Exhibit 10.1
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LEASE
101 HUDSON LEASING ASSOCIATES,
a New Jersey general partnership
("LANDLORD")
and
FRANKLIN CREDIT MANAGEMENT CORPORATION,
a Delaware
corporation
("TENANT")
______________________________
101 HUDSON STREET
JERSEY CITY, NEW JERSEY
--------------------------------
______________________________
Greenbaum, Rowe, Smith & Davis LLP
99 Wood Avenue South
Woodbridge, New Jersey 07095
_______________________________
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LEASE
THIS LEASE ("Lease") entered into as of July 27, 2005, between
101
HUDSON LEASING ASSOCIATES, a New Jersey
general partnership, with an office at
101 Hudson Street, Suite 3602, Jersey City,
New Jersey 07302 ("Landlord") and
FRANKLIN CREDIT MANAGEMENT CORPORATION, a
Delaware corporation, with an office
at 6 Harrison Street, New York, New York
10013 ("Tenant").
FUNDAMENTAL LEASE PROVISIONS
Landlord shall lease the Premises to Tenant, and Tenant shall
let
the Premises from Landlord, pursuant to the
following Fundamental Lease
Provisions:
Premises:
(a) The entire twenty-fifth (25th) Floor
--------
(containing approximately 33,866 gross
rentable square feet of space and herein
called the "25th Floor Premises") plus (b)
a portion of the thirty-seventh (37th)
Floor (containing approximately 6,856 gross
rentable square feet of space and called
the "37th Floor Premises") of the Building
located at 101 Hudson Street, Jersey City,
New Jersey, as shown on the plans of the
25th and 37th Floors of the Building
attached hereto as Exhibits A -1 and A-2,
excluding all vertical penetrations and any
portion(s) of the 25th and/or 37th Floor(s)
of the Building as to which this Lease may
be partially terminated by mutual agreement
of the parties and/or pursuant to Article
25 or any other provision hereof.
Rentable Area of Premises:
Approximately 6,856 gross rentable square
-------------------------
feet of space from and after the Lease
Commencement Date as to the 37th Floor
Premises and a total of approximately
40,722 gross rentable square feet of space
from and after the Lease Commencement Date
as to the 25th Floor Premises.
Lease Commencement Date:
(a) Upon delivery of possession of the 37th
-----------------------
Floor Premises, but in no event prior to
September 1, 2005, as to the 37th Floor
Premises; and (b) upon January 1, 2011, or
such earlier date upon which the Lehman
Lease of the 25th Floor Premises which is
in effect on the date of this Lease may be
terminated as to the 25th Floor Premises
(from and after which termination date the
Sublease identified herein shall be of no
further force or effect), as to the 25th
Floor Premises.
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Initial Term:
The period commencing on the Lease
------------
Commencement Date with respect to each
portion of the Premises and ending, unless
otherwise terminated in accordance with the
terms hereof, on the Initial Term
Expiration Date.
Renewal Term:
One period of five (5) years commencing on
------------
the next day after the end of the Initial
Term as more particularly provided in
Section 2.4.
Base Rent Commencement Date:
(a) The next day after the end of four (4)
---------------------------
months following the Lease Commencement
Date as to the 37th Floor Premises; and (b)
the Lease Commencement Date as to the 25th
Floor Premises.
Base Rent:
(a) From the Base Rent Commencement Date as
---------
to the 37th Floor Premises through December
31, 2010, $198,824 per annum, to be paid in
monthly installments each equal to
$16,568.67; and (b) from January 1, 2011
through and including the Initial Term
Expiration Date, $1,377,692 per annum, to
be paid in monthly installments each equal
to $114,807.67. If the Lease Commencement
Date as to the 25th Floor Premises occurs
before January 1, 2011, Base Rent shall
mean an amount equal to $1,180,938 per
annum, to be paid in monthly installments
each equal to $98,411.50 from the Lease
Commencement Date as to the 25th Floor
Premises through and until December 30,
2010 and at the same per diem rate for
December 31, 2010. (For any period prior to
January 1, 2011, Base Rent shall be
inclusive of, not in addition to, Tenant's
25th Floor Proportionate Share of Operating
Expenses and Taxes and Tenant's 25th Floor
Common Area Proportionate Share of 25th
Floor Common Area Costs that would
otherwise be payable by Tenant pursuant to
Sections 5.3 and 5.5 of this Lease.)
Additional Rent Commencement Date:
The Lease
Commencement Date.
---------------------------------
Tenant's Proportionate Share:
(a) Zero and 56/100 (0.56%) percent until
----------------------------
December 31, 2010; and (b) Three and 35/100
(3.35%) percent from and after January 1,
2011, subject to adjustment as provided in
Section 1.2.81.
Permitted Use:
General, executive and administrative
-------------
offices, and uses ancillary thereto.
Security Deposit:
One Hundred Thousand ($100,000) Dollars,
----------------
Fifty
2
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Thousand ($50,000) Dollars of which shall
be due on the execution of this Lease and
the other Fifty Thousand ($50,000) Dollars
of which shall be due on January 1, 2010.
Tenant Improvement Allowance:
The Construction Contribution by Landlord
----------------------------
to the cost of Tenant's Work in the 37th
(and/or 25th) Floor Premises.
Tenant's NAICS Number:
523999.
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Tenant's Notice Address/Contact:
Franklin Credit Management Corporation
-------------------------------
6 Harrison Street
New York, New York 10013
Attention: John Collins, Esq.
Title: General Counsel
Telephone: 212-925-8745
Facsimile: 212-966-4293
with a copy to:
Cole, Schotz, Meisel, Forman & Leonard
25 Main Street
Hackensack, New Jersey
07601
Attention: Gary M.
Albrecht, Esq.
Telephone: 201-525-6226
Facsimile:
201-678-6226
Landlord's Notice Address/Contact:
101 Hudson
Leasing Associates
---------------------------------
c/o
Mack-Cali Realty
L.P.
11 Commerce Drive
Cranford, New Jersey 07016
Attn: Executive Vice President of Leasing
Telephone: 908-272-8000
Facsimile:
908-497-0485
with a copy to:
Daniel J. Wagner, Esq.
Vice President and Senior Associate General
Counsel
Mack-Cali Realty Acquisition Corp.
11 Commerce Drive
Cranford, New Jersey 07016
Facsimile:
610-497-0485
with a copy to:
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Martin E. Dollinger, Esq.
Greenbaum, Rowe, Smith & Davis LLP
Metro Corporate Campus One
99 Wood Avenue
South
Woodbridge, New Jersey 07095
Telephone:
732-549-5600
Facsimile:
732-549-1881
1.
DEFINITIONS AND BASIC PROVISIONS.
1.1
Fundamental Lease Provisions. The Fundamental Lease
Provisions set forth above (the
"Fundamental Lease Provisions") shall be read in
conjunction with all other provisions of
this Lease applicable thereto. Each
reference in this Lease to any of the
Fundamental Lease Provisions shall be
construed to incorporate all of the terms
provided for under such provisions. If
there is any conflict between any of the
Fundamental Lease Provisions and any
other provisions of this Lease, the latter
shall control. The listing in the
Fundamental Lease Provisions of monetary
amounts payable by Tenant shall not be
construed to be an exhaustive list of all
monetary amounts payable by Tenant
under this Lease.
1.2
Definitions. In addition to other terms defined herein, the
following terms shall have the meanings set
forth herein unless the context
otherwise requires:
1.2.1 "AAA"
shall mean the American Arbitration Association and
its successors.
1.2.2
"Additional Rent" shall mean Tenant's Proportionate Share of
Operating Expenses and any and all other
sums other than Base Rent due and
payable by Tenant to Landlord under this
Lease, including, but not limited to,
Tenant's Floor Common Area Proportionate
Share of Floor Common Area Costs
(inclusive of the Management Fee).
1.2.3
"Additional Rent Commencement Date" shall mean the
Additional Rent Commencement Date as set
forth in the Fundamental Lease
Provisions.
1.2.4
"Alterations" shall mean Alterations as defined in Section
12.1.
1.2.5
"Applicable Laws" shall mean Applicable Laws as defined in
Section 35.3(a).
1.2.6
Intentionally omitted.
1.2.7 "Approved
Contractors" shall mean those contractors selected
by Tenant and approved by Landlord, such
approval not to be unreasonably
withheld.
1.2.8
"Bankruptcy Code" shall mean the Bankruptcy Code of 1978, as
same may be amended.
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1.2.9 "Base
Operating Expenses" shall mean for the Initial Term
and any Renewal Term, the Operating
Expenses for the Calendar Year 2006.
1.2.10 "Base Rent"
shall mean the Base Rent as set forth in the
Fundamental Lease Provisions.
1.2.11 "Base Rent
Commencement Date" shall mean the Base Rent
Commencement Date as defined in the
Fundamental Lease Provisions.
1.2.12 "Base Taxes"
shall mean, for the Initial Term and any
Renewal Term, an amount equal to Four and
25/100s ($4.25) Dollars multiplied by
the rentable area of the Building
(specified in Section 1.2.81).
1.2.13 "Beneficial
Occupancy Date" shall mean, with respect to each
portion of the Premises, the Lease
Commencement Date applicable to such portion
of the Premises.
1.2.14 "Broker" shall
mean CUSHMAN & WAKEFIELD OF NEW JERSEY, INC.
1.2.15 "Building"
shall mean the building constructed by Landlord
and Master Landlord on the Land, which
building includes the Parking Garage. The
Building shall have the street address 101
Hudson Street, Jersey City, New
Jersey.
1.2.16 "Building
Lease" shall mean that certain Amended and
Restated Lease dated December 29, 1989,
between Master Landlord, as landlord,
and Landlord, as tenant, pursuant to which
Landlord has leased the Building for
a period of approximately twenty-five (25)
years, as same may be amended from
time to time.
1.2.17 "Business
Hours" shall mean Business Hours as defined in
Section 8.3.
1.2.18 "Calendar Year"
shall mean each calendar year, commencing
with the calendar year in which the Lease
Commencement Date occurs, and each
subsequent calendar year in which any part
of the Term falls, through and
including the calendar year in which the
Term expires.
1.2.19 "Change Order"
shall mean Change Order as defined in Section
7.2(e).
1.2.20 "Chilled Water"
shall mean water that is delivered from the
central cooling plant to the Premises for
purposes of air conditioning.
1.2.21 "Common Area"
or "Common Areas" shall mean those areas of
the Building, whether interior or exterior,
open to the public, or all of the
tenants of the Building and not leased to a
particular tenant, including, but
not limited to, the plaza and lobby of the
Building and the Building manager's
office, but excluding the Floor Common
Areas.
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1.2.22 "Construction
Contribution" shall mean a contribution by
Landlord to the cost of Tenant's Work in
the 37th Floor Premises (in lieu of any
Landlord's Work in the 37th Floor Premises)
or, at Tenant's option, the cost of
any Tenant's Work that Tenant elects to
perform in the 25th Floor Premises while
the same are being sublet by Tenant
pursuant to the Sublease, in an amount equal
to $171,400 to be advanced to Tenant as
provided in Section 7.5.
1.2.23 "DEP" shall
mean the New Jersey Department of Environmental
Protection or any successor thereto.
1.2.24 "Electrical
Capacity" shall mean Electrical Capacity as
defined in Section 8.7.
1.2.25 "Electrical
Equipment" shall mean Electrical Equipment as
defined in Section 8.7.
1.2.26 "Event of
Default" shall mean an Event of Default as
defined in Section 26.1.
1.2.27 "Expiration
Date" shall mean the Initial Term Expiration
Date or the last day of the Renewal Term if
the option to renew the Initial Term
granted by Section 2.4 is duly exercised by
Tenant.
1.2.28 "Floor Common
Area Proportionate Share" shall mean (a) one
hundred (100%) percent with respect to the
25th Floor Premises and (b) twenty
and 24/100 (20.24%) percent with respect to
the 37th Floor Premises, unless and
until this Lease is partially terminated as
to a portion of the 25th or 37th
Floor of the Building, after which the term
shall mean a fraction, the numerator
of which is the rentable area of the
portion of the Premises located on the
applicable floor and the denominator of
which is the rentable area of the entire
floor measured in a manner consistent with
the manner in which the area of the
Premises is measured.
1.2.29 "Floor Common
Areas" shall mean the Common Areas on the
floor(s) of the Building on which the
Premises are located and on the other
floors of the Building above the lobby
level available for lease to other
tenants.
1.2.30 "Floor Common
Area Costs" shall mean the Operating Expenses
related to the Floor Common Areas.
(Operating Expenses of which Tenant shall pay
Tenant's Proportionate Share for any
billing period as provided in clause (a) of
Section 5.3 shall not include any Floor
Common Area Costs of which Tenant shall
pay Tenant's Floor Common Area
Proportionate Share thereof for the same billing
period as provided in clause (b) of Section
5.3, and vice versa; and in the
event different allocations of Operating
Expenses to Floor Common Area Costs are
made for different billing periods,
corresponding adjustments shall be made to
the allocation of Base Operating Expenses
to Floor Common Area Costs for the
base period for purposes of determining the
Operating Payment for such billing
periods. Likewise, Floor Common Area Costs
shall not include any costs of
supplying electric current, ventilating,
air conditioning and/or Chilled Water
to any Floor Common Areas as provided in
Subsection 5.2(A)(xxv) hereof.)
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1.2.31 "Force Majeure"
shall mean Force Majeure as defined in
Section 41.6.
1.2.32 "GAAP" shall
mean generally accepted accounting principles
consistently applied.
1.2.33 "Generator"
shall have the meaning set forth in Subsection
8.2(a)(iv).
1.2.34 "Governmental
Authorities" shall mean the United States, the
State of New Jersey, Hudson County, the
City of Jersey City and all political
subdivisions thereof, and any agency,
department, commission, board, bureau or
instrumentality of any of them, now or
hereafter having or claiming jurisdiction
over the Premises.
1.2.35 "Hazardous
Materials" shall mean Hazardous Materials as
defined in Section 35.9.
1.2.36 "Holidays"
shall mean Holidays as defined in Section 8.3.
1.2.37 "HVAC" shall
mean HVAC as defined in Section 8.1(vi).
1.2.38 "Initial Term
Expiration Date" shall mean 11:59 P.M. New
York time, on December 31, 2013.
1.2.39 "Insurance
Requirements" shall mean Insurance Requirements
as defined in Section 10.1.
1.2.40 "ISRA" shall
mean the Industrial Site Recovery Act, N.J.S.A.
13: 1K et seq, as the same may be amended
from time to time.
1.2.41 "Land" shall
mean the parcel of land more particularly
described in Exhibit A annexed hereto.
1.2.42 "Landlord"
shall mean 101 Hudson Leasing Associates, a New
Jersey general partnership, its successors
or assigns as more particularly
provided in Section 41.14.
1.2.43 "Landlord's
Approval Criteria" shall mean Landlord's
Approval Criteria as defined in Section
7.2(d).
1.2.44 "Landlord's
Restoration Work" shall mean Landlord's
Restoration Work as defined in Section
24.2.
1.2.45 "Landlord's
Work" shall mean Landlord's Work (i.e., None as
to the 25th Floor Premises and as described
in Section 7.1 as to the 37th Floor
Premises).
