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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT:
(DATE OF EARLIEST EVENT REPORTED)
APRIL 11, 1996
SUMMIT BANCORP.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW JERSEY 1-6451 22-1903313
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(STATE OR OTHER JURIS- (COMMISSION (IRS EMPLOYER
DICTION OF INCORPORATION FILE NO.) IDENTIFICATION NO.)
OR ORGANIZATION)
301 CARNEGIE CENTER, P.O. BOX 2066,
PRINCETON, NEW JERSEY 08543-2066
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (609) 987-3200
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS
The Registrant hereby voluntarily files with the Commission certain exhibits
referred to in the rules of the Commission promulgated at Item 601 of
Regulation S-K regarding exhibits to Annual Reports on Form 10-K.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
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Exhibit Number Description
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(4) E. (i) Fiscal and Paying Agency Agreement, dated as of June 30, 1993, between Summit Bank, as issuer, and Summit
Bank, as fiscal and paying agent acting through its Trust Department, relating to $50,000,000 of 6 3/4%
Subordinated Notes due June 15, 2003 of Summit Bank.
(ii) Specimen of Global Certificate for 6 3/4% Subordinated Notes due June 15, 2003 of Summit Bank.
(10) E. Supplemental Executive Retirement Plan of The Summit Bancorporation.
Q. (i) Twenty-five year real property lease, dated June 5, 1990, between Summit Bancorp. (under name of
predecessor corporation The Summit Bancorporation) and Hartz Mountain Industries, Inc. for data processing
and operations center located in Cranford, New Jersey.
(ii) Lease Modification Agreement, dated February 22, 1995 and effective October 1, 1994, between Summit
Bancorp. (under name of predecessor corporation The Summit Bancorporation) and Hartz Mountain Industries,
Inc. relating to the twenty-five year lease for data processing and operations center in Cranford, New
Jersey.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: April 11, 1996 SUMMIT BANCORP.
By: /s/ Dennis A. Williams
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Dennis A. Williams
Senior Vice President
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EXHIBIT INDEX
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Exhibit Number Description
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(4) E. (i) Fiscal and Paying Agency Agreement, dated as of June 30, 1993, between Summit Bank, as issuer, and Summit
Bank, as fiscal and paying agent acting through its Trust Department, relating to $50,000,000 of 6 3/4%
Subordinated Notes due June 15, 2003 of Summit Bank.
(ii) Specimen of Global Certificate for 6 3/4% Subordinated Notes due June 15, 2003 of Summit Bank.
(10) E. Supplemental Executive Retirement Plan of The Summit Bancorporation.
Q. (i) Twenty-five year real property lease, dated June 5, 1990, between Summit Bancorp. (under name of
predecessor corporation The Summit Bancorporation) and Hartz Mountain Industries, Inc. for data processing
and operations center located in Cranford, New Jersey.
(ii) Lease Modification Agreement, dated February 22, 1995 and effective October 1, 1994, between Summit
Bancorp. (under name of predecessor corporation The Summit Bancorporation) and Hartz Mountain Industries,
Inc. relating to the twenty-five year lease for data processing and operations center in Cranford, New
Jersey.
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Exhibit (4)E.(i)
FISCAL AND PAYING AGENCY AGREEMENT
This Fiscal and Paying Agency Agreement dated as of June 30, 1993
between Summit Bank, a bank chartered by the State of New Jersey, as issuer
(the "Bank"), and Summit Bank, as fiscal and paying agent (the "Fiscal and
Paying Agent").
WHEREAS the Bank proposes to issue and sell from time to time its
$50,000,000 6-3/4% Subordinated Notes Due 2003 (the "Subordinated Notes") in
such amounts as may be duly authorized by the Bank;
WHEREAS the Bank desires to appoint the Fiscal and Payment Agent as
fiscal and paying agent of the Bank with respect to the preparation,
authentication, delivery, registration and payment of the Subordinated Notes;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
APPOINTMENT
Section 1.1 Appointment of Fiscal and Paying Agent. The Fiscal
and Paying Agent is hereby appointed as fiscal and paying agent for the
Subordinated Notes on the terms and conditions specified in this Agreement, and
the Fiscal and Paying Agent hereby accepts such appointment. The Bank hereby
appoints the Fiscal and Paying Agent as registrar for the Subordinated Notes.
Unless otherwise specified, capital terms used herein shall have the meanings
ascribed to them in the Subordinated Notes.
ARTICLE II
THE SUBORDINATED NOTES
Section 2.1 Form of Subordinated Notes. The Subordinated Notes
will be represented by one or more global certificates. The Subordinated Notes
shall be registered in the name of The Depository Trust Company ("DTC"), as
depository or its nominee. All Subordinated Notes shall be in substantially
the form attached hereto as Exhibit A and may have such appropriate insertions,
omissions, variations or substitutions as are required or permitted by, and not
inconsistent with, this Agreement, and may also have such letters, numbers or
other marks of identification and such
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legends or endorsements place thereon a may be required to comply with any
applicable laws or with any applicable rules or regulations made pursuant
thereto or with the rules or regulations of any governmental agency or as may,
consistently herewith, be determined by the officers of the Bank executing such
Subordinated Notes, as evidenced by their execution thereof. Beneficial
interests in Subordinated Notes will be shown on, and the transfer thereof will
be effected only through, records maintained by DTC and its participants.
Section 2.2 Certificates of Authorized Representatives of the
Bank. From time to time, the Bank shall furnish the Fiscal and Paying Agent
with a certificate of the Bank in the form attached hereto as Exhibit B
certifying the incumbency and specific signatures of representatives of the
Bank authorized to instruct the Fiscal and Paying Agent regarding the
completion and delivery of the Subordinated Notes (each an "Authorized
Representatives"). Until five Business Days (as hereinafter defined) after the
Fiscal and Paying Agent receives a subsequent incumbency certificate of the
Bank, the Fiscal and Paying Agent shall be entitled to rely on the last such
certificate delivered to it for purposes of determining the Authorized
Representatives. The Fiscal and Paying Agent shall have non-responsibility to
the Bank to determine by whom or by what means a facsimile signature of the
Bank may have been affixed on the Subordinated Notes, or whether a signature of
an Authorized Representatives is genuine, if such signature resembles the
specimen signature of such Authorized Representative on such certificate.
Section 2.3 Completion, Authentication and Delivery.
(a) All Subordinated Notes shall be issued and delivered in
accordance with this Agreement, the Subordinated Notes and the Letter of
Representation from the Bank and the Fiscal and Paying Agent to DTC to be dated
July 7, 1993 (the "Additional Agreements"). Notwithstanding the foregoing, the
Fiscal and Paying Agent shall not be required to perform any duties on any day
that is not a Business Day (as hereinafter defined). All instructions
regarding the completion and delivery of Subordinated Notes shall be given by
an Authorized Representative by telex, telecopy or other means acceptable to
the Fiscal and Paying Agent. Upon receipt of instructions as described in the
preceding sentence, the Fiscal and Paying Agent shall:
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(1) complete a Subordinated Notes or Notes representing one or
more Subordinated Notes in accordance with such instructions;
(2) manually countersign and authenticate such Subordinated Note
or Notes by any one of the officers or employees of the Fiscal and Paying
Agent duly authorized and designated by it for such purpose; and
(3) deliver such Subordinated Note to DTC.
(b) If any Subordinated Note has been countersigned by one of the
Fiscal and Paying Agent's officers who was duly authorized for such purpose but
who is not so designated at the time said Subordinated Note is to be paid, the
Fiscal and Paying Agent is authorized and will pay the Subordinated Note
notwithstanding that the authority of said officer has been terminated between
the time of execution and the time of payment.
(c) In the event a discrepancy exists between the instructions as
originally received by the Fiscal and Paying agent and any subsequent written
confirmation thereof, such original instructions will be deemed controlling if
action has already been taken in reliance on such original instructions,
provided that the Fiscal and Paying Agent gives notice to the Bank of such
discrepancy promptly upon the receipt of such written confirmation.
(d) Should the Fiscal and Paying Agent at any time request and
receive an opinion of its counsel (which includes in-house counsel) concerning
is duties hereunder, it shall be free to act upon the advice contained in such
opinion and shall be relieved of any liability under this Agreement in so
acting.
(e) All instructions for the completion, authentication and
delivery of the Subordinated Notes must be received by the Fiscal and Paying
Agent by 12 Noon, New York City time, on the second Business Day preceding the
original issue date. For purposes of this Agreement the term "Business Day"
shall mean any day that is not a Saturday or Sunday or a day on which banks in
New York, New York and Newark, New Jersey are authorized or required by
applicable law or regulation to be closed.
(f) The Fiscal and Paying Agent shall incur no liability to the
Bank in acting or refraining from taking any
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action hereunder upon instructions contemplated hereby which the recipient
thereof believed in good faith to have been given by an Authorized
Representative.
(g) Each instruction given to the Fiscal and Paying Agent in
accordance with this Section 2.3 shall constitute a representation and warranty
to the Fiscal and Paying Agent by the Bank that the issuance and delivery of
the Subordinated Note or Subordinated Notes to which the instruction relates
have been duly and validly authorized by the Bank, that such Subordinated Note
or Subordinated Notes when completed, countersigned, authenticated and
delivered pursuant hereto, will constitute valid and legally binding
obligations of the Bank, and that the Fiscal and Paying Agent's appointment to
act for the Bank hereunder has been duly authorized by all necessary corporate
action of the Bank.
(h) The Bank further represents and warrants to the Fiscal and
Paying Agent that the Bank is free to enter into this Agreement and to perform
the terms hereof.
Section 2.4 Denominations. Except as provided in Section 2.5(b),
the Subordinated Notes shall be issuable only in book-entry form, without
coupons, in minimum denominations of $100,000 and any amount in excess thereof
which is an integral multiple of $1,000. If Subordinated Notes are issued in
definitive form, payment and other terms related to such Subordinated Notes
will be as set forth on the face thereof.
Section 2.5 Proceeds of Sale of the Subordinated Notes; Issuance
of Certificated Securities.
(a) Funds received in payment for Subordinated Notes issued by the
Bank shall be credited to an account of the Bank, as instructed by the Bank.
(b) The Subordinated Notes are exchangeable for definitive notes
only if (i) DTC notifies the Banking writing that it is no longer willing or
able to continue as a depositary for the Subordinated Notes or if DTC ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depositary is not appointed by the Bank within ninety
days after the effective date of DTC's ceasing to act as depositary for the
Subordinated Notes, (ii) the Bank, at its option, notifies the Fiscal and
Paying Agent in writing that it elects to cause the issuance of Subordinated
Notes in definitive form
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or (iii) any event shall have happened and be continuing which, after notice or
lapse of time, or both, would constitute an Event of Default with respect to
the Subordinated Notes. In the event of such occurrences, upon surrender by
the Depositary or a successor depository of the Subordinated Notes, the Bank
will execute, and the Fiscal and Paying Agent will, upon the execution of the
then standard form of the Fiscal and Paying Agent's agreement for certificated
securities and upon receipt of instructions in writing from the Bank,
authenticate and deliver Subordinated Notes of like tenor and terms in
definitive form to each person that the Depositary or a successor depositary
identifies and the beneficial owner of the related Subordinated Notes in an
aggregate principal amount equal to the principal amount of the Subordinate
Notes then outstanding in exchange for such Subordinated Notes. Any such
certificated Subordinated Notes will be issued in fully registered form,
without coupons, in minimum denominations of $100,000 or any amount in excess
thereof which is an integral multiple of $1,000. Such certificated
Subordinated Notes may not subsequently be exchanged by a Holder for
Subordinated Notes in denominations of less than $100,000.
Section 2.6 Registration, Registration of Transfer and Exchange.
The Fiscal and Paying Agent shall, so long as any of the Subordinated Notes
remain outstanding, maintain all records as may be customary, including all
forms of transfer for the Subordinated Notes and shall:
(a) Keep at its corporate trust office in Summit, New Jersey or in
New York, New York a register (the "Security Registrar") in such form as the
Fiscal and Paying Agent may determine, in which, subject to such reasonable
regulations as it may prescribe, it shall provide for the registration of the
Subordinated Notes and of transfer thereof.
(b) Maintain records showing for each outstanding Subordinated
Notes the principal amount, Date of Maturity, interest rate and other terms
thereof; the date of original issue and all subsequent transfers and
consolidations or exchanges; provided that the Fiscal and Paying Agent shall
have no responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in any
Subordinated Note or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests, and it shall be fully
protected in acting or refraining from acting on any such information provided
by DTC.
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(c) All Subordinated Notes presented for transfer shall be duly
endorsed or be accompanied by a written instrument of transfer.
(d) Each Subordinated Note shall bear an original issue date which
shall remain the same for all Subordinated Notes subsequently issued upon
transfer, exchange or substitution of such original Subordinated Note
regardless of the date of issuance of any such subsequently issued Subordinated
Note.
Section 2.7 Persons Deemed Owners. Prior to due presentment of a
Subordinated Note for registration or transfer, the Bank, the Fiscal and Paying
Agent and any agent of the Bank or the Fiscal and Paying Agent may treat the
person in whose name such Subordinated Note is registered in the Security
Register as the owner of the Subordinated Note for the purpose of receiving
payments of principal and interest, if any, and for all other purposes
whatsoever, whether or not such Subordinated Note be overdue, and neither the
Bank nor the Fiscal and Paying Agent shall be affected by notice to the
contrary.
Section 2.8 Cancellation of Unissued Subordinated Notes.
Promptly upon the written request of the Bank, the Fiscal and Paying Agent
shall cancel and return to the Bank all unissued Subordinated Notes in its
possession.
Section 2.9 Mutilated, Lost, Stolen or Destroyed Subordinated
Notes. The Fiscal and Paying Agent shall effect the replacement of mutilated,
lost, stolen or destroyed Subordinated Notes in accordance with the custom and
usage of the financial industry.
ARTICLE III
THE FISCAL AND PAYING AGENT
Section 3.1 Payment of Subordinated Note. Payments of principal
and interest payable at stated maturity or upon redemption will be made in
immediately available funds at the corporate trust office of the Fiscal and
Paying Agent in Summit, New Jersey or New York, provided that the Subordinated
Note is presented to the Fiscal and Paying Agent in time for the Fiscal and
Paying Agent to make such payments in such funds in accordance with its normal
procedures. Interest (other than interest payable at stated maturity or upon
redemption) will be paid by check mailed to the address
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of the person entitled thereto as it appears in the Security Register
maintained at the corporate trust office of the Fiscal and Paying Agent at the
close of business on the relevant Record Date next preceding each Interest
Payment Date or to such other address in the United States as any registered
Holder shall designate to the Fiscal and Paying Agent in writing not later than
the relevant Record Date. Notwithstanding the foregoing, if a registered
Holder of a Subordinated Note owns a single Subordinated Note in the principal
amount of at least $1,000,000 such Holder shall be entitled to receive payments
of interest (other than at stated maturity) by wire transfer of immediately
available funds to a bank account in the United States designated by the Holder
in written request to the Fiscal and Paying Agent not later than 15 calendar
days prior to the applicable Interest Payment Date. The Fiscal and Paying
Agent shall have no obligation to use its own funds for any such payment or for
any other purpose pursuant to this Agreement.
Section 3.2 Information Regarding Amounts Payable. The Fiscal
and Paying Agent shall, as soon as practicable after each Record Date for the
payment of interest (other than interest payable at maturity) on any
Subordinated Note, but not later than five days preceding the related Interest
Payment Date, notify the Bank of the interest to be paid on such Subordinated
Note on the related Interest Payment Date. In addition, the Fiscal and Paying
Agent shall by the 15th day prior to the maturity of the Subordinated Notes
furnish to the Bank a list showing the principal and interest payable at
maturity on such Subordinated Notes.
Section 3.3 Deposit of Funds. Subject to the terms of the
Subordinated Note, the Bank shall deposit by 12 Noon, New York City time, with
the Fiscal and Paying Agent (i) on each Interest Payment Date an amount in
immediately available funds sufficient to pay the interest due on such date and
(ii) on the Date of Maturity of such date and (ii) on the Date of Maturity of
each such Subordinated Note an amount in immediately available funds sufficient
to pay the principal of such Subordinated Note and the interest accrued thereon
to the Date of Maturity.
Section 3.4 Money for Subordinated Note Payments to Be Held in
Trust.
(a) In acting under this Agreement and in connection with the
Subordinated Notes, the Fiscal and Paying Agent is acting solely as agent of
the Bank and does not assume any relationship or agency or trust for or with
any of
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the Holders of the Subordinated Notes, except that, subject to the provisions
of subsection (b) of this Section 3.4, all money deposited with the Fiscal and
Paying Agent pursuant to Section 3.3 shall be held by it in trust for the
benefit of the Holders of the Subordinated Notes entitled thereto until such
money is paid to such Holders of the Subordinated Notes in accordance with the
provisions of the Subordinated Notes and this Agreement or otherwise disposed
of as provided herein but such money need not be segregated from other funds
except to the extent required by law.
(b) Any money deposited with the Fiscal and Paying Agent for the
payment of the principal of or interest on any Subordinated Note that remains
unclaimed for two years after such principal or interest has become due and
payable shall be paid to the Bank, upon its written request, and Holders of the
Subordinated Notes shall thereafter, as unsecured creditors, look only to the
Bank for payment thereof, and all liability of the Fiscal and Paying Agent with
respect to such money shall thereupon cease.
Section 3.5 Additional Responsibilities. Unless the Fiscal and
Paying Agent has entered into a separate written agreement which specifically
addresses the standard of care with respect to the duties discussed by this
Section, if the Bank shall ask the Fiscal and Paying Agent to perform any
duties not specifically set forth in this Agreement or in the Additional
Agreements as duties of the Fiscal and Paying Agent (the "Additional
Responsibilities") and the Fiscal and Paying Agent chooses to perform such
Additional Responsibilities, the Fiscal and Paying Agent shall be held to the
same standard of care and shall be entitled to all the protective provisions
(including, but not limited to, indemnification) set forth herein.
Section 3.6 Miscellaneous. Notwithstanding anything to the
contrary herein or in the Additional Agreements,
(a) in paying Subordinated Notes hereunder, the Fiscal and Paying
Agent shall be acting as a conduit and shall not be paying Subordinated Notes
for its own account, and in the absence of written notice from the Bank to the
contrary, the Fiscal and Paying Agent shall be entitled to assume that any
Subordinated Note presented to it, or deemed presented to it, for payment, is
entitled to be so paid;
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(b) the Fiscal and Paying Agent may become a purchaser, holder,
transferor or may otherwise own, hold or transfer any beneficial interest in
any Subordinated Notes any may commence or join in any action which a
beneficial owner of a Subordinated Note is entitled to take without any
conflict with its responsibilities pursuant to this Agreement;
(c) the Fiscal and Paying Agent shall not be required to invest
any moneys delivered to it pursuant to this Agreement;
(d) the Fiscal and Paying Agent shall have no liability for
interest on any moneys received or held by it hereunder;
(e) the Fiscal and Paying Agent shall not be responsible for the
correctness of any recital of any party other than the Fiscal and Paying Agent
that is stated herein or in the Subordinated Notes or in any offering materials
and make no representations as to the validity of the Subordinated Notes and
shall incur no responsibility in respect thereto;
(f) the Fiscal and Paying Agent shall be protected in acting or
refraining from acting upon any notice, order, requisition, request, consent,
certificate, order, opinion (including an opinion of counsel, Officers'
Certificate (as hereinafter defined), affidavit, letter, telegram or other
paper or document in good faith deemed by it to be genuine and correct and to
have been signed or sent by the proper person or persons; and
(g) any action taken by the Fiscal and Paying Agent pursuant to
this Agreement or the Additional Agreements upon the request or authority or
consent of any person who at the time of making such request or giving such
authority or consent is the Holder of any Subordinated Note shall be conclusive
and binding upon all future Holders of the same Subordinated Note and all
Subordinated Notes issued in exchange therefor or in place thereof.
ARTICLE IV
LIABILITY AND INDEMNIFICATION
Section 4.1 Liability. The Fiscal and Paying Agent's duties are
ministerial in nature and the Fiscal and Paying Agent shall not have any
liability hereunder or under
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the Additional Agreements except in the case of its negligence or willful
misconduct. The duties and obligations of the Fiscal and Paying Agent shall be
determined by the express provisions of this Agreement and it shall not be
liable except for the performance of such duties and obligations as are
specifically set forth herein and no implied covenants shall be read into this
Agreement against it. The Fiscal and Paying Agent shall have no responsibility
in the case of any default by the Bank in the performance of any covenants
contained in the Subordinated Notes. The Fiscal and Paying Agent may refuse to
perform any duty or exercise any right or power hereunder unless it receives
indemnity satisfactory to it against any related loss, liability or expense.
The Fiscal and Paying Agent shall not be required to ascertain whether any
issuance or sale of Subordinated Notes (or any amendment or termination of this
Agreement) has been duly authorized or is in compliance with any other
agreement to which the Bank is a party (whether or not the Fiscal and Paying
Agent is also a party to such other agreements).
Section 4.2 Indemnification. The Bank agrees to indemnify and
hold harmless the Fiscal and Paying Agent, its officers, directors, employees
and agents from and against reasonable losses, liabilities, obligations,
claims, damages, costs and expenses of any kind or nature whatsoever
(including, without limitation, reasonable legal fees and expenses) relating to
or arising out of its performance of the Fiscal and Paying Agent's duties under
this Agreement and/or the Additional Agreements, except to the extent they are
caused by the negligence or willful misconduct of the Fiscal and Paying Agent.
In the event of resignation or removal of the Fiscal and Paying Agent, any
successor to the performance of the obligations of the Fiscal and Paying Agent
as specified in this Agreement shall be entitled to rely upon this indemnity
and said successor, the Bank or DTC shall not be entitled to a separate
indemnity from the Fiscal and Paying Agent. These indemnification obligations
shall survive the termination of this Agreement, including any termination
pursuant to any applicable federal or state bankruptcy law, to the extent
enforceable under applicable law, and shall survive the resignation or removal
of the Fiscal and Paying Agent while remaining applicable to any action taken
or omitted by the Fiscal and Paying Agent while acting pursuant to this
Agreement and/or the Additional Agreements.
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Section 4.3 Officers' Certificate. Any instruction given by the
Bank to the Fiscal and Paying Agent under this Agreement shall be in he form of
an Officers' Certificate. For the purposes of this Agreement, "Officers'
Certificate" means a certificate signed by an Authorized Representative and
delivered to the Fiscal and Paying Agent.
ARTICLE V
RESIGNATION OR REMOVAL OF FISCAL AND PAYING AGENT
Section 5.1 Resignation or Removal. The Fiscal and Paying Agent
may at any time resign from its duties hereunder by giving written notice of
resignation to the Bank specifying the date on which such resignation shall
become effective; provided, however, that such date shall be not less than 30
days after such notice is given to the Fiscal and Paying Agent. Any
termination or resignation hereunder shall not affect the Fiscal and Paying
Agent's right to the payment of fees earned or charges incurred through the
effective date of such termination or resignation, as the case may be.
Section 5.2 Successor Fiscal and Paying Agent. Upon the
effective date of such resignation or removal, the Fiscal and Paying Agent
shall deliver any money then held by it pursuant to Section 3.4(a) to the
successor appointed by the Bank to serve as fiscal and paying agent for the
Subordinated Notes and all liability of the Fiscal and Paying Agent with
respect to such money shall thereupon cease. The Fiscal and Paying Agent shall
also provide such successor with a copy of its record relating to the
Subordinated Notes as such successor shall reasonably request. However, the
Fiscal and Paying Agent shall not be required to deliver such materials to any
location outside New York, New York or Summit, New Jersey, and may retain
copies of any records turned over for archival purposes. If such successor has
not been appointed by the effective date of such resignation or removal, the
Fiscal and Paying Agent shall pay such money and deliver such records to the
Bank with the same effect as though such payment were made pursuant to Section
3.4(b). The delivery, transfer and assignment of such moneys and records by
the Fiscal and Paying Agent to its successor or
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the Bank, as the case may be, shall be sufficient, without the requirement of
any additional act or the requirement of any indemnity to be given by the
Fiscal and Paying Agent, to relive the Fiscal and Paying Agent of all further
responsibility for the exercise of the rights or the performance of the
obligations vested in the Fiscal and Paying Agent pursuant to this Agreement.
