease).
(g) Except as expressly provided in Section 6(c) of the First
------------
Amendment, Article 44 of the Lease shall not apply to the New Space. Tenant's
only right to renew the Lease with respect to the New Space shall be subject to
and in accordance with Section 6 of the First Amendment, all references in
---------
Article 44 of the Lease to the "Demised Premises" shall not include the New
Space and all references in Section 6 of the First Amendment shall mean,
---------
collectively, the New Space (as defined in the First Amendment) and the New
Space (as defined in this Amendment).
(h) Except as expressly provided in Section 6(c) of the First
------------
Amendment, Article 45 of the Lease shall not apply to the New Space and all
references in Article 45 of the Lease to the "Demised Premises" shall not
include the New Space.
(i) Landlord and Tenant hereby acknowledge that the Lease and the
First Amendment are hereby modified to provide that for all purposes of the
Lease (as amended by the First Amendment and this Amendment) (x) the First Floor
Space and the Additional First Floor Space are substantially as shown on
Schedule D attached hereto and (y) the First Floor Space and the Additional
----------
First Floor Space shall be deemed to contain 286 rentable square feet in the
aggregate. Landlord and Tenant hereby acknowledge that the option granted to
Tenant in Section 8 of the First Amendment to hire from Landlord an additional
100 rentable square feet
3
substantially as shown cross hatched in Schedule D attached thereto is null
----------
and void and of no force and effect.
4. (a) Subject to Landlord's prior approval, not to be unreasonably
withheld or delayed, Tenant shall have the right, subject to and in accordance
with Article 46 of the Lease, to use a portion of the roof of Plaza III adjacent
to the space designated on Schedule C of the First Amendment consisting of
----------
approximately 1,000 usable square feet, substantially as shown cross hatched on
the Roof Dunnage Plan attached hereto as Schedule E, to install, maintain and
----------
operate, at its sole cost and expense, HVAC equipment serving the Demised
Premises (the "Additional Roof Equipment"). Tenant shall furnish detailed plans
-------------------------
and specifications for the Additional Roof Equipment (or any modification
thereof) to Landlord for its approval. All references in Article 46 to the
"Roof Equipment" shall be deemed to include the Additional Roof Equipment and
all of the terms and provisions of Article 46 shall apply hereto with the same
force and effect as if said Article 46 were set forth herein in its entirety.
(b) During the term of the Lease Tenant shall have the exclusive right
to the 13,200 volt riser provided by Landlord under the First Amendment, subject
to all of the applicable provisions of the Lease.
(c) Subject to Article 6 and other applicable provisions of the
Lease, Tenant shall have the right to install, at its sole cost and expense,
subject to space availability and Landlords prior approval of location, two (2)
four inch (4") telecommunication risers.
(d) Subject to Landlord's prior approval, Tenant shall have the right
(subject to compliance with all Legal Requirements) to increase the size of the
fuel tanks, at Tenant's sole cost and expense, in the First Floor Space and
Additional First Floor Space.
5. (a) Tenant covenants, represents and warrants that Tenant has had no
dealings or negotiations with any broker or agent other than Xxxxx Xxxx Xxxxxx
USA (representing landlord) in connection with the consummation of this
Amendment, and Tenant covenants and agrees to pay, hold harmless and indemnify
Landlord from and against any and all cost, expense (including reasonable
attorneys' fees and court costs), loss and liability for any compensation,
commissions or charges claimed by any broker or agent, other than Xxxxx Lang
Xxxxxx USA, with respect to this Amendment or the negotiation thereof if such
claim or claims by any such broker or agent are based in whole or in part on
dealing with Tenant or its representatives. Landlord agrees to pay to Xxxxx
Lang Xxxxxx USA such compensation, commissions or charges to which it is
entitled pursuant to a separate agreement between said broker and Landlord.
(b) Landlord covenants and agrees to pay, hold harmless and indemnify
Tenant from and against any and all costs, expenses (including reasonable
attorneys' fees and court costs), loss and liability for any compensation,
commissions or charges in connection with this Amendment or the negotiation
thereof, claimed under any circumstance by Xxxxx Lang Xxxxxx USA or claimed by
any other broker or agent if the claims by such other brokers or agents are
based in whole or part on dealings with Landlord or its representatives and not
with Tenant or its representatives.
4
6. This Amendment shall be binding upon and inure to the benefit of
Landlord and Tenant and their respective permitted successors and assigns.
7. This Amendment represents the understanding of the parties hereto with
respect to the subject matter hereof.
8. As amended hereby, the Lease is hereby ratified and confirmed in all
respects and shall continue in full force and effect. In the event of any
conflict between the terms of the Lease and this Amendment, the terms of this
Amendment shall govern.
9. This Amendment shall be governed by and construed in accordance with
the laws of the State of New Jersey, without giving effect to the conflicts of
law principles thereof.
10. This Amendment may be executed in counterparts each of which when
taken together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
Cal-Harbor II and III Urban Renewal
Associate L.P., Landlord
Cali Sub X Inc., its general partner
/s/ Xxxxx X. Xxxxxx
By: ________________________________
Xxxxx X. Xxxxxx
Senior Vice-President
Exodus Communications, Inc., Tenant
/s/ Xxxxxxx X. Xxxxxx
By: ________________________________
Name: Xxxxxxx X. Xxxxxx
Title:
5
STATE OF NEW JERSEY)
:
COUNTY OF UNION)
On this 27th day of January, 1998, before me personally came Xxxxx X.
Xxxxxx, to me known, who, being duly sworn by me, did depose and say that he
resides in Monmouth County, that he is the Senior Vice-President of Cali
Sub X, Inc., the corporation described in and which executed the above
instrument on behalf of Cal-Harbor II and III Urban Renewal Associates L.P. and
that he signed his name thereto by order of the board of directors of said
corporation.
/s/ Xxxxx Xxxxxxxx
__________________________________
Notary Public
Xxxxx Xxxxxxxx
Notary Public of New Jersey
My Commission Expires March 6, 2002
STATE OF CALIFORNIA)
:
COUNTY OF SANTA XXXXX)
On this 22nd day of January, 1998, before me personally came Xxxxxxx
Xxxxxx, to me known, who, being duly sworn, did depose and say that he resides
in California, that he is the Chief Operating Officer/Chief Financial Officer
of Exodus Communications, Inc., the corporation described in and which
executed the above instrument and that he signed his name thereto by order of
the board of directors of said corporation.
/s/ Xxxx X. Xxxxx
__________________________________
Notary Public
Xxxx X. Xxxxx
Comm. #1143967
Notary Public -- California
Santa Xxxxx County
My Commission Expires June 27, 2001
6
SCHEDULE A
SUPPLEMENTAL SEVENTH FLOOR SPACE
[DIAGRAM OF FLOOR SPACE]
SCHEDULE B
SUPPLEMENTAL FIRST FLOOR SPACE
[DIAGRAM OF FLOOR SPACE]
SCHEDULE C
LANDLORD'S WORK
Landlord shall:
. Repair or replace, as necessary perimeter base board heating units for 5,000
square feet of office space.
. Repair or replace, as necessary perimeter window blinds.
SCHEDULE D
FIRST FLOOR SPACE AND ADDITIONAL FIRST FLOOR SPACE
[DIAGRAM OF FLOOR SPACE]
SCHEDULE E
EXODUS ROOF DUNNAGE PLAN
[DIAGRAM OF ROOF EQUIPMENT]