1.2.46 "Lease
Commencement Date" shall mean the Lease Commencement
Date as defined in the Fundamental Lease
Provisions.
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1.2.47 "Legal
Requirements" shall mean Legal Requirements as
defined in Section 10.1.
1.2.48 "Lehman Lease"
shall mean a Lease dated as of October 13,
1993 between Landlord as Landlord and
Lehman Brothers Holdings Inc. as Tenant,
as most recently amended by a Partial
Surrender and Seventh Amendment of Lease
dated as of November 17, 2004.
1.2.49 "Loading Dock"
shall mean the Loading Dock as defined in
Section 8.12.
1.2.50 "Management
Fee" shall mean Management Fee as defined in
Section 5.2 (A) (iii).
1.2.51 "Master
Landlord" shall mean 101 Hudson Urban Renewal
Associates, a New Jersey limited
partnership, and its successors and assigns.
1.2.52 "Net Profits"
shall mean Net Profits as defined in Section
20.5(b).
1.2.53 "Notice" shall
mean a Notice as defined in Section 32.1(b).
1.2.54 "Operating
Expenses" shall mean Operating Expenses as
defined in Section 5.2(A).
1.2.55 "Original or
Initial Term" shall mean the Initial Term as
defined in the Fundamental Lease
Provisions.
1.2.56 "Operating
Statement" shall mean a statement as described in
Section 5.4 of amount(s) due as an
Operating Payment on account of increases in
Operating Expenses and Floor Common Area
Costs as set forth in Section 5.3.
1.2.57 "Parking
Garage" shall mean that portion of the first (1st)
through fifth (5th) floors of the Building
utilized by Landlord as a parking
garage.
1.2.58 "Permitted Use"
shall mean Permitted Use as defined in the
Fundamental Lease Provisions.
1.2.59 "Premises"
shall mean the Premises as defined in the
Fundamental Lease Provisions.
1.2.60 "Prime Rate"
shall mean the Prime Rate as defined in Section
6.1.
1.2.61 "Related Entity" shall mean a Related Entity as defined
in
Section 20.5(a).
1.2.62 "Renewal
Rental" shall mean the market rental value of the
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Premises during the Renewal Term adjusted
to reflect the continued determination
of Base Operating Expenses and Base Taxes
by reference to Calendar Year 2006 and
the continued occupancy of the Demised
Premises during the Renewal Term without
any Landlord's Work or any so-called "free
rent" or "rent concession" and
determined as set forth in Section 2.4., or
the Base Rent for the last year of
the Initial Term, whichever is more.
1.2.63 "Rentable Area
of the Premises" shall mean approximately
6,856 gross rentable square feet of space
from and after the Lease Commencement
Date as to the 37th Floor Premises and a
total of approximately 40,722 gross
rentable square feet of space from and
after the Lease Commencement Date as to
the 25th Floor Premises.
1.2.64 "Rent" shall
mean Base Rent during the Initial Term and
Renewal Rent during any Renewal Term plus
all Additional Rent and other sums
required to be paid by Tenant to Landlord
under this Lease.
1.2.65 "Sublease"
shall mean the Sublease of the 25th Floor
Premises dated as of March 4, 2005 between
Lehman Brothers Holding Inc. as
Sublandlord and Tenant as Subtenant for a
term ending December 30, 2010.
1.2.66 "Security
Deposit" shall mean the Security Deposit held
pursuant to Article 40 below.
1.2.67 "Substantially
Complete" shall mean, with respect to the
work referred to, complete except for punch
list and similar items which do not
adversely affect Tenant's ability to occupy
and use the Premises for the conduct
of Tenant's business or, in the case of
damage or destruction or condemnation,
to perform Tenant's Restoration Work, and
which shall be diligently completed by
Landlord in a manner that does not
interfere with or delay Tenant's Restoration
Work. Substantial Completion of Landlord's
Restoration Work by Landlord shall,
for purposes of Articles 24 and 25 of this
Lease with respect to any period of
time before January 1, 2011, be deemed to
be satisfied by Substantial Completion
of any similar work by the sublandlord
under the Sublease.
1.2.68 "Successor
Landlord" shall mean a Successor Landlord as
defined in Section 21.3.
1.2.69 "Superior
Landlord" shall mean a Superior Landlord as
defined in Section 21.1.
1.2.70 "Superior
Lease" shall mean a Superior Lease as defined in
Section 21.1.
1.2.71 "Superior
Mortgage" shall mean a Superior Mortgage as
defined in Section 21.1.
1.2.72 "Superior
Mortgagee" shall mean a Superior Mortgagee as
defined in Section 21.1.
1.2.73 "Taxes" shall
mean all real estate taxes and/or payments in
lieu
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of real estate taxes and assessments,
special or otherwise, levied or assessed
upon the Land and/or the Building. (For the
period from the date of this Lease
through December 31, 2006, Taxes shall mean
Fox Lance payments in lieu of real
estate taxes estimated to be $3.39 per
calendar year per square foot of Rentable
Area of the Premises.) Should the State of
New Jersey, or any political
subdivision thereof, or any other
Governmental Authority having jurisdiction
over the Land and/or the Building (i)
impose a tax, assessment, charge or fee,
in substitution (whether in whole or in
part) for such real estate taxes or
payments in lieu of real estate taxes, or
(ii) impose an income or franchise tax
or a tax on rents in substitution (whether
in whole or in part) for such real
estate taxes, all such taxes, assessments,
charges or fees shall be deemed to
constitute Taxes hereunder. Prior to the
inclusion of any state or Governmental
Authority imposed tax assessments, charge
or fee on the Land or Building,
Landlord shall provide Tenant with
reasonable evidence of such substitution or
assessment in lieu of real estate taxes at
the reasonable request of Tenant.
Taxes shall not include any inheritance,
estate, succession, transfer, gift,
excise, franchise, net income or capital
stock tax imposed against Landlord or
penalites or interest imposed for late
payment of Taxes.
1.2.74 "Tax Statement"
shall mean a statement as described in
Section 5.6 of amount(s) due as a Tax
Payment as set forth in Section 5.5.
1.2.75 "Tenant" shall
mean Franklin Credit Management Corporation,
and to the extent permitted under this
Lease, its successors or assigns.
1.2.76 "Tenant Criteria Manual" shall
mean the Tenant Criteria
Manual attached as Exhibit B (for purposes
of which all references to "LCOR
Asset Management, L.P." shall be deemed to
mean Mack-Cali Realty, L.P., and all
references to "Landlord's Work" shall be
deemed to mean "None").
1.2.77 "Tenant's
Corridor Signs" shall mean Tenant's Corridor Signs
as defined in Section 14.1.
1.2.78 "Tenant's
Furnishings" shall mean Tenant's Furnishings as
defined in Section 7.4.
1.2.79 "Tenant's
Modifications" shall mean Tenant's Modifications
as defined in Section 7.2(d).
1.2.80 "Tenant's
Plans" shall mean the Tenant's Plans as defined in
Section 7.2.
1.2.81 "Tenant's
Proportionate Share" shall mean a fraction, the
numerator of which is the Rentable Area of
the Premises (or of the 25th Floor
Premises or the 37th Floor Premises, as the
case may be), and the denominator of
which is 1,214,870. As of the date of this
Lease, Tenant's Proportionate Share
is 0.56% ("Tenant's 37th Floor
Proportionate Share"), which shall increase by
2.79% ("Tenant's 25th Floor Proportionate
Share") to a total of 3.35% from and
after the Lease Commencement Date as to the
37th Floor Premises. Tenant's
Proportionate Share shall be adjusted as
required from time to time to reflect
any changes in the Rentable Area of the
Premises agreed to by Landlord and
Tenant and/or any
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changes in the square footage of the
Building as a result of alterations
performed by Landlord and/or any takings by
eminent domain or condemnation.
1.2.82 "Tenant's Work"
shall mean Tenant's Work as defined in
Section 7.2(a).
1.2.83 "Term" shall
mean the Initial Term and, subject to
compliance by Tenant with Section 2.4, any
Renewal Term.
1.2.84 "Utility
Company" shall mean the Utility Company as
defined in Section 8.8.
1.2.85 "Year-End
Statement" shall mean Year-End Statement as
defined in Section 5.7.
2.
LANDLORD'S AUTHORITY; PREMISES;
TERM; EARLY TERMINATION.
2.1
Landlord is the
sole tenant under the Building Lease, and Landlord
represents that (a) it has full right and
authority to lease the Premises to
Tenant and to otherwise enter into this
Lease on the terms and conditions set
forth herein, and (b) as of the date of
this Lease, no default or event of
default has occurred and is continuing
under the Building Lease, the Superior
Lease or any Superior Mortgage. Landlord
covenants and agrees to indemnify and
hold Tenant harmless from and against any
and all losses, damages and
liabilities (including reasonable attorneys
fees) which Tenant may suffer or
incur as a result of any breach or default
by Landlord under the Building Lease
or under Section 41.10 of this Lease.
2.2
Landlord leases
to Tenant, and Tenant leases from Landlord, the
Premises, together with all improvements
and appurtenances attached thereto or
installed therein. Landlord's leasing of
the Premises to Tenant shall also
include the right of Tenant to the
non-exclusive use of the Common Areas along
with the other tenants of the Building in
accordance with the Rules and
Regulations annexed hereto as Exhibit C,
and rights to five (5) parking spaces
from and after the Lease Commencement Date
for the 37th Floor Premises until the
Lease Commencement Date for the 25th Floor
Premises and twenty-nine (29) parking
spaces thereafter as more particularly set
forth in Section 16.1.
2.3
The term of this
Lease shall commence on the Lease Commencement Date
and end, unless otherwise terminated
pursuant to the terms hereof, on the
Expiration Date. Landlord and Tenant
acknowledge that Tenant has taken occupancy
of the 25th Floor Premises before the date
hereof pursuant to the Sublease for a
term that expires on December 30, 2010,
that until that date or any earlier
termination of the Lehman Lease, the terms
and conditions of the Sublease shall
govern Tenant's occupancy of the 25th Floor
Premises, and that after such date
the terms and conditions of this Lease
shall govern Tenant's occupancy of the
25th Floor Premises.
2.4
Tenant is hereby
granted one (1) option, exercisable by giving
Notice to Landlord not fewer than twelve
(12) months before the Initial Term
Expiration Date, time being of the essence
with respect to such Notice, to renew
the Term for one (1) additional term of
five (5) years (herein referred to as
the "Renewal Term") commencing on the next
day after the Initial
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Term Expiration Date, provided no Event of
Default has occurred and is
continuing either at the time of the
exercise of said option or at the
commencement of the Renewal Term. In the
event the Term is so renewed, Tenant
shall continue to lease and occupy the
Premises in their "as is" condition on
the Initial Term Expiration Date, and shall
pay to Landlord for the Premises
during the Renewal Term Rent equal to the
Renewal Rental plus all Additional
Rent and other sums required to be paid by
Tenant to Landlord under this Lease,
the Renewal Rental to be determined as
follows: At least eleven (11) months
prior to the Expiration Date of the Initial
Term, Landlord shall set forth in a
Notice to Tenant its determination of the
Renewal Rental for the Premises during
the Renewal Term, and within thirty (30)
days after receipt of Landlord's Notice
Tenant shall by Notice to Landlord either
accept or dispute Landlord's
determination of the Renewal Rental. Tenant
shall have no right to revoke its
Notice of renewal regardless of whether it
accepts or disputes Landlord's
determination of the Renewal Rent or of the
outcome of any such dispute. Should
Tenant dispute Landlord's determination,
the parties shall thereafter negotiate
in good faith in an attempt to reach
agreement upon such Renewal Rental for a
period of thirty (30) days. If the parties
are unable to reach agreement upon
the Renewal Rental within said thirty (30)
day negotiation period, Landlord
shall within ten (10) days from the end of
the negotiation period provide Tenant
with a Notice stating the lowest Renewal
Rental Landlord is willing to accept
for the Premises during the Renewal Term,
after which Tenant shall have a
further period of ten (10) days within
which to accept or to furnish to Landlord
a Notice stating the highest Renewal Rental
that Tenant is willing to pay for
the Premises during the Renewal Term. If
Landlord does not give Tenant Notice of
its acceptance of Tenant's Renewal Rental
within a third period of ten (10)
days, the Renewal Rental shall be submitted
to binding arbitration conducted in
accordance with the procedures set forth in
Article 36. Pending a determination
by the arbitrators, Tenant will be liable
to pay Rent for the Premises from and
after the commencement of the Renewal Term
at the lowest Renewal Rental
acceptable to Landlord, subject to
adjustment retroactively to the beginning of
the Renewal Term once a majority of the
arbitrators have made a determination.
3. RENTABLE
AREA OF THE PREMISES.
3.1
For the purposes
of this Lease, the Building (excluding the Parking
Garage) contains approximately 1,214,870
gross rentable square feet of space and
the Premises consist of approximately
40,722 gross rentable square feet of space
on the 25th and 37th floors of the
Building.
4.
BASE RENT.
4.1
During the
period beginning on the Base Rent Commencement Date
applicable to the 37th Floor Premises
through the Base Rent Commencement Date
applicable to the 25th Floor Premises and
thereafter through the Initial Term
Expiration Date, Base Rent shall be payable
for the Premises at the rates set
forth in the Fundamental Lease Provisions
for the appropriate period described
therein. All payments of Base Rent shall be
payable by Tenant, in United States
dollars, in equal monthly installments as
set forth in the Fundamental Lease
Provisions, on or before the first day of
each month, in advance, payable to
Landlord or Landlord's agent at the first
address to which Notices to Landlord
are to be sent hereunder, or such other
place as Landlord may from time to time
designate by a Notice, without any prior
demand therefor and without any
deductions or setoff whatsoever except as
otherwise herein
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specifically provided. At the option of
Tenant, Tenant shall have the right to
pay the Base Rent by wire remittance and
Landlord shall furnish Tenant with the
requisite account information for such
purpose. If the Base Rent Commencement
Date or the Expiration Date occurs on a day
other than the first or last day,
respectively, of a calendar month, then the
Base Rent for the month in question
shall be pro-rated on a per diem basis
based on the number of days in the month
in question.
5.
ADDITIONAL RENT - OPERATING EXPENSES.
5.1
In addition to
paying the Base Rent specified in Article 4 hereof,
Tenant shall, commencing on the Lease
Commencement Date as to the 37th Floor
Premises for the 37th Floor Premises and on
January 1, 2011 for the 25th Floor
Premises, respectively, and thereafter
through the end of the Term, pay as
Additional Rent, for each Calendar Year or
portion thereof during the Term, (i)
Tenant's Proportionate Share of increases,
if any, in Operating Expenses and
(ii) Tenant's Proportionate Share of
increases, if any, in Taxes, as hereinafter
set forth in Sections 5.3 and 5.5. For any
partial Calendar Year (as hereinafter
defined), Tenant shall be obligated to pay
a pro rata share of Tenant's
Proportionate Share of increases, if any,
in Operating Expenses and Taxes, based
on the number of days of the Term falling
within such Calendar Year as compared
to 365 or 366 days, as may be contained in
such Calendar Year.