Section 5.3 Successor by Merger, etc. Any corporation or
association into which the Fiscal and Paying Agent may be converted or merged,
or with which it may be consolidated, or to which it may sell or transfer its
corporate trust and agency business as a whole, or any corporation or
association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, shall be and become successor Fiscal and
Paying Agent hereunder and shall be invested with all of the rights, powers,
trusts, duties and obligations of the Fiscal and Paying Agent hereunder,
without the execution or filing of any instrument or any further act. The
Fiscal and Paying Agent shall provide notice to the Bank of any such
conversion, merger, consolidation, sale or transfer as soon as practicable
after the Fiscal and Paying Agent obtains knowledge that such event will occur
or has occurred.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Compensation of the Fiscal and Paying Agent. The
Bank agrees to pay the Fiscal and Paying Agent compensation for all services
rendered by the Fiscal and Paying Agent hereunder in such amount and payable at
such times as the Bank and the Fiscal and Paying Agent may agree and to
promptly reimburse the Fiscal and Paying Agent for all reasonable out-of-pocket
expenses (including reasonable counsel fees), disbursements and advances
incurred or made by the Fiscal and Paying Agent in the performance of its
duties hereunder. The obligation of the Bank pursuant to this Section 6.1
shall survive the termination of this Agreement, including any termination
pursuant to any federal or state bankruptcy law, to the extent enforceable
under applicable law.
Section 6.2 Reliance on Opinions of Counsel or Officers'
Certificates. The Fiscal and Paying Agent shall have no liability to the Bank
in respect of an action taken or omitted by the Fiscal and Paying Agent in good
faith in
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reliance on a written opinion of its counsel or Officers' Certificate,
including in-house counsel.
Section 6.3 Subordinated Notes Held by Fiscal and Paying Agent.
The Fiscal and Paying Agent, in its individual capacity (if not the Bank) or
other capacity, may become the owner or pledgee of Subordinated Notes with the
same rights it would have if it were not acting as Fiscal and Paying Agent
hereunder.
Section 6.4 Notices. Notices and other communications hereunder
shall (except to the extent otherwise expressly provided) be in writing or
given via electronic media and shall be addressed as follows, or to such other
addresses as the parties hereto shall specify from time to time:
If to the Bank: Summit Bank
One Main Street
Chatham, New Jersey 07928
Attention: John F. Kuntz
Telephone: (201) 701-2665
Telecopy: (201) 701-0464
If to the Fiscal
and Paying Agent: Summit Bank
40 Beechwood Road
Summit, New Jersey 07901
Telephone: (201) 701-2665
Telecopy: (201) 701-0464
All notices shall be deemed given when received.
Section 6.5 Parties. Except for rights arising under Sections
3.4(a) and 6.9, this Agreement is solely for the benefit of the parties hereto
and their successors and assigns and nothing herein, express or implied shall
give to any other person including, without limitation, any beneficial owner of
Subordinated Notes, any benefits or any legal or equitable right, remedy or
claim under this Agreement.
<PAGE> 14
14
Section 6.6 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY.
Section 6.7 Separability. In case any provision in this
Agreement shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 6.8 Effect of Headings. The article and section headings
herein are for convenience of reference only and shall not affect the
construction hereof.
Section 6.9 Amendments; Waivers; Notices of Acceleration After
Events of Default.
(a) Without the consent of any Holders of Subordinated Notes, the
Bank and the Fiscal and Paying Agent, at any time and from time to time, may
enter into one or more agreements supplemental hereto, for any of the following
purposes:
(i) to evidence the succession of another person to the Bank and
the assumption by any such successor of the covenants and agreements of the
Bank herein and in the Subordinated Notes; or
(ii) to evidence or provide for the acceptance of appointment
hereunder by a successor Fiscal Agent with respect to the Subordinated
Notes or to change the address of a Fiscal Agent to another location in New
York, New York or Summit, New Jersey; or
(iii) to add further covenants, restrictions or conditions for the
protection of Holders of the Subordinated Notes; or
(iv) to cure ambiguities or to correct any provision herein or in
the Subordinated Notes in case of defect or inconsistencies in the
provisions hereof or thereof or to supplement with such other provisions,
so long as any such cure, correction or supplement does not adversely
affect the interest of the Holders of the Subordinated Notes in any
material respect;
<PAGE> 15
15
provided, however, that no such supplemental agreement shall, without the
consent of the Holder of each outstanding Subordinated Note of any such
series:
(v) change the Date of Maturity of any Subordinated Note, or
change the definition of Interest Payment Date contained in such
Subordinated Notes, or reduce the principal amount of or the rate of
interest on any Subordinated Note, or change the coin and currency in which
any Subordinated Note or the interest on any Subordinated Note, or change
the coin and currency in which any Subordinated Note or the interest
thereon is payable, or change the place specified in the Subordinated Notes
where principal and interest is payable to a place outside New York, New
York, or Summit, New Jersey or impair the right of Holders of such
Subordinated Notes to institute suit for the enforcement of any payment of
principal of or interest or other amounts on such Subordinated Notes on or
after the Date of Maturity or due date therefor, or modify the
subordination provisions of the Subordinated Notes in any manner adverse to
the Holders of Subordinated Notes; or
(vi) reduce the percentage in principal amount of the outstanding
Subordinated Notes, the consent of whose Holders is required for any such
supplement agreement or any waiver of an Event of Default under Section
6.9(e) of this Agreement: or
(vii) modify any of the provisions of this Section 6.9, except to
increase any such percentage or to provide that certain other provisions of
this Agreement or the Subordinated Notes cannot be modified or waived
without the consent of the Holder of each outstanding Subordinated Note.
Before entering into any supplemental agreement, the Fiscal and Paying
Agent shall receive and be fully protected in relying upon an Officers'
Certificate and an opinion from counsel to the Bank that such supplemental
agreement has been duly authorized, executed and delivered by the Bank and that
all conditions precedent in connection with the execution of a supplemental
agreement have been satisfied.
It shall not be necessary under this Section 6.9 for the Holders of the
Subordinated Notes to approve the particular form of any proposed supplemental
agreement.
(b) Notwithstanding any provisions of this Section 6.9 to the
contrary, the Bank and the Fiscal and
<PAGE> 16
16
Paying Agent shall not enter into any agreement or agreements supplemental
hereto for the purpose of changing the Date of Maturity of any Subordinated
Note or impairing the rights of the FDIC with respect to the Subordinated Notes
without the specific prior written consent of the FDIC to such agreement or
agreements. The Bank shall give a copy of any such consent to the Fiscal and
Paying Agent promptly upon receipt thereof.
(c) Upon the execution of any supplemental agreement under this
Section 6.9, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes and
each Holder of Subordinated Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby. The Bank shall transmit by mail to
each Holder of Subordinated Notes a notice setting forth the general terms of
any supplemental agreement executed under this Section 6.9.
(d) At any time after the delivery to the Fiscal and Paying Agent
of a declaration of default and acceleration pursuant to the provisions of any
Subordinated Note, the Holders of not less than 66-2/3% in principal amount of
such outstanding Subordinated Notes may, by notice evidencing their ownership
interests to the Bank and the Fiscal and Paying Agent, rescind and annul such
declaration and its consequences if:
(i) the Bank shall have paid to the Fiscal and Paying Agent a sum
sufficient to pay the aggregate amount of overdue interest and any
additional amounts on all of the Subordinated Notes and the aggregate
principal amount of any Subordinated Notes which shall have become due and
payable otherwise than as a result of any such declaration of default,
together with accrued interest and any additional amount thereon; and
(ii) the Fiscal and Paying Agent shall have received notice from
the Bank that all Events of Defaults shall have been cured or waived as
provided in Section 6.9(f) hereof;
The Fiscal and Paying Agent shall mail copies of any such rescission to the
Holders of the Subordinated Notes in accordance with provisions of the
Subordinated Notes. No such rescission shall affect any subsequent default or
impair any right consequent thereto.
<PAGE> 17
17
(e) The Holders of not less than 66-2/3% in principal amount of
the outstanding Subordinated Notes may, on behalf of the Holders of all of the
outstanding Subordinated Notes, by notice evidencing their ownership interests
to the Bank and Fiscal and Paying Agent shall provide copies of any such notice
of a waiver to the Holders of the Subordinated Notes in accordance with the
provisions of the Subordinated Notes. No such waiver shall affect any
subsequent default or impair any right consequent thereto.
(f) The Bank will promptly notify, and provide copies of any such
notice to, the Fiscal and Paying Agent, and the Fiscal and Paying Agent will
promptly mail by first-class mail, postage prepaid, copies of any such notice
to the Holders of the Subordinated Notes, upon the occurrence of an Event of
Default or the curing of any Event of Default.
Section 6.10 Actions Due on Saturdays, Sundays and Holidays. If
any date on which a payment, notice or other action required by this Agreement
or any Additional Agreement falls on other than a Business Day, then that
action or payment need not be taken or made on such date, but may be taken or
made on the next succeeding Business Day on which the Fiscal and Paying Agent
is open for business with the same force and effect as if made on such date.
Section 6.11 Agreement to Pay Attorneys' Fees and Other Expenses.
In the event the Bank shall default under any of the provisions of this
Agreement and/or any Additional Agreement affecting the rights or duties of the
Fiscal and Paying Agent and the Fiscal and Paying Agent shall employ attorneys
or incur other expenses for the enforcement of performance or observance or any
such obligation or agreement, the Bank agrees that it will on demand therefor
pay to the Fiscal and Paying Agent the reasonable fees of such attorneys and
such other reasonable expenses incurred by the Fiscal and Paying Agent.
Section 6.12 Survival. The Fiscal and Paying Agent's rights to
compensation, reimbursement and indemnification shall survive the termination
of this Agreement and any Additional Agreements, including any termination
pursuant to any federal or state bankruptcy law, to the extent enforceable
under applicable law.
<PAGE> 18
18
Section 6.13 No Implied Waivers. The right of any party under
any provision of this Agreement shall not be affected by its prior failure to
require the performance by any other party under such provision or any other
provision of this Agreement, nor shall the waiver by any party of a breach of
any provision hereof constitute a waiver of any succeeding breach of the same
or any other provision or constitute a waiver of the provision itself or any
other provision.
Section 6.14 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall constitute an original but both or
all of which, when taken together, shall constitute but one instrument, and
shall become effective when copies hereof which, when taken together, bear the
signatures of each of the parties hereto, shall be delivered to each of the
parties hereto.
Section 6.15 Term. This Agreement shall remain in full force and
effect until the earlier to occur of (i) such time as the principal and
interest on all the Subordinated Notes shall have been paid, and (ii) the
effective date of the resignation or removal of the Fiscal and Paying Agent.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first set forth above.
SUMMIT BANK, as issuer
By: /s/ ROBERT G. COX
-----------------------------------------
Name: Robert G. Cox
Title: President and Chief Executive Officer
SUMMIT BANK, as fiscal and paying agent
By: /s/ JOSEPH MATE
----------------------------------------
Name: Joseph Mate
Title: Assistant Vice President and
Corporate Trust Officer
<PAGE> 1
EXHIBIT (4)E.(ii)
FORM OF SUBORDINATED NOTE
GLOBAL CERTIFICATE
[legend below to appear in boldface type]
THIS NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY. THIS NOTE IS UNSECURED
AND IS INELIGIBLE TO SERVE AS COLLATERAL FOR ANY LOAN BY SUMMIT BANK, AND THE
OBLIGATIONS OF SUMMIT BANK EVIDENCED BY THIS NOTE ARE, TO THE EXTENT AND IN THE
MANNER SET FORTH IN SECTION 5 HEREOF, SUBORDINATED AND JUNIOR TO SUMMIT BANK'S
OBLIGATIONS TO DEPOSITORS AND TO OTHER GENERAL AND SECURED CREDITORS.
SUMMIT BANK
6 3/4% Subordinated Note Due 2003
$__________ July 7, 1993
REGISTERED Chatham, New Jersey
NO. _______
CUSIP: 866014AA1
This Security is registered in the name of The Depository Trust
Company (the "Depositary"), 55 Water Street, New York, New York, or its nominee,
and may not be transferred except as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary unless and until
this Security is exchanged in whole or in part for Securities in definitive
form. Unless this certificate is presented by an authorized representative of
the Depositary to the Bank (as defined below) or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as is requested by an authorized
representative of the Depositary (and any payment is made to Cede & Co, or to
such other entity as is requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE OR
TO ANY PERSON IS WRONGFUL, inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
<PAGE> 2
For value received, SUMMIT BANK (together with any successor pursuant
to the provisions hereof, the "Bank"), hereby promises to pay to Cede & Co., or
registered assigns at Cede & Co.'s offices at 55 Water Street, New York, New
York or at such other office as Cede & Co. may from time to time designate in
writing to the Bank, the principal sum of $______ on the Interest Payment Date
(as defined below) falling in June 2003 (the "Date of Maturity"), or on such
earlier date as the principal hereof may become due in accordance with the
provisions hereof, and to pay interest on said principal sum from time to time
outstanding, from the date hereof until payment of said principal sum has been
made or duly provided for, at the interest rate of 6 3/4% per annum, payable
semi-annually in arrears on June 15 and December 15 of each year (each an
"Interest Payment Date"), commencing on December 15, 1993. Payments of
principal and interest hereunder shall be made in such coin or currency of the
United States of America as at the time of payment shall be legal tender for
the payment of public and private debts and shall be made immediately available
to the Holder (as defined on the reverse of this Security) hereof. Interest
will be calculated on the basis of a 360-day year of twelve 30-day months.
This Security is not subject to prepayment or redemption prior to
maturity.
If any Interest Payment Date would otherwise be a day which is not a
business day (as defined below), the Interest Payment Date shall be postponed
to the next day which is a business day. The term "business day" means any day
that is not a Saturday or Sunday or a day on which commercial banks in the City
of New York, New York or Newark, New Jersey are required or permitted by
applicable law or regulation to be closed. Interest on the Security will
accrue on holidays and on all days the Bank is not open for business.
Reference is made to the further provisions of this Security beginning
on the reverse hereof, which further provisions shall for all purposes have the
same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Fiscal and Paying Agent by the manual signature of one of its authorized
signatories, this Security shall not be valid or obligatory for any purpose.
<PAGE> 3
3
IN WITNESS WHEREOF, the Bank has caused this Security to be duly
executed and its corporate seal to be hereunto affixed and attested as of the
date first mentioned above.
SUMMIT BANK
By: ______________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title:
This Security is one of the Securities
referred to in the Fiscal and Paying
Agency Agreement referred to herein:
SUMMIT BANK,
as Fiscal and Paying Agent
By: _________________________________
Name:
Title:
Dated:
<PAGE> 4
[Reverse of Note]
THIS NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY. THIS NOTE IS UNSECURED
AND IS INELIGIBLE TO SERVE AS COLLATERAL FOR ANY LOAN BY SUMMIT BANK, AND THE
OBLIGATIONS OF SUMMIT BANK EVIDENCED BY THIS NOTE ARE, TO THE EXTENT AND IN THE
MANNER SET FORTH IN SECTION 5 HEREOF, SUBORDINATED AND JUNIOR TO SUMMIT BANK'S
OBLIGATIONS TO DEPOSITORS AND TO OTHER GENERAL AND SECURED CREDITORS.
1. GENERAL.
This Security is one of the duly authorized issues of securities of the
Bank, designated as its "6 3/4% Subordinated Notes due 2003" (each a "Security",
and collectively, the "Securities"), limited in aggregate principal amount to
$50,000,000. The Bank, for the benefit of the Holders (as defined below) from
time to time of the Securities, has entered into a Fiscal and Paying Agency
Agreement, dated as of June 30, 1993 (as the same may be amended, supplemented
or otherwise modified from time to time, the "Fiscal and Paying Agency
Agreement"), between the Bank, as issuer of the Securities and the Bank, acting
through its Trust Department, as Fiscal and Paying Agent. Copies of the Fiscal
and Paying Agency Agreement are on file and available for inspection at the
offices of the Fiscal and Paying Agent located at 40 Beechwood Road, Summit,
New Jersey 07901 or at such other place or places as the Fiscal and Paying
Agent shall designate by notice to the person in whose name this Security is
registered (the "Holder") on the Security Register (as defined in Section 3 of
this Security). The Trust Department of the Bank, or any duly appointed
successor Fiscal and Paying Agent acting in such capacity, is herein called the
"Fiscal and Paying Agent".
Payment of the principal and interest payable at maturity will be made
in immediately available funds, upon presentation and surrender of this
Security, at the office of the Fiscal and Paying Agent in 40 Beechwood Road,
Summit, New Jersey 07901, or at such other place or places as the Fiscal and
Paying Agent shall designate by notice to the Holder, provided that this
Security is presented to the Fiscal and Paying Agent in time for the Fiscal and
Paying Agent to make such payments in such funds in accordance with its normal
procedures and subject to such terms and conditions as the Fiscal and Paying
Agent may impose consistent with the Fiscal and Paying Agency Agreement.
Payments of interest (other than interest payable at maturity) shall be made by
check, mailed to the Holder at the address of the Holder specified in the
Security Register on the Record Date (as defined
<PAGE> 5
2
below) or to such other address in the United States as any Holder shall
designate to the Fiscal and Paying Agent in writing not later than the relevant
Record Date. Notwithstanding the foregoing, if the principal amount of this
Security is at least $1,000,000, the Holder may elect to receive payments of
interest (other than interest payable at maturity) by wire transfer in
immediately available funds to a bank account in the United States designated
by the Holder in a written notice received by the Fiscal and Paying Agent not
later than 15 calendar days prior to the applicable Interest Payment Date.
Interest payable on any Interest Payment Date shall be payable to the person in
whose name this Security is registered at the close of business 15 calendar
days prior to the applicable Interest Payment Date (such date being referred to
herein as the "Regular Record Date" for such interest Payment Date),
notwithstanding the subsequent cancellation of this Security prior to such
Interest Payment Date, except that interest not so punctually paid or duly made
available for payment, if any, will be paid to the persons in whose names the
Securities are registered on a Special Record Date fixed by the Bank (a
"Special Record Date"). The terms Regular Record Date and Special Record Date
are referred to hereinafter collectively as the "Record Date". To the extent
permitted by applicable law, interest shall accrue, at the rate at which
interest accrues on the principal of this Security, on any amount of principal
of or interest on this Security not paid when due.
2. OFFICE OF FISCAL AND PAYING AGENT.
Until the date on which all of the Securities shall have been
surrendered or delivered to the Fiscal and Paying Agent for cancellation or
destruction, or become due and payable and a sum sufficient to pay the
principal of and interest on all of the Securities shall have been made
available for payment and either paid or returned to the Bank as provided
herein and in the Fiscal and Paying Agency Agreement, the Fiscal and Paying
Agent shall at all times maintain an office or agency in New York, New York or
Summit, New Jersey, where Securities may be presented or surrendered for
payment or for transfer or exchange.
3. TRANSFERS AND EXCHANGES.
This Security is transferable in whole or in part, and may be exchanged
for a like aggregate principal amount of Securities of other authorized
denominations, by the Holder in person, or by his attorney duly authorized in
writing, at the office of the Fiscal and Paying Agent maintained for such
<PAGE> 6
purpose. The Fiscal and Paying Agent shall maintain a register providing for
the registration of the Securities and any exchange or transfer thereof (the
"Security Register"). Upon surrender or presentation of this Security for
exchange or registration of transfer, the Bank shall execute and the Fiscal and
Paying Agent shall authenticate and deliver in exchange therefor a Security or
Securities, each in minimum denominations of $100,000 or any amount in excess
thereof which is an integral multiple of $1,000 which has or have an aggregate
denomination equal to the denomination of this Security and is or are
registered in such name or names requested by the Holder. Any security
presented or surrendered for registration of transfer or for exchange shall
(if so required by the Fiscal and Paying Agent) be duly endorsed, or
accompanied by a written instrument of transfer with such evidence of due
authorization and guarantee of signature as may reasonably be required by the
Fiscal and Paying Agent in form satisfactory to the Fiscal and Paying Agent,
duly executed by the Holder or his or her attorney duly authorized in writing,
and with such tax identification number or other information for each person
in whose name a Security is to be issued as the Fiscal and Paying Agent may
reasonably request to comply with applicable law. No exchange or registration
of transfer of this Security shall be made on or after the fifteenth day
immediately preceding the Date of Maturity.
This Security is exchangeable for definitive notes in registered form
to persons other than the Depositary or its nominee only if (i) the Depositary
notifies the Bank in writing that it is no longer willing or able to continue
as a depositary for the Securities or if the Depositary ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and a
successor depositary is not appointed by the Bank within 90 days after the
effective date of the Depositary's ceasing to act as depositary for the
Securities, (ii) the Bank, at its option, notifies the Fiscal and Paying Agent
in writing that it elects to cause the issuance of Securities in definitive
form, or (iii) any event shall have happened and be continuing which, after
notice or lapse of time, or both, would constitute an Event of Default with
respect to the Securities. In the event of any such occurrence, upon the
surrender by the Depositary or a successor depositary of the Securities the
Bank will execute, and the Fiscal and Paying Agent will, upon the execution of
the then standard form of the Fiscal and Paying Agent's agreement for
certificated securities and upon receipt of instructions in writing from the
Bank, authenticate and deliver Securities of like tenor and terms in definitive
form
<PAGE> 7
to each person that the Depositary or a successor depositary identifies as the
beneficial owner of the Securities in an aggregate principal amount equal to
the principal amount of the Securities then outstanding in exchange for such
Securities. Any such certificated Securities will be issued in fully
registered form, without coupons, in minimum denominations of $100,000 or any
amount in excess thereof which is an integral multiple of $1,000. Such
certificated Securities may not subsequently be exchanged by a Holder for
Securities in denominations of less than $100,000.
No service charge (other than any cost of delivery) shall be imposed
for any exchange or registration or transfer of this Security, but the Bank or
the Fiscal and Paying Agent may require the payment of a sum sufficient to
cover any stamp or other tax or governmental charge that may be imposed in
connection therewith (or presentation of evidence that such tax or charge has
been paid).
The Bank and the Fiscal and Paying Agent may treat the person in whose
name this Security is registered in the Security Register as the absolute owner
of this Security for the purpose of receiving payments of principal of and
interest on this Security and for all other purposes whatsoever, and the Bank
and Fiscal and Paying Agent shall not be affected by any notice to the contrary.
4. RETIREMENT.
Notwithstanding any provisions to the contrary in this Security or in
the Fiscal and Paying Agency Agreement, so long as the Bank is an insured state
nonmember bank, retirement of this Security is subject to the provisions of
Section 18(i)(1) of the Federal Deposit Insurance Act, as amended, requiring
that no such bank shall reduce the amount or retire any part of its common or
preferred capital stock, or retire any part of its capital notes or debentures
without the prior written consent of the FDIC. The FDIC had consented to the
payment by the Bank of the entire principal amount of this Security in cash or
its equivalent on June 15, 2003, its "Date of Maturity", as long as the Bank
is not, at the time that such payment is due or is made, a "critically
undercapitalized" depositary institution, as that term is defined in 12 U.S.C.