5.2
For the purposes
of this Lease, the following terms shall have the
following meanings:
(A) "Operating
Expenses" shall mean and include all reasonable
expenses, costs and disbursements which
Landlord shall pay or become obligated
to pay because of or in connection with the
management, operation, repair and
maintenance of the Building or the Land,
including, without limitation:
(i) Taxes;
(ii) Wages, salaries, disability benefits, pensions,
contributions, hospitalization, retirement plans, all fringe
benefits and
group
insurance and other expenses respecting employees of Landlord
and
Landlord's
contractors and agents engaged in the operation, maintenance
and repair
of the Building (except with respect to the Parking Garage, as
hereinafter provided) or the Land up to and including the grade
of
Building
manager; uniforms and working clothes for such parties and the
cleaning
thereof; expenses imposed upon Landlord pursuant to any
requirements of Governmental Authorities or any collective
bargaining
agreement
with respect to such employees; worker's compensation
insurance,
payroll,
social security, unemployment and other similar taxes with
respect to
such employees;
(iii) A management fee equal to that charged by independent
third
party property managers, but not in excess of three percent (3%)
of
the gross
rent payable to Landlord under the leases of space in the
Building (the
"Management Fee")
(iv) Cost of all supplies and materials used in the operation,
management, maintenance and repair of the Building including
equipment or
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supplies used by the Building manager in
the management or operation of the
Building;
(v) Fuel and Chilled Water expenses for Common Area
ventilating and air conditioning and any other utility expenses
relating
to the
Common Areas;
(vi) Water and sewer rents or charges, however termed for the
Building;
(vii) Cost of operation, maintenance, service and repair
(including
replacement parts) of the central chiller system installed by
Landlord to provide
ventilating, air conditioning and heating to the
Premises,
other tenantable areas and the Common Areas of the Building
including
the cost of electricity, make-up water and water treatment
necessary
to operate such central chiller system including cooling
towers,
chilled
water pumps, heat exchangers and condenser water pumps;
(viii) Cost of operation, maintenance, service and repairs
(including
replacement parts) of heating, ventilating and air conditioning
equipment
installed by Landlord and located inside the on-floor heating,
ventilating and air conditioning machinery rooms excluding
therefrom any
supplemental heating, ventilating and air conditioning equipment
servicing
the
Premises and other rentable areas of the floor(s) of the
Building;
(ix) Cost of all maintenance and service for the Common Areas
and the
equipment therein, including but not limited to, security, all
Building
elevators and elevator cab maintenance (whether or not such
elevator
services the Premises), lobby and interior and exterior plaza
maintenance, lobby decoration and display, removal of snow, ice
and
debris,
Common Area cleaning services, trash removal from Common Areas,
Common
Area landscape maintenance and interior and exterior window
repairs
(including
replacement parts) and cleaning;
(x) The annual cost during the Term, as amortized without
interest
by Landlord over the useful life of the capital improvement,
net
of a
reasonable salvage value, if any, for capital improvements for
equipment
(1) used in cleaning and maintenance and (2) providing Building
services,
which reduces any component cost included in Operating
Expenses,
provided,
however, that the amount included in Operating Expenses in any
Calendar
Year under this Subsection 5.2(A)(x) shall not exceed the
reduction
in the component cost of Operating Expenses resulting from such
capital
improvements in such Calendar Year and provided further only if
such
equipment is purchased after the Lease Commencement Date;
(xi) Cost of any additional services or, to the extent
permitted
by GAAP, capital improvements provided by Landlord in order to
comply
with Legal Requirements enacted after the Lease Commencement
Date
and
with
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respect to
capital improvements, the cost shall be annualized over the
useful
life of such improvement without interest;
(xii) Fire, extended coverage, special extended coverage,
terrorism,
owner's protective, and other casualty coverage, boiler and
machinery,
sprinkler, apparatus, public liability and umbrella liability
and
property damage, rent or rental value and plate glass insurance
and
any other
insurance which Landlord may reasonably deem necessary or which
is
required by the Master Landlord and/or any mortgagee of the
Building
and/or the
Land and the deductible incurred under the aforesaid policies;
(xiii) Cost of repairs (including replacement parts) and
maintenance of the exterior of the Building (including interior
and
exterior
window repairs, replacement parts and cleaning) which are
appropriate for the continued operation of the Building as a Class
A
office
building but excluding repairs and general maintenance paid by
the
proceeds
of insurance or by Tenant or other third parties;
(xiv) Rental (or depreciation) of equipment used in cleaning
and
maintenance;
(xv) Painting and decoration of non-tenant areas;
(xvi) Cost of maintenance, operation and inspection of any
sprinkler
system and alarm system;
(xvii) Cost of extermination service administered in the
Building
and general office areas of tenants (but not any kitchen,
cafeteria
or special food preparation areas) for rodent and pest control;
(xviii) Cost of any additional services that benefit Building
tenants
generally not provided to the Building at the commencement of
the
Term but
thereafter provided by Landlord in order to comply with Legal
Requirements (but excluding correction of existing violations, if
any);
(xix) Cost of electricity for the operation of elevators,
Building
systems and the Building (not otherwise provided directly to or
otherwise
chargeable to tenants, but including certain convenience
outlets
on each
floor of the Building) and for lighting of Common Areas;
(xx) Cost of natural gas for the Building not otherwise
provided
directly to or otherwise chargeable to tenants;
(xxi) Sales, excise and other taxes imposed upon the services,
materials
or expenses enumerated herein;
(xxii) Rental charges, including base rent and additional
rent, for
a reasonably-sized office located within the Building for the
Building
manager
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<PAGE>
and his
staff engaged in the operation of the Building and all the cost
of
all
utilities consumed therein;
(xxiii) Cost of heat and hot water for the Building not
otherwise
provided directly to, or chargeable to, tenants; and
(xxiv) Such other actual and reasonable expenses, costs and
disbursements paid or incurred by Landlord in the operation,
maintenance
and
management of the Building as a Class A office building if such
items
are
considered to be operating expenses under GAAP.
"Operating
Expenses" shall be deemed not to include the following:
(xxv) Cost of supplying electric current, ventilating, air
conditioning and/or Chilled Water to rentable portions of the
Building or
to Floor
Common Areas;
(xxvi) Real estate brokerage, leasing commissions, rental
concessions and/or and takeover lease costs incurred by Landlord
in
connection
with the leasing of the Building;
(xxvii) Wages, salaries or other compensation or benefits paid
to (x) any
persons above the grade of building manager, or (y) any
employees
of the operator of the Parking Garage;
(xxviii) Costs of repairs or replacements incurred by reason
of fire or
other casualty or by other insured occurrences or by the
exercise
of the right of eminent domain (except to the extent Landlord
is
not
compensated therefor by reason of reasonable deductibles which
are
required
by Landlord's insurer and/or serve to reduce the costs of
Landlord's
insurance referred to in (xii) above);
(xxix) Advertising and promotional expenditures incurred by
Landlord
for the Building;
(xxx) Legal fees incurred in disputes with tenants and other
legal and
auditing fees, other than legal and auditing fees incurred
(except to
the extent due to Landlord's willful or negligent misconduct)
(x) in
connection with the maintenance, management and operation of
the
Land
and/or the Building or (y) in connection with the preparation
of
statements
required pursuant to this Article 5 or (z) in connection with
any
assessment reduction challenge, appeal or other contest by Landlord
to
reduce
Taxes or any other component of Operating Expenses;
(xxxi) Depreciation and amortization of the Building and
capital
expenditures for improvements to the Building, except that
Operating
Expenses shall include annual amortization of capital
improvements to the extent provided in (x) or (xi) above;
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<PAGE>
(xxxii) Expenses for preparing, renovating or redecorating
space to
be occupied by tenants as part of their demised premises or for
tenants
renewing their leases;
(xxxiii) Any management fees or other costs associated with
operation
of the Parking Garage;
(xxxiv) Any rent or other payments under any ground or
underlying
lease;
(xxxv) Debt service on any mortgage encumbering the Land or
Building
and any financing costs with respect thereto;
(xxxvi) Any fee or expenditure paid to an affiliate of the
Landlord,
other than the Management Fee, but only to the extent such
amounts
exceeds the costs and expenditures which would be paid by
landlords
of comparable buildings to a similar entity not affiliated with
Landlord
for similar services;
(xxxvii) Items and services for which tenants reimburse
Landlord,
excluding their proportionate shares of Operating Expense, or
pay
directly to third parties or that Landlord provides selectively to
one
or more
tenants of the Building other than Tenant without
reimbursement;
(xxxviii) Costs incurred to remedy structural or other
substantial defects in original construction materials or
installations;
(xxxix) Costs incurred because the Landlord or another tenant
violated
the terms of any lease or Legal Requirement;
(xl) Costs incurred to test, survey, cleanup, contain, abate,
remove, or
otherwise remedy hazardous wastes or asbestos-containing
materials
from the Building and/or Land;
(xli) Costs of
works of art and decorations;
(xlii) Excise, franchise, income, gains, transfer, inheritance
or estate
taxes imposed upon the income of Landlord;
(xliii) Costs with respect to a sale of the Building or the
Land;
(xliv) Any costs and compensation paid to clerks, attendants
or other
persons in commercial concessions operated by Landlord;
(xlv) Costs incurred with respect to any specialty use in the
Building which
is operated by Landlord and is not available for use by
Tenant or
its employees;
(xlvi) Payment of damages, attorneys' fees and any other
17
<PAGE>
amounts to
any person seeking recovery for negligence or other torts
(including
any tort claims relating to asbestos);
(xlvii) Damages and repairs necessitated by the negligence or
willful
misconduct of Landlord or Landlord's employees, contractors or
agents;
(xlviii) Costs incurred due to violations by Landlord, or by
any other
tenant of the Building, of the terms and conditions of a lease,
and
penalties or interest for late payment (unless such penalties
or
interest
result from Tenant's late payment of Rent);
(xlix) Landlord's general corporate overhead, including
without
limitation, Landlord's accounting and the preparation of
Landlord's
income tax or informational returns;
(l) Cost of the services set forth in Section 8.2, which are
provided
to the Premises and the cost of similar services provided to
rentable
portions of the Building; and
(li) Any other costs or expenses not specifically described
above
which are not considered operating expenses under GAAP.
(B) In computing
Operating Expenses, Landlord shall include only
those actual and reasonable expenses, costs
and disbursements which Landlord has
paid or become obligated to pay because of
or in connection with the management,
operation, repair and maintenance of the
Building and/or the Land, in a manner
consistent with the standards of Class A
office buildings, all of which shall be
subject to the foregoing exclusions from
Operating Expenses set forth in Section
5.2(A). There shall be credited as a
deduction to Operating Expenses all amounts
collected from specific tenants of the
Building to the extent the amount billed
to such tenant and subsequently collected
were included in Operating Expenses.
Operating Expenses shall be net only and
for that purpose shall be deemed
reduced by the amount of all
reimbursements, recoupments, payments, discounts,
credits, reductions, allowances or the like
actually received by Landlord in
connection with Operating Expenses;
provided, however, that Landlord shall
include in Operating Expenses the
reasonable costs and expenses, if any,
incurred by Landlord in obtaining such
reimbursements, recoupments, payments,
discounts, credits, reductions, allowances
or the like; provided, however,
Landlord shall have no obligation to take
any action to receive such
reimbursement, recoupment, payment,
discount, credit, reduction, allowance or
the like.
(C) In the event
the Building is not at least ninety-five (95%)
percent occupied by tenants during all or
any portion of a Calendar Year during
the Term (or, for purposes of determining
Base Operating Expenses and Base
Taxes, during Calendar Year 2006), then
Landlord shall make appropriate
adjustments in the cost of those components
of Operating Expenses which vary
with the occupancy level of the Building,
to reflect the Operating Expenses
which would have been paid or incurred by
Landlord for such Calendar Year or
portion thereof commencing January 1, 2006
had the Building been at least
ninety-five (95%) percent occupied by
tenants during such Calendar Year or
portion thereof.
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<PAGE>
5.3
If the Operating
Expenses for any Calendar Year (any part or all of
which falls after the Lease Commencement
Date and within the Term) shall be
greater than the Base Operating Expenses
for the corresponding base period, then
Tenant shall pay, as Additional Rent for
such Calendar Year (or portion thereof
that is included in the Term), (a) Tenant's
Proportionate Share of the increase
in Operating Expenses (exclusive of Floor
Common Area Costs) for such Calendar
Year (or portion thereof which falls after
the Lease Commencement Date and
within the Term) over Base Operating
Expenses (exclusive of Floor Common Area
Costs) for the corresponding period, plus
(b) Tenant's Floor Common Area
Proportionate Share of the increase in
Floor Common Area Costs for the floor(s)
of the Building on which the Premises are
located for such Calendar Year (or
portion thereof) over the Floor Common Area
Costs for the base period Calendar
Year (or corresponding portion thereof)
used for determining Base Operating
Expenses (collectively, the "Operating
Payment") as hereinafter provided.
5.4
On the first day
of the month following the furnishing to Tenant of
a statement of amount due from Tenant as an
Operating Payment pursuant to
Section 5.3 (an "Operating Statement"), but
in no event less than thirty (30)
days after the furnishing of such Operating
Statement, Tenant shall pay to
Landlord a sum equal to 1/12th of the
Operating Payment shown thereon to be due
for the preceding Calendar Year multiplied
by the number of months (and any
fraction thereof) of the Term then elapsed
since the commencement of such
Calendar Year in which such Operating
Statement is delivered, less Operating
Payments theretofore made by Tenant for
such Calendar Year and thereafter,
commencing with the then current monthly
installment of Base Rent and continuing
monthly thereafter until rendition of the
next succeeding Operating Statement,
Tenant shall pay on account of the
Operating Payment for such Calendar Year an
amount equal to one-twelfth (1/12th) of the
Operating Payment shown thereon to
be due for the preceding Calendar Year. Any
Operating Payment shall be
collectible by Landlord in the same manner
as Base Rent.
5.5
If the Taxes
payable for any Calendar Year (any part or all of which
falls after the Lease Commencement Date and
within the Term) shall represent an
increase above the Base Taxes, then Tenant
shall pay as Additional Rent for such
Calendar Year and continuing thereafter
until a new Tax Statement is rendered to
Tenant, a payment (the "Tax Payment") equal
to Tenant's Proportionate Share of
such increase as shown on the Tax Statement
with respect to such Calendar Year
(or portion thereof).