Section 1831o(b)(1)(E) and in the rules and regulation promulgated pursuant
thereto. No other consent to retirement has been given and any retirement of
all or any part of the principal amount of this Security other than through
payment by the Bank in cash or its equivalent on June 15, 2003 (subject to the
conditions of the foregoing
<PAGE> 8
consent), whether by voluntary or involuntary prepayments or by any other
payments, upon acceleration of the maturity of this Security after any Event of
Default, other default, or otherwise, by means of any exercise of banker's lien,
offset, or similar legal or equitable rights, by application of any property or
other assets of the Bank to the payment, realization upon, purchase, or other
acquisition of this Security, or in any other way, is subject to the specific
prior written consent of the FDIC. Without limiting the foregoing, each Holder
of this Security which is a depository institution insured by the FDIC)
expressly waives any right of banker's lien, offset, or similar legal or
equitable right, which said holder may otherwise have under any applicable
provisions of statutory or common law.
By the issuance and delivery of this Note, the Bank represents and
warrants that it has obtained the specific written consent of the FDIC to the
payment, in cash or its equivalent, of the principal amount of the Securities
on the Date of Maturity, subject only to the condition described above.
5. SUBORDINATION
(a) Notwithstanding anything in this Security or in the Fiscal and
Paying Agency Agreement to the contrary, the indebtedness of the Bank in respect
of principal and interest evidenced by this Security shall be subordinated and
junior in right of payment to the Bank's obligations to its depositors, its
obligations under bankers' acceptances and letters of credit, and its
obligations, including contingent obligations, to its other general and
secured creditors, including its obligations to any Federal Reserve Bank and
its obligations to and any rights acquired by the FDIC (including but not
limited to obligations to the FDIC and rights acquired by the FDIC pursuant to
the provisions of the 12 U.S.C. Section 1821 or Section 1823, or otherwise),
whether or not such obligations are incurred or such rights are acquired in the
normal operation of the Bank's banking business and whether or not such
obligations and rights are outstanding on the date hereof or are incurred or
acquired after the date hereof (except obligations which expressly rank on a
parity with this Security and except obligations which expressly rank junior to
this Security). In the event of any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, assignment to or for the benefit of
creditors, marshalling of assets and liabilities or similar proceedings or any
liquidation or winding up of or relating to the Bank.
<PAGE> 1
EXHIBIT (10) E.
THE SUMMIT BANCORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN, AS AMENDED
January 1, 1989
October 16, 1990
<PAGE> 2
THE SUMMIT BANCORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN, AS AMENDED
January 1, 1989
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE 1. Definitions........................................ 1
ARTICLE 2. Participation...................................... 3
ARTICLE 3. Benefits........................................... 4
ARTICLE 4. Administration..................................... 7
ARTICLE 5. Investments........................................ 9
ARTICLE 6. General Provisions................................. 10
</TABLE>
<PAGE> 3
ARTICLE 1
---------
DEFINITIONS
-----------
1.1 "Board of Directors" shall mean the board of directors of The
Summit Bancorporation.
1.2 "Change in Control" shall mean (a) the attainment by one
individual, corporation or other entity of beneficial ownership of capital
stock of The Summit Bancorporation, the voting power of which constitutes 25
percent or more of the voting power of all of the outstanding capital stock of
The Summit Bancorporation or (b) a change in the composition of a majority of
the Board of Directors during a period of two years or less, provided that any
director whose election has been approved in advance by at least two-thirds of
the directors then in office shall not be considered a new director.
1.3 "Committee" shall mean the committee appointed by the Board of
directors to administer that Plan.
1.4 "Compensation" shall mean a Participant's basic compensation,
as defined in Article I, Section (13) of the Retirement Plan, without regard to
the maximum dollar limitation described therein.
1.5 "Compensation Committee" shall mean the compensation committee
of the Board of Directors.
1.6 "Employee" shall mean a person who is employed by the Employer.
1.7 "Employer" shall mean The Summit Bancorporation
1
<PAGE> 4
and any subsidiary corporation substantially all the voting stock of which is
owned by The Summit Bancorporation which adopts the Plan with the approval of
the Board of Directors.
1.8 "Participant" shall mean an Employee who has been selected to
participate in the Plan pursuant to Article 2.
1.9 "Plan" shall mean The Summit Bancorporation Supplemental
Executive Retirement Plan, as amended.
1.10 "Retirement Plan" shall mean The Summit Bancorporation
Retirement Plan, as amended.
2
<PAGE> 5
ARTICLE 2
---------
PARTICIPATION
-------------
2.1 The Plan has been established primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated Employees. From time to time the Compensation Committee, in its
sole discretion, shall designate those Employees who shall be entitled to
participate in the Plan and the date upon which participation shall be
effective.
2.2 A Participant shall cease to be a Participant upon death,
retirement or other termination of employment.
3
<PAGE> 6
ARTICLE 3
BENEFITS
3.1 Subject to the provisions of Section 3.3, the Employer shall provide
each Participant who retires, otherwise terminates employment with the Employer
or dies with an annual benefit equal to the annual benefit to which the
Participant or his beneficiary would have been entitled under the Retirement
Plan if the Retirement Plan did not contain Article IV, Sections (5), (6) and
(7), and basic compensation, as defined in Article I, Section (13) of the
Retirement Plan, was determined without regard to the maximum dollar limitation
described therein, less the annual benefit which actually is payable to the
Participant or his beneficiary under the Retirement Plan. If a Participant was
a Participant on the date of a Change in Control and retires, otherwise
terminates employment with the Employer or dies prior to attaining age 65, the
annual benefit to which the Participant or his beneficiary would have been
entitled under the Retirement Plan shall be determined as if the Participant
had remained in the employ of the Employer until age 65 and had continued to
accrue years of service until such date.
3.2 If a Participant or his beneficiary is entitled to begin to receive
benefits under the Retirement Plan within 90 days after the Participant's
retirement, other termination of employment or death, the benefit described in
Section 3.1 shall be payable in equal monthly installments on the same dates
that benefits under
4
<PAGE> 7
the Retirement Plan are paid. If a Participant or his beneficiary is not
entitled to begin to receive benefits under the Retirement Plan within 90 days
after the Participant's retirement, other termination of employment or death,
the benefit described in Section 3.1 shall be payable in equal monthly
installments beginning no later than 90 days after the Participant's
retirement, other termination of employment or death. Payments shall be made
to the former Participant or other person entitled to receive payments under
the Retirement Plan or, if benefits are not payable or cease to be payable
under the Retirement Plan, in the order indicated, to the beneficiary
designated by the Participant, to the Participant's spouse or in a lump sum
payment in an amount equal to the actuarial equivalent of the unpaid benefit to
the estate of the Participant or other recipient. If a Participant was not a
Participant on the date of a Change in Control, payments shall continue for as
long as payments under the Retirement Plan continue or, if sooner, until a
total of 180 monthly installments have been paid. If a Participant was a
Participant on the date of a Change in Control, payments shall continue until a
total of 180 monthly installments have been paid.
3.3 A Participant who was not a Participant on the date of Change
in Control shall not be entitled to the benefit described in Section 3.1 if the
Participant or his beneficiary is not entitled to begin to receive benefits
under the Retirement Plan within 90 days after the Participant's retirement,
other termination of employment or death, if the Participant is
5
<PAGE> 8
discharged for cause or if, in the sole determination of the Board of
Directors, the Participant was subject to discharge for cause.
3.4 Subject to the provisions of Section 3.6, the Employer shall
provide each Participant who dies prior to retirement or other termination of
employment with a death benefit equal to two times the Compensation the
Participant would have received for the calendar year in which the date of
death occurs if the Participant had been employed for the entire calendar year
at the rate of Compensation in effect on the date of death.
3.5 The benefit provided under Section 3.4 shall be provided in a
single lump sum payment as soon as administratively possible after the death of
the Participant. If the Participant is entitled to a death benefit under
Section 3.1, the benefit provided under Section 3.4 shall be paid to the
beneficiary entitled to receive the initial payment under Section 3.2. If the
Participant is not entitled to a death benefit under Section 3.1 the benefit
provided under Section 3.4 shall be paid, in the order indicated, to the
beneficiary designated by the Participant, to the Participant's spouse or to
the Participant's estate.
3.6 A Participant who was not a Participant on the date of a Change
in Control shall not be entitled to the benefit described in Section 3.4 if, in
the sole determination of the Board of Directors, the Participant was subject to
discharge for cause at the time of his death.
6
<PAGE> 9
ARTICLE 4
ADMINISTRATION
4.1 The Board of Directors shall appoint a Committee to administer
the Plan. The Committee shall consist of one or more persons and shall serve at
the pleasure of the Board of Directors.
4.2 The Committee shall administer the Plan in accordance with its
terms and shall have all powers necessary to carry out the provisions of the
Plan. The Committee shall interpret the Plan and shall determine all questions
arising in the administration, interpretation and application of the Plan and it
shall endeavor to act, whether by general rules or by particular decisions, so
as not to discriminate in favor of or against any person. The Committee may
adopt such rules and regulations as it deems desirable for the conduct of its
affairs.
4.3 The Employer shall indemnify and hold the members of the
Committee harmless against liability incurred in the administration of the Plan,
except for the gross negligence or willful misconduct of any member. The
Committee may appoint such accountants, legal counsel, consultants and other
persons as it deems necessary or desirable in connection with the administration
of the Plan. The Committee shall be entitled to rely conclusively upon, and
shall be fully protected in any action taken by it in good faith in relying
upon, any opinions or reports which shall be furnished to it by such
accountants, legal counsel or other consultants.
7
<PAGE> 10
4.4 The Employer shall pay all the administration expenses of the Plan
and all fees and retainers of the Plan's consultants, auditors and counsel, so
long as the Plan remains in effect.
<PAGE> 11
ARTICLE 5
INVESTMENTS
5.1 The Compensation Committee, in its sole discretion, may direct the
Employer to set aside or earmark funds for the purpose of meeting its
contingent deferred obligations under Article 3. Such funds may be kept in
cash or invested and reinvested, in the discretion of the Committee.
Investments may be made in stocks, bonds, life insurance policies, annuities or
any other form of investment selected by the Committee. The Employer shall be
the owner and beneficiary of all life insurance policies and annuities. The
Employer, at the direction of the Committee, may terminate such life insurance
policies or annuities at any time.
5.2 Nothing contained in this Article 5 or any other provision of the
Plan shall be deemed to create a trust of any kind or create a fiduciary
relationship. Funds set aside, earmarked or invested pursuant to this Article
5 shall continue for all purposes to be a part of the general funds of the
Employer, and no person other than the Employer, by virtue of the provisions of
the Plan, shall have any interest in such funds. To the extent that any person
acquires a right to receive payments from the Employer pursuant to the terms of
the Plan, such right shall be no greater than the right of any unsecured
general creditor of the Employer.
<PAGE> 12
ARTICLE 6
GENERAL PROVISIONS
6.1 No Employee, Participant or beneficiary shall have any right or
claim to any benefit under the Plan except in accordance with the provisions of
the Plan. The adoption of the Plan shall not be construed as creating any
contract of employment between the Employer and any Employee or otherwise
conferring upon any Employee or other person any legal right to continuation of
employment, nor as limiting or qualifying the right of the Employer to discharge
any Employee without regard to the effect that such discharge might have upon
the Employee's rights under the Plan.
6.2 The right of any Participant or beneficiary to any benefit under
any of the provisions of the Plan shall not be subject to anticipation,
alienation, sale, transfer, assignment or encumbrance by such Participant or
beneficiary and shall not be subject to attachment, garnishment, execution, levy
or other legal process by any creditor of such Participant or beneficiary.
6.3 The Plan may be amended or terminated, in whole or in part, by
the Board of Directors; provided, however, that (a) no such action shall reduce
or eliminate a benefit under Section 3.1 which a former Participant or his
beneficiary has already begun to receive or a benefit under Section 3.1 which a
Participant or his beneficiary would have been entitled to receive if the
Participant had retired, otherwise terminated employment or died immediately
prior to the date of such action or, if later, the effective date
<PAGE> 13
of such action, (b) no such action shall reduce or eliminate a benefit under
Section 3.4 with respect to a Participant who dies prior to the date of such
action or, if later, the effective date of such action and (c) no such action
shall reduce or eliminate a benefit under Article 3 with respect to any
Participant or the beneficiary of any Participant if such action is taken
following a Change in Control and the Participant was a Participant on the date
of the Change in Control.
6.4 This Plan shall be construed in accordance with and governed by
the laws of the State of New Jersey.
6.5 Article headings, as contained in this Plan, are provided for
convenience only and shall be given no legal effect.
<PAGE> 1
EXHIBIT 10(Q)(i)
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HARTZ MOUNTAIN INDUSTRIES, INC.
Landlord,
and
THE SUMMIT BANCORPORATION
Tenant
-------------------------
LEASE
-------------------------
Premises:
Office Premises
in
Cranford, New Jersey
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<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Article Page
- ------- ----
<S> <C> <C>
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
2. Demise and Term . . . . . . . . . . . . . . . . . . . . . 9
3. Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4. Use of Demised Premises and Common Areas . . . . . . . . . 12
5. Preparation of Demised Premises . . . . . . . . . . . . . 13
6. Tax and Operating Expense Payments . . . . . . . . . . . . 17
7. Common Areas . . . . . . . . . . . . . . . . . . . . . . . 21
8. Signage . . . . . . . . . . . . . . . . . . . . . . . . . 22
9. Subordination . . . . . . . . . . . . . . . . . . . . . . 22
10. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . 25
11. Assignment, Subletting and Mortgaging . . . . . . . . . . 25
12. Compliance with Laws . . . . . . . . . . . . . . . . . . . 29
13. Insurance and Indemnity . . . . . . . . . . . . . . . . . 31
14. Rules and Regulations . . . . . . . . . . . . . . . . . . 34
15. Alterations . . . . . . . . . . . . . . . . . . . . . . . 34
16. Landlord's and Tenant's Property . . . . . . . . . . . . . 37
17. Repairs and Maintenance . . . . . . . . . . . . . . . . . 38
18. Electric Energy . . . . . . . . . . . . . . . . . . . . . 41
19. Heat, Ventilation and Air Conditioning . . . . . . . . . . 42
20. Other Services; Service Interruption . . . . . . . . . . . 42
21. Access, Changes and Name . . . . . . . . . . . . . . . . . 43
22. Mechanics' Liens and Other Liens . . . . . . . . . . . . . 45
23. Non-Liability and Indemnification . . . . . . . . . . . . 46
24. Damage or Destruction . . . . . . . . . . . . . . . . . . 49
25. Eminent Domain . . . . . . . . . . . . . . . . . . . . . . 54
26. Surrender . . . . . . . . . . . . . . . . . . . . . . . . 57
27. Conditions of Limitation . . . . . . . . . . . . . . . . . 57
28. Re-Entry by Landlord . . . . . . . . . . . . . . . . . . . 59
29. Damages . . . . . . . . . . . . . . . . . . . . . . . . . 61
30. Affirmative Waivers . . . . . . . . . . . . . . . . . . . 65
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
31. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . 66
32. Curing Tenant's Defaults . . . . . . . . . . . . . . . . . 66
33. Broker . . . . . . . . . . . . . . . . . . . . . . . . . . 67
34. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 68
35. Estoppel Certificates . . . . . . . . . . . . . . . . . . 68
36. Arbitration . . . . . . . . . . . . . . . . . . . . . . . 69
37. Memorandum of Lease . . . . . . . . . . . . . . . . . . . 70
38. Extension of Term . . . . . . . . . . . . . . . . . . . . 70
39. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 74
40. Right of First Refusal . . . . . . . . . . . . . . . . . . 78
41. Restrictions . . . . . . . . . . . . . . . . . . . . . . . 80
</TABLE>
EXHIBITS
Exhibit A - Description of Land
Exhibit B - Plot Plan
Exhibit C - Work and Installations to Be Performed and Furnished in the Demised
Premises
Exhibit D - Rules and Regulations
Exhibit E - Cleaning Specifications
Exhibit F - Fixed Rent
Exhibit G - Project
Exhibit H - Mortgages Non-Disturbance
Exhibit I - Parking Area
Exhibit J - Lessor's Non-Disturbance
Exhibit K - Operating Expenses
Exhibit L - Tenant Work Schedule
<PAGE> 4
LEASE, dated June 5, 1990, between HARTZ MOUNTAIN INDUSTRIES,
INC., a New York corporation having an office at 400 Plaza Drive, Secaucus, New
Jersey (P.O. Box 1411) 07094 ("Landlord"), and THE SUMMIT BANCORPORATION, a New
Jersey corporation, having an office at 367 Springfield Avenue, Summit, New
Jersey 07901 ("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any
Riders attached hereto, all of which shall be deemed to be part of this Lease)
the following words and phrases shall have the meanings indicated:
A. Advance Rent: None
B. Additional Charges: All amounts that became payable by Tenant to
Landlord hereunder other than the Fixed Rent.
C. Architect: Kenneth Carl Bonte, or as Landlord may designate.
D. Broker: Carodan Corporation
E. Building: The building or buildings now or hereafter located on
the Land and known or to be known as Building B and Building C, as more
particularly described on Exhibit B annexed hereto and made a part hereof.
Building B Land: The Land in the cross hatched area on Exhibit A
annexed hereto.
Building C Basement: The basement of Building C.
- 1 -
<PAGE> 5
Building C Land: The Land outlined in red on Exhibit A annexed
hereto.
F. Building C Common Areas: All areas, spaces and improvements in
Building C and on the Land which Landlord makes available from time to time for
the common use and benefit of the tenants and occupants of Building C and which
are not exclusively available for use by a single tenant or occupant.
G. Building Fraction: A fraction the numerator of which is the Floor
Space of the Building and the denominator of which is the aggregate Floor Space
of the buildings in the Project. If the aggregate Floor Space of the buildings
in the Project shall be changed due to any construction or alteration, the
denominator of the Building Fraction shall be increased or decreased to reflect
such change.
H. Calendar Year: Any twelve-month period commencing on a January 1.
I. Commencement Date: Subject to the provisions of Section 5.01(b)
hereof, the earlier of (a) the date on which both: (i) the portions of the
Demised Premises located within Building C shall be Ready for Occupancy, and
(ii) actual possession of Building C shall have been delivered to Tenant by
fifteen (15) days prior written notice to Tenant, or (b) the date Tenant, or
anyone claiming under or through Tenant, first occupies Building C or any part
of the Demised Premises for any purpose other than the performance of Tenant's
Work.
J. Common Areas: The Building Common Areas and the Project Common
Areas.
- 2 -
<PAGE> 6
K. Demised Premises: Building B which shall contain approximately
75,000 square feet of Floor Space (measured from exterior surface of exterior
walls) to be constructed on the portion of the Land that is outlined in red on
the plan attached hereto as Exhibit B (subject to measurement by Landlord's
Architect upon Substantial Completion), together with a portion of the first
floor of Building C which contains approximately 123,719 square feet of Floor
Space, plus a portion of the Building C Basement containing approximately
20,000 square feet of Floor Space also as shown on Exhibit B.
L. Expiration Date: The date that is the day before the twenty-fifth
(25th) anniversary of the Commencement Date if the Commencement Date is the
first day of a month, or the twenty-fifth (25th) anniversary of the last day of
the month in which the Commencement Date occurs if the Commencement Date is not
the f irst day of a month. However, if the Term is extended by Tenant's
effective exercise of Tenant's right, if any, to extend the Term, the
"Expiration Date" shall be changed to the last day of the latest extended
period as to which Tenant shall have effectively exercised its right to extend
the Term. For the purposes of this definition, the earlier termination of this
Lease shall not affect the "Expiration Date."
M. Fixed Rent: As set forth on Exhibit F annexed hereto and made a
part hereof.
N. Floor Space: The sum of the floor area stated in square feet
bounded by the exterior walls, or any wall between the premises in question and
any portion of the Common Areas, or any wall between the premises in question
and space leased or available to be leased to a tenant or occupant, provided,
however, that with respect to (i) Building C, and (ii)
- 3 -
<PAGE> 7
calculation of the Floor Space of the Project for determining Operating
Expenses, the Floor Space shall be measured to the center line of exterior
walls; and any reference to Floor Space of a building shall mean the floor area
of all levels or stories of such building, but excluding any roof, except such
portion thereof (other than cooling towers, elevator penthouses, mechanical
rooms, chimneys and staircases, entrances and exits) as is permanently
enclosed.
O. Guarantor: None
P. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Land and
Building, whether now or hereafter in force.
Q. Land: The Building B Land and the Building C Land.
R. Landlord's Work: The materials and work to be furnished, installed
and performed by Landlord at its expense in accordance with the provisions of
Exhibit C.
S. Legal Requirements: Laws and ordinances of all federal, state,
city, town, county, borough and village governments, and rules, regulations,
orders and directives of all departments, subdivisions, bureaus, agencies or
offices thereof, and of any other governmental, public or quasi-public
authorities having jurisdiction over the Land and Building, whether now or
hereafter in force, including, but not limited to, those pertaining to
environmental matters.
- 4 -
<PAGE> 8
T. Mortgage: A mortgage and/or deed of trust.
U. Mortgagee: A holder of a mortgage or a beneficiary of a deed of
trust.
V. Operating Expenses: Includes the sum of the following: (1) the
expenses incurred by Landlord in connection with the ownership, operation and
maintenance of the Building B Land and Building B (including the systems
thereof and including all risk insurance), plus Tenant's Fraction of the
expenses incurred in connection with the ownership, operation and maintenance
of the Building C Land and Building C (including the systems thereof and
including all risk insurance); and (2) Tenant's Combined Fraction of the
Building Fraction of the sum of (a) the expenses incurred in connection with
the Project Common Areas (exclusive of the Parking Area) and (b) the Real
Estate Taxes, if any, attributable to the Project Common Areas (exclusive of
the Parking Area); and (3) the Parking Charges. The costs and expense
enumerated in subsections (1), (2) and (3) hereof shall be limited to the costs
and expenses enumerated in Category A on Exhibit K annexed hereto and shall
exclude the costs and expenses enumerated in Category B on Exhibit K annexed
hereto.
W. Parking Area: As defined in section 7.03 hereof.
X. Parking Charges: The Demised Premises' allocable share of the cost
and expense of the repair, replacement, striping, maintenance, policing,
insurance, Real Estate Taxes, utilities, and landscaping attributable to the
Parking Area determined by multiplying such costs and expenses by a fraction,
the numerator of which is (x) the number of parking spaces in the Parking Area
exclusively allocated to Tenant pursuant to section 7.03 hereof plus one-half (
1/2) of the number of parking spaces in the
- 5 -
<PAGE> 9
Parking Area allocated to Tenant on a non-exclusive basis pursuant to section
7.03 hereof, and the denominator of which is (y) the total number of parking
spaces in the Parking Area.
Y. Permitted Uses: General office use, including without limitation,
corporate operations and administration, including all ancillary uses by
Tenant, such as Tenant's computer operations, storage incidental to Tenant's
use and employee cafeteria.
Z. Person: A natural person or persons, a partnership, a corporation,
or any other form of business or legal association or entity.
AA. Project: The existing and proposed project shown on the site plan
annexed hereto as Exhibit G, as same may be amended from time to time.
BB. Project Common Areas: The roads, walkways, sidewalks and other
areas in the Project which are utilized for the common use and benefit of the
Tenant and Landlord or any other occupant of the Project, including but not
limited to the Parking Area shown on Exhibit I annexed hereto.
CC. Ready for Occupancy: The condition of the Demised Premises when
for the first time the Landlord's Work, (or restoration by Landlord pursuant to
Articles 24 or 25 of this Lease) , shall have been substantially completed and
a temporary or permanent certificate of occupancy shall have been issued
permitting use of the Demised Premises for the Permitted Uses provided that any
such temporary certificates of occupancy shall be conditioned upon (i) only
such items; of Landlord's Work as do not materially interfere with the Tenant's
use or occupancy of
- 6 -
<PAGE> 10
the Demised Premises or, (ii) upon items of Tenant's Work. The Landlord's Work
(or restoration by Landlord pursuant to Articles 24 or 25 of this Lease) shall
be deemed substantially completed notwithstanding the fact that minor or
insubstantial details of construction, mechanical adjustment or decoration
remain to be performed, the noncompletion of which does not materially
interfere with Tenant's full use of the Demised Premises.