5.6
Except as
expressly provided in this Lease, at any time during or
after the Term, Landlord may render to
Tenant a statement of amount due from
Tenant as a Tax Payment pursuant to Section
5.5 (a "Tax Statement") showing (i)
a comparison of the actual or estimated
Taxes for the Calendar Year with the
Base Taxes and (ii) the amount of the Tax
Payment resulting from such
comparison. On the first day of the month
following the furnishing to Tenant of
a Tax Statement, but in no event less than
thirty (30) days after the furnishing
of such Tax Statement, Tenant shall pay to
Landlord a sum equal to one-twelfth
(1/12th) of the Tax Payment shown thereon
to be due for such Calendar Year
multiplied by the number of months of the
Term then elapsed since the
commencement of such Calendar Year. Tenant
shall continue to pay to Landlord a
sum equal to one-twelfth (1/12th) of the
Tax Payment shown on such Tax Statement
on the first day of each succeeding month
until the first day of the month
following the month in which Landlord shall
deliver to Tenant a new Tax
Statement. If Landlord furnishes a Tax
Statement for a new Calendar Year
subsequent to the commencement thereof,
promptly
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<PAGE>
after the new Tax Statement is furnished to
Tenant, Landlord shall give notice
to Tenant stating whether the amount
previously paid by Tenant to Landlord for
the current Calendar Year was greater or
less than the installments of the Tax
Payment for the current tax year in
accordance with the Tax Statement, and (a)
if there shall be a deficiency, Tenant
shall pay the amount thereof within
thirty (30) days after demand therefor, or
(b) if there shall have been an
overpayment, Landlord shall, at its option,
credit the amount thereof against
the next monthly installments of the Rent
payable under this Lease or pay such
amount to Tenant within thirty (30) days of
Landlord's delivery of the Year-End
Statement or Tax Statement. Tax Payments
shall be collectible by Landlord in the
same manner as Base Rent. Except as
otherwise provided in this Article 5,
Landlord's failure to render a Tax
Statement shall not prejudice Landlord's
right to render a Tax Statement during or
with respect to any subsequent
Calendar Year, and shall not eliminate or
reduce Tenant's obligation to make Tax
Payments for such Calendar Year.
Notwithstanding anything herein to the
contrary, if Landlord fails to deliver a
Year-End Statement or Tax Statement
with respect to Taxes within twenty-four
(24) months after the end of a Calendar
Year, Landlord may not thereafter issue a
Tax Statement or Year-End Statement
for such Calendar Year.
5.7
Within one
hundred twenty (120) days after the end of each Calendar
Year, Landlord shall provide Tenant with a
statement (the "Year-End Statement"),
certified by Landlord and setting forth in
reasonable detail for said Calendar
Year the Operating Expenses and Taxes. Each
Year-End Statement shall be
accompanied by a detailed computation of
Operating Expenses and Tenant's Tax
Payment and Operating Payment for said
Calendar Year and copies of all relevant
Tax bills for said Calendar Year. Within
thirty (30) days after Tenant's receipt
of any Year-End Statement, Tenant shall pay
Landlord any deficiency, or receive
a credit from Landlord for any excess
against any ensuing payments of Rent
hereunder, in either case, between the
amount due pursuant to the Year-End
Statement and the amount paid pursuant to
the Operating Statement or Tax
Statement or applicable statement, except
that if such Year End Statement is
rendered after the end of the Term,
Landlord shall make a payment to Tenant
equal to any excess (or any accrued but
unpaid credit due Tenant) within thirty
(30) days of Landlord's delivery of the
Year-End Statement.
5.8
In rendering
each Year-End Statement or Tax Statement, Landlord
shall reflect any reduction in Taxes
(resulting from an assessment reduction
challenge or otherwise) received by
Landlord prior to the preparation of the
Year-End Statement or Tax Statement (net of
the costs (including reasonable
attorneys' fees) incurred by Landlord in
connection therewith and not included
in Operating Expenses) and, if any such
reduction in Taxes is received by
Landlord thereafter, even after the end of
the Term, Landlord, within sixty (60)
days of its receipt of such reduction,
shall, at Landlord's option, credit
Tenant against any ensuing payments of Rent
hereunder or pay such amount to
Tenant, or, if such reduction in Taxes is
received by Landlord after the end of
the Term, make a payment to Tenant equal
to, Tenant's Proportionate Share of
such reduction (or of any accrued but
unpaid credit due Tenant), with respect to
which Tenant paid increases, (net of the
actual out-of-pocket costs (including
reasonable attorneys' fees) incurred by
Landlord in connection therewith and not
included in Operating Expenses). Prior to
making any such credit or payment, as
the case may be, to Tenant, Landlord shall
deduct therefrom any amounts of Base
Rent, Additional Rent or other sums which
are due and owing by Tenant to
Landlord hereunder.
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5.9
Landlord shall
keep, for a period of three (3) years after any
Year-End Statement required under this
Article 5 is delivered to Tenant, either
at the Building or at Landlord's offices
c/o Mack-Cali Realty, L.P. at 11
Commerce Drive in Cranford, New Jersey
records in reasonable detail of the
Operating Expenses and Taxes for the period
covered by such statement, and
Landlord shall permit Tenant or Tenant's
independent certified public accounting
firm, at Tenant's expense, within the
aforesaid three (3) year period, to
examine, copy and audit such records during
business hours at reasonable times
following reasonable Notice at the office
where Landlord is keeping such
records. After the expiration of the
aforesaid three (3) year period, Landlord
shall have no obligation to retain such
records.
5.10
Each Year-End
Statement shall be conclusive and binding upon Tenant
unless within two hundred forty (240) days
after its receipt of any such
statement Tenant shall, by Notice to
Landlord, dispute the correctness of said
statement. If Tenant fails to send the
aforesaid Notice within two hundred forty
(240) days after its receipt of the
Year-End Statement, Tenant shall be
conclusively deemed to have accepted such
Year-End Statement and waived any
right to dispute such Year-End Statement or
audit Landlord's records pertaining
thereto. Any such Notice shall set forth in
reasonable detail to the extent
practicable the basis of such dispute.
Landlord shall grant Tenant or its
representative (not working for a
contingency fee) access to Operating Expense
records in order to audit the same for a
period of sixty (60) days after receipt
of any such Notice. Any such dispute that
is not settled by Landlord and Tenant
within sixty (60) days after the delivery
of such Notice, or such longer period
to which they may mutually agree, may, at
the option of either party, be
submitted to arbitration in accordance with
Article 36 of this Lease. Pending
the determination of any such dispute by
agreement or otherwise, Tenant shall
pay Operating Payments and Tax Payments in
accordance with the applicable
Year-End Statement, and such payment shall
be without prejudice to Tenant's
position. Tenant shall pay to Landlord any
unpaid amounts within thirty (30)
days after the resolution of any dispute
regarding same. In the event that it is
determined that Tenant made an overpayment,
Landlord shall, at its option,
either credit the amount of the overpayment
to the next payments of Rent payable
by Tenant or pay such amount to Tenant
within thirty (30) days after resolution
of such dispute, or if the determination is
made in the last Lease Year of the
Term, the amount of overpayment shall be
paid by Landlord to Tenant within
thirty (30) days of the resolution of the
dispute. The provisions of this
Section 5.13 shall survive the expiration
or earlier termination of this Lease.
5.11
Landlord shall have
the right at any time (except as provided by the
last sentence of Section 5.12 or this
Section 5.11) after the delivery of any
Year-End Statement to Tenant to render
revised Year-End Statements to Tenant
reflecting any adjustment in Operating
Payments and Tax Payments. Within thirty
(30) days after Tenant's receipt of any
revised Year-End Statement, Tenant shall
pay Landlord any deficiency, or receive
from Landlord a credit for any excess
previously paid by Tenant against any
ensuing Rent payments hereunder or, if a
Year End Statement is rendered after the
end of the Term, a payment in such
amount, in either case, equal to the
difference between the amount due pursuant
to the revised Year-End Statement and the
amount previously paid by Tenant under
the Year-End Statement to which such
revised Year-End Statement pertains. Each
such revised Year-End Statement shall be
conclusive and binding upon Tenant
unless within two hundred and forty (240)
after its receipt of any such revised
statements Tenant shall, by Notice to
Landlord, dispute the correctness of said
revised statement. If Tenant fails to send
the aforesaid Notice within two
hundred and forty (240) days after its
receipt of the revised Year-End
Statement, Tenant shall be conclusively
deemed to have
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accepted such revised Year-End Statement
and waived any right to dispute such
revised Year-End Statement or audit
Landlord's records pertaining thereto. Any
such Notice shall set forth in reasonable
detail to the extent practicable the
basis of such dispute. Landlord shall grant
Tenant or its representative (not
working for a contingent fee) access to
Operating Expense records in order to
audit the same for a period of sixty (60)
days after receipt of any such Notice.
Any such dispute that is not settled by
Landlord and Tenant within sixty (60)
days after the delivery of such Notice, or
such longer period to which they may
mutually agree, may, at the option of
either party, be submitted to arbitration
in accordance with Article 36 of this
Lease. Pending the determination of any
such dispute by agreement or otherwise,
Tenant shall pay Operating Payments and
Tax Payments in accordance with the
applicable revised Year-End Statement, and
such payment shall be without prejudice to
Tenant's position. Tenant shall pay
to Landlord any unpaid amounts within
thirty (30) days after the resolution of
any dispute regarding same. In the event
that it is determined that Tenant made
an overpayment, Landlord shall either
credit the amount of the overpayment to
the next payments of Rent payable by Tenant
or, at Landlord's option, pay such
amount to Tenant within thirty (30) days of
the resolution of dispute, or if the
determination is made in the last Lease
Year of the Term, the amount of
overpayment shall be paid by Landlord to
Tenant within twenty-four (24) days of
the resolution of the dispute.
Notwithstanding anything herein to the contrary,
Landlord may not deliver a revised Year-End
Statement more than twenty-four (24)
months after the Calendar Year to which it
pertains (except to the extent such
revised Year-End Statement reflects a
reduction in Taxes, in which case no such
time limit shall apply). The provisions of
this Section 5.14 shall survive the
expiration or earlier termination of this
Lease.
5.12
Landlord's failure to
render a Year-End Statement during or with
respect to any Calendar Year in question
shall not prejudice Landlord's right to
render a Year-End Statement during or with
respect to any subsequent Calendar
Year, and shall not eliminate or reduce
Tenant's obligation to make payments of
the Operating Payment pursuant to this
Article for such Calendar Year.
Notwithstanding anything herein to the
contrary, if Landlord fails to deliver a
Year End Statement or an Operating
Statement with respect to a particular
Calendar Year within twenty four (24)
months of the end of a particular Calendar
Year, Landlord may not thereafter issue a
Year End Statement or Operating
Statement for such Calendar Year.
5.13
Each and every payment
required under this Article 5, as well as any
other amounts which are owed by Tenant to
Landlord under this Lease, whether
requiring lump sum payments or constituting
projected monthly amounts in
addition to the Base Rent, shall for all
purposes be treated and considered as
Additional Rent. The failure of Tenant to
pay such Additional Rent as and when
due shall have the same effect as failure
to pay any installment of Base Rent
and shall afford Landlord all remedies
provided in this Lease therefor. Where
there is no specific time period or date
stated herein when an item of
Additional Rent is due, such Additional
Rent shall be payable within ten (10)
Business Days after demand.
5.14
Both Tenant's
obligation for payment of Additional Rent for any
period during the Term of this Lease and
Landlord's obligation to refund excess
payments on account of Additional Rent for
any period during the Term of this
Lease shall survive the expiration or any
sooner termination of the Lease,
subject, however, to the provisions of
Section 5.11 and 5.12 hereof.
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6.
LATE CHARGES, INTEREST AND EXPENSES.
6.1
Any installment
of Base Rent or Additional Rent hereunder that is
not paid within 10 days after the date when
due hereunder (or after Notice to
the extent Notice of such nonpayment is
required herein) more than once in any
twelve (12) month period shall accrue a
late charge ("Late Charge") to defray
the cost(s) to Landlord of handling such
late payment equal to four (4%) percent
of the amount of the late payment and shall
also bear interest from the eleventh
(11th) day after the due date until paid at
the rate of three percent (3%) over
the then "Prime Rate" as published in The
Wall Street Journal or The New York
Times for ninety (90) day unsecured loans
to major corporate borrowers (unless
such rate is usurious as applied to Tenant,
in which case the highest rate
permitted by law shall apply) (the "Prime
Rate"). In the event the Prime Rate is
no longer the reference rate for ninety
(90) day unsecured loans to major
corporate borrowers, the replacement or
successor reference rate to the Prime
Rate shall be used in determining the
interest to be paid by Tenant pursuant to
this Section.
6.2
In the event at
any time during the term of this Lease, Landlord
expends any sums on behalf of Tenant
pursuant to the provisions of this Lease,
the payment of which are the sole
responsibility of Tenant, provided that,
except in an emergency (including without
limitation, to correct an emergent
condition that is a violation of Applicable
Laws or a Superior Mortgage), Tenant
receives prior notice of the expenditure of
such funds by Landlord and the
opportunity itself to make the payments,
Landlord shall be entitled to receive
from Tenant, as Tenant agrees to pay, in
addition to such sums, interest thereon
calculated at the Prime Rate from the date
Landlord expends such sums until same
are repaid to Landlord.
7.
COMPLETION OF THE PREMISES.
7.1
Tenant is
accepting (a) the 37th Floor Premises on the Lease
Commencement Date as to said Premises in
"as is" but "broom clean" condition
with existing lighting, sprinkler and HVAC
systems in working good order on said
date for general office uses but not
necessarily adequate for Tenant's specific
intended use of the Premises beyond general
office uses, and (b) the 25th Floor
Premises on the Lease Commencement Date as
to said Premises in "as is" condition
on that date without any Landlord's Work
required to be performed by Landlord on
or before that date.
7.2
(a) For the purposes of this Lease,
the term "Tenant's Work" shall
mean the work, installations, improvements
and equipment described in Tenant's
Plans, if any, for the 37th Floor Premises
and/or, at Tenant's option, work,
installations, improvements and equipment,
if any, described in Tenant's Plans
(which have already been approved) for the
25th Floor Premises (while the same
are being sublet by Tenant pursuant to the
Sublease) for which Tenant intends to
request advances of the Construction
Contribution pursuant to Section 7.5.
Tenant's Work shall be performed, subject
to the provisions of this Article 7
and in accordance with Tenant's Plans,
which plans shall be subject to
Landlord's approval, as modified by Change
Orders reasonably approved by
Landlord pursuant to Section 7.2(e), which
approval shall not be unreasonably
withheld or delayed (and Tenant's Work in
the 25th Floor Premises for which
Tenant does not request advances of the
Construction Contribution pursuant to
Section 7.5 shall be performed subject to
and in accordance with the provisions
of the Sublease). Tenant shall not be
required to perform any Tenant's Work as a
condition of the obligations of Landlord
under
23
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this Lease, and performance of Tenant's
Work, if any, shall be at Tenant's
option.
(b) Tenant shall be
responsible for all fees, costs and expenses
associated with Tenant's Work including but
not limited to all costs associated
with the architectural and engineering
plans required for Tenant's Work. Tenant
shall also be responsible for insuring that
Tenant's Plans comply with all
federal, state and local fire safety and
life safety codes.
(c) Landlord will
allow Tenant reasonable access to Building risers
for (i) installation of and/or maintenance
at Tenant's sole cost of one (1) 4"
conduit for telecommunications lines
between the 25th and 37th Floor Premises
and/or (ii) the maintenance of any conduit
previously installed (pursuant to the
provisions of the Sublease) for
telecommunications lines between the 25th and
37th Floor Premises and/or for cabling to
connect the 25th Floor and the 37th
Floor Premises to the Generator referred to
in Subsection 8.2(a)(iv). Otherwise,
Tenant may not connect into any portion of
the Building located outside of the
Premises or to any pipes, shafts or
conduits outside of the Premises without the
prior written consent of Landlord, which
consent shall not be unreasonably
withheld or delayed.