DD. Real Estate Taxes: The real estate taxes, assessments and special
assessments imposed upon the Buildings, Land or the Project by any federal,
state, municipal or other governments or governmental bodies or authorities,
and any expenses incurred by Landlord in contesting such taxes or assessments
and/or the assessed value of the Building, Land or the Project, which expenses
shall be allocated to the period of time to which such expenses relate. If at
any time during the Term the methods of taxation prevailing on the date hereof
shall be altered so that in lieu of, or as an addition to or as a substitute
for, the whole or any part of such real estate taxes, assessments and special
assessments now imposed on real estate there shall be levied, assessed or
imposed (a) a tax, assessment, levy, imposition, license fee or charge wholly
or partially as a capital levy or otherwise on the rents received therefrom, or
(b) any other such additional or substitute tax, assessment, levy, imposition
or charge, then all such taxes, assessments, levies, impositions, fees or
charges or the part thereof so measured or based shall be deemed to be included
within the term "Real Estate Taxes" for the purposes hereof.
EE. Rent: The Fixed Rent and the Additional Charges.
FF. Rules and Regulations: The reasonable rules and regulations that
may be promulgated by Landlord from time to
- 7 -
<PAGE> 11
time, as same may be reasonably changed by Landlord from time to time. The
Rules and Regulations now in effect are attached hereto as Exhibit D.
GG. Security Deposit: None
HH. Successor Landlord: As defined in Section 9.03.
II. Superior Mortgage: Any Mortgage to which this Lease is, at the
time referred to, subject and subordinate.
JJ. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the
time referred to.
KK. Tenant's Combined Fraction: A fraction having the numerator equal
to the number of square feet of Floor Space in the entire Demised Premises
(exclusive of the portion of the Demised Premises located in the Building C
Basement) and a denominator equal to the total number of square feet of Floor
Space in Building B and Building C (exclusive of the Building C Basement).
LL. Tenant's Fraction: With respect to Building B the Tenant's
Fraction shall be 100%; with respect to Building C the Tenant's Fraction shall
be a fraction, the numerator of which shall be the number of square feet of
Floor Space of the Demised Premises located in Building C (exclusive of the
portion of the Demised Premises located in the Building C Basement) and the
denominator of which shall be the total number of square feet of Floor Space of
Building C (i.e. 146,023) exclusive of the Building C Basement. If the size of
the Demised Premises within Building B or Building C shall be changed from the
initial size thereof, due to any taking, any construction or alteration work
- 8 -
<PAGE> 12
or otherwise, the Tenant's Fraction with respect to such Building shall be
changed to the fraction the numerator of which shall be the Floor Space of the
Demised Premises (exclusive, with respect to Building C, of the portion of the
Demised Premises located in the Building C Basement) within said Building and
the denominator of which shall be the Floor Space of such Building (exclusive,
with respect to Building C, of the Building C Basement).
MM. Tenant's Property: As defined in Section 16.02.
NN. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's occupancy.
OO. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
PP. Unavoidable Delays: a delay arising from or as a result of a
strike, lockout, or labor difficulty, explosion, sabotage, accident, riot or
civil commotion, act of war, fire or other catastrophe, Legal Requirement or
any act of the other party and any cause beyond the reasonable control of that
party, provided that the party asserting such Unavoidable Delay has exercised
its best efforts to minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term.
- 9 -
<PAGE> 13
Promptly following the Commencement Date, the parties hereto shall execute a
document setting forth the agreed upon Commencement Date.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments
in advance on the first day of each and every calendar month during the Term.
If the Commencement Date occurs on a day other than the first day of a calendar
month, the Fixed Rent for the partial calendar month at the commencement of the
Term shall be prorated.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when
due without notice or demand therefor and without any abatement, deduction or
setoff for any reason whatsoever, except as may be expressly provided in this
Lease. If Tenant makes any payment to Landlord by check, same shall be by
check of Tenant and Landlord shall not be required to accept the check of any
other Person, and any check received by Landlord shall be deemed received
subject to collection. If any check is mailed by Tenant, Tenant shall post
such check in sufficient time prior to the date when payment is due so that
such check will be received by Landlord on or before the date when payment is
due. Tenant shall assume the risk of lateness or failure of delivery of the
mails, and no lateness or failure of the mails will excuse Tenant from its
obligation to have made the payment in question when required under this Lease.
- 10 -
<PAGE> 14
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment of Rent, Tenant waives
Tenant's right, if any, to designate the items to which any payments made by
Tenant are to be credited, and Landlord may apply any payments made by Tenant
to such items as Landlord sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items to which any such payments
shall be credited.
3.05. Any payment of Fixed Rent due Landlord under this Lease which
is not paid on or before the fifth (5th) day after the date such payment is due
and any payment of Additional Charges due under this Lease which is not paid on
or before the tenth (10th) day after the date such payment is due, shall, from
the due date, until such payment is received by Landlord, bear interest at the
lesser of the prime rate of Chemical Bank, New York, plus 2% per annum, or the
maximum rate permitted by law (the "Late Payment Rate") payable by Tenant
together with such payment of Rent (the "Late Charge"). In the event Tenant
fails to pay three (3) or more payments of Rent on or before the due date
within any period of twelve (12) consecutive calendar months, there shall be no
grace periods prior to the incurring of a Late Charge by Tenant, provided,
however, that the above referenced grace periods shall be reinstated, (subject
to subsequent revocation as above provided), upon such time as
- 11 -
<PAGE> 15
Tenant makes thirty six (36) consecutive payments of Fixed Rent on or before
the due date with respect to such payments.
3.06. It is intended that Landlord shall have no obligation to make
any expenditures with respect to the Demised Premises, the Building or the
Project other than as expressly provided for in this Lease and that the Fixed
Rent provided for in Paragraph 3.01. above shall be paid to Landlord throughout
the Term, free of any expense, charge or other deduction whatsoever.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the
Permitted Uses, and Tenant shall not use or permit or suffer the use of the
Demised Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit, other than a
Certificate of Occupancy, shall be required for the proper and lawful conduct
of Tenant's business in the Demised Premises or any part thereof, Tenant shall
duly procure and thereafter maintain such license or permit and submit the same
to Landlord for inspection. Tenant shall at all times comply with the terms
and conditions of each such license or permit. Tenant shall not at any time
use or occupy, or suffer or permit anyone to use or occupy the Demised
Premises, or do or permit anything to be done in the Demised Premises, in any
manner which (a) violates the Certificate of occupancy for the Demised Premises
or for the Building; (b) causes or is liable to cause injury to the Building or
any equipment, facilities or systems therein; (c) constitutes a violation of
the Legal Requirements or Insurance Requirements; (d) impairs or tends to
impair the character, reputation or appearance of the Building; or (e) creates
a nuisance.
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ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01. (a) The Demised Premises shall be completed and prepared for
Tenant's occupancy in the manner described in, and subject to the provisions of
Exhibit C. Subject to the provisions of Section 5.01(b) hereof Tenant shall
occupy the Demised Premises promptly after the same are Ready for Occupancy and
possession thereof is delivered to Tenant by Landlord giving to Tenant a notice
of such effect. Landlord shall, to the extent practicable, permit Tenant to
enter upon the Demised Premises prior to the Commencement Date for purposes of
commencing Tenant's Work and commencing the move in of Tenant's Property, as
more particularly provided on the Tenant Work Schedule annexed hereto as
Exhibit L, provided that (i) Tenant shall not unreasonably interfere with the
performance of Landlord's Work, (ii) Tenant provides Landlord with such
certificates of insurance as may be reasonably requested by Landlord, and (iii)
Tenant indemnifies, defends and holds harmless from all loss, damage, cost,
liability and expense (including reasonable attorneys' fees and costs and
expenses incurred in enforcing this provision) incurred by Landlord arising out
of such activities by Tenant or out of Tenant's entry upon the Demised Premises
prior to the Commencement Date. Except as expressly provided to the contrary
in this Lease, the taking of possession by Tenant of the Demised Premises, on
or after the Commencement Date, shall be conclusive evidence as against Tenant
that the Demised Premises and the Building were in good and satisfactory
condition at the time such possession was taken. Except as expressly provided
to the contrary in this Lease (including but not limited to the performance of
Landlord's Work and performance of Landlord's obligations pursuant to Article
17 hereof), Tenant is leasing the Demised Premises "as is" on the date hereof,
subject to reasonable wear and tear and the rights of the present
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occupants) of the Demised Premises to remove its or their trade fixtures and
other property from the Demised Premises.
(b) Notwithstanding anything contained in Section 5.01(a) hereof to
the contrary, Tenant shall not be required to take occupancy of Building C
prior to the later to occur of (i) September 1, 1990 or (ii) the date which is
six (6) months after final unappealable site plan approval for Building B and
Building C from the Planning Board of the Township of Cranford, nor shall
Tenant be required to take occupancy of Building B prior to September 1, 1994.
Landlord shall, as provided in Exhibit C, cause Building B to be Ready for
Occupancy by the date which is forty eight (48) months after the Commencement
Date of the Lease. Landlord shall, upon written notice to Landlord from Tenant
(the "Early Delivery Notice") cause Building B to be Ready for Occupancy by the
date which is eighteen (18) months after the giving of the Early Delivery
Notice, but not earlier than June 1, 1992.
(c) Landlord shall promptly apply for and diligently pursue final,
unappealable site plan approval for Building B and Building C from the Planning
Board of the Township of Cranford (the "Approval"). In the event the Approval
is not obtained by March 1, 1991 (the "Approval Date"), Tenant shall have the
right, upon forty-five (45) days written notice, given not earlier than the
Approval Date, to terminate this Lease, provided, however, in the event Tenant,
notifies Landlord of its election to terminate the Lease, the Lease shall not
be terminated in the event such Approval is obtained within the forty-five (45)
day notice period. In the event the Approval is not obtained by the date which
is ninety (90) days after the Approval Date, Landlord shall, provided Landlord
has used reasonable good faith efforts to obtain the Approval, have the right
to terminate this Lease, upon ten (10) days prior written
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notice to Tenant ("Landlords Termination Notice"). In the event Landlord gives
Tenant written notice of Landlord's termination of this Lease pursuant to this
paragraph, Tenant shall have the right, upon written notice to Landlord given
within ten (10) days of receipt of Landlord's Termination Notice, to defer such
termination for sixty (60) days and attempt, at Tenant's sole cost and expense,
to obtain the Approval within such sixty (60) day period. If Tenant obtains
the Approval within such sixty (60) day period, the Landlord's Termination
Notice shall be null and void. In the event of such termination, neither party
shall have any further liability to the other hereunder.
(d) In the event the portion of the Demised Premises located with
Building C is not made Ready for Occupancy by June 1, 1992 (the "Delivery
Date") , Tenant shall have the right, upon thirty (30) days written notice to
Landlord, given not earlier than the Delivery Date, to terminate this Lease,
provided, however, in the event Tenant notifies Landlord of its election to
terminate the Lease, the Lease shall not be terminated in the event the portion
of the Demised Premises located within Building C is made Ready for Occupancy
within such thirty (30) day period.
(e) Landlord shall, based upon the plan annexed hereto as Exhibit B,
promptly apply for and diligently pursue the obtaining of the Approval. In the
event Landlord does not diligently pursue the obtaining of this Approval,
Tenant shall have the right, upon thirty (30) days prior written notice to
Landlord, to apply for and pursue the obtaining of the Approval unless
Landlord, within said thirty (30) days commences to diligently pursue the
obtaining of the Approval. In the event Tenant exercises such right, Landlord
shall fully cooperate with Tenant's effort. Landlord shall have the right on
ten (10) days
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written notice to terminate this Lease in the event Tenant declines to pursue
(or abandons) obtaining of the Approval.
5.02. If the substantial completion of the Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees,
agents or contractors (including, without limitation, [i] any delays due to
changes in or additions to the Landlord's Work, or [ii] any delays by Tenant in
the submission of plans, drawings, specifications or other information or in
approving any working drawings or estimates or in giving any authorizations or
approvals), or (b) any additional time needed for the completion of the
Landlord's Work by the inclusion in the Landlord's Work of any Special Work (is
said term is defined in Exhibit C), then the Demised Premises shall be deemed
Ready for occupancy on the date when they would have been ready but for such
delay(s). In the event Landlord fails to notify Tenant in writing of an
Unavoidable Delay as herein provided by the date which is ten (10) business
days after the Landlord becomes aware of such Unavoidable Delay, Landlord shall
be deemed to have waived forever the right to claim an excuse from later
performance for such Unavoidable Delay for the period of time between the
occurrence to such Unavoidable Delay and the date of giving notice thereof to
Tenant. The Demised Premises shall be conclusively presumed to be in
satisfactory condition on the Commencement Date except for the minor or
insubstantial details of which Tenant gives Landlord notice within thirty (30)
days after the Commencement Date specifying such details with reasonable
particularity and, except for latent defects which could not be discovered by
inspection by Tenant.
5.03. Landlord reserves the right, at any time and from time to
time, to increase, reduce or, change the number, type, size, location,
elevation, nature and use of any of the Common
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Areas and any portions of the Building not occupied by Tenant, and any other
buildings and other improvements in the Project, including, without limitation,
the right to move and/or remove same, provided same shall not unreasonably
block or interfere with Tenant's means of ingress or egress to and from or
otherwise materially interfere with Tenant's full use of the Demised Premises.
5.04. Tenant shall have the right, upon the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed, to
install an above ground fuel tank on the Land at a location mutually acceptable
to Landlord and Tenant. Tenant shall indemnify, defend and Hold Landlord
harmless with respect to any environmental or other damage caused by such tank
or fuel and shall comply with all present and future Legal Requirements
applicable to such tank, its installation and removal. Landlord shall
cooperate with and assist Tenant in preparing and filing all applications for
permits required for said tank pursuant to the Legal Requirements. At the
expiration or earlier termination of the Term, Tenant shall, at Landlord's
option, remove said tank at Tenant's sole cost and expense and restore the Land
to its condition prior to such installation. Tenant shall maintain, register
and insure such fuel oil tank.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Commencing on the Commencement Date, Tenant shall pay to
Landlord, as hereinafter provided, the Real Estate Taxes in respect of Building
B for the period in question, plus Tenant's Fraction of the Real Estate Taxes
in respect of Building C for the period in question. Tenant shall also pay
Tenant's Fraction of the Real Estate Taxes attributable to the Building B Land
and the Building C Land for the period in question. If any portion of the
Building shall be exempt from all or any part of the Real
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Estate Taxes, then for the period of time when such exemption is in effect, the
Floor Space on such exempt portion shall be excluded when making the above
computations in respect of the part of the Real Estate Taxes for which such
portion shall be exempt. Landlord shall estimate the annual amount of the Real
Estate Taxes (which estimate may be changed by Landlord at any time and from
time to time), and Tenant shall pay to Landlord the amount sufficient to pay
any Real Estate Taxes thirty (30) days prior to the date when such Real Estate
Taxes shall first become due. When the amount of any item comprising Real
Estate Taxes is finally determined for a real estate fiscal tax year, Landlord
shall submit to Tenant a statement in reasonable detail of the same, and the
figures used for computing the same, and if such is more or less than the
amount theretofore paid by Tenant for such item based on Landlord's estimate,
Tenant shall pay to Landlord the deficiency, or Landlord shall refund to Tenant
the excess, within 10 days after submission of such statement. Any Real Estate
Taxes for a real estate fiscal tax year, a part of which is included within the
Term and a part of which is not so included, shall be apportioned on the basis
of the number of days in the real estate fiscal tax year included in the Term,
and the real estate fiscal tax year for any improvement assessment will be
deemed to be the one-year period commencing on the date when such assessment is
due, except that if any improvement assessment is payable in installments, the
real estate fiscal tax year for each installment will be deemed to be the
one-year period commencing on the date when such installment is due. The above
computations shall be made by Landlord in accordance with generally accepted
accounting principles, and the Floor Space referenced will be based upon the
average of the Floor Space in existence on the first day of each month during
the period in question.
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6.02. Tenant shall pay to Landlord, as hereinafter provided, the
Operating Expenses. The Operating Expenses shall be estimated by Landlord
(which estimate may be reasonably changed by Landlord from time to time), and
Tenant shall pay to Landlord 1/12th of the amount so estimated on the first day
of each month in advance. If at any time Landlord changes its estimate of the
Operating Expenses for the then current Calendar Year or partial Calendar Year,
Landlord shall give notice to Tenant of such change and within ten (10) days
after such notice Landlord and Tenant shall adjust for any overpayment or
underpayment during the prior months of the then current Calendar Year or
partial Calendar Year. After the end of each Calendar Year, including any
partial Calendar Year at the beginning of the Term, and after the end of the
Term, Landlord shall submit to Tenant a statement in reasonable detail of the
Operating Expenses for such Calendar Year, or partial Calendar Year in the
event the Term shall begin on a date other than a January lst and/or end on a
date other than a December 31st, as the case may be, and stating the Operating
Expenses for the period in question and the figures used for computing such,
and if such so stated for such period, is more or less than the amount paid for
such period, Tenant shall pay to Landlord the deficiency, or Landlord shall
refund to Tenant the excess, within ten (10) days after submission of such
statement. All computations shall be made in accordance with generally
accepted accounting principles.
6.03. Each such statement given by Landlord pursuant to Section 6.01
or Section 6.02 shall be conclusive and binding upon Tenant unless within
ninety (90) days after the receipt of such statement Tenant shall notify
Landlord that it disputes the correctness of the statement, specifying the
particular respects in which the statement is claimed to be incorrect. If such
dispute is not settled by agreement, either party may submit the
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<PAGE> 23
dispute to arbitration as provided in Article 36. Pending the determination of
such dispute by agreement or arbitration as aforesaid, Tenant shall, within ten
(10) days after receipt of such statement, pay the Additional charges in
accordance with Landlord's statement, without prejudice to Tenant's position.
Tenant shall have the right, but not more than once annually or in the event of
in good faith material dispute by Tenant with regard to the correctness of
statements issued by Landlord pursuant to Section 6.01 or 6.03 hereof, upon
reasonable written notice, during business hours, to inspect Landlord's records
kept with respect to the calculation of operating Expenses or Real Estate
Taxes. All computations shall be made in accordance with generally accepted
accounting principles. If the dispute shall be determined in Tenant's favor,
Landlord shall forthwith pay to Tenant the amount of Tenant's overpayment
resulting from compliance with Landlord's statement. If the amount of any
overcharge to Tenant as determined by such inspection shall equal ten percent
(10%) or more, Landlord shall also pay to Tenant the reasonable, out-of-pocket
cost of such inspection, together with interest on the amount of such
overcharge at the Late Payment Rate.
6.04. Tenant or its designees shall have the right to contest all
Real Estate Taxes with respect to the Land and the Building by legal
proceedings (which if instituted, Tenant or its designee shall conduct promptly
at its' sole cost and expense, and if necessary, in the name of and with the
cooperation of Landlord, and the Landlord and Tenant shall execute all
documents necessary to accomplish the foregoing. If there shall be any refund
or rebate on account of Real Estate Taxes paid by Tenant under the provisions
of this Lease, such refund or rebate shall belong to Tenant and shall be paid
to Tenant. Landlord hereby agrees upon request of Tenant, to execute such
instruments and to
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give Tenant such assistance in connection with such contests as shall be
reasonably required by Tenant.
ARTICLE 7 - COMMON AREAS
7.01. Landlord, or its agents will operate, manage, equip, light,
repair and maintain the Common Areas for their intended purposes.
7.02. Tenant and its subtenants and their respective officers,
employees, agents, customers and invitees, shall have the non-exclusive right,
in common with Landlord and all others to whom Landlord has granted or may
hereafter grant such right, but subject to the Rules and Regulations, to use
the Common Areas. Landlord reserves the right, from time to time, to close
temporarily, or make changes in or to the Common Areas (including but not
limited to the right to construct one or more buildings on or above the Common
Areas) provided said changes shall not unreasonably interfere with Tenant's
means of ingress or egress to and from or unreasonably interfere with Tenant's
full use of the Demised Premises.
7.03. During the Term, Tenant, its employees, agents, invitees and
licensees shall be entitled to the exclusive use of eight hundred (800) parking
spaces, together with the right to the non-exclusive use of fifty (50) parking
spaces, in the areas shown on Exhibit I annexed hereto (the "Parking Area").
Landlord shall have the right to relocate said parking area during construction
of Building B provided alternate parking facilities shall be provided within a
reasonable distance of the Building.
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<PAGE> 25
ARTICLE 8 - SIGNAGE
8.01. Landlord shall not unreasonably withhold or delay its consent
to the installation by Tenant at Tenant's sole cost and expense, of a sign on
the exterior of the Buildings, subject to satisfaction by Tenant, at Tenant's
sole cost and expense, of all applicable Legal Requirements, and provided such
sign is in keeping with the character and quality of the Project. Tenant shall
have the right, upon Landlord's prior written consent, which consent shall not
be unreasonably withheld, to install, at Tenant's sole cost and expense, a sign
on a pylon at the entrance drive to the Project in the area set forth on
Exhibit G (and at such other locations within the Project as may be mutually
agreed upon by Landlord and Tenant) and signage within the Parking Area
identifying any parking spaces assigned to Tenant, subject to satisfaction by
Tenant, at Tenant's sole cost and expense, of all applicable Legal
Requirements.
ARTICLE 9 - SUBORDINATION
9.01. Provided that a Superior Mortgagee shall execute and deliver
to Tenant an agreement, in recordable form, substantially in the form attached
hereto and make a part hereof as Exhibit H, to the effect that, provided no
event of default has occurred and is continuing hereunder, such Superior
Mortgagee will not name or join Tenant as a party defendant or otherwise in any
suit, action or proceeding to enforce any rights granted to such Superior
Mortgagee under its Superior Mortgagee, and to the further effect that if there
shall be a foreclosure of its Superior Mortgage, that the Superior Mortgage
will not make Tenant a party defendant to such foreclosure, evict Tenant,
disturb Tenant's possession under this Lease, or terminate or disturb Tenant's
leasehold estate or rights hereunder, or any such agreement, or any agreement
of similar import from a Superior Mortgagee, as the
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case may be, being hereinafter called a "Nondisturbance Agreement", this Lease
shall be subject and subordinate to such Superior Mortgage in respect to which
a Nondisturbance Agreement shall have been delivered, and to all renewals,
extensions, supplements, amendments, modifications, consolidations and
replacements of such Superior Mortgage or any substitution therefor, and
advances made thereunder. Landlord shall use its best efforts to provide
Tenant, on or prior to the Commencement Date, with a non-disturbance Agreement
from the holder of any Superior Mortgage of record on or before the
Commencement Date. The provisions of this Section 9.01 shall be self-operative
and no further instrument of subordination shall be required upon delivery of
such non-disturbance Agreement. However, in confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver an
instrument evidencing such subordination; and if Tenant fails to execute,
acknowledge or deliver any such instruments within thirty (30) days after
request therefor, Tenant hereby irrevocably constitutes and appoints Landlord
as Tenant's attorney-in-fact, coupled with an interest, to execute and deliver
any such instruments for an on behalf of Tenant.
9.02. If any act or omission of Landlord would give Tenant the
right, immediately or after lapse of a period of time, to cancel or terminate
this Lease, or to claim a partial or total eviction, Tenant shall not exercise
such right until and unless (a) it has given written notice of such act or
omission to Landlord and each Superior Mortgagee whose name and address shall
previously have been furnished to Tenant, and (b) such act or omission shall
not have been remedied with thirty (30) days following the giving of such
notice (or such longer period as may be reasonably required if such condition
is not susceptible to remedy within such thirty (30) day period, provided
Landlord or
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such Superior Mortgagee commences and diligently pursues such remedy).
9.03 . If any Superior Mortgagee shall succeed to the rights of
Landlord under this Lease, whether through possession or foreclosure action or
delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") , Tenant shall attorn to
and recognize such Successor Landlord as Tenant's landlord under this Lease and
shall promptly execute and deliver, any instrument that such Successor Landlord
may reasonably request to evidence such attornment provided that such Successor
Landlord shall then be entitled to possession of the Demised Premises and shall
have either agreed to assume the obligations of Landlord hereunder or shall
have entered into a Nondisturbance Agreement with Tenant. Upon such attornment
this Lease shall continue in full force and effect as a direct lease between
the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; or (c) be
bound by any previous modification of this Lease or by any previous prepayment
of more than one month's Fixed Rent or Additional Charges, unless such
modification or prepayment shall have been expressly approved in writing by the
Mortgagee of the Superior Mortgage through or by reason of which the Successor
Landlord shall have succeeded to the rights of Landlord under this Lease.
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ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as Tenant pays all of the Rent and performs all of
Tenant's other obligations hereunder, Tenant shall peaceably and quietly have,
hold and enjoy the Demised Premises without hindrance, ejection or molestation
by Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to Superior Mortgages.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. (a) Tenant shall not, whether voluntarily, involuntarily, or
by operation of law or otherwise (including but not limited by way of the
transfer of stock of a corporation), (i) except as provided in Section,
11.01(b) hereof, assign, mortgage, pledge, encumber, or otherwise transfer
(herein referred to collectively as a "Transfer") this Lease, or offer or
advertise to do so, or (ii) except as provided in Section 11.01(b) hereof,
sublet the Demised Premises or any part thereof, or offer or advertise to do
so, or allow the same to be used, occupied or utilized by anyone other than
Tenant without in each instance obtaining the prior written consent of
Landlord, which consent shall not be unreasonably withheld.
(b) Provided Tenant is not in default of this Lease, Tenant
shall have the right, upon prior written notice to Landlord, to Transfer this
Lease or sublet all or any part of the Demised Promises, provided, however,
that Tenant shall not Transfer his Lease or sublet all or any part of Building
C, prior to the fifth (5th) anniversary of the Commencement Date, except to an
"Affiliated Entity" (as herein after defined). Such notice shall contain the
name of the proposed assignee, subtenant or person to whom Tenant proposes to
Transfer this Lease (herein referred to as a "Transferee") and the terms of the
proposed sublease or Transfer. As used herein an Affiliated Entity shall
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mean a corporation which owns fifty-one percent (51%) or more of the
outstanding voting stock of Tenant or of which Tenant owns fifty-one percent
(51%) or more of the outstanding voting stock. In the event Tenant, other than
with respect to a sublease or Transfer to an Affiliated Entity, offers all or
any portion of the Demised Premises for a permitted subletting or Transfer, or
receives an offer for a permitted subletting or Transfer which Tenant desires
to accept, Tenant shall provide Landlord with written notice of such offer
containing the terms thereof and identifying the parties thereto. Landlord
shall have the right, with respect to each such proposed transaction, upon
written notice to Tenant, given no less than fifteen (15) business days after
receipt of Tenant's notice, to enter into a sublease or Transfer with Tenant on
the same terms as the proposed sublease or Transfer.
11.02 If this Lease is Transferred, whether or not in violation of
this Lease, Landlord may collect rent from the Transferee. If the Demised
Premises or any part thereof are sublet or used or occupied by anybody other
then Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such default,
collect rent from the subtenant or occupant. In either event, Landlord may
apply the net amount collected to the Rent, but no such Transfer, subletting,
occupancy or collection shall be deemed a waiver of any of the provisions of
Section 11.01, or the acceptance of the Transferee, subtenant or occupant as
tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any Transfer,
subletting or use or occupancy by others shall not in any way be considered to
relieve Tenant from obtaining the express written consent of Landlord to any
other or further Transfer, or subletting or use of occupancy by other not
expressly permitted by this Article 11. References in this Lease to use or
occupancy by other (that is, anyone other than Tenant)
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shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and other
claiming under or through Tenant, immediately or remotely.
11.03. Any permitted Transfer, whether made with Landlord's consent
pursuant to Section 11.01(a) or without Landlord's consent if permitted by
Section 11.01(b), shall be made only if, and shall not be effective until, the
Transferee shall execute, acknowledge and deliver to Landlord an agreement in
form and substance satisfactory to Landlord whereby the Transferee shall assume
Tenant's obligations under this Lease and whereby the Transferee shall agree
that all of the provisions in this Article 11 shall, notwithstanding such
Transfer, continue to be binding upon it in respect to all future Transfers.
Notwithstanding any Transfer, whether or not in violation of the provisions of
this Lease, and notwithstanding the acceptance of Rent by Landlord from a
Transferee, or any other party, the original Tenant and any other person(s) who
at any time was or were Tenant shall remain fully liable for the payment of the
Rent and for all other obligations for which they were liable under this Lease.
11.04. The liability of the original named Tenant and any other
Person(s) who at any time was or were Tenant for Tenant's obligations under
this Lease shall not be discharged, released or impaired by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
11.05. The listing of any name other than that of Tenant, whether on
the doors of the Demised Premises or the Building
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directory, or otherwise, shall not operate to vest any right or interest in
this Lease or in the Demised Premises, nor shall it be deemed to be the consent
of Landlord to any Transfer of this Lease or to any sublease of the Demised
Premises or to the use or occupancy thereof by others.
11.06. Without limiting any of the provisions of Article 27, if
pursuant to the Federal Bankruptcy Code (or any similar law hereafter enacted
having the same general purpose), Tenant is permitted to Transfer this Lease
notwithstanding the restrictions contained in this Lease, adequate assurance of
future performance by a Transferee expressly permitted under such Code shall be
deemed to mean the deposit of cash security in an amount equal to the sum of
one (1) year's Fixed Rent plus an amount equal to the Additional Charges for
the Calendar Year preceding the year in which such Transfer is intended to
become effective, which deposit shall be held by Landlord for the balance of
the Term, without interest, as security for the full performance of all of
Tenant's obligations under this Lease.
11.07. Landlord shall, within thirty (30) days after Tenant's
request, deliver to Tenant, at Tenant's sole cost and expense (including
attorney's fees), a non-disturbance and subordination agreement substantially
in the form of Exhibit J annexed hereto, executed and acknowledged by Landlord
for the benefit of any subtenant of not Less than twenty thousand (20,000)
square feet of Floor Space of the Demised Premises. Upon written request of
Tenant, Landlord shall at no cost or expense to Landlord, use non-disturbance
and subordination agreement from any Superior Mortgagee with respect to such
sublease. In the event any space is subleased to Landlord or its affiliates
pursuant to section 11.01(b) hereof, Tenant shall, within thirty (30) days
after
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Landlord's request, deliver to Landlord, at Landlord's sole cost and expense
(including attorney's fees), a non-disturbance agreement substantially in the
form of Exhibit J annexed hereto, executed and acknowledged by Tenant or the
benefit of any subtenant of Landlord of not less than twenty thousand (20,000)
square feet of Floor Space of the Demised Premises.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Tenant shall comply with all Legal Requirements (except that
Landlord shall be responsible for compliance with Legal Requirements, including
but not limited to compliance with applicable building codes as of the date the
Demised Premises is Ready for Occupancy, required in connection with
performance of Landlord's Work and any Tenant's Work performed by Landlord)
which shall, in respect of the Demised Premises or the use and occupation
thereof, or the abatement of any nuisance in, on or about the Demised Premises,
impose any violation, order or duty on Landlord or Tenant; and Tenant shall pay
all the cost, expenses, fines, penalties and damages which may be imposed upon
Landlord or any Superior Lessor by reason of or arising out of Tenant's failure
to fully and promptly comply with and observe the provisions of this Section
12.01. However, Tenant need not comply with any such law or requirement of
any public authority so long as Tenant shall be contesting the validity
thereof, or the applicability thereof to the Demised Premises, in accordance
with Section 12.02.
12.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime or offense, and
neither the
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Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest;
(b) before the commencement of such contest, Tenant shall furnish to Landlord
either (i) the bond of a surety company satisfactory to Landlord, which bond
shall be, as to its provisions and form, satisfactory to Landlord, and shall be
in an amount at least equal to 125% of the cost of such compliance (as
reasonably estimated by a reputable contractor designated by Landlord) and
shall indemnify Landlord against the cost thereof and against all liability for
damages, interest, penalties and expenses (including reasonable attorneys' fees
and expenses), resulting from or incurred in connection with such contest or
non-compliance, or (ii) other security in place of such bond satisfactory to
Landlord; and (c) Tenant shall keep Landlord advised as to the states of such
proceedings. Notwithstanding the foregoing to the contrary, no bond shall be
required pursuant to the preceding sentence until such time as The Summit
Bancorporation shall assign this Lease or sublet the portion of the Demised
Premises affected by such contest of a Legal Requirement (provided, however,
that no bond shall be required in the event of assignment or subletting to a
Tenant Affiliate). Without limiting the Application of the above, Landlord
shall be deemed subject to prosecution for a crime or offense, if Landlord, or
its managing agent, or any officer, director, partner, shareholder or employee
of Landlord or its managing agent, as an individual, is charged with a crime or
offense of any kind or degree whatsoever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or its managing
agent, or such officer, director, partner, shareholder or employee of Landlord
or its managing agent (as the case may be) is required to plead or answer
thereto.
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ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Tenant shall maintain or cause to be maintained All Risk
insurance in respect of Building B and other improvements on the Building B
Land normally covered by such insurance (and at the option of Landlord on
Building C if Tenant is the only tenant thereof) for the benefit of Landlord,
any Superior Mortgagees and any other parties Landlord may at any time and from
time to time designate, as their interests may appear, and shall maintain rent
insurance. The All Risk insurance will be in the amounts of the full insurable
value of the Demised Premises and not less than the amount required by any
Superior Mortgagee and, in any event, not less than the amount sufficient to
avoid the effect of the co-insurance provisions of the applicable policy or
policies. Except as above provided, Landlord shall maintain or cause to be
maintained All Risk insurance in respect of Building C and the other
improvements on the Building C Land normally covered by such insurance for the
benefit of Landlord, any Superior Mortgagees and any other parties Landlord may
at any time and from time to time designate, as their interests may appear, and
shall maintain rent insurance. Landlord may also maintain any other forms and
types of insurance which Landlord shall deem reasonable in respect to the
Building and Land. Landlord shall maintain insurance on the Common Areas.
Tenant and Landlord shall have the right to provide any insurance maintained or
caused to be maintained by it under blanket policies.
13.02. Tenant shall also maintain the following insurance: (a)
comprehensive general public liability insurance in respect of the Demised
Premises and the conduct and operation of business therein, with Landlord as an
additional named insured, and at Landlord's request with any Superior
Mortgagors as additional named insured (s) , with limits of not less than
$3,000,000 for
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bodily injury or death to any one person and $5,000,000 for bodily injury or
death to any number of persons in any one occurrence, and $500,000 for property
damage, including water damage and sprinkler leakage legal liability, (b) All
Risk insurance in respect of Tenant's stock in trade, fixtures, furniture,
furnishings, removable floor coverings, equipment, signs and all other property
of Tenant in the Demised Premises in any amounts required by any Superior
Mortgagee but not less than 80% of the full insurable value of the property
covered and not less than the amount sufficient to avoid the effect of the
co-insurance provisions of the applicable policy or policies, and (c) any other
insurance required for compliance with the Insurance Requirements. Landlord
may at any time and from time to time require that the limits for the
comprehensive general public liability insurance to be maintained by Tenant be
increased to the limits that new tenants with similar uses in the Project are
required by Landlord to maintain and is available at commercially reasonable
rates. Tenant shall deliver to Landlord and any additional named insured(s)
certificates for such fully paid-for policies at least 10 days before the
Commencement Date. Tenant shall procure and pay for renewals of such insurance
from time to time before the expiration hereof, and Tenant shall deliver to
Landlord and any additional insured(s) certificates therefor at least 30 days
before the expiration of any existing policy. All such policies shall be
issued by companies of recognized responsibility licensed to the business in
New Jersey, and all such policies shall contain a provision whereby the same
cannot be canceled unless Landlord and any additional insured(s) are given at
least 20 days' prior written notice of such cancellation.
13.03. Tenant shall not do, permit or suffer to be done any act,
matter, thing or failure to the act in respect of the Demised
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Premises or use or occupy the Demised Premises or conduct or operate Tenant's
business in any manner objectionable to the any insurance company or companies
whereby the fire insurance or any other insurance then in effect in respect to
the Land and Building or any part thereof shall become void or suspended or
whereby any premiums in respect of insurance maintained by Landlord shall be
higher than those which would normally, have been in effect for the occupancy
contemplated under the Permitted Uses. In case of a breach of the provisions
of this Section 13.03, in addition to the all other rights, and remedies of
Landlord hereunder, Tenant shall indemnify Landlord and hold Landlord harmless
from and against any loss, cost liability and expense (including reasonable
attorneys' fees and including all expenses incurred in enforcing this
provision) which would have been covered by insurance which shall have become
void or suspended because of such breach by Tenant.
13.04. Neither Landlord nor Tenant shall be liable to the other or
responsible for, and Landlord and Tenant hereby release each other from, all
liability and responsibility to the any person claiming by, through or under
Tenant or Landlord, by way of subrogation, for any injury, loss or damage to
the any person or property (including, but not limited to the fire or other
casualty) in or around the Demised Premises or to the each party's business
irrespective of the cause of such injury, loss or damage, and each party shall
require its insurers to the include in all insurance policies which could give
rise to the a right of subrogation against each party a clause or endorsement
whereby the insurer waives any rights of subrogation or permits the insured,
prior to the any loss, to the agree with a third party to the waive any claim
it may have against said third party without invalidating the coverage under
the insurance policy.
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ARTICLE 14 - RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe
and comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to the Tenant, which in Landlord's
judgment, shall be necessary for the reputation, safety, care or appearance of
the Land and Building, or the preservation of good order therein, or the
operation or maintenance of the Building or its equipment and fixtures, or the
Common Areas, and which do not unreasonably affect the conduct of Tenant's
business in the Demised Premises, provided, however, that in case of any
conflict or inconsistency between the provisions of this Lease and any of the
Rules and Regulations, the provisions of this Lease shall control. Landlord
shall not be liable to the Tenant for violation of the Rules and Regulations by
any other tenant or its employees, agents, invitees or licensees.
ARTICLE 15 - ALTERATIONS
15.01. Tenant shall not make any alterations to the Demised Premises
which would impair the value or the structural integrity of the Building or
make any alterations to the roof or the Building systems, or change the
exterior color or architectural treatment of the Demised Premises, without on
each occasion first obtaining the consent of Landlord. Landlord's consent
shall not be required for any alteration to the thin interior of the Demised
Premises, except as provided above. Prior to the commencing any permitted
alteration, Tenant shall submit to the Landlord plans and specifications for
such work. Tenant shall pay to the Landlord upon demand the reasonable cost
and expense of Landlord in (a) reviewing said plans and specifications and (b)
inspecting the
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alterations to the determine whether the same are being performed in accordance
with the approved plans and specifications and all Legal Requirements and
Insurance Requirements, including, without limitation, the fees of any
architect or engineer employed by Landlord for such purpose. Before proceeding
with any permitted alteration which will cost more than $1,000,000.00, as
estimated by a reputable contractor designated by Landlord, Tenant shall obtain
and deliver to the Landlord either (i) a performance bond and a labor and
materials payment bond (issued by a corporate surety licensed to do business in
New Jersey in an amount equal to the 100% of such estimated cost and in form
satisfactory to the Landlord, or (ii) such other security as shall be
satisfactory to the Landlord. Notwithstanding the foregoing to the contrary,
no bond shall be required pursuant to the preceding sentence until such time
The Summit Bancorporation shall assign this Lease or sublet (other than an
assignment or sublease to the a subsidiary which is not less than fifty one
percent (51%) owned by Tenant) the portion of the Demised Premises affected by
such permitted alteration. Tenant shall fully and promptly comply with and
observe the Rules and Regulations then in force in respect of the making of
alterations. Any review or approval by Landlord of any plans and/or
specifications with respect to the any alterations is solely for Landlord's
benefit, and without any representation or warranty whatsoever to the Tenant in
respect to the adequacy, correctness or efficiency thereof or otherwise.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith all applicable Legal Requirements and
Insurance Requirements. Alterations shall be diligently performed in a good
and workmanlike manner, using new materials
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and equipment at least equal in quality and class to the original installations
of the Building. Any Alterations in or to the mechanical, electrical,
sanitary, heating, ventilating, air conditioning or other systems of the
Building shall be performed only by the contractors designated by Landlord.
Landlord shall provide Tenant with the names of at least three (3) contractors
for each trade designated by Tenant, in connection with the proposed
alteration. If Tenant elects to use a contractor which is not acceptable to
the installer or manufacturer pursuant to the any warrantee then in effect,
Tenant shall indemnify and hold Landlord harmless from any breach of such
warrantee caused by Tenant's use of such contractors. Alterations shall be
made in such manner as not to the unreasonably interfere with or delay and as
not to the impose any additional expense upon Landlord in the construction,
maintenance, repair or operation of the Building; and if any such additional
expense shall be incurred by Landlord as a result of Tenant's making of any
alterations, Tenant shall pay any such additional expense upon demand.
Throughout the making of alterations, Tenant shall carry, or cause to the be
carried, workmen's compensation insurance in statutory limits and general
liability insurance, with completed operation endorsement, for any occurrence
in or about the Building, under which Landlord and its managing agent whose
name and address shall previously have been furnished to the Tenant shall be
named as parties insured, in such limits as Landlord may reasonably require,
with insurers reasonably satisfactory to the Landlord. Tenant shall furnish
Landlord with reasonably satisfactory evidence that such insurance is in effect
at or before the commencement of alterations and, or request, at reasonable
intervals thereafter during the making of alterations.
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ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01 All fixtures, equipment, improvements and appurtenances
attached to or built into the Demised Premises at the commencement of or during
the Term, whether or not by or at the expense of Tenant, shall be and remain a
part of the Demised Premises, shall be deemed to be the property of Landlord
and shall not be removed by Tenant, except as provided in Section 16.02.
Further, any carpeting or other personal property in the Demised Premises on
the Commencement Date, unless installed and paid for by Tenant, shall be and
shall remain Landlord's property and shall not be removed by Tenant.
16.02. All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant without expense to the
Landlord and can be removed without structural damage to the Building and all
furniture, furnishings, and other movable personal property owned by Tenant and
located in the Demised Premises (collectively, "Tenant's Property") shall be
and shall remain the property of Tenant and may be removed by Tenant at any
time during the Term; provided that if any of the Tenant's property is removed,
Tenant shall repair or pay the cost of repairing any damage to the Demised
Premises, the Building or the Exterior Common Areas resulting from the
installation and/or removal thereof. Any equipment or other property for which
Landlord shall have granted any allowance or credit to the Tenant shall not be
deemed to have been installed by or for the account of Tenant without expense
to the Landlord, shall not be considered as the Tenant's Property and shall be
deemed the property of Landlord.
16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days
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after such an earlier termination date, Tenant shall remove from the Demised
Premises all of the Tenant's Property (except such items thereof as Landlord
shall have expressly permitted to the remain, which property shall become the
property of Landlord if not removed), and Tenant shall repair any damage to the
Demised Premises, the Building and the Exterior Common Areas resulting from any
installation and/or removal of the Tenant's Property. Any items of the
Tenant's Property which shall remain in the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of Landlord, be deemed to the have been
abandoned, and in such case such items may be retained by Landlord as its
property or disposed of by Landlord, without accountability, in such manner as
Landlord shall determine at Tenant's Expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Tenant shall, throughout the Term, be responsible for all
repairs and maintenance in and to the Building both interior and exterior,
structural and non-structural, except as set forth in section 17.02 below.
Tenant shall take good care of the Demised Premises, the fixtures and
appurtenances therein. Tenant shall also promptly make all repairs in or to
the Demised Premises for which Tenant is responsible, and any repairs required
to be made by Tenant to the mechanical, electrical, sanitary, heating,
ventilating, air-conditioning or other systems of the Building shall be
performed only by contractor(s) designated by Landlord. Tenant shall also be
responsible for the cost and expense of all repairs, interior and exterior,
structural and nonstructural, in and to the Demised Premises, and the Building
(including the facilities and systems thereof) and the Common Areas the need
for which arises out of (a) the performance of the Tenant's Work (other than as
performed by
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Landlord) or alterations, (b) the installation, use or operation of the
Tenant's Property in the Demised Premises, (c) the moving of the Tenant's
Property in or out of the Building, or (d) the act, omission, misuse or neglect
of Tenant or any of its subtenants or its or their employee, agents,
contractors or invitees.
17.02. Landlord shall make repairs required with respect to the
Demised Premises for the items and time periods hereinafter set forth: (a)
Landlord shall maintain and make all repairs and replacements required to the
cure defects in workmanship or materials in the roof and roof deck of Building
and Building C during the Term of this Lease of which Tenant gives notice, in
writing, during the Term of this Lease, provided, however, that the cost of
such maintenance, repair and replacement shall be paid fifty percent (50%) by
Landlord and fifty percent (50%) by Tenant, (b) Landlord shall make all repairs
required to the cure defects in workmanship or materials of the structure
(excluding building systems, except for any Landlord's design defects),
footings and foundations of Building B, occurring within the first ten (10)
years after substantial completion of Building B, of which defects Tenant gives
Landlord notice, in writing, within the first ten (10) years after substantial
completion of Building B, (c) Landlord shall make all repairs required to the
cure defects in workmanship and materials of the building structure (excluding
building systems, except for any Landlord's design defects), footings and
foundations of the portion of the Demised Premises located within Building C,
occurring within the initial twenty five (25) year term of this Lease; and (d)
Landlord shall make all repairs required to the cure defects in workmanship and
materials of the Parking Area, occurring within the first three (3) years of
the Term, of which defects Tenant gives Landlord notice, in writing, within the
first three (3) years of the Term. Landlord
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shall not be responsible for any repair or restoration of the aforementioned
items after the time periods for notices indicated, nor for any items not
specifically set forth in this section. If any of the repairs or restorations
referred to in subsections (a) through (d) above are necessitated by any
willful act or any negligence of Tenant or its agents, licensees, employees,
servants, representatives or contractors, Tenant agrees to the make such
repairs at its cost and expense. If any of the aforementioned repairs or
restorations are necessitated by casualty or condemnation, such repairs or
restorations shall be governed by the sections of this Lease regarding casualty
and condemnation. Any replacement or restoration made pursuant to this section
shall be of equivalent quality to the items replaced or restored. Landlord
shall not be responsible nor shall it be obligated to make any repair of any
work done in the Demised Premises or item installed in the Demised Premises by
Tenant, subtenant, or their agents, licensees, employees, servants,
representatives or contractors (unless repair work is required due to the
Landlord's wrongful action), except if Tenant performs (or completes) such work
as the result of a failure by Landlord to the make any repair or replacement
required by Landlord pursuant to the this Lease. Landlord shall not be
responsible for, nor shall anything in this Lease be construed as obligating
Landlord to the repair any design defect in the Building or the systems thereof
or any installation to the extent that the design defect was included at the
direction of Tenant.
17.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to the Tenant, nor shall Tenant's covenants and
obligations under this Lease be reduced or abated in any manner whatsoever, by
reason of any inconvenience, annoyance, interruption or injury to the business
arising from Landlord's doing any repairs, maintenance, or changes which
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Landlord is required or permitted by this Lease, or required by Law, to make in
or to any portion of the Building. Landlord shall use reasonable efforts to
perform any such repairs, maintenance or changes with as little interference to
Tenant's business operation at the Demised Premises as is practicable
(provided, however, that nothing contained herein shall be construed as
requiring Landlord to employ overtime or nighttime labor).