(d) If Tenant desires
to perform Tenant's Work, Tenant shall prepare
at Tenant's expense for Landlord's approval
complete drawings (including, to the
extent applicable, sprinkler, HVAC,
electrical, plumbing, telephone, reflected
ceiling and partition plans) required by
Section 7 of the Tenant Criteria Manual
for Tenant's Work ("Tenant's Plans"). For
purposes of this Lease, "Landlord's
Approval Criteria" shall refer to whether
work or a change in work proposed to
be performed by Tenant may adversely affect
the structure or systems of the
Building or do not comply with all Legal
Requirements, Insurance Requirements or
any provision of this Lease, including but
not limited to, the provisions of the
Tenant Criteria Manual. For purposes of
this Lease, "Tenant's Modifications"
shall refer to revisions or modifications
to Tenant's Plans requested by
Landlord in order that same shall comply
with Landlord's Approval Criteria.
Within seven (7) days following Tenant's
receipt of the Tenant's Modifications,
Tenant shall revise Tenant's Plans and
submit Tenant's Modifications to Landlord
for Landlord's approval. Within seven (7)
days following receipt by Landlord of
such Tenant's Modifications, Landlord shall
give its written approval thereto or
shall request further revisions or
modifications therein (but relating only to
the extent that Tenant's Modifications fail
to comply with Landlord's Approval
Criteria). The preceding two sentences
shall be implemented repeatedly until
Landlord gives its written approval to the
Tenant's Modifications. Within seven
(7) days after Landlord has given its
written approval of Tenant's Plans, as
modified by Tenant's Modifications, Tenant
shall transmit to Landlord six (6)
copies (and one CAD version) of final
Tenant's Plans which incorporate Tenant's
Modifications.
(e) In the event Tenant wishes to direct any material change order
or
other modification to Tenant's Plans
(collectively, "Change Order"), Tenant
shall submit a Change Order to Landlord for
Landlord's review and approval which
approval shall not be unreasonably withheld
or delayed unless such Change Order
(i) is structural in nature; (ii)
materially affects any Building system; (iii)
affects any portion of the Building outside
of the Premises or the core of the
Building or includes changes visible from
outside of the Building. Within five
(5) business days after Landlord's receipt
of any Change Order, Landlord (i)
shall give its approval thereto, or (ii)
Landlord shall request revisions or
modifications to such Change
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Order. Within two (2) business days
following Landlord's request, Tenant shall
revise the Change Order and submit such
revisions or modifications to Landlord
for Landlord's approval. Within two (2)
business days following receipt by
Landlord of such revisions or
modifications, Landlord shall give its written
approval thereto or shall request further
revisions or modifications. The
preceding two sentences shall be
implemented repeatedly until Landlord gives its
written approval to the Change Order.
Tenant shall not institute any Change
Order until same is approved by
Landlord.
(f) For construction
of Tenant's Work, Tenant shall retain NOVA
CONSTRUCTION COMPANY or another general
contractor approved by Landlord to
construct Tenant's Work in a good and
workmanlike manner. In the event Landlord
reasonably determines that the employment
of Tenant's general contractor may, or
during the course of Tenant's prosecution
of Tenant's Work does, interfere with
construction performed by, or cause any
conflict or labor dispute with, any
other contractor, subcontractor or other
party engaged in the construction,
maintenance or operation of the Building or
the Premises, Landlord shall have
the right to require the replacement of
Tenant's general contractor with another
contractor selected by Tenant and approved
by Landlord. Landlord may designate
competitively priced subcontractors for
installation of life safety and other
critical systems, and may reasonably
disapprove any contractors and
subcontractors for cause or if such
contractors or subcontractors are or become
known to be a cause of a labor dispute
relating to the Building or the Premises
or in the event any such Approved
Contractor changes its nature or method of
operation to an extent which is reasonably
determined by Landlord to be
inconsistent with the then standards of the
Building.
7.3
(a) Possession of the Premises shall
be delivered to Tenant on the
Lease Commencement Date, which shall be
deemed the Beneficial Occupancy Date for
purposes of this Lease. To the extent that
Tenant is already legally in
possession of the Premises on the day
immediately preceding the Lease
Commencement Date, Tenant shall be entitled
to remain in possession of the
Premises pursuant to this Lease.
(b) There shall be no
charge for scheduled use of the Building's
freight elevator for construction of
Tenant's Work during Business Hours. Tenant
shall pay Landlord as Additional Rent
Landlord's actual out-of-pocket costs for
freight elevator use outside of Business
Hours.
(c) Tenant shall pay
Landlord as Additional Rent a fee for
supervision of Tenant's Work equal to three
(3%) percent of the costs of such
work.
7.4
Commencing on
or, to the extent permissible under the Sublease,
before the Lease Commencement Date and
provided Tenant has complied with the
provisions of Section 7.2, Tenant shall be
permitted to enter upon the Premises
and may perform Tenant's Work and may bring
and install into the Premises
installations, furniture and equipment
necessary for Tenant's occupancy of the
Premises ("Tenant's Furnishings"). Tenant
shall perform such delivery and
installation in a manner as to not
unreasonably interfere with Landlord's
performance and completion of any other
work Landlord is performing in the
Building; provided, however, that at all
times the performance and completion of
any work being performed by Landlord (and
Landlord's requirements for access to
the Building in connection
25
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with the performance and completion of such
work by Landlord) shall take
precedence over the delivery and
installation of Tenant's Work and Tenant's
Furnishings. Tenant shall access the
Premises for the delivery and installation
of Tenant's Work and Tenant's Furnishings
by way of the Building freight
elevators only, and Tenant shall not be
permitted to use the passenger elevators
for the delivery to or removal from the
Premises of any Tenant's Furnishings or
for any material or supplies necessary to
construct Tenant's Work. Except as
provided in Section 7.3(b), Tenant's use of
the freight elevators or any hoist
shall be on a non-exclusive basis and
Tenant shall pay for Landlord's providing
any such freight elevator (if provided
after Business Hours or if, by work rules
effecting the Building, said elevator must
be manned) or hoist service, at
Landlord's standard rate therefor as
Additional Rent, within ten (10) business
days after Tenant's receipt of a bill
therefor. Use of the freight elevators
shall be supplied to Tenant only upon
twenty-four (24) hours Notice to Landlord
provided such use does not interfere with
the performance of any work being
performed by Landlord. Landlord reserves
the right to reasonably restrict and
regulate the types and amounts of equipment
and installations which may be
transported to and from the Premises by
means of the freight elevators. Any such
equipment or installations which exceeds
the manufacturer's specifications for
such freight elevators shall not be
transported by means of the freight
elevators but shall be delivered to and
removed from the Premises by Tenant at
Tenant's expense by a material hoist or
hoists maintained by Tenant in
accordance with all Legal Requirements and
Insurance Requirements.
7.5
Landlord shall
advance the Construction Contribution to Tenant
monthly as Tenant's Work in the 37th Floor
and/or 25th Floor Premises progresses
based upon the incremental percentage of
completion thereof within ten (10) days
after presentation to Landlord of invoices
for the direct and indirect (not to
exceed 15% of the total) costs thereof
together with lien waivers or receipts
for payment from all contractors and/or
suppliers of the costs of the completed
portions of the Tenant's Work for which
reimbursement is requested.
8.
LANDLORD'S OBLIGATIONS - UTILITIES AND SERVICES.
8.1
Landlord shall
furnish the following services commencing on the
Lease Commencement Date (without any cost
or charge to Tenant in addition to
Base Rent other than the Operating Payment
and charges for (sub)metered Chilled
Water, hot water and electricity usage as
provided in Sections 8.6 and 8.8):
(i) Cleaning services
and exterior window washing for the Common
Areas including any lavatory facilities
located therein, the Building exterior
and the Land in accordance with the
Building cleaning specifications annexed
hereto as Exhibit G and cleaning services
to the Floor Common Areas and Premises
in accordance with the cleaning
specifications annexed hereto as Exhibit H;
(ii) Sewer service and
an adequate quantity of hot and cold water
for cleaning and drinking purposes supplied
to the lavatories on the floor on
which the Premises are located;
(iii) Maintenance
service to the Building and the Land, so that the
same shall be kept in good order and repair
and shall be kept reasonably free
from debris, snow and ice;
26
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(iv) Passenger
elevator service during Business Hours (as
hereinafter defined) and at least one
passenger elevator at all other times;
(v) Freight elevator
service in common with other tenants of the
Building during Business Hours, and,
subject to Section 8.5 below, after
Business Hours;
(vi) Air conditioning,
ventilation and heating ("HVAC") to the
Common Areas and Chilled Water and hot
water for heating, ventilating and air
conditioning purposes at the perimeter of
the Premises in accordance with the
specifications set forth in Section 8.10 of
the Tenant Criteria Manual. Landlord
has previously installed a central chiller
and heating system for the Building
and valve connections to the perimeter of
the Premises. Hot water for heating
and Chilled Water shall be available to the
Premises 24 hours a day, 365 (or
366) days a year. The costs of providing
Chilled Water and hot water to the
Common Areas (other than Floor Common
Areas) shall be deemed a component of
Operating Expenses and Tenant shall pay
Tenant's Proportionate Share thereof in
accordance with Article 5. Tenant shall pay
the costs of Chilled Water and hot
water for heating that shall be supplied to
the Premises and Floor Common Areas
by Landlord in accordance with Section 8.6.
The costs of operation, maintenance,
service and repair (including replacement
parts) of the central chiller and
heating system for the Building operated by
Landlord shall be deemed components
of Operating Expenses and Tenant shall pay
Tenant's Proportionate Share thereof
subject to and in accordance with Article
5. Tenant shall be responsible, at its
sole expense, for the design and
installation of any modifications to the
existing HVAC systems that serve and are
located within the Premises
necessitated by the nature, layout or use
of the Premises, the placement of
computers or other equipment in the
Premises and/or the number of Tenant's
employees located within the Premises; and
Tenant shall pay for all electricity
and Chilled Water and hot water used in
connection with the operation of such
HVAC systems in accordance with Sections
8.6 and 8.8. Landlord shall maintain
and repair Tenant's air conditioning system
in accordance with Section 11.2(b).
(vii) Lighting and
electricity to the Common Areas; and
(viii) A security program with respect to ingress to and egress
from
the Building and the Common Areas.
8.2
(a) In addition to the services
to be furnished or caused to be
furnished by Landlord in accordance with
Section 8.1, Landlord, at Tenant's
expense and request, shall furnish or cause
to be furnished the following
additional services while Tenant is
occupying the Premises and so long as no
Event of Default shall have occurred and
then be continuing:
(i) Extermination
service administered to any kitchen, cafeteria or
special food preparation areas on a regular
basis, as reasonably determined by
Landlord, for rodent and pest control or,
in the event of infestation caused by
or resulting from such areas, as the same
may be required, as reasonably
determined by Landlord, to eliminate such
infestation;
(ii) Relamping of lighting fixtures within the Premises and
replacement of diffusers and ballasts;
(iii) Installation and/or replacement of locks within the
Premises
and
27
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the supplying of keys therefor; and
(iv) Subject to Section 8.10 hereof, one hundred (100) KW of
back-up
emergency generator ("Generator") capacity
of which not more than fifteen (15)
KW of Generator capacity shall be allocated
to the 37th Floor Premises (for
standby and usage charges to be determined
prior to the Lease Commencement Date
based on fair market value of similar
service in comparable buildings in the
vicinity of the Building, and with any
dispute to be determined by a process
similar to that for resolving any dispute
with respect to Renewal Rent).
(b)
Commencing on the Additional Rent Commencement Date, Landlord
shall
provide Tenant with the appropriate
contracts or other documentation evidencing
the cost to Landlord of providing the
services described in subsections
8.2(a)(i) and (ii) above. Tenant shall be
billed for the services described in
subsection 8.2(a)(ii) based upon a cubic
foot cost to be reasonably determined
by Landlord and which is applied on a
Building-wide basis. Notwithstanding
anything to the contrary herein, Landlord
shall have no obligation to provide
the services described in subsections
8.2(a)(i), (ii) or (iii) above unless
Landlord receives a written request for
such service or services from Tenant;
provided, however, in the event the
Premises contain any kitchen, cafeteria or
special food preparation areas, Landlord
may require Tenant to retain Landlord
to provide the services contained in
sub-paragraph (i) above. In the event
Landlord receives such written request from
Tenant and provides such service or
services, Tenant shall pay, as Additional
Rent, for Landlord's furnishing of
such service or services within ten (10)
business days after its receipt of an
invoice therefor.
(c) The
costs of all services to be provided pursuant to Section
8.2(a),
or costs incurred by Landlord when
performing work on behalf of Tenant in
accordance with the terms of this Lease,
except to cure a Tenant default or in
an emergency, shall be commercially
reasonable and competitive with the costs of
a third party contractor.
(d)
Landlord shall supply the services described in Sections 8.1
and
8.2(a) to the Floor Common Areas.
Commencing on the Additional Rent Commencement
Date, Tenant shall pay, as Additional Rent,
Tenant's Floor Common Area
Proportionate Share of the Floor Common
Area Costs for the floor(s) of the
Building on which the Premises are located
within ten (10) business days of
receipt of an invoice therefor. The costs
of Chilled Water and hot water used
for heating the Premises and Floor Common
Areas shall be measured by submeter
(installed on the 25th Floor for Tenant
pursuant to the Sublease) and determined
pursuant to the provisions of Section 8.6,
and the cost of electricity usage in
the Premises and Floor Common Areas shall
be metered by direct meter (installed
on the 25th Floor for Tenant pursuant to
the Sublease) or submeter and
determined pursuant to the provisions of
Section 8.8. The provisions of Section
5.3 through 5.14, inclusive, shall be
applicable to Floor Common Area Costs and
such costs shall be payable as and when
Tenant pays its Proportionate Share of
Operating Expenses.
8.3
"Business Hours"
shall be from 8 a.m. to 6 p.m. Monday through
Friday, excluding Holidays (as hereinafter
defined). "Holidays" shall mean those
days designated from time to time as
holidays by the New York Stock Exchange or
any successor exchange or, in the event no
successor exchange exists, those days
designated from time to time as holidays
pursuant to the laws of the State of
New Jersey. Except as otherwise expressly
provided herein, Landlord shall have
no obligation to provide any services on
Saturdays or Sundays.
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8.4
Landlord shall
provide access to the Premises, Chilled Water and hot
water in accordance with Section 8.1(vi),
and the services referred to in
Section 8.1(ii), Section 8.1(iv), Section
8.1(vii) and Section 8.1(viii), 24
hours a day, 365 (or 366) days a year.
8.5
If Tenant shall
desire Chilled Water after Business Hours or freight
elevator service at any time other than
during Business Hours, such service or
services shall be supplied to Tenant only
at the request of Tenant, which
request shall be made, with respect to
Chilled Water after Business Hours, not
later than 4:00 p.m. on the business day
for which such service is requested or
if such service is requested for Saturday,
Sunday or a Holiday, by not later
than 4:00 p.m. on the preceding business
day, and with respect to freight
elevator service, not later than 6:00 P.M.
on the business day preceding such
required extra usage (or before 12:00 P.M.
on Friday for weekend overtime
service), and Tenant shall pay to Landlord,
as Additional Rent, the cost of
Chilled Water supplied after Business Hours
in accordance with Section 8.6 and,
except as provided in Sections 7.3 and 7.4
with respect to performance of
Tenant's Work, shall pay for Landlord's
reasonable costs of furnishing of such
freight elevator service within ten (10)
business days after receipt of an
invoice therefor.