ARTICLE 18 - ELECTRIC ENERGY
18.01. Tenant shall purchase the electric energy required by it in
the Demised Premises at its own expense on a direct-metered basis from the
public utility servicing the Building, and Landlord shall permit the risers,
conduits and feeders in the Building, to the extent available, suitable and
safely capable, to be used for the purpose of transmitting such electric energy
to the Demised Premises. Landlord shall not be liable for any failure,
inadequacy or defect in the character or supply of electric current furnished
to the Demised Premises except for actual damage suffered by Tenant by reason
of any such failure, inadequacy or defect caused by the negligence of Landlord.
18.02. Tenant's use of electric energy in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises.
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ARTICLE 19 - HEAT, VENTILATION AND AIR-CONDITIONING
19.01. Tenant shall maintain and operate the heating, ventilating and
air-conditioning systems ("HVAC") serving the Demised Premises. Tenant shall,
upon written notice to Landlord given thirty (30) days prior to the
Commencement Date, have the right to require Landlord to maintain the HVAC
system serving the Demised Premises and in such event shall pay to Landlord the
charges imposed by Landlord with respect to such maintenance as Additional
Charges under this Lease. The temperature maintained in the Demised Premises
shall at all times be within the limits prescribed by the Legal Requirements.
19.02. The performance in respect of HVAC is conditioned on the
connected electric load within the Demised Premises not exceeding the HVAC
design conditions for the Demised Premises. Use of the Demised Premises, or
any part thereof, in a manner exceeding the HVAC design conditions (including
occupancy and connected electrical load), or rearrangement of partitioning
which interferes with normal operation of the HVAC in the Demised Premises, or
the use of computer or data processing machines or other machines or equipment,
may require changes in the HVAC systems servicing the Demised Premises, in
order to provide comfortable occupancy. Such changes so occasioned, shall be
made by Tenant, at its expense, as alterations in accordance with the
provisions of Article 15, but only to the extent permitted and upon the
conditions set forth in Article 15.
ARTICLE 20 - OTHER SERVICES: SERVICE INTERRUPTION
20.01. Where the Demised Premises is served by elevator, Landlord
shall, at Tenant's sole cost and expense, provide elevator service to the
Demised Premises and shall have at least one (1) elevator subject to call at
all other times. The use of the elevators shall be subject to the Rules and
Regulations.
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20.02. Tenant shall cause the Demised Premises, including the
exterior and the interior of the windows thereof, to be cleaned in a manner
standard to the Building and in accordance with the standards set forth in
Exhibit E.
20.03. Landlord shall, at Tenant's sole cost and expense, furnish
adequate hot and cold water to the Demised Premises for drinking, lavatory and
cleaning purposes. Landlord shall install at Tenant's expense, meters to
measure Tenant's consumption of cold water and/or hot water for such other
purpose. Tenant shall pay directly to the appropriate utility charges for the
quantity of water shown on such meters on demand. Landlord shall not be
responsible or liable to Tenant for any interruption in water or other utility
service to the Demised Premises caused by the company providing such utility or
for any other reasons beyond the reasonable control of Landlord.
ARTICLE 21 - ACCESS, CHANGES AND NAME
21.01. Landlord reserves right of access to all core corridor walls
and doors and any core corridor entrance, any terraces or roofs adjacent to the
Demised Premises, and any space in or adjacent to the Demised Premises used for
shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other Building facilities and the use thereof, as well as access
thereto through the Demised Premises to the extent reasonably required and with
reasonable notice in connection with performance by Landlord of any of its
maintenance or repair obligations under this Lease or other leases of the
Building. Landlord also reserves the right, upon reasonable notice, to
install, erect, use and maintain pipes, ducts and conduits in and through the
Demised Premises, provided such are properly enclosed.
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21.02. Landlord and its agents shall have the right to enter and/or
pass through the Demised Premises, upon reasonable notice (except in cases of
emergency), (a) to examine the Demised Premises and to show then to actual and
prospective Superior Mortgagees, or prospective purchasers of the Building, and
(b) to make such repairs, alterations, additions and improvements in or to the
Demised Premises and/or in or to the Building or its facilities and equipment
as Landlord is required to perform its maintenance or repair obligations under
this Lease or any other lease of Building C. Landlord shall be allowed to take
all materials into and upon the Demised Premises that may be required in
connection therewith (but not for storage, except for work being performed upon
the Demised Premises), without any liability to Tenant and without any
reduction of Tenant's obligations hereunder but Landlord shall restore the
Demised Premises thereafter. During the period of eighteen (18) months prior
to the Expiration Date, Landlord and its agents may, upon reasonable notice,
and without interference with Tenant's operations exhibit the Demised Premises
to prospective tenants.
21.03. If at any time any windows of the Demised Premises are
temporarily darkened or obstructed by reason of any repairs, improvements,
maintenance and/or cleaning in or about the Building, or if any part of the
Building or the Common Areas, other than the Demised Premises, is temporarily
or permanently closed or inoperable, the same shall not be deemed a
constructive eviction (provided Tenant is not denied access for ingress and
egress, other than as may be reasonably required on a temporary basis to
perform repairs and maintenance required pursuant to this Lease) and shall not
result in any reduction or diminution of Tenant's obligations under this Lease.
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21.04. If, during the last month of the Term, Tenant has removed all
or substantially all of the Tenant's Property from the Demised Premises,
Landlord may without notice to Tenant, immediately enter the Demised Premises
and later, renovate and decorate the same, without liability to Tenant and
without reducing or otherwise affecting Tenant's obligations hereunder.
21.05. Landlord reserves the right, at any time and from time to
time, to make, subject to the Provisions of Section 17.03 hereof, such changes,
alterations, additions and improvements in or to the exterior of the Building
and to any portion of the interior thereof not leased to Tenant, as Landlord
shall deem necessary or desirable.
ARTICLE 22 - MECHANICS' LIENS AND OTHER LIENS
22.01. Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to
subject Landlord's interest or estate to any liability under any mechanic's or
other lien law. If any mechanic's or other lien or any notice of intention to
file a lien is filed against the Land, or any part thereof, or the Demised
Premises, or any part thereof, for any work, labor, service or materials
claimed to have teen performed or furnished for or on behalf of Tenant or
anyone holding any part of the Demised Premises through or under Tenant, Tenant
shall cause the same to be canceled and discharged of record by payment, bond
or order of a court of competent jurisdiction within sixty (60) days after
notice by Landlord to Tenant.
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ARTICLE 23 - NON-LIABILITY AND INDEMNIFICATION
23.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the negligence (or willful wrongful acts) of
Landlord, its agents, servants or employees in the operation or maintenance of
the Land, Building, or Project without contributory negligence on the part of
Tenant or any of its subtenants or licensees or its or their employees, agents
or contractors. Further, neither Landlord nor any partner, joint venturer,
director, officer, agent, servant or employee of Landlord shall be liable (a)
for any such damage caused by other tenants or Persons in, upon or about the
Land or Building, or caused by operations in construction of any private,
public or quasi-public work; or (b) even if negligent, for consequential
damages arising out of any loss of use of the Demised Premises or any equipment
or facilities therein by Tenant or any Person claiming through or under Tenant
(except that the provisions of this subsection (b) shall not excuse liability
of Landlord for intentional tortious conduct of Landlord or any partner, joint
venturer, director, officer, agents, servant or employee of Landlord).
23.02. Tenant shall indemnify and hold harmless Landlord and all
Mortgagees and their respective partners, joint venturers, directors, officers,
agents, servants and employees from and against any and all claims arising from
or in connection with (a) the conduct or management of the Demised Premises or
of any business therein, or any work or thing whatsoever done, or any condition
created (other than by Landlord) in the Demised Premises during the Term or
during the period of time, if any, prior to the Commencement Date that Tenant
may have been given access to the Demised Premises; (b) any act, omission or
negligence of Tenant or any of its subtenants or licensees or its
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or their partners, joint venturers, directors, officers, agents, employees or
contractors; and (c) any accident, injury or damage whatever (unless caused
solely by Landlord's negligence or willful wrongful acts) occurring in the
Demised Premises, together with all costs, expenses and liabilities incurred or
in connection with each such claim or action or proceeding brought thereon,
including, without limitation, all attorneys' fees and expenses. In case of
any action or proceeding is brought against Landlord and any Mortgagee and/or
its or their partners, joint venturers, directors, officers, agents and/or
employees by reason of any such claim, Tenant, upon notice from Landlord or
such Superior Mortgagee, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord).
23.03 Landlord shall indemnify and hold harmless Tenant and its
partners, joint venturers, directors, officers, agents, servants and employees
from and against any and all claims arising from or in connection with (a) any
act, omission or negligence of Landlord or any of its tenants, subtenants or
licensees of its or their partners, joint venturers, directors, officers,
agents, employees or contractors, in connection with the conduct or management
of the Common Areas or of any business or activity therein, or any work or
thing whatsoever done, or any condition created or existing, and (b) any
accident, injury or damage whatsoever (unless caused solely by Tenant's
negligence or willful wrongful acts) occurring in the Common Areas together
with all costs, expenses and liabilities incurred or in connection with each
such claim or action or proceeding brought thereon, including, without
limitation, reasonable attorneys' fees and expenses (provided, however, that
with respect to the portion of the Parking Area allocated to Tenant's exclusive
parking, Landlord's obligations hereunder shall be limited to the extent of
Landlord's negligence or willful wrongful acts). In case any action or
proceeding is brought against Tenant and/or its or their partners, joint
venturers, directors, officers, agents
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and/or employees by reason of any such claim, Landlord, upon notice from
Tenant, shall resist and defend such action or proceeding.
23.04. Notwithstanding any provision to the contrary, Tenant shall
look solely to the estate and property of Landlord in and to the Land and the
Building, together with and subject to the non-exclusive rights to Common Areas
included within the Demised Premises not exclusively allocable to the Building,
(or the proceeds received by Landlord on a sale of such estate and property but
not the proceeds of any financing or refinancing thereof, except to the extent
such financing proceeds exceed eighty-five percent (85%) of the fair market
value of the Land and Building at the time Tenant obtains a final judgment
against Landlord) in the event of any claim against Landlord arising out of or
in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas, and Tenant agrees
that the liability of Landlord arising out of or in connection with this lease,
the relationship of Landlord and Tenant or Tenant's use of the Demised Premises
or the Common Areas shall be limited to such estate and property of Landlord
(or sale proceeds). No other properties or assets of Landlord or any partner,
joint venturer, director, officer, agent, servant or employee of Landlord shall
be subject to levy, execution or other enforcement procedures for the
satisfaction of any judgement (or other judicial process) or for the
satisfaction of any other remedy of Tenant arising out of, or in connection
with, this Lease, the relationship of Landlord and Tenant or Tenant's use of
the Demised Premises or the Common Areas and if Tenant shall acquire a lien on
of interest in any other properties or assets by judgment or otherwise, Tenant
shall promptly release such lien on or interest in such other properties and
assets by executing, acknowledging and delivering
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to Landlord an instrument to that effect prepared by Landlord's attorneys.
Tenant hereby waives the right of specific performance and any other remedy
allowed in equity if specific performance or enforcement of such other remedy
would result in any liability of Landlord for the payment of money to Tenant,
or to any court or governmental authority (by way of fines or otherwise) for
Landlord's failure or refusal to observe a judicial decree or determination, or
to any third party.
ARTICLE 24 - DAMAGE OR DESTRUCTION
24.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 24 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
24.02. Subject to the provision of Section 24.05, if all or part of
the Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, to the extent
Landlord receives the proceeds of rent insurance, the Rent shall be abated or
reduced, as the case may be, in the proportion that the untenantable area of
the Demised Premises located in the affected Building bears to the total area
of the Demised Premises in the affected Building, for the period from the date
of the damage or destruction to the date the damage to the portion of the
Demised Premises located in the affected Building shall be made Ready for
Occupancy; provided, however, should Tenant reoccupy a portion of the Demised
Premises
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during the period the repair or restoration work is taking place and prior to
the date that the Demised Premises are substantially repaired or made
tenantable the Rent allocable to such reoccupied portion, based upon the
proportion which the area of the reoccupied portion of the Demised Premises
located in the affected Building bears to the total area of the Demised
Premises located in the affected Building, shall be payable by Tenant from the
date of such occupancy.
24.03. If (a) the Demised Premises shall be totally damaged or
destroyed by fire or other casualty, or (b) Building B or Building C shall be
so damaged or Destroyed by fire or other casualty that its repair or
restoration requires the expenditure, as estimated by a reputable contractor or
architect designated by Landlord and approved by Tenant, which approval shall
not be unreasonably withheld, of more than thirty-five percent (35%) of the
full insurable value of Building B or Building C, whichever is damaged or
destroyed or more than twenty percent (20%) of the full insurable value of
Building B and Building C, in the aggregate, immediately prior to the casualty,
and in either event, an engineer selected by Landlord and approved by Tenant,
which approval shall not be unreasonably withheld or delayed, shall reasonably
estimate that there will be less than two (2) years remaining in the Term
(including all renewal terms for which Tenant has validly exercised the
applicable renewal option) upon completion of restoration of the Building or
the Demised Premises, as the case may be, then in either such case Landlord or
Tenant may terminate this Lease by giving the other notice to such effect
within ninety (90) days after the date of the fire or other casualty.
Notwithstanding anything contained in this Lease to the contrary, if there
shall occur such a casualty at such time as there shall be estimated to be less
than two (2) years remaining in the Term of this Lease after completion of
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restoration but prior to the time that pursuant to the provisions of Article 38
hereof Tenant shall have the right to exercise any renewal option, then, prior
to Landlord terminating this Lease, Tenant shall have the right to exercise any
such renewal option otherwise in accordance with the provisions of Article 38
hereof. If either party shall elect to so terminate this Lease, the Term shall
expire upon the tenth (10th) day after such notice is given and Tenant shall
vacate the Demised Premises and surrender the same to Landlord in accordance
with the provisions of this Lease. Upon the termination of this Lease in
accordance with this Section 24.03, Tenant's liability for Rent thereafter due
and payable shall cease upon the later to occur of the surrender and vacation
of the Demised Premises by Tenant or the expiration of the term of any rent
insurance payable with respect to the Lease and any prepaid portion of Rent for
any period after such date shall be refunded by Landlord to Tenant.
24.04. Except as provided for in Section 24.08, Tenant shall not be
entitled to terminate this Lease and no damages, compensation or claim shall be
payable by Landlord for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Demised Premises or of the
Building pursuant to this Article 24. Landlord shall use its best efforts to
make such repair or restoration promptly and in such manner as to not
unreasonably interfere with Tenant's use and occupancy of the Demised Premises,
but Landlord shall not be required to do such repair or restoration work except
during normal (non-overtime) daytime construction hours.
24.05. Notwithstanding any of the foregoing provisions of this
Article 24, if by reason of some act or omission on the part of Tenant or any
of its subtenants or its or their partners, directors, officers, servants,
employees, agents or contractors,
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either (a) Landlord or any Superior Mortgagee shall be unable to collect all of
the insurance proceeds (including, without limitation, rent insurance proceeds)
applicable to damage or destruction of the Demised Premises or the Building by
fire or other casualty, or (b) the Demised Premises or the Building shall be
damaged or destroyed or rendered completely or partially untenantable on
account of fire or other casualty, then, without prejudice to any other
remedies which may be available against Tenant, there shall be no abatement or
reduction of the Rent. Further, nothing contained in this Article 24 shall
relieve Tenant from any liability that may exist as a result of any damage or
destruction by fire or other casualty.
24.06. Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage
to or replace the Tenant's Property.
24.07. The provisions of this Article 24 shall be deemed an express
agreement governing any case of damage or destruction of the Demised Premises
and/or Building by fire or other casualty, and any law providing for such a
contingency in the absence of an express agreement, now or hereafter in force,
shall have no application in such case.
24.08. Anything contained in this Article 24 to the contrary
notwithstanding, within thirty (30) days after Landlord has notice of any
damage that materially impairs Tenant's ability to conduct its business in the
Demised Premises, Landlord shall deliver to Tenant a statement prepared by a
reputable contractor approved by Tenant, which approval shall not be
unreasonably withheld or delayed, setting forth such contractor's estimate as
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to the time required to repair such damage and the assumptions regarding the
use of labor including overtime labor, if applicable) and construction methods
considered in arriving at such estimate. If Landlord and Tenant are unable to
agree upon such contractor within fifteen (15) days after notice of such
damage, either party may submit such dispute to arbitration pursuant to Article
36 hereof, provided, however, that the award of such arbitration shall be
rendered within thirty (30) days of submission of such dispute to arbitration.
If the estimated time period exceeds eighteen (18) months from the date of such
damage, Tenant may elect to terminate this Lease by notice to Landlord not
later than thirty (30) days following receipt of such statement. If Tenant
makes such election, the Term shall expire upon the thirtieth (30th) day after
notice of such election is given by Tenant and Tenant shall vacate the Demised
Premises and surrender the same to Landlord in accordance with the provisions
of this Lease. Upon the termination of this Lease under the conditions
provided in this Section, Tenant's liability for Rent thereafter due and
payable shall cease upon the later to occur of the surrender and vacation of
the Demised Premises by Tenant or the expiration of the term of any rent
insurance payable with respect to this Lease and any prepaid portion of Rent
for any period after such date shall be refunded by Landlord to Tenant.
24.09. If, at any time during the Term, the Building shall be so
damaged or destroyed by fire or other casualty that its repair or restoration
requires the expenditure, as estimated by a reputable contractor or architect
designated by Landlord and approved by Tenant, which approval shall not be
unreasonably withheld, of more than thirty-five percent (35%) of the full
insurable value of Building B or Building C, whichever is damaged or destroyed,
or twenty-five percent (25%) of the full insurable value of Building B and
Building C, in the aggregate immediately
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prior to the casualty and there shall be insufficient insurance proceeds
available to Landlord to pay for the estimated cost of repair and restoration,
then Landlord may terminate this Lease, whether or not Tenant shall have
elected to terminate this Lease pursuant to Section 24.08 hereof, by giving
Tenant notice to such effect within sixty (60) days after this date of the fire
or other casualty. If Landlord shall elect to so terminate this Lease, the
Term shall expire upon the tenth (10th) day after such notice is given and
Tenant shall vacate the Demised Premises and surrender the same to Landlord in
accordance with the provisions of this Lease. Upon the termination of this
Lease in accordance with this Section 24.09, Tenant's liability for Rent
thereafter due and payable shall cease upon the later to occur of the surrender
and vacation of the Demised Premises by Tenant or the expiration of the term of
any rent insurance payable with respect to this Lease and any prepaid portion
of Rent for any period after such date shall be refunded by Landlord to Tenant.
ARTICLE 25 - EMINENT DOMAIN
25.01 If the whole of the Demised Premises shall be taken by any
public or quasi-public authority under the power of condemnation, eminent
domain or expropriation, or in the event of conveyance of the whole of the
Demised, Premises in lieu thereof, this Lease shall terminate as of the day
possession shall be taken by such authority. If 25% or less of the Floor Space
of the Demised Premises shall be so taken or conveyed, this Lease shall
terminate only in respect of the part so taken or conveyed as of the day
possession shall be taken by such authority. If more than 25% of the Floor
Space of the Demised Premises shall be so taken or conveyed, this Lease shall
terminate only in respect of the part so taken or conveyed as of the day
possession shall be taken by such authority, but either party shall have the
right
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to terminate this Lease upon notice given to the other party within 30 days
after such taking possession. If so much of the parking facilities shall be so
taken or conveyed that the number of parking spaces necessary, in Tenant s
reasonable judgment, for the continued operation of the Demised Premises shall
not be available, Tenant may, by notice to Tenant, terminate this Lease as of
the day possession shall be taken. If this Lease shall continue in effect as
to any portion cf the Demised Premises not so taken or conveyed, the Rent shall
be computed as of the day possession shall be taken on the basis of the
remaining Floor Space of the Demised Premises. Except as specifically provided
herein, in the event of any such taking or conveyance there shall be no
reduction in Rent. If this Lease shall continue in effect, Landlord shall, at
its expense, but shall be obligated only to the extent of the net award or
other compensation (after deducting all expenses in connection with obtaining
same) available to Landlord for the improvements taken or conveyed make all
necessary alterations so as to constitute the remaining Building a complete
architectural and tenantable unit, except for the Tenants' property, and Tenant
shall make all alterations or replacements to the Tenant's Property and
decorations in the Demised Premises. All awards and compensation for any
taking or conveyance, whether for the whole or a part of the Land or Building,
the Demised Premised or otherwise, shall be property of Landlord, and Tenant
hereby assigns to Landlord all of Tenant's right, title and interest in and to
any and all such awards and compensation, including, without limitation, any
award or compensation for the value of the unexpired portion of the Term.
Tenant shall be entitled to claim, prove and receive in the condemnation
proceeding such award or compensation as may be allowed for the Tenant's
Property and for loss of business, good will, and depreciation or injury to and
cost of removal of the Tenant's Property, but only if such award or
compensation shall
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be made by the condemning authority in addition to, and shall not result in a
reduction of, the award or compensation made by it to Landlord.
25.02. If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or
payment for such taking which represents compensation for the use and occupancy
of the Demised Premises, for the taking of the Tenant's Property and for moving
expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay the Rent
in full when due. If the period of temporary use or occupancy shall extend
beyond the Expiration Date, that part of the award or payment which represents
compensation for the use and occupancy of the Demised Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive (except as otherwise provided below) so much thereof as represents
compensation for the period up to and including the Expiration Date and
Landlord shall receive so much thereof as represents compensation for the
period after the Expiration Date. All monies to be paid to Tenant as, or as
part of, an award or payment for temporary use and occupancy for a period
beyond the date to which the Rent has been paid shall be received, held and
applied by the first Superior Mortgage (or if there is no Superior Mortgagee,
by Landlord as a trust fund) for payment of the Rent becoming due hereunder.
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ARTICLE 26 - SURRENDER
26.01. On the Expiration Date, or upon any earlier termination of
this Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant
shall quit and surrender the Demised Premises to Landlord "broom-clean" and in
good order, condition and repair, except for ordinary wear and tear and such
damage or destruction as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all of Tenant's property therefrom except as
otherwise expressly provided in this Lease.
26.02. If Tenant remains in possession of the Demised Premises after
the expiration or earlier termination of the Term, Tenant shall be deemed to be
occupying the Demised Premises as a tenant from month to month at the
sufferance of Landlord subject to all of the provisions of this Lease, except
that the monthly Fixed Rent shall be one hundred fifty percent (150%) of the
Fixed Rent in effect during the last month prior to such expiration or
termination.
26.03. No act or thing done by Landlord or its agents shall be deemed
an acceptance of a surrender of the Demised Premises, and no agreement to
accept such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 27 - CONDITIONS OF LIMITATION
27.01. This Lease is subject to the limitation that whenever Tenant
(a) shall make an assignment for the benefit of creditors, or (b) shall
commence a voluntary case or have entered against it an order for relief under
any chapter of the Federal Bankruptcy Code (Title 11 of the United States Code)
or any similar order or decree under any federal or state law, now in
existence, or hereafter enacted having the same general purpose, and such order
or decree shall have not been stayed or vacated
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within 30 days after entry, or (c) shal1 cause, suffer, permit or consent to
the appointment of a receiver, trustee, administrator, conservator,
sequestrator, liquidator or similar official in any federal, state or foreign
judicial or nonjudicial proceeding, to hold, administer and/or liquidate all or
substantially all of its assets, and such appointment shall not have been
revoked, terminated, stayed or vacated and such official discharged of his
duties within 30 days of his appointment, then Landlord, at any time after the
occurrence of any such event, may give Tenant a notice of intention to end the
Term at the expiration of five (5) days from the date of service of such notice
of intention, and upon the expiration of said five (5) day period, whether or
not the Term shall theretofore have commenced, this Lease shall terminate with
the same effect as if tiat day were the expiration date of this Lease, but
Tenant shall remain liable for damages as provided in Article 29.