8.6
Tenant shall pay
Landlord as Additional Rent, within ten (10)
business days after Tenant's receipt of an
invoice therefor with supporting
documentation, for Chilled Water and hot
water used for heating the Premises and
Floor Common Areas based on Tenant's Floor
Common Area Proportionate Share of
submetered usage on each floor of the
Premises and Landlord's actual and
reasonable costs of generating Chilled
Water and hot water for heating in
accordance with the following formulas:
(a)
For Chilled
Water, Tenant shall pay an amount equal to A x C/B where
A equals Landlord's total electrical cost
(without markup) to run its chilled
water plant plus the cost (without mark-up)
of water treatment and lost water
make-up, B equals the total tons of Chilled
Water produced by the plant and C
equals the submetered tons of Chilled Water
usage on each entire floor of the
Building on which the Premises are located
multiplied by Tenant's Floor Common
Area Proportionate Share applicable to each
such floor.
(b)
For hot water
used for heating, Tenant shall pay an amount equal to
D x C/B where D equals Landlord's total
cost (without markup) of producing hot
water to heat the full Building, B equals
the total tons of heating water
produced and C equals the submetered tons
of heating water usage on each entire
floor of the Building on which the Premises
are located multiplied by Tenant's
Floor Common Area Proportionate Share
applicable to each such floor.
8.7
In accordance
with Section 8.7 of the Tenant Criteria Manual, direct
metered electrical service has been
installed to a central distribution point on
the floor on which the Premises are located
and Landlord shall maintain in good
working order all conductors, feeders,
wires and other electrical equipment
(collectively, the "Electrical Equipment")
necessary to permit the provisioning
of electricity to such distribution point.
The cost of such maintenance
(excluding, however, the cost of correcting
any design or installation errors or
defects in the Electrical Equipment) shall
be deemed to be an Operating Expense.
After taking into account any electrical
service needs of the Floor Common Areas
floor and any Building standard HVAC
equipment located on such floor, Tenant
shall be entitled to eight (8) watts of
electric power per usable square foot
(demand load) for the 25th Floor Premises
and six (6) watts of electric power
29
<PAGE>
per rentable square foot (demand load) for
the 37th Floor Premises (for lighting
and convenience outlets and exclusive of
building systems) in accordance with
the provisions of the Tenant Criteria
Manual (the "Electrical Capacity"). Any
equipment required by Tenant to provide
electrical service to the Premises
beyond the central distribution point on
the floor on which the Premises is
located shall be installed, repaired and
maintained by Landlord and Tenant shall
pay the cost of such repair and maintenance
as Additional Rent within ten (10)
business days from receipt of an invoice
therefor.
8.8
All electricity
to the floors on which the Premises are located
shall be measured by direct meter installed
by the utility company providing
electricity to the area in which the
Building is located (the "Utility Company")
or by submeter. Tenant shall pay either
directly (if direct-metered) to the
Utility Company or (if submetered) to
Landlord as Additional Rent for all
electricity consumed in the 25th Floor
Premises and in the 25th Floor Common
Areas based upon the monthly cost of its
metered electricity usage at the rates
charged by the Utility Company without
markup. Tenant shall pay Tenant's 37th
Floor Common Area Proportionate Share of
all metered usage of electricity on the
37th Floor of the Building for the
electricity consumed in the 37th Floor
Premises and in the 37th Floor Common Areas
based upon one hundred and four
(104%) percent of the monthly cost of such
metered electricity usage at the
rates charged by the Utility Company.
8.9
Tenant's use of
electric energy in the Premises shall not at any
time exceed the Electrical Capacity. In
order to ensure that the Electrical
Capacity is not exceeded and to avoid
possible adverse affect upon the structure
of the Building and/or the Premises or the
Electrical Equipment serving the
Premises or any other portion of the
Building or any other tenant or occupant of
the Building, Tenant shall not, without
Landlord's prior written consent in each
instance, connect any fixtures, appliances
or equipment to the Electrical
Equipment or make any alteration or
addition to the Electrical Equipment serving
the Premises if the effect of such
connection, alteration or addition would
cause Tenant's use of electricity to exceed
the Electricity Capacity. Any
additional riser or risers to supply
Tenant's electrical requirements and all
other equipment proper and necessary in
connection therewith, shall be installed
by Landlord, at Tenant's reasonable
expense, upon written request from Tenant to
Landlord provided if, in Landlord's
reasonable judgment, the same will not cause
or create a hazardous condition or entail
excessive or unreasonable alterations
or repairs, or interfere with or disturb
other tenants or operate to preclude
other tenants from expanding their
electrical capacity or cause Tenant's use of
electricity to exceed the Electrical
Capacity. Tenant's written request shall be
accompanied by plans and specifications for
the installation of such riser or
risers to be reviewed and approved by
Landlord, which approval is not to be
unreasonably witheld. Tenant shall pay to
Landlord, as Additional Rent, the cost
incurred by Landlord in installing any such
additional riser or risers, as well
as the cost incurred by Landlord in
reviewing such plans and specifications,
within ten (10) business days after
Tenant's receipt of an invoice therefor.
8.10
Landlord shall incur
no liability whatsoever and it shall not
constitute a termination of this Lease or
an eviction (constructive or
otherwise) hereunder should electricity or
any other utility (including but not
limited to back-up emergency generator
service pursuant to Subsection 8.2(a)(iv)
hereof) become unavailable from the Utility
Company, or any public authority or
any other person, firm or corporation,
including Landlord, supplying such
utility or service on account of Force
Majeure.
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8.11
Landlord shall cause
the Building to be managed as a Class A office
building, consistent with the standards of
other Class A office buildings
similar in size and quality in Jersey City,
New Jersey, or, if there are no such
buildings, then consistent with the
standards of Class A office buildings
similar in size and quality in New York,
New York. The Building may be managed
by an affiliate of Landlord.
8.12
Tenant shall have the
non-exclusive right to use the loading dock
bays annexed to the Building (the "Loading
Dock") and the Building freight
elevator in common with Landlord and the
other tenants of the Building. Landlord
shall provide a person during the hours of
7 a.m. to 6 p.m., Monday through
Friday (excluding Holidays) who shall act
as supervisor of the Loading Dock. The
wages, salary, benefits or other
compensation paid to the Loading Dock
supervisor shall be included in Operating
Expenses. Such supervisor shall
supervise and coordinate Loading Dock
activity in order to provide Landlord,
Tenant and other tenants of the Building
with fair, equitable and non-exclusive
access to the Loading Dock. Tenant's access
to the Loading Dock shall be subject
to the Rules and Regulations of the
Building annexed hereto as Exhibit C, as the
same may be amended or changed from time to
time in accordance with Section
23.1, and such reasonable requirements as
may be imposed by the Loading Dock
supervisor from time to time.
9.
USE.
9.1
The Premises
shall be used solely for the Permitted Use set forth in
the Fundamental Lease Provisions and for no
other purposes. Tenant shall not
offer, sell or market any services to other
tenants in the Building which
services are in competition with services
offered by Landlord to tenants in the
Building and Tenant shall not offer
telecommunication services utilizing the
Building, Building Equipment or any
conduits, or shafts, whether located within
the Premises or outside the Premises, to
other tenants in the Building.
9.2
Tenant shall not
use, occupy, suffer or permit the Premises, the
Building or any part of either to be used
in any manner, or suffer or permit
anything to be brought into or kept
therein, which would (a) make unobtainable
at standard rates from any reputable
insurance company authorized to do business
in the State of New Jersey, any fire
insurance with extended coverage or
liability, elevator, boiler, umbrella or
other insurance, (b) cause, or be
likely to cause, injury or damage to the
Building or to any equipment contained
therein or on the Premises, (c) constitute
a public or private nuisance, (d)
violate any certificate of occupancy for
the Building, (e) emit objectionable
noise, fumes, vibrations, heat, chilled
air, vapors or odors into or from the
Building or the equipment contained
therein, (f) impair or interfere with any of
the Building services, including the
furnishing of electrical energy, or the
proper and economical cleaning, heating,
ventilating, air conditioning or other
services of the Building, the equipment
contained therein or the Premises or (g)
violate any Legal Requirement or Insurance
Requirement. The restrictions imposed
by this Section, and the application
thereof, shall not be limited or modified
by the terms of any other provision of this
Lease.
9.3
Tenant or
Tenant's assignees, subtenants, employees, agents,
contractors, invitees or licensees shall
not do or permit anything to be done in
or about the Premises which will in any way
obstruct or interfere with the
rights of other tenants or occupants of the
Building or injure them or use or
allow the Premises to be used for any
purpose which is unlawful, nor
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shall Tenant cause, maintain or permit any
nuisance in, on or about the
Premises.
9.4
Tenant shall not
use or operate any machinery that, in Landlord's
reasonable opinion is, or may be, harmful
to the Premises and/or the Building.
10. COMPLIANCE
WITH LAWS.
10.1
Tenant, at its sole
cost and expense, shall comply with all
requirements of Governmental Authorities
("Legal Requirements") and all
requirements of insurance companies
providing coverage for the Building and/or
the Premises or recommendations of the
National Board of Fire Underwriters
("Insurance Requirements") and give
Landlord prompt notice of any lack of
compliance, except that Tenant shall have
no obligation to pay the costs of any
structural or non-structural alteration of
the Premises or the Building required
by reason of a Permitted Use or a Legal or
Insurance Requirement which is
applicable to all tenants of the Building
generally unless said alteration (a)
is necessitated by a condition which has
been otherwise created by, or at the
instance of, Tenant, any subtenants or any
other occupant of the Premises, (b)
is attributable to the specific manner of
use, other than a Permitted Use, to
which Tenant, any subtenants or any other
occupant of the Premises puts the
Premises or any part thereof, (c) is
required by reason of a breach of Tenant's
obligations hereunder, (d) is occasioned,
in whole or in part, by any act (other
than using the Premises for a Permitted
Use), omission or negligence of Tenant
or any person claiming by, through or under
Tenant, or any of their assignees,
subtenants, employees, agents, contractors,
invitees or licensees, or (e) is
necessitated by reason of the failure of
Tenant or the Tenant's Plans to comply
with any Legal Requirement, including the
Americans with Disabilities Act of
1990. Any such structural alteration of the
Premises or the Building required as
a result of clause (a), (b), (c), (d) or
(e) of the immediately preceding
sentence shall be performed by Landlord, at
Tenant's reasonable expense, and
Tenant shall pay for the same, as
Additional Rent, within ten (10) business days
of its receipt of a bill therefor. Tenant
shall pay all costs, expenses, fines,
penalties and damages which may be imposed
upon Landlord, Master Landlord,
and/or any mortgagee of the Land and/or the
Building by reason of or arising out
of Tenant's failure fully and promptly to
comply with the provisions of this
Section. Notwithstanding anything to the
contrary in Section 10.1, Tenant shall
not be responsible for any violation(s) of
Legal Requirements or Insurance
Requirements existing prior the applicable
Lease Commencement Date (except as
otherwise provided in the Sublease).
10.2
Tenant, at its sole
cost and expense, after Notice to Landlord, by
appropriate proceedings prosecuted
diligently and in good faith, may contest the
validity or applicability of any Legal
Requirement or Insurance Requirement,
either in its name or, if necessary,
Landlord's name; provided, that: (a)
Landlord shall not be subject to civil
fines, quasi-criminal violations,
criminal penalty or prosecution for a
crime, nor shall the Building or the Land,
or any part thereof, be subject to being
condemned or vacated, by reason of
non-compliance or otherwise by reason of
such contest; (b) such non-compliance
or contest shall not constitute or result
in any violation of the terms of the
Building Lease or any mortgage encumbering
the Land and/or the Building, or if
the Building Lease and/or any such mortgage
shall condition such non-compliance
or contest upon the taking of action or
furnishing of security by Landlord or
affirmative title insurance coverage
preserving the priority of the Building
Lease and/or such mortgage notwithstanding
the determination of such
non-compliance or contest, such action
shall be taken and such security or such
affirmative title insurance
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coverage shall be furnished at the expense
of Tenant; (c) such non-compliance or
contest shall not result in the
termination, suspension, cancellation, lapse or
waiver of any insurance policies or
coverages maintained by Landlord or required
to be maintained by Tenant under this
Lease; (d) such non-compliance or contest
shall not result in the termination,
suspension, cancellation, lapse or waiver
of any certificate of occupancy for the
Building or any portion thereof; and (e)
Tenant shall keep Landlord regularly
advised in writing as to the status of such
proceedings and shall provide Landlord with
copies of all submissions and
documents delivered or received by Tenant
in connection therewith. If Landlord
is subject to any civil fines, Tenant shall
promptly reimburse Landlord for such
fines, as Additional Rent, within ten (10)
business days of receipt of an
invoice therefor. Subject to the foregoing,
Landlord shall make reasonable
efforts to cooperate with Tenant's
contest(s).
10.3
Any improvements or
Alterations made or work performed by or on
behalf of Tenant or any person claiming
through or under Tenant pursuant to this
Article shall be made in conformity with
and subject to the provisions of this
Lease, including, without limitation,
Article 12.
11.
REPAIRS.
11.1
Tenant, at its sole
cost and expense, shall take good care of, and
make all interior non-structural repairs
to, the Premises, and all repairs to
Tenant's equipment. Landlord shall make all
repairs to the exterior of the
Premises and all repairs to the heating,
ventilating and air conditioning system
installed by Tenant outside the Premises,
whether ordinary or extraordinary, at
Tenant's sole cost and expense (except to
the extent such repairs are includable
in Operating Expenses or Floor Common Area
Costs to be paid by Tenant as a
component of Tenant's Operating Payment),
as and when needed to preserve the
Premises in good working order and
condition and keeping with the Class A
character of the Building and all repairs
(not required to be made or paid for
by Tenant pursuant to Article 10) required
to keep the Premises in compliance
with all Legal Requirements and Insurance
Requirements and to prevent any
disruption of, or adverse effect on, the
Building, the Building systems, the
quiet enjoyment of other tenants or to
prevent any damage to the personal
property of other tenants. Tenant shall not
be responsible for the costs of any
such repairs unless the need therefor
arises out of (i) the performance of or
existence of improvements made by or at the
request of Tenant, any subtenants or
any other occupant of the Premises, (ii)
the installation, use or operation of
equipment installed therein by or at the
request of Tenant, any subtenant or any
other occupant of the Premises (iii) the
moving of any such equipment in or out
of the Building or the Premises, (iv) the
wrongful acts, omissions, negligence
or misuse of or by Tenant, any subtenants
or any of its or their employees,
agents, contractors, occupants, licensees
or invitees or their use or occupancy
of the Premises (except fire or other
casualty caused by Tenant's negligence, if
the fire or other casualty insurance
policies insuring Landlord are not
invalidated and the rights of Landlord are
not adversely affected by this
provision), or (v) Legal Requirements or
Insurance Requirements with which
Tenant is obligated to comply pursuant to
the provisions of Section 10.1. Any
such structural repair of the Premises
required as a result of clause (i), (ii),
(iii), (iv) or (v) of the immediately
preceding sentence shall be performed by
Landlord, at Tenant's reasonable expense,
and Tenant shall pay for the same, as
Additional Rent, within ten (10) business
days of its receipt of a bill therefor
unless such failure arises from the
wrongful actions or omissions where there is
a duty to act, of Landlord or its agents,
contractors, employees or
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representatives and, in which case,
Landlord shall only be liable for the
portion of the liability attributable to
the actions or omissions where there is
a duty to act, of Landlord, its agents,
contractors, employees or
representatives. Tenant, at its sole cost
and expense, shall promptly replace or
repair scratched, damaged or broken doors
and glass in and about the Premises
and shall be responsible, for all repairs
and maintenance of wall and floor
coverings in the Premises. Any broken
window glass shall be repaired by Landlord
at Tenant's reasonable expense, and Tenant
shall pay for the same, as Additional
Rent, within ten (10) business days of its
receipt of a bill therefor. Tenant,
promptly and at its sole cost and expense,
shall make all non-structural repairs
in or to the Premises for which it is
responsible. In the event Tenant fails to
promptly make any repair or alteration
required by Tenant to be performed under
this Section 11.1, Landlord, at Tenant's
sole but reasonable cost and expense,
shall have the right after ten (10) days
Notice to Tenant to make such repairs
or alterations and Tenant shall pay for
such repairs or alterations, as
Additional Rent, within ten (10) business
days after its receipt of a bill
therefor. All repairs made by or on behalf
of Tenant shall be made in conformity
with the provisions of Article 12 and shall
be at least equal to the then
standards for the Building established by
Landlord.
11.2
(a) Landlord shall make all necessary
repairs to the roof and all
structural repairs to the Building. Any
such structural or roof repairs
occasioned by the acts, omissions,
negligence or misuse of or by Tenant or any
of its subtenants or any of its or their
employees, agents, contractors,
occupants, licensees or invitees or their
use or occupancy of the Premises shall
be made by Landlord at Tenant's expense
(subject to the provisions of Article
17). Landlord's repair obligations under
this Section 11.2(a) shall exclude,
however, (i) repairs of Tenant's personal
property or improvements made by or at
the request of Tenant (including, without
limitation, any Alterations, not
occasioned by Landlord's wrongful acts,
omissions where there is a duty to act,
or negligence) and (ii) repairs which
Tenant is obligated to make pursuant to
Section 11.1 and the other provisions of
this Lease. Landlord shall perform all
maintenance of, and promptly after the
receipt of a Notice from Tenant of the
necessity of repair, make all necessary
repairs to, the Building standard HVAC
system equipment and any security and life
safety systems or devices which may
be installed in the Premises by Landlord.
Any repairs to the Building standard
HVAC system equipment and any security and
life safety systems or devices
occasioned by the negligent or wrongful
acts or omissions or negligence of
Tenant or any of its subtenants, or, its or
their employees, agents,
contractors, licensees or invitees, shall
be performed by Landlord at Tenant's
expense and Tenant shall pay for the same,
as Additional Rent, within ten (10)
business days of its receipt of a bill
therefor. Except for the foregoing repair
obligation, Landlord shall (subject to the
provisions of Article 17) have no
liability for the failure of any such
Building system, unless such failure
arises from the negligent or wrongful acts
or omissions (where there is a duty
to act) of Landlord or its agent or
contractors and in which case Landlord shall
only be liable for the portion of the
liability attributable to the wrongful
actions or omissions (where there is a duty
to act) of Landlord, its agents or
contractors. The cost of all repairs and
maintenance by Landlord hereunder shall
be included in Operating Expenses except as
may be specifically excluded by
Article 5 hereof.
(b) Tenant, at its
sole expense, shall operate or cause to be
operated and maintained in a first-class
manner and consistent with the
manufacturer's specifications any air
conditioning system and any life safety or
security system installed by Tenant and
serving the Premises to prevent any
adverse effect on any Building system(s).
Any maintenance or repair of
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such air conditioning system and any life
safety or security system shall be
performed by Landlord upon Tenant's request
and at Tenant's reasonable expense
and Tenant shall pay for such maintenance
and repair, as Additional Rent, within
ten (10) business days after Tenant's
receipt of an invoice therefor. Landlord
reserves the right (i) to make emergency
repairs to any such Tenant's system
without Notice, at Tenant's expense, which
shall be deemed to be Additional Rent
and payable within ten (10) business days
from Tenant's receipt of an invoice
therefor, and (ii) to require changes to be
made by Tenant to any such Tenant's
system if the operation thereof adversely
affects, in Landlord's reasonable
opinion, the Building's systems. Tenant
shall have no access to Building systems
unless Landlord shall consent thereto.
(c) No liability of
Landlord to Tenant shall accrue under this
Section unless and until Tenant has given
Notice to Landlord of the necessity of
any specific repair for which Landlord has
agreed to be responsible under this
Lease, and a sufficient time has elapsed in
which to make such repair with same
not being performed. In no event shall any
failure by Landlord to make any such
repairs give to Tenant any right to make
such repairs except as expressly
permitted herein or to withhold payment of
Base Rent or Additional Rent or to
offset any costs incurred by Tenant against
any payment of Base Rent or
Additional Rent.
12.
ALTERATIONS BY TENANT.
12.1
Tenant shall not make
or perform or permit the making or performance
of any alterations, additions,
installations or improvements to or removals from
(collectively, "Alterations") the Premises
without Landlord's prior written
consent. Landlord agrees not to
unreasonably withhold or delay its consent to
non-structural Alterations provided the
same, in Landlord's reasonable opinion,
do not adversely affect Building systems
(including, without limitation,
utility, life safety, electrical, plumbing
and sewage lines and HVAC systems)
and will not result in any increase in
Operating Expenses (unless Tenant agrees
in writing to pay for any such increase).
Tenant shall furnish Landlord with
plans and specifications for any
non-structural alterations prior to Tenant's
commencement of the construction or
installation of the same. Landlord's prior
consent shall not be required to changes or
improvements by Tenant in the
Premises which are purely decorative or
which cost less than One Dollar and
50/100s ($1.50) per square foot of the
Premises and do not affect the Building
Structure or Building Systems and do not
require a building permit. Any
structural Alterations requested by Tenant
and approved by Landlord shall be
performed by Landlord, at Tenant's
reasonable expense, provided the same do not
adversely affect Building systems
(including, without limitation, utility, life
safety, electrical, plumbing and sewage
lines and HVAC systems) and will not
result in any increase in Operating
Expenses (unless Tenant agrees in writing to
pay for any such increase). Tenant shall
request in writing Landlord's written
consent not less than twenty (20) days
prior to the proposed commencement of the
construction of such structural
Alterations, which written request shall be
accompanied by plans and specifications
(prepared by a licensed structural
engineer reasonably acceptable to Landlord)
for such structural Alterations,
which plans and specifications shall be
subject to the approval of Landlord, not
to be unreasonably withheld. Landlord's
granting of consent to structural
Alterations may be conditioned on a
requirement that Tenant on or prior to the
Expiration Date or earlier termination of
this Lease arrange with Landlord for
the removal, at Tenant's expense, of the
structural Alteration installed and the
restoration of the Premises to its
condition prior to the construction of such
structural Alteration. Tenant shall pay, as
Additional Rent, for the reasonable
costs of the installation of such
structural Alteration, together with
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reasonable out-of-pocket costs incurred by
Landlord in its review of the plans
and specifications therefor, within ten
(10) business days after its receipt of
an invoice therefor.
12.2
In the event that in
connection with any Alteration (whether
structural or non-structural), installation
of any wires, conduits, pipes or
mechanical equipment outside the Premises
is required, Tenant shall request
Landlord's consent therefor not less than
thirty (30) days prior to the
commencement of the construction of such
Alterations, which consent shall be
accompanied by plans and specifications to
be reviewed and approved by Landlord
showing the location of such wires,
conduits, pipes or mechanical equipment.
Landlord's granting of consent to the
installation of any such wires, conduits,
pipes or mechanical equipment shall not be
unreasonably withheld, but may be
conditioned on a requirement that Tenant
deposit with Landlord, prior to
Landlord's commencement of such
installation, the cost, or a portion thereof, of
such installation as determined by
Landlord. Without limiting the reasons for
the granting or withholding of consent by
Landlord, Landlord may withhold such
consent if in Landlord's reasonable opinion
such installation will adversely
affect Building systems or will cause or
create a hazardous condition or entail
excessive or unreasonable alterations,
repairs or expense, or interfere with or
disturb other tenants. Tenant may not
connect into any pipes, shafts or conduits
without Landlord's written permission, not
to be unreasonably withheld. The
installation of such wires, conduits, pipes
or mechanical equipment shall be
performed by Landlord at Tenant's
reasonable expense, and Tenant shall pay for
the same, as Additional Rent, along with
the reasonable out-of-pocket costs
incurred by Landlord in its review of the
plans and specifications therefor,
within ten (10) business days after its
receipt of an invoice therefor.
12.3
All non-structural
Alterations performed by or on behalf of Tenant
pursuant to Section 12.1 shall be done in a
good and workmanlike manner by the
Approved Contractors and in accordance with
all Legal Requirements and Insurance
Requirements. In the event Landlord
determines that the employment of any
Approved Contractor may, or during the
course of its prosecution of a
non-structural Alteration or any other work
for or on behalf of Tenant
(including, without limitation, Tenant's
Work) does, unreasonably interfere with
construction performed by, or cause any
conflict or labor dispute with, any
other contractor, subcontractor or other
party engaged in the construction,
maintenance or operation of the Building,
Tenant shall select another Approved
Contractor and shall cause the Approved
Contractor being replaced to promptly
remove its equipment and personnel from the
Building. Landlord hereby expressly
reserves the right to require the deletion
of contractors and subcontractors
from the list of Approved Contractors for
cause or if such contractors or
subcontractors are or become known to be a
probable cause of a labor dispute
relating to the Building or the Premises or
in the event any such Approved
Contractor changes its nature or method of
operation to an extent which is
reasonably deemed by Landlord to be
inconsistent with the then standards of the
Building. Subject to the two immediately
preceding sentences, Tenant may add
contractors and subcontractors to the list
of Approved Contractors with
Landlord's prior written consent, which
consent shall not be unreasonably
withheld or delayed. Tenant shall, at
Tenant's expense, before making any
Alterations, obtain all permits, approvals
and certificates required by any
Governmental Authority and (upon completion
thereof) certificates of final
approval thereof and shall promptly deliver
copies of such permits, approvals
and certificates to Landlord. In addition,
Tenant shall provide Landlord, prior
to the commencement of any non-structural
Alterations, with certificates
evidencing appropriate builder's risk,
liability and worker's compensation
insurance coverage during the prosecution
of
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any such Alterations in amounts reasonably
deemed appropriate by Landlord.
Landlord shall, upon Tenant's request and
at Tenant's expense, furnish or
execute promptly any documents,
information, consents or other materials which
are necessary or desirable in connection
with Tenant's efforts to obtain any
license or permit for the making of any
Alterations.
12.4
Any and all
Alterations made by or on behalf of Tenant in, to or
upon the Premises as well as any fixtures
(with the exception of Tenant's trade
fixtures and equipment and other personal
property) installed on the Premises by
Tenant, shall, upon the expiration or
earlier termination of this Lease, become
the property of Landlord and shall remain
upon and be surrendered with the
Premises except for those Alterations which
Landlord required Tenant to remove
as a condition of Landlord's consent to
making those Alterations, pursuant to
the provisions hereof, in which event the
same shall be removed from the
Premises by Tenant prior to the Expiration
Date, at Tenant's expense. Nothing in
this Section 12.4 shall be construed to
give Landlord title to or to prevent
Tenant's removal of trade fixtures or
moveable office furniture, equipment or
other personal property, but upon removal
of any of the same from the Premises
or upon removal of other Alterations as may
be required by Landlord, Tenant
shall immediately and at its expense repair
any damage to the Building or the
Premises caused by such removal (except
structural damage, which shall be
repaired by Landlord at Tenant's expense).
All Alterations required to be
removed by Tenant remaining in the Premises
after the end of the Term shall be
deemed abandoned; provided, that, no cash
or cash equivalents shall be deemed
abandoned) and may, at the election of
Landlord, either be retained as
Landlord's property or removed from the
Premises by Landlord, at Tenant's
expense.
12.5
Tenant, at its expense
and with reasonable diligence and dispatch,
shall procure the cancellation, discharge
or bonding of all notices of violation
or lien arising from or in connection with
any Alterations, or any other work,
labor, services or materials done for or
supplied to Tenant, or any person
claiming by, through or under Tenant, which
(i) shall be issued by any
Governmental Authority or other public
authority having or asserting
jurisdiction over the Building or the work
being conducted therein or (ii) shall
not be the result of any act, omission or
negligence of Landlord or its agents,
servants, employees or contractors. Tenant
shall promptly provide Landlord with
copies of cancellation, discharge, release
or satisfaction of any such notices
of violations or liens. Tenant shall have
no authority to create any liens for
labor or materials on or against the Land,
the Building or the Premises. Tenant
may contest the validity of any lien filed
against Landlord, the Land, the
Building or the Premises for any work,
labor, services or materials claimed to
have been performed for or furnished to
Tenant or any person or entity holding
the Premises or any portion thereof by,
through or under Tenant, provided
Tenant, prior to instituting such contest,
(x) causes any such lien to be
discharged, bonded or removed by deposit or
otherwise within thirty (30) days
after Tenant receives Notice from Landlord
of the filing of the same and (y)
delivers to Landlord a copy of the bond or
other evidence of the discharge or
removal.
12.6
The performance of any
Alterations, whether structural or
non-structural, by or on behalf of Tenant
shall be subject to the provisions of
Section 19.3.
12.7
Tenant's obligations
under this Article shall survive the expiration
or earlier termination of this Lease.
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13.
INSPECTIONS.
13.1
Landlord may enter the
Premises from time to time during Business
Hours upon forty-eight (48) prior oral
notice to Tenant to inspect the Premises
to insure compliance with the provisions of
this Lease. In the event Landlord
reasonably determines that Tenant is not in
compliance with any provision of
this Lease, Landlord shall give Tenant
Notice of such noncompliance and Tenant
shall, at Tenant's sole cost and expense,
promptly comply with the provisions of
this Lease. In the event Tenant fails to
comply with such Notice, Landlord, at
Tenant's sole cost and expense, shall have
right, but not the obligation, to
take such steps as necessary to cause the
Premises to comply with this Lease and
Tenant shall pay the reasonable costs of
compliance, as Additional Rent, within
ten (10) business days after its receipt of
an invoice therefor.
13.2
In no event shall the
failure of Landlord to take steps to cause
compliance give way to any liability on the
part of Landlord. Tenant shall be
solely responsible for any liability
arising by reason of Tenant's failure to
comply with the provisions of the
Lease.
14.
SIGNS.
14.1
Tenant, at Tenant's
sole cost and expense, shall have the right to
install or erect such interior signs as
Tenant deems necessary or appropriate in
or on the Premises provided the same are in
keeping with first-class office
signage and comply with the provisions of
the Tenant Criteria Manual. Tenant
(but not any subtenants or assignees of
Tenant, not permitted hereunder) shall
also have the right to install in the
public corridor of the floors on which the
Premises are located, Building standard
signs ("Tenant's Corridor Signs")
bearing Tenant's name and/or logo. If an
any time Tenant shall not be the lessee
of the entire twenty-fifth (25th) floor of
the Building, then the location,
specifications and design of Tenant's
Corridor Signs shall be subject to the
prior written approval of Landlord, which
approval shall not be unreasonably
withheld or delayed, and which shall be
compatible with any other tenant signs
in the public corridor of the floors on
which the Premises are located.