27.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Fixed Rent, and such default shall
continue for five (5) days, or (b) if Tenant shall default in the payment of
any Additional Charges due under this Lease which default shall continue for
ten (10) days, or (c) if Tenant shall, by action or inaction, be in default of
any of its obligation under this Lease (other than a default in the payment of
Rent) and such default shall continue and not be remedied within thirty (30)
days after Landlord shall have given to Tenant a notice specifying the same,
or, in the case of a default which cannot with due diligence be cured within a
period of thirty (30) days and the continuance of which for the period required
for cure will not subject Landlord or any Superior Mortgagee to prosecution for
a crime (as more particularly described in the last sentence of Section 12.02)
or foreclosure of any Superior Mortgage if Tenant shall not, (i)
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within said thirty (30) day period advise Landlord of Tenant's intention to
take all steps necessary to remedy such default, (ii) duly commence within said
thirty (30) day period, and thereafter diligently prosecute to completion all
steps necessary to remedy the default, and (iii) complete such remedy within a
reasonable time after the date of said notice by Landlord, or (c) if any event
shall occur or any contingency shall arise whereby this Lease would, by
operation of law or otherwise, devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted by Article 11, or
(d) if Tenant shall abandon the Demised Premises, then in any of said cases
Landlord may give to Tenant a notice of intention to end the Term at the
expiration of ten (10) days from the date of the service of such notice of
intention, and upon the expiration of said ten (10) days, whether or not the
Term shall theretofore have commenced, this Lease shall terminate with the same
effect as if that day were the expiration date of this Lease, but Tenant shall
remain liable for damages as provided in Article 29.
ARTICLE 28 - RE-ENTIY BY LANDLORD
28.01. If Tenant shall default in the payment of any Fixed Rent, and
such default shall continue for five (5) days, or if Tenant shall default in
the payment of Additional Charges and such default shall continue for ten (10)
days, or if this Lease shall terminate as provided in Article 27, Landlord or
Landlord's agents and employees may immediately or at any time thereafter
re-enter the Demised Premises, or any part thereof, either by summary
dispossess proceedings or by any suitable action or proceeding at law, or
otherwise, without being liable to indictment, prosecution or damages therefor,
and may repossess the same, and may remove any Person therefrom, to the end
that Landlord may have, hold and enjoy the Demised Premises. The word
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"re-enter", as used herein, is not restricted to its technical legal meaning.
If this Lease is term, nated under the provisions of Article 27, or if Landlord
shall re-enter the Demised Premises under the provisions of this Article 28, or
in the event of the termination of this Lease, or of reentry, by or under any
summary dispossess or other proceedings or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall thereupon pay
to Landlord the Rent payable up to the time of such termination of this Lease,
or of such recovery of possession of the Demised Premises by Landlord, as the
case may be, and shall also pay to Landlord damages as provided in Article 29.
28.02. In the event of a breach or threatened breach by Tenant of any
of its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any
remedy allowed at law or in equity as if specific remedies were not provided
for herein.
28.03. If this Lease shall terminate under the provisions of Article
27, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article 28, or in the event of the termination of this Lease, or of
reentry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain ill monies, if any, paid by Tenant to
Landlord, whether as Advance Rent, security or otherwise, but such monies shall
be credited by Landlord against any Rent due from Tenant at the time of such
termination or
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re-entry or, at Landlord's option, against any damages payable by Tenant under
Article 29 or pursuant to law.
ARTICLE 29 - DAMAGES
29.01. If this Lease is terminated under the provisions of Article
27, or if Landlord shall re-enter the Demised Premises under the provisions of
Article 28, or in the event of the termination of this Lease, or of re-entry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Tenant
shall pay as Additional Charges to Landlord as a condition precedent to the
dismissal of any summary dispossess or other proceeding or action as damages,
at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate
amount of the Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges to be
the same as were the average monthly Additional Charges payable for
the year, or if less than 365 days have then elapsed since the
Commencement Date, the partial year, immediately preceding such
termination or re-entry) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry, as the
case may be, and ending with the Expiration Date, over (ii) the
aggregate rental value (determined by applying an appropriate discount
rate) of the Demised Premises for the same period; or
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(b) sums equal to the Fixed Rent and the Additional Charges which
would have been payable by Tenant had this Lease not so terminated, or
had Landlord not so re-entered the Demised Premises, payable upon the
due dates therefor specified herein following such termination or such
re-entry and until the Expiration Date, provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord
shall credit tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Demised Premises and in securing possession thereof,
as well as the expenses of reletting, including, without limitation,
altering and preparing the Demised Premises for new tenants, brokers'
commissions, legal fees, and all other expenses properly chargeable
against the Demised Premises and the rental therefrom, it being
understood that any such reletting may be for a period shorter or
longer than the period ending on the Expiration Date; but in no event
shall Tenant be entitled to receive any excess of such net rents over
the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this
subdivision (b) to a credit in respect of any rents from a reletting,
except to the extent that such net rents are actually received by
Landlord. If the Demised Premises or any part thereof should be relet
in combination with other space, then proper apportionment on a square
foot basis shall be made of the rent received from such reletting and
of the expenses of reletting.
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If the Demised Premises or any part thereof be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure to relet the Demised Premises or any part thereof,
or if the Demised Premises or any part thereof are relet, for its failure to
collect the rent under such reletting, and no such failure to relet or failure
to collect rent shall release or affect Tenant's liability for damages or
otherwise under this Lease.
29.02. Suit or suits for the recovery of such damages or, any
installments thereof, may be brought by Landlord at any time and from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the Term would have expired if it
had not been so terminated under the provisions of Article 27, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain
as damages by reason of the termination of this Lease or re-entry of the
Demised Premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time,
whether or not such amount be greater than, equal to, or less than any of the
sums referred to in Section 29.01.
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29.03 In addition, if this Lease is terminated under the provisions
of Article 27, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 28, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof; and (c) for the breach of any
covenant of Tenant set forth above in this Section 29.03, Landlord shall be
entitled immediately, without notice or other action by Landlord, to recover,
and Tenant shall pay, as and for liquidated damages therefor, the cost of
performing such covenant (as estimated by an independent contractor selected by
Landlord).
29.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 29, if any damages payable hereunder by Tenant to
Landlord are not paid within ten (10) days after demand therefor the same shall
bear interest at the Late Payment Rate from the due date thereof until paid,
and the amounts of such interest, may, at Landlord's option, be Additional
Charges hereunder.
29.05. In addition to any remedies which Landlord may have under this
Lease, if there shall be a default hereunder by Tenant which shall not have
been remedied within the applicable grace period, Landlord shall not be
obligated to furnish to Tenant or the Demised Premises any HVAC services
outside normal business hours or business days (Monday through Friday, except
legal holidays), or any extra or additional cleaning services; and the
discontinuance of any one or more such services shall be without
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liability by Landlord to Tenant and shall not reduce, diminish or otherwise
affect any of Tenant's covenants and obligations under this Lease.
29.06. In the event of Tenant's default under this Lease and
Landlord's re-entry and recovery of possession of the Demised Premises,
Landlord shall use commercially reasonable efforts to mitigate Landlord's
damages by reletting of the Demised Premises. The net proceeds of any such
reletting received by Landlord shall be credited against Tenant's
then-outstanding obligations under this Lease. As used herein, "net proceeds"
shall mean the full amount of rent and other similar charges paid to Landlord
prior to the Expiration Date by all succeeding tenants of all or any portion of
the Demised Premises less Landlord's actual expenses of reletting the Demised
Premises (including, but not limited to expenses or work done to the Demised
Premises in connection with such reletting, broker's fees and attorneys' fees).
Nothing contained herein shall require Landlord to relet the Demised Premises
prior to or with any preference over the leasing of any other premises of
Landlord or any affiliate of Landlord, nor shall any rental of such other
premises reduce the damages which Landlord would be entitled to recover from
Tenant.
ARTICLE 30 - AFFIRMATIVE WAIVERS
30.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and
privilege which it, they or any of them might have under or by reason of any
present or future law, to redeem the Demised Premises or to have a continuance
of this Lease after being dispossessed or ejected from the Demised Premises by
process of law or under the terms of this Lease or after the termination of
this Lease as provided in this Lease.
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30.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including, without limitation, any
claim or injury or damage, and any emergency and other statutory remedy with
respect thereto.
ARTICLE 31 - NO WAIVERS
31.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be
construed as a waiver or relinquishment for the future of the performance of
such one or more obligations of this Lease or of the right to exercise such
election, but the same shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt by Landlord of
Fixed Rent or Additional Charges with knowledge of breach by Tenant of any
obligation of this Lease shall not be deemed a waiver of such breach.
ARTICLE 32 - CURING TENANT'S DEFAULTS
32.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of fifteen (15) days from
the date Landlord gives Tenant notice of the default. Bills for any expenses
incurred by Landlord in connection with
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any such performance by it for the account of Tenant, and bills for all costs,
expenses and disbursements of every kind and nature whatsoever, including
reasonable attorneys' fees and expenses, involved in collecting or endeavoring
to collect the Rent or any part thereof or enforcing or endeavoring to enforce
any rights against Tenant or Tenant's obligations hereunder, under or in
connection with this Lease or pursuant to law, including any such cost, expense
and disbursement involved in instituting and prosecuting summary proceedings or
in recovering possession of the Demised Premises after default by Tenant or
upon the expiration of the Term or sooner termination of this Lease, and
interest on all sums advanced by Landlord under this Article at the Late
Payment Rate, may be sent by Landlord to Tenant monthly, or immediately, at
Landlord's option, and such amounts shall be due and payable in accordance with
the terms of such bills.
ARTICLE 33 - BROKER
33.01. Landlord and Tenant each represent to the other that no broker
except the Broker was instrumental in bringing about or consummating this Lease
and that each respectively had no conversations or negotiations with any broker
except the Broker concerning the leasing of the Demised Premises. Landlord and
Tenant agree to indemnify and hold harmless the other against and from any
claims for any brokerage commissions and all costs, expenses and liabilities in
connection therewith, including, without limitation, attorneys' fees and
expenses, arising out of any conversations or negotiations had by the
indemnifying party with any broker other than the Broker. Landlord shall pay
any brokerage commissions due the Broker pursuant to a separate agreement
between Landlord and the Broker.
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ARTICLE 34 - NOTICES
34.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered or sent by United States
registered or certified mail, return receipt requested, addressed to the other
party at the following addresses: as to Landlord, Hartz Mountain Industries,
Inc., 400 Plaza Drive, P.O. Box 1411, Secaucus, New Jersey 07094 to the
attention of General Counsel with a concurrent notice to the attention of
Controller, and as to Tenant, The Summit Bancorporation, 367 Springfield
Avenue, Summit, New Jersey 07091, to the attention of the President with a
concurrent notice to Charles Berman, Esq., 382 Springfield Avenue, Summit, New
Jersey 07901. All such notices shall be deemed to have been given, rendered or
made on the second day after the day so mailed, unless mailed outside the State
of New Jersey, in which case it shall be deemed to have been given, rendered or
made on the third business day after the day so mailed. Either party may, by
notice as aforesaid, designate a different address or addresses for notices,
statements, demands, consents, approvals or other communications intended for
it.
ARTICLE 35 - ESTOPPEL CERTIFICATES
35.01. Each party shall, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice,
execute and deliver to the requesting party a statement certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and
stating the
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modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance
of any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the
statement, any event has occurred which with the giving of notice or passage of
time, or both would constitute such a default of the requesting party, and, if
so, specifying each such event, any such statement delivered pursuant hereto
shall be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request.
ARTICLE 36 - ARBITRATION
36.01. Landlord may at any time request arbitration and Tenant may,
at any time when not in default in the payment of any Rent, request arbitration
of any matter in dispute, but only where arbitration is expressly provided for
in this Lease (i.e. sections 6.03 and 24.08). The party requesting
arbitration shall do so by giving notice to that effect to the other party,
specifying in said notice the nature of the dispute, and said dispute shall be
determined in Newark, New Jersey, by a single arbitrator, in accordance with
the rules then obtaining of the American Arbitration Association (or any
organization which is the successor thereto). The award in such arbitration
may be enforced on the application of either party by the order or judgment of
a court of competent jurisdiction. The fees and
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expenses of any arbitration shall be borne by the parties equally, but each
party shall bear the expense of its own attorneys and experts and the
additional expenses of presenting its own proof. If Tenant gives notice
requesting arbitration as provided in this Article, Tenant shall simultaneously
serve a duplicate of the notice on each Superior Mortgagee whose name and
address shall previously have been furnished to Tenant, and such Superior
Mortgagees shall have the right to participate in such arbitration.
ARTICLE 37 - MEMORANDUM OF LEASE
37.01. Neither Landlord nor Tenant shall record this Lease. However,
at the request of either party, Landlord and Tenant shall promptly execute,
acknowledge and deliver to either party a memorandum of lease in respect of
this Lease sufficient for recording. Such memorandum shall not be deemed to
change or otherwise affect any of the obligations or provisions of this Lease.
Whichever party records such memorandum of Lease shall pay all recording costs
and expenses, including any taxes that are due upon such recording.
ARTICLE 38 - EXTENSION OF TERM
38.01. Provided Tenant is not in default under this Lease, Tenant
shall have an option to extend the Term from the date upon which this Lease
would otherwise expire for two (2) periods of ten (10) years (the "First
Extended Period" and the "Second Extended Period") respectively, each such
period being referred to as an "Extended Period". If Tenant elects to exercise
its option to extend the Term it shall give notice (the "Option Notice") of
such election to Landlord on or before the
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date which is twenty six (26) months before the beginning of the Extended
Period with respect to which such option is being exercised. Tenant agrees
that it shall have forever waived its right to exercise any such option if it
shall fail for any reason whatsoever to give the Option Notice to Landlord by
the time provided for the giving of such notice, whether such failure is
inadvertent or intentional, time being of the essence as to the exercise of
such option. If Tenant gives the Option Notice and also (as hereinafter
provided) the Term shall be automatically extended for the Extended Period
covered by the option so exercised without execution of an extension or renewal
lease. Within ten (10) days after request of either party after the effective
exercise of any such option, Landlord and Tenant shall execute, acknowledge and
deliver to each other duplicate originals of an instrument in recordable form
confirming that such option was effectively exercised. The Extended Periods
shall be upon the same terms and conditions as are in effect immediately
preceding the commencement of such Extended Period, except that Tenant shall
have no right or option to extend the Term for any period of time beyond the
expiration of the Second Extended Period, and except that in the First Extended
Period and the Second Extended Period the Fixed Rent shall be adjusted as
provided in this Section 38.02. Any termination, expiration, cancellation or
surrender of this Lease shall terminate any right or option for the Extended
Period not exercised. Landlord shall have the right, by notice to Tenant, to
reject Tenant's election if Tenant gave such notice during the continuance of
default or if a default has occurred after the giving of the Option Notice and
such rejection shall automatically render Tenant's election to exercise such
option null and void and of no effect. Such options to extend the Term may not
be severed from this Lease or separately sold, assigned or otherwise
transferred.
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38.02 The Fixed Rent during the First Extended Period and the Second
Extended Period each shall be at ninety percent (90%) of then current Fair
Market Rental Value as of the commencement of each Extended Period. Within
thirty (30) days after receipt by Landlord of the Option Notice, Landlord shall
notify Tenant of Landlord's estimate of the Fair Market Rental Value. Tenant
shall within sixty (60) days after receipt of Landlord's estimate give written
notice to Landlord of Tenant's election to either (i) accept Landlord's
estimate, (ii) cancel Tenant's Option Notice, or (iii) extend the Term for the
applicable Extended Period, with Fair Market Rental to be determined pursuant
to appraisal as hereinafter provided (Tenant's notice pursuant to (i) or (iii)
hereof being referred to as the "Extension Notice"). If Tenant fails to give
the Extension Notice within the sixty (60) day period referred to above, time
being of the essence as to the exercise of the option to extend and the giving
of the Extension Notice, Tenant agrees that it shall have forever waived its
rights to extend the Term. If Tenant gives the Extension Notice pursuant to
section (iii) above, the parties shall, within thirty (30) days after the date
of receipt of the Extension Notice, choose an MAI Real Estate Appraiser who
shall determine the Fair Market Rental Value. The cost of said Real Estate
Appraiser shall be borne equally by the parties. If the parties are unable to
agree on an MAI Real Estate Appraiser within thirty (30) days after the giving
of the Extension Notice, each party shall, within forty-five (45) days after
giving of the Extension Notice, select one MAI Real Estate appraiser to
appraise the Fair Market Rental Value. Said appraisals shall be rendered by
written notice to Landlord and Tenant within thirty (30) days of selection. If
the difference between the two appraisals is 20% or less of the lower appraisal
then the Fair Market Rental Value shall be the average of the two appraisals.
If the difference between the two appraisals is greater than 20% of the lower
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appraisal, the two MAI Real Estate Appraisers shall, within fifteen (15) days
after the two appraisers render their appraisals to Landlord and Tenant as
above provided, select a third MAI Real Estate Appraiser to appraise the Fair
Market Rental Value. The third appraisal shall be rendered by written notice
to Landlord and Tenant within twenty (20) days after appointment. The Fair
Market Rental Value shall in such case be the average of the two closest
appraisals. Except as hereinafter provided, the cost of the third appraisal
shall be borne equally by the parties. Anything to the contrary contained
herein notwithstanding, the Fixed Rent for any Extended Period shall in no
event be less than the Fixed Rent in effect prior to such Extended Period.
38.03. Provided Tenant is not in default under this Lease, Tenant
shall have, during the term of this Lease, a right of first refusal to lease
the space within the Project which is not under lease as of the date of this
Lease, on the terms hereinafter provided. Upon receipt by Landlord of a
written offer to lease space within the Project from a prospective tenant of
the Project, which offer Landlord desires to accept, Landlord shall notify
Tenant of such offer. Tenant's right of first refusal shall be on the same
terms and conditions as the offer of the prospective tenant and shall be
exercised by written notice from Tenant to Landlord given no later than fifteen
(15) business days after Landlord's notice to Tenant of the offer to lease.
Tenant agrees that it shall have forever waived its right to exercise any such
right of first refusal if it shall fail for any reason whatsoever to give the
notice of exercise to Landlord within said fifteen (15) business day period
whether such failure is inadvertent or intentional, time being of the essence
as to the exercise of such right. Tenant's right of first refusal shall apply
to all space contained within the prospective offer
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to lease, subject, however, to Tenant's right to lease less than one hundred
percent (100%) of such space, but not less than seventy-five percent (75%) of
such space. Tenant's right of first refusal shall apply to all space now
existing and later constructed within the Project, including space which
becomes available upon the termination of space leased to other tenants within
the Project ("Project Tenants") provided, however, tenant's right of first
refusal on space leased to Project Tenants shall be subject to rights of such
Project Tenants with respect to renewal, assignment, subletting, or extension
of their leases and to the reletting of space to such current or future Project
Tenants after the expiration of the term of their leases. Within ten (10) days
after request by Landlord, after the effective exercise by Tenant of its right
of first refusal, Landlord and Tenant shall execute, acknowledge and deliver to
each other duplicate originals of a lease for such space. Said lease shall be
on the terms and conditions of the prospective offer to lease and, to the
extent not inconsistent with such respective offer, in a form substantially
similar to the form of this Lease.
ARTICLE 39 - MISCELLANEOUS
39.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully
and completely express
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the agreement of the parties and which are entered into after full
investigation. Neither party has relied upon any statement or representation
not embodied in this Lease or in any other written agreement(s) made
concurrently herewith.
39.02. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge, termination or effectuation of
abandonment is sought.
39.03. If Tenant shall at any time request Landlord to sublet or let
the Demised Premises for Tenant's account, Landlord or its agent is authorized
to receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability in connection with such subletting or letting.
39.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Section 39.04
shall not be construed as modifying the conditions of limitation contained in
Article 27.
39.05. Except for Tenant's obligations to pay Rent, the time for
Landlord or Tenant, as the case may be, to perform any
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of its respective obligations hereunder shall be extended if and to the extent
that the performance thereof shall be prevented due to any strikes, lockouts,
civil commotions, warlike operations, invasions, rebellions, hostilities,
military or usurped power, governmental regulations or controls, inability to
obtain labor or materials despite due diligence, acts of God, or other causes
beyond the control of the party whose performance is required. Except as
expressly provided to the contrary, the obligations of Tenant hereunder shall
not be affected, impaired or excused, nor shall Landlord have any liability
whatsoever to Tenant, (a) because Landlord is unable to fulfill, or is delayed
in fulfilling, any of its obligations under this Lease due to any of the
matters set forth in the first sentence of this Section 39.05, or (b) because
of any failure or defect in the supply, quality or character of electricity,
water, or any other utility or service furnished to the Demised Premises for
any reason beyond Landlord's reasonable control.
39.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration of the Term or
earlier termination of this Lease.
39.07. If Landlord shall request that an excavation shall be made
upon land adjacent to or under the Building, or shall be authorized to be made,
Tenant shall, subject to the provisions of section 17.03 of this Lease, afford
to the Person causing or authorized to cause such excavation, license to enter
the Demised Premises for the purpose of performing such work as said Person
shall reasonably deem necessary or desirable to preserve and protect the
Building from injury or damage and to support the same by proper foundations,
without any claim for damages or liability against Landlord and without
reducing or otherwise affecting Tenant's obligations under this Lease.
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39.08. Prior to the date that Landlord receives a certificate of
occupancy for Landlord's Work (and Tenant's Work, if Landlord performs Tenant's
Work), Tenant shall engage only contractors who use only union labor in and
about the Demised Premises. Nothing contained herein shall prohibit Tenant
during such period from hiring as employees non-union maintenance personnel,
provided, however, that all non-employee maintenance, including without
limitation contract cleaning services and window cleaning services during such
period, shall be done by businesses employing union labor.
39.09. Tenant shall, to the extent of Tenant's actual knowledge, give
prompt notice to Landlord of (1) any occurrence in or about the Demised
Premises for which Landlord might be liable, (b) any fire or other casualty in
the Demised Premises, or (c) any damage to or defect in the Demised Premises,
including the fixtures and equipment thereof, for the repair of which Landlord
might be responsible.
39.10. This Lease shall be governed by and construed in accordance
with the laws of the State of New Jersey. If any provision of this Lease
shall, be invalid or unenforceable, the remainder of this Lease shall not be
affected and shall be enforced to the extent permitted by law. The table of
contents, captions, headings and titles in this Lease are solely for
convenience of reference and shall not affect its interpretation. This Lease
shall be construed without regard to any presumption or other rule requiring
construction against the party causing this Lease to be drafted. If any words
or phrases in this Lease shall have been stricken out or otherwise eliminated,
whether or not any other words or phrases have been added, this Lease shall be
construed as if the words or phrases so stricken out or otherwise eliminated
were never included in this Lease and no
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implication or inference shall be drawn from the fact that said words or
phrases were so stricken out or otherwise eliminated. Each covenant,
agreement, obligation or other provision of this Lease on Tenant's part to be
performed, shall be deemed and construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease. All terms and
workds used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require.
39.11. Within thirty (30) days of each anniversary date of this
Lease, Tenant shall annually furnish to Landlord a copy of its then current
audited financial statement which shall be employed by Landlord for purposes of
financing the Premises and not distributed otherwise without prior
authorization of Tenant.
ARTICLE 40 - RIGHT OF FIRST REFUSAL
40.01 Other than as provided in Section 40.02 in the event Landlord
shall desire to offer for sale the Demised Premises, or in the event that
Landlord receives an unsolicited bona fide offer (the "Unsolicited Offer") to
purchase the Demised Premises, which offer Landlord wished to accept, Landlord
shall deliver a notice (hereinafter referred to as the "Notice") to Tenant
setting forth the terms of said offer. Tenant shall thereafter have the right,
provided Tenant is not in default under this Lease, exercisable by written
notice to Landlord within thirty (30) days after the date of the Notice, to
elect to purchase the Demised Premises upon the same terms and conditions set
forth in the Notice and, if Tenant so elects, within ninety (90) days after the
date of such Notice (or such period as may be provided for pursuant to the
terms and conditions of such Notice), Tenant shall close the purchase of the
Demised Premises
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and shall pay the purchase price set forth in the Notice thereof by wire
transfer of United States funds to the account designated by Landlord (said
right to purchase herein referred to as the "Right of First Refusal"). In the
event Landlord shall desire to offer for sale all or a portion of the Project,
which includes the Demised Premises, or in the event Landlord receives and
unsolicited offer for the purchase of all or a portion of the Project, which
includes the Demised Premises, (such desire to sell or an unsolicited offer
being referred to herein as a "Project Offer"), Tenant's Right of First Refusal
shall apply to such Project Offer. In the event that Tenant shall not notify
Landlord in writing within thirty (30) days after the date of receipt of the
Notice, that it desires to purchase the Demised Premises in accordance with the
terms contained in the Notice, then Landlord shall have the right to sell,
transfer, convey or assign the Demised Premises (or, if applicable, purchase
the portion of the Project which is subject to the Project Offer) to the
person, firm or corporation specified in the Notice in the event of an
Unsolicited Offer and otherwise to any third party upon materially the same
terms and conditions as are set forth in the Notice. In the event Tenant
purchases the Demised Premises (or, if applicable, purchase the portion of the
Project which is subject to the Project Offer), this Lease shall terminate.
40.02. Notwithstanding anything herein to the contrary, Landlord
shall have the absolute right, at any time, and from time to time, without same
being considered a transfer pursuant to Section 40.01 hereof, to transfer the
Demised Premises, or the Project, or any portion of the Demised Premises, or
the Project to (a) a partnership in which one of the general partners is, or
(b) a corporation (which includes for this purpose a trust having transferable
shares) of which more than twenty-five percent (25%) of the outstanding voting
stock is beneficially owned by, any one
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or more of the following: (i) Hartz Mountain Industries, Inc., ("HMI") or a
parent or a subsidiary of HMI, (ii) Leonard Stern, (iii) members of Leonard
Stern's immediate family, (iv) trusts for the benefit of Leonard Stern or
members of Leonard Stern's family, (v) the Leonard N. Stern Foundation or any
other foundation created by Leonard Stern, (vi) Leonard Stern's personal
representative or estate in the event of Leonard Stern's death, or (vii) a
corporation of which more than twenty-five percent (25%) of the issued and
outstanding voting stock is beneficially owned by any of the foregoing clauses
(i) through (vii), or any subsidiary of such corporation.
ARTICLE 41 - RESTRICTIONS
41.01. Landlord agrees that it shall not, during the Term provided
Tenant is not in default under this Lease beyond any applicable grace or cure
period enter into any leases of all or any part of the Project to any tenant
for purposes of using such premises for any manufacturing use (other than light
manufacturing), or whose use would include to a material degree the
manufacturing, generation, refining, treatment or storage of hazardous
substances or hazardous wastes which use would be covered by the New Jersey
Environmental Cleanup Responsibility Act ("ECRA") and the regulations adopted
pursuant thereto unless such use would not prevent such tenant from obtaining
an "Approved Negative Declaration", as defined by ECRA, without the prior
written consent of Tenant.
41.02. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall not use the Demised Premises or sublet the Demised
Premises or assign this Lease to a user for any use
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which would be prohibited pursuant to Section 41.01 above, without the prior
written consent of Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
Landlord:
ATTEST HARTZ MOUNTAIN INDUSTRIES, INC.
[SIG] /s/ IRWIN A. HOROWITZ
- --------------------------- ---------------------------------------
Irwin A. Horowitz
Vice President
[Corporate Seal]
Tenant:
ATTEST THE SUMMIT BANCORPORATION
[SIG] /s/ ROBERT G. COX
- --------------------------- ---------------------------------------
President
[Corporate Seal]
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<PAGE> 1
EXHIBIT (10)Q.(ii)
LEASE MODIFICATION AGREEMENT
THIS LEASE MODIFICATION AGREEMENT, made this 22nd day of
February, 1995 (the "date hereof"), effective as of the 1st day of October,
1994 (the "Effective Date"), by and between HARTZ MOUNTAIN INDUSTRIES, INC., a
New York corporation, having an office at 400 Plaza Drive, Secaucus, New Jersey
07094-3688 (hereinafter referred to as "Landlord"), and THE SUMMIT
BANCORPORATION, a New Jersey corporation, having an office at One Main Street,
Chatham, New Jersey 07928 (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease dated June 5, 1990 (the "Lease"),
Landlord leased to Tenant office premises in an existing building (referred to
in the Lease as "Building C") and a building to be constructed by Landlord
(referred to in the Lease as "Building B") located in Cranford, New Jersey; and
WHEREAS, in accordance with Exhibit C to the Lease, Landlord is
required to construct the core and shell of Building B and to perform the
Tenant buildout for Building B; and
WHEREAS, Tenant has requested the right to perform the Tenant
buildout of Building B; and
WHEREAS, Landlord and Tenant have now agreed that Tenant shall
have sole responsibility to construct and complete such Tenant buildout; and
WHEREAS, the parties have agreed to modify the Parking Area
available for use by Tenant; and
WHEREAS, the parties have agreed to amend and modify the Lease to
reflect and incorporate all of the foregoing, and certain other amendments and
modifications, as hereinafter specifically provided.
NOW, THEREFORE, for and in consideration of the Lease, the mutual
covenants herein contained and the consideration set forth herein, the parties
agree as follows:
1. The foregoing "WHEREAS" clauses and definitions contained therein
are hereby incorporated into this Agreement. All capitalized terms not
otherwise defined herein shall have the same meaning as defined or set forth in
the Lease.
2. Paragraph 1 b. of Exhibit C to the Lease is hereby deleted and
the following substituted therefor:
b. Landlord shall, subject to Paragraph 6 below of this Exhibit
C, construct the core and shell of Building B in accordance with the Shell and
Core Design Criteria for Building B dated August 8, 1989, and last revised May
21, 1990, annexed hereto and made a part hereof (the "Design Criteria"), as the
same shall be amended and modified by Change Orders duly authorized and
approved by Tenant ("Change Orders"). Landlord shall grant to Tenant an
allowance of $1,588,398.00 (based on $21.00 per square foot multiplied by
75,638
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square feet of Floor Space) for the Tenant Buildout, subject, however, to
Paragraph 6 below of this Exhibit C (the "Tenant Buildout Allowance"). Tenant
shall diligently perform to completion, the Tenant Buildout for Building B,
including, without limitation, those items referred to as constituting "Tenant
Buildout" in the Design Criteria. For the purposes hereof "Tenant Buildout"
and/or "Tenant's Buildout" shall be deemed part of "Tenant's Work", as defined
in Section 1.10(NN). That portion of Tenant's Work attributable to Building B
is hereinafter referred to as the "Tenant Buildout" or "Tenant's Buildout".
Said Tenant Buildout Allowance shall be disbursed to Tenant in accordance with
the provisions of Paragraph 3 below of this Exhibit C. In the event less than
the entire Tenant Buildout Allowance is expended for the construction and
completion of the Tenant Buildout, and provided that Tenant is not otherwise in
default under the Lease beyond any applicable notice and/or cure period, Tenant
shall be entitled to the amount of such savings. Tenant shall be solely and
wholly responsible for any costs for Tenant's Buildout in excess of the Tenant
Buildout Allowance, and Landlord shall not be obligated to expend any monies
over and above the Tenant Buildout Allowance in respect of Tenant's Buildout.
The Design Criteria referred to above are annexed hereto and made a part hereof
as Schedule "D".
3. The following is added to Exhibit C to the Lease as Paragraph 1
c. thereof:
c. Tenant agrees to pay to Landlord the sum of $134,225.00 with
respect to Building B architectural and engineering services performed by
Landlord (the "Architectural Fees").
Tenant agrees to pay said Architectural Fees upon execution of this Lease
Modification Agreement by both parties in full satisfaction of Tenant's
obligation under the Lease with respect to the payment to Landlord for
architectural and engineering services performed by or on behalf of Landlord in
connection with the construction and build-out of Building B. Notwithstanding
anything contained herein to the contrary, Landlord and Tenant acknowledge that
said Architectural Fees are scheduled among the change orders set forth on
Schedule A annexed hereto and made a part hereof, and Tenant hereby authorizes
Landlord to net said Architectural Fees out of sums to which Tenant is
otherwise entitled to from the Tenant Buildout Allowance, with the balance of
the Tenant Buildout Allowance to be disbursed and applied as set forth in
Exhibit C to the Lease, as modified by this Lease Modification Agreement.
4. Paragraph 2 of Exhibit C to the Lease, with respect to Building
B, shall be deemed to read as follows:
2. All construction and materials for Landlord's Work
(exclusive of Tenant's Buildout), shall be performed and furnished by Landlord.
Construction and materials for Tenant's Work, including Tenant's Buildout,
shall be furnished and performed by Tenant. Any costs or expenses incurred in
connection with Tenant's Buildout which exceed the Tenant Buildout Allowance
shall be the Tenant's sole cost and expense.
5. Paragraph 3 of Exhibit C to the Lease is hereby deleted and the
following substituted therefor:
- 2 -
<PAGE> 3
3. So long as Tenant is not in default in the payment of Rent or
under any other material term or provision of the Lease beyond any applicable
notice and/or cure period, Tenant shall be entitled to receive disbursements of
the Tenant Buildout Allowance during the pendency of Tenant's Buildout, as
follows:
At Tenant's request (each such request being an "Advance
Request") from time to time, but not more frequently than once each month,
Landlord shall, within fifteen (15) days of verification, disburse portions of
the Tenant Buildout Allowance to Tenant in an amount equal to the product of
the maximum Tenant Buildout Allowance and the percentage of completion of
Tenant's Buildout (less any Tenant Buildout Allowance theretofore funded), as
certified by the architect employed by Tenant in connection with Tenant's
Buildout and verified or objected to by the Architect within fifteen (15) days
of receipt thereof (it being agreed that if the Architect shall fail to respond
within such fifteen (15) day period, such certification shall be deemed to have
been verified). Landlord agrees that the Architect shall only have grounds to
object to any Advance Request if, in Architect's opinion, the Tenant Buildout
is not being performed or has not been performed in accordance with the
approved plans and specifications therefor. In the event that the Architect
shall object to any Advance Request, Landlord may withhold only that portion of
the Advance Request to which Architect's objection relates (but shall pay the
balance of such Advance Request to Tenant), until such time as the Architect's
objection is withdrawn or otherwise resolved by the parties or though
arbitration. In the event that the Tenant and the Architect are unable to
resolve the Architect's objection within thirty (30) days' of the Advance
Request to which it relates, any of Tenant, Landlord or the Architect may
submit the matter to arbitration in accordance with and subject to the terms
and provisions of Article 36 of the Lease. Landlord acknowledges that Tenant
has submitted Advance Requests in the aggregate amount of $1,288,852.00, and
that Landlord and the Architect have approved, verified and certified said
amount and the applicable percentage of completion of Tenant's Buildout, and
Landlord agrees to disburse said amount to Tenant simultaneously with the
execution of this Lease Modification Agreement.
6. The following Paragraph 4 is hereby added to and made a part of
Exhibit C to the Lease:
4. Landlord shall be permitted, but not required, to bid upon
the Tenant's Buildout. Tenant shall be responsible (and may employ a
construction manager if Tenant so desires to employ such at its own expense)
for all Tenant's Buildout. Tenant shall, prior to commencing construction of
any portion of Tenant's Buildout, give written notice to Landlord (which notice
shall include a complete set of the plans and specifications for that portion
of Tenant's Buildout, sealed by Tenant's architect or engineer, as the case may
be) of Tenant's solicitation of bids for that portion of Tenant's Buildout (in
which case Tenant shall request Landlord to bid on that portion of the Tenant's
Buildout). Notwithstanding anything to the contrary contained herein, Tenant
shall have sole and absolute discretion in selecting any such bid(s). Landlord
hereby acknowledges and agrees that, as of October 1, 1994, Tenant has complied
in full, with all of its responsibilities and obligations pursuant to this
Paragraph.
- 3 -
<PAGE> 4
7. The following Paragraph 5 is hereby added to and made a part of
Exhibit C to the Lease:
5. In the event Tenant shall utilize an outside contractor for
Tenant's Buildout, Landlord shall fully cooperate with such contractor to
assist its timely completion of Tenant's Buildout. Tenant shall cause such
contractor to utilize employees and subcontractors who use union labor.
Nothing contained herein shall require Landlord to expend any funds in
connection with said cooperation. Tenant and its contractor, architect and
engineers shall coordinate and cooperate with Landlord, its contractors and
Architect, so as to minimize any conflicts or interference in the prosecution
to completion of Landlord's Work.
8. The following Paragraph 6 is hereby added to and made a part of
Exhibit C to the Lease:
6. Any increase in the cost of prosecuting and completing
Landlord's Work occasioned by any Change Orders to the Design Criteria over the
cost to Landlord of implementing the Landlord's Work as described in the Design
Criteria, shall be borne solely by Tenant, and at Landlord's sole option, (i)
deducted from the Tenant Buildout Allowance, or (ii) to the extent such Tenant
Buildout Allowance shall be exhausted or as Landlord shall otherwise elect,
paid for as an Additional Charge, within thirty (30) days of invoice for same
by Landlord to Tenant. Landlord hereby acknowledges and agrees that, as of the
date hereof, Tenant has complied in full, with all of its responsibilities and
obligations pursuant to this Paragraph.
9. Landlord and Tenant acknowledge and agree that annexed hereto and
made a part hereof as Schedule "A" are the change orders authorized and
approved by Tenant as of the date hereof, which change orders constitute Change
Orders to the Design Criteria. Tenant hereby authorizes Landlord to net said
Change Orders out of sums to which Tenant is otherwise entitled to from the
Tenant Buildout Allowance, with the balance of the Tenant Buildout Allowance to
be disbursed and applied as set forth in Exhibit C to the Lease, as modified by
this Lease Modification Agreement.
10. For the purposes of this Lease Modification Agreement and the
construction and delivery of Building B, the definition of "Ready for
Occupancy" set forth in Section 1.01(CC) of the Lease shall be replaced with
the term "Ready for Delivery" which shall be defined as follows:
CC. Ready for Delivery: The condition of Building B when for the
first time the Landlord's Work shall have been substantially completed.
Landlord's Work shall be deemed substantially completed notwithstanding the
fact that Tenant's Buildout shall not then have been completed or commenced and
further notwithstanding the fact that minor or insubstantial details of
construction, mechanical adjustment or decoration remain to be performed, the
noncompletion of which does not materially interfere with Tenant's prosecution
and completion of Tenant's Buildout.
11. Tenant hereby acknowledges that Building B is "Ready for Delivery"
and acknowledges that it has received and is in possession thereof.
- 4 -
<PAGE> 5
12. Commencing as of the Effective Date, Tenant shall pay the full
Fixed Rent applicable to Building "B" in accordance with Schedule "B" annexed
hereto and made a part hereof, which Schedule "B" shall in all respects be
deemed to replace and supercede in its entirety Section 1 of Exhibit F to the
Lease. Landlord and Tenant confirm and agree that all Fixed Rent through the
period ending February 28, 1995 has been paid in full.
13. Landlord and Tenant agree that the "Parking Area" as defined in
Section 7.03 of the Lease is hereby modified in accordance with the plan
annexed hereto and made a part hereof as Schedule "C", which Schedule "C"
replaces and supercedes Exhibit I to the Lease.
14. Landlord agrees that commencing as of October 1, 1994 though and
including September 30, 1999, so long as Tenant shall not be in default under
the Lease beyond any applicable notice or cure periods, Landlord shall grant to
Tenant a credit against the annual Parking Charges at the rate of Seven
Thousand Five Hundred Dollars ($7,500.00) per annum, or Six Hundred Twenty-Five
Dollars ($625.00) per month.
15. Except as provided herein, all of the terms and conditions of the
Lease as amended above, are in full force and effect and are confirmed as if
fully set forth herein. In the event of any inconsistency between the
provisions of the Lease and this Lease Modification Agreement, the provisions
of this Lease Modification shall prevail.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
Modification Agreement to be duly executed as of the day and year first above
written.
ATTEST: HARTZ MOUNTAIN INDUSTRIES, INC.
/s/VINCENT J. RUBIANO, JR. By: /s/IRWIN A. HOROWITZ
- --------------------------- -------------------------
Vincent J. Rubiano, Jr. Irwin A. Horowitz
Assistant Secretary Executive Vice President
ATTEST: THE SUMMIT BANCORPORATION
/s/JOHN F. KUNTZ By:/s/ROBERT COX
- --------------------------- -------------------------
John F. Kuntz Robert Cox
Corporate Secretary President
- 5 -
<PAGE> 6
SCHEDULE "A"
CHANGE ORDERS THROUGH THE DATE HEREOF
<TABLE>
<S> <C>
Tx No. 911593 $ 14,876.40
Tx No. 911594 16,377.90
Tx No. 911596 47,355.00
Tx No. 911597 13,264.02
Tx No. 911598 25,356.67
Tx No. 911599 (credit) (19,266.00)
Tx No. 911609 2,079.00
Tx No. 911647 (credit) (43,425.95)
Tx No. 911652 4,414.41
Tx No. 911696 134,225.00
Tx No. 911935 911.29
Tx No. 911938 (credit) (3,389.83)
-------------
Total Amount of Tx's $192,778.11
============
Tenant Buildout Allowance Remaining (prior to any Advance Requests):
$3,395,619.89
</TABLE>
<PAGE> 7
SCHEDULE "B"
FIXED RENT BUILDING B
For the period from and including October 1, 1994 through and
including the day immediately preceding the Initial Permanent Mortgage Loan
Closing Date (as hereinafter defined), the Fixed Rent per square foot of
Building B Floor Space per annum shall be computed at the following rates (the
"Initial Rates");
<TABLE>
<CAPTION>
Lease Period Fixed Rent
- ------------ ----------
<S> <C>
10/1/94 through and including 5/31/97 $13.75
6/1/97 through and including 5/31/2002 $14.50
6/1/2002 through and including 5/31/2007 $15.50
6/1/2007 through and including 5/31/2012 $16.75
6/1/2012 through and including 5/31/2017 $18.50
</TABLE>
For the period from and including the Initial Permanent Mortgage Loan
Closing Date through the balance of the initial Term hereunder, the Fixed Rent
per square foot of Building B Floor Space per annum shall be computed as
follows:
The sum of (i) an amount equal to (a) $134.61 per square foot of Floor Space
multiplied by (b) a debt service constant based upon the effective interest
rate (including, but not limited to, commitment fees, application fees, future
funding fees, letter of credit or other credit enhancement fees, and brokerage
commissions (collectively, the "Loan Expenses"), but excluding fees such as
attorneys' fees, consultant fees, title search fees and premiums, and appraisal
fees) on Landlord's actual Initial Permanent Mortgage Loan (as hereinafter
defined) with respect to the Demised Premises and a hypothetical amortization
component (as to principal) based upon a 35 year amortization schedule (it
being understood that the Loan Expenses, for the purpose of the calculations
set forth in this paragraph shall be amortized over the life of the actual loan
term), plus (ii) the Cash Flow Component (as hereinafter defined); provided,
however, that in no event shall the Fixed Rent per square foot of Building B
Floor Space be less than the Initial Rates.
For the purposes of this Schedule "B", the following terms shall have the
meanings indicated:
"Initial Permanent Mortgage Loan": The first loan obtained by Landlord which is
secured by a Mortgage, the proceeds of which are not required to be used solely
for construction or related reimbursement (a "Construction Loan"). It is
acknowledged and agreed that as of the date hereof, Landlord has not yet
obtained such an Initial Permanent Mortgage Loan, and that a further extension
or modification of Landlord's existing Construction Loan from National
Westminster Bank USA shall not constitute an Initial Permanent Mortgage Loan.
Notwithstanding any of the foregoing to the contrary, in the event that any
such Initial Permanent Mortgage Loan shall have a loan-to-value ratio upon
closing of greater than seventy-five (75%) percent, as determined by such
lender's appraisal (which appraisal shall be conclusive and binding upon the
parties, absent manifest error, provided such appraisal shall have been
performed by an independent MAI appraiser), the effective interest rate
component of the debt service constant set forth above shall be adjusted to
reflect what the same would have been if the Initial Permanent Mortgage Loan
had a loan-to-value ratio at closing equal to seventy-five (75%) percent. In
<PAGE> 8
SCHEDULE "B" continued
the event of any dispute in calculating the effective interest rate where the
loan to value ratio exceeds seventy-five (75%) percent, the parties shall
submit the same to arbitration pursuant to and in accordance with the terms and
conditions of Article 36 of the Lease.
"Initial Permanent Mortgage Loan Closing Date": The date upon which the Initial
Permanent Mortgage Loan shall be closed and funded.
"Cash Flow Component": A per annum, per square foot amount as follows:
<TABLE>
<CAPTION>
Lease Period Cash Flow Component
- ------------ -------------------
<S> <C>
10/1/94 through and including 5/31/97 - 0 -
6/1/97 through and including 5/31/2002 .70
6/1/2002 through and including 5/31/2007 1.70
6/1/2007 through and including 5/31/2012 2.95
6/1/2012 through and including 5/31/2017 4.70
</TABLE>
See EXAMPLE below:
EXAMPLE:
To illustrate the calculation of Fixed Rent for Building "B" for the period
from and including the Initial Permanent Mortgage Loan Closing Date through the
balance of the initial Term hereunder, based on the following assumptions, the
rent schedule for Building "B" would be as follows:
Assumptions:
<TABLE>
<S> <C>
Term of Initial Permanent Mortgage: 10 years.
Interest Rate: 9.25%
Loan Expenses: 1.50%
Floor Space: 75,638 square feet
</TABLE>
Computation of Effective Interest Rate and Debt Service Constant:
<TABLE>
<S> <C>
Interest Rate: 9.25%
Loan Expenses (amortized over term of
Initial Permanent Mortgage Loan
(10 yrs.) at the Interest Rate (9.25%) .23%
-----
Effective Interest Rate: 9.48%
Debt Service Constant
based on Effective Interest Rate
of 9.48% and 25-year amortization
schedule 10.47%
======
</TABLE>
Adjusted Base Rent:
$134.61 per square foot x 10.47% - $14.09 per square foot
<PAGE> 9
SCHEDULE "B" continued
<TABLE>
<CAPTION>
Cash
Adjusted Flow Adjusted Annual Monthly
Lease Period Base Rent Component Fixed Rent Fixed Rent Fixed Rent
- ------------ --------- --------- ---------- -------------- --------------
<S> <C> <C> <C> <C> <C>
10/1/94 to 5/31/97 $14.09 $ 0 $14.09 $1,065,739.42 $ 88,811.62
6/1/97 to 5/31/2002 14.09 .70 14.79 1,118,686.02 93,233.84
6/1/2002 to 5/31/2007 14.09 1.70 15.79 1,194.324.02 99,527.00
6/1/2007 to 5/31/2012 14.09 2.95 17.04 1,288,871.52 107,405.96
6/1/2012 to 5/31/2017 14.09 4.70 18.79 1,421,238.02 118,436.50
</TABLE>
<PAGE> 10
SCHEDULE "C"
REVISED PARKING PLAN