14.2
Any signs installed or
erected by or for Tenant shall remain
Tenant's property, shall be maintained by
Tenant at Tenant's expense and shall
be removed by Tenant at the expiration or
earlier termination of this Lease, and
Tenant shall repair any damage caused by
such removal. Tenant shall procure and
pay for all governmental permits required
for the installation of any sign in or
on the Premises and provide Landlord with
copies of all such permits promptly
upon Tenant's receipt of the same.
14.3
Tenant's installation,
maintenance and removal of Tenant's Corridor
Signs shall be subject to the provisions of
Section 18.3.
15.
BUILDING DIRECTORY.
15.1
Landlord has installed
a computerized directory in lieu of a
directory board. The cost of maintaining
such computerized directory shall be
included in Operating Expenses. Tenant
shall have the right to use the higher of
(i) six (6) slots until the Lease
Commencement Date for the 25th Floor Premises
and thirty-six (36) slots thereafter, or
(ii) the number of spaces or slots
equal to the product of (1) Tenant's
Proportionate Share at any given
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time, multiplied by (2) the total number of
spaces or slots on said directory.
16.
PARKING.
16.1
Tenant (but not any
subtenants or assignees of Tenant, not permitted
hereunder) shall have the right to obtain,
on a monthly basis, from the operator
of the Parking Garage, and Landlord shall
use reasonable efforts to cause the
operator of the Parking Garage to make
available to Tenant (but not any
subtenants or assignees of Tenant, not
permitted hereunder), five (5) parking
spaces until the Lease Commencement Date
for the 25th Floor Premises and
twenty-nine (29) parking spaces thereafter
at the then prevailing monthly rates
(currently $265 per parking space per
month) established by the Parking Garage
operator from time to time. Landlord shall
not be responsible for any changes in
such monthly rates nor shall Landlord in
any way encounter liability for the
Parking Garage operator's method of
operation provided the same does not
diminish the rights granted to Tenant by
this Article.
17.
INSURANCE; WAIVER OF SUBROGATION.
17.1
Landlord shall keep
the Building (excluding any Tenant's Work and/or
Tenant installed Alterations above the
Building standard for same and Tenant's
Furnishings and Tenant's other personal
property) and Landlord's property
therein insured for the full replacement
value (without deducting depreciation)
thereof (exclusive of the costs of
foundations, excavations and footings)
against loss or damage by perils
customarily included under standard "all-risk"
policies.
17.2
Tenant shall maintain
as named insured, and shall cause any of its
subtenants to maintain, for the benefit of,
and name as an additional insured,
Landlord, Master Landlord, any mortgagees
of either Landlord or Master Landlord,
the Building management entity, and Tenant,
as their interests may appear, (a)
public liability insurance with a broad
form commercial liability endorsement,
including contractual liability insurance
covering Tenant's indemnity
obligations hereunder, against claims for
death, personal injury and property
damage, occurring upon, in or about the
Premises; such insurance shall be
carried in a minimum amount of not less
than Five Million ($5,000,000) Dollars
for bodily injury or death to any one
person or any number of persons or
property damage in any one occurrence; (b)
insurance against loss or damage by
fire, and such other risks and hazards as
are insurable under then available
standard tenant forms of fire insurance
policies with "all risk" extended
coverage, to any Tenant's Work and/or any
Tenant installed Alterations above the
Building standard for same and Tenant's
Furnishings and Tenant's other personal
property, for the full replacement cost
thereof; (c) during such time as Tenant
shall be constructing any Alterations
(other than those for which Landlord's
consent shall not be required pursuant to
Section 12.1), builder's risk
insurance, completed value form, covering
all physical loss and other costs and
expenses (including, without limitation,
architectural and engineering costs,
general contractor overhead, project
management expenses and legal fees) to such
Alterations, in an amount reasonably
satisfactory to Landlord; (d) worker's
compensation insurance covering Tenant's
employees, including employer liability
with a limit of not less than $1,000,000
per occurrence or such higher amount as
is required by applicable Legal
Requirements and Insurance Requirements; and (e)
business interruption insurance in twelve
(12) month intervals in an amount
sufficient to pay Base Rent, Tenant's
Proportionate Share of Operating Expense
and such other Additional Rent which is of
a
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continuing nature under this Lease.
Certificates of insurance, showing that such
insurance is in force and will not be
cancelled without thirty (30) days' prior
written notice to Landlord shall be
furnished to Landlord prior to Tenant's
entering the Premises for the purpose of
installing Tenant's Work or Tenant's
Furnishings. Thereafter, certificates
showing renewal of, or substitution for,
policies which expire shall be furnished
not less than thirty (30) days prior to
the expiration of each policy. Tenant's
coverage may be effected by blanket
policies covering the Premises and other
properties of Tenant.
17.3
All insurance required
to be maintained by Tenant hereunder shall be
written in form and substance reasonably
satisfactory to Landlord by an
insurance company with an A.M. Best's
rating of at least A licensed to do
business in the State of New Jersey, which
shall be reasonably satisfactory to
Landlord. Upon failure of Tenant to
procure, maintain and pay all premiums
therefor, Landlord may, at its option after
five (5) days Notice to Tenant, do
so, and Tenant agrees to pay the cost
thereof to Landlord, as Additional Rent,
within ten (10) business days after
Tenant's receipt of a bill therefor.
17.4
Neither Landlord nor
Tenant shall be liable to the other or to any
insurance company (by way of subrogation or
otherwise) insuring the other party
for any loss or damage to the Building, the
Premises or any tangible property of
either party, or any resulting loss of
income, even though such loss or damage
might have been occasioned by the
negligence of such party, its employees or
agents, if any such loss or damage is
covered by insurance benefiting the party
suffering such loss or damage or was
required to be covered by insurance
pursuant to this Lease. Throughout the
Term, each party agrees to use its best
efforts to include in each of its insurance
policies required under this Article
17 a waiver of the insurer's right of
subrogation against the other party; or if
such waiver should be unobtainable or
unenforceable, an express agreement that
such policy shall not be invalidated if the
insured waives or has waived before
the casualty the right of recovery against
any party responsible for a casualty
covered by the policy. If such waiver or
agreement shall not be obtainable
without additional charge, the insured
party shall so notify the other party
promptly and, if the other party shall pay
the insurer's additional charge
therefor, such waiver or agreement shall be
included in the policy.
17.5
So long as Landlord's
fire insurance policies include the waiver of
subrogation or agreement to release
liability referred to in Section 17.4,
Landlord, to the extent that such insurance
is in force and is collectible,
hereby waives for itself and any other
parties insured thereby any right of
recovery against Tenant, any of its
subtenants, or any of its employees, agents,
contractors, occupants, licensees or
invitees, for any loss occasioned by fire
or other casualty. In the event that at any
time Landlord's fire insurance
carriers shall not include such or similar
provisions in Landlord's policies,
the waiver set forth in the foregoing
sentence, upon prior Notice given by
Landlord to Tenant, shall be of no further
force or effect from and after the
giving of such Notice. Landlord's failure
to give such Notice shall not result
in any liability of Landlord to Tenant.
During any period that the foregoing
waiver of the right of recovery is in
effect, Landlord shall look solely to the
proceeds of such policies to compensate
Landlord for any loss occasioned by any
insured casualty.
17.6
So long as Tenant's
fire insurance policies include the waiver of
subrogation or agreement to release
liability referred to in Section 17.4,
Tenant, to the extent that such insurance
is in force and collectible, hereby
waives (on behalf of itself and persons
or
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entities insured thereby), and agrees to
cause all other occupants of the
Premises to execute and deliver to Landlord
instruments waiving, any right of
recovery against Landlord, Master Landlord
and any mortgagees of either Landlord
or Master Landlord, the Building management
entity and any of their respective
employees, agents or contractors, for any
loss occasioned by fire or other
insured casualty. Tenant represents that
its current fire insurance policy
contains such a waiver. In the event that
at any time Tenant's fire insurance
carriers shall not include such waiver or
similar provisions in Tenant's
policies, the waiver set forth in the
foregoing sentence, upon prior Notice
given by Tenant to Landlord, Master
Landlord and any mortgagees of either
Landlord or Master Landlord and the
Building management entity, shall be of no
further force or effect with respect to any
insured risks under such policy from
and after the giving of such Notice, or in
the case such insurer shall not be
willing to grant such waiver for all of the
required parties, such waiver shall
be of no force or effect with respect only
to the required parties not included
in such waiver. During any period that the
foregoing waiver of right of recovery
is in effect, Tenant, or any other occupant
of the Premises, shall look solely
to the proceeds of such policies to
compensate Tenant or such other occupant for
any loss occasioned by an insured
casualty.
17.7
Except to the extent
expressly provided in Sections 17.5 and 17.6,
nothing contained in this Lease shall
relieve Landlord or Tenant of any
liability to the other party or to its
insurance carriers or any other party
which it may have under law or pursuant to
the provisions of this Lease, by
reason of any damage to the Premises or the
Building by fire or other casualty.
18.
TENANT'S EQUIPMENT.
18.1
Tenant shall not
install any equipment of any kind or nature
whatsoever in the Premises which will or
may necessitate any changes,
replacements or additions to, or in the
Electrical Capacity or existing capacity
of, the water system, heating system,
plumbing system, air conditioning system,
life safety system or any other system of
the Premises and/or the Building
without first obtaining the prior written
consent of Landlord, which consent
shall not be unreasonably withheld but may
be subject to, among other things
Tenant's compliance with the provisions of
Section 8.9 and Articles 11 and 12 of
this Lease. If Tenant installs business
machines and/or mechanical equipment
which cause noise or vibration reasonably
deemed objectionable to other tenants
of the Building or which are, in Landlord's
reasonable judgment, harmful to the
Premises, then Tenant, at Tenant's expense,
shall promptly install and maintain
noise or vibration eliminators or other
devices sufficient to eliminate such
noise and vibration. Landlord reserves the
right to inspect the Premises as set
forth in Section 13.1 to insure compliance
with this Section.
18.2
Landlord shall have
the right to approve the weight and position of
safes and other heavy equipment or
fixtures, which shall, if reasonably
considered necessary by the Landlord, stand
on weight distribution platforms or
like devices approved in advance by
Landlord. Landlord's approval under the
preceding sentence shall not be
unreasonably withheld or delayed provided any
such safes and other heavy equipment or
fixtures will not exceed the maximum
floor load of the floor in question after
such weight distribution platform or
like device is installed. Any and all
non-structural damage or injury to the
Premises caused by moving the property of
Tenant into or out of the Premises, or
due to the same being on the Premises,
shall be repaired by, and at the sole
cost of, Tenant. All structural damage or
injury to
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the Premises caused by moving such property
into or out of the Premises, or due
to the same being on the Premises, shall be
repaired by Landlord, at Tenant's
reasonable expense (subject to the
provisions of Article 17 to the extent
applicable), and Tenant shall pay for the
same, as Additional Rent, within ten
(10) days after its receipt of a bill
therefor.
18.3
No furniture,
equipment or other bulky matter of any description
will be received into the Premises or
carried in the passenger elevators except
as approved by Landlord (such approval not
to be unreasonably withheld) and all
such furniture, equipment, and other bulky
matter shall be delivered only
through the Loading Dock and to the
Premises by way of the freight elevators
during Business Hours, upon reasonable
prior notification to the supervisor of
the Loading Dock and subject to the
availability of the Loading Dock and freight
elevators. In the event Tenant requests
overtime service in accordance with the
provisions of this Lease, such overtime
service shall be at Tenant's sole but
reasonable cost and expense in accordance
with the provisions of this Lease. All
movement of furniture, equipment and other
materials outside the Premises shall
be at Tenant's reasonable expense and under
the direct control and supervision
of Landlord who shall, however, not be
responsible for any damage to or charges
for moving the same. Tenant shall pay for
Landlord's reasonable costs of
supervision, as Additional Rent, within ten
(10) business days after its receipt
of an invoice therefor. Tenant shall
promptly remove from the sidewalks adjacent
to the Building any of the Tenant's
furniture, equipment or other material there
delivered or deposited.
19.
NON-LIABILITY AND INDEMNIFICATION.
19.1
Neither Landlord nor
Landlord's agents, employees, officers,
directors, shareholders, partners, partners
of such partners or principals
(disclosed or undisclosed) nor its
mortgagees shall be liable to Tenant, for any
loss, liability, claim, damage, expense
(including reasonable attorneys' fees
and disbursements), penalty or fine
incurred in connection with or arising by
reason of Tenant's or any other occupant's
use of the Premises including,
without limitation, any injury to Tenant,
Tenant's agents, employees,
contractors, invitees or licensees or any
other occupant of the Premises, or to
any other person or for any damage to, or
loss (by theft or otherwise) of any of
Tenant's property or of the property of any
other person, irrespective of the
cause of such injury, damage or loss unless
due to the negligence or willful
misconduct of Landlord or Landlord's
agents, its employees, contractors,
invitees or licensees. Any Building
employee to whom any property shall be
entrusted by or on behalf of Tenant shall
be acting as Tenant's agent with
respect to such property, and neither
Landlord nor Landlord's agents shall be
liable for any loss or damage to any such
property.
19.2
Neither any (a)
performance by Landlord, Tenant or others of any
repairs or improvements in or to the Land,
Building or Premises, (b) failure of
Landlord or others to make any such repairs
or improvements, except in breach of
the terms of this Lease, (c) damage to the
Building equipment, Premises or
Tenant's personal property, (d) injury to
any persons, caused by other tenants
or persons in the Building, or by
operations in the construction of any private,
public or quasi-public work, (e) latent
defect in the Building, Building
equipment or Premises, (f) temporary
covering or bricking up of any windows of
the Premises, by reason of any Legal
Requirement or any Insurance Requirement,
nor (g) inconvenience or annoyance to
Tenant or injury to or interruption of
Tenant's business by reason of any of the
events or occurrences referred to in
the foregoing subdivisions (a) through (f)
shall impose any liability on
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Landlord to Tenant, any occupant or any
third party claiming by, through or
under Tenant. Landlord, in making any
repairs, alterations or improvements
hereunder, shall prosecute the same
utilizing such reasonable methods in order
to minimize any disruption to Tenant's use
of the Premises or the conduct of its
business therein. In no event, however,
shall Landlord be liable for injury or
damage to Tenant or its property unless
such injury or damage is caused by the
negligence or willful misconduct of
Landlord or Landlord's agents, employees,
contractors, invitees or licensees.
Landlord shall furnish a security program
with respect to ingress and egress from the
Building and the Common Areas as set
forth in Subsection 8.1(viii), but no
representation is made that any security
or communications systems, devices or
procedures furnished by Landlord will be
effective to prevent injury to Tenant or
any other person or damage to, or loss
(by theft or otherwise) of any of Tenant's
personal property or the property of
any other person and in no event shall
Landlord be liable to Tenant for any
failure of Tenant's computer,
telecommunications or data base systems. Landlord
reserves the righ
