Exhibit 10.13
LEASE AGREEMENT
BETWEEN
RFG Co., LTD.
A Corporation of the Country of Japan
AND
FIBERTECH & WIRELESS, INC.
A Delaware Corporation
DATED: 28 August 2000
PREPARED BY:
XXXXXXXX, HANLON, DOHERTY, XxXXXXXXX & XXXXXXX
00 XXXXXXXXXX XXXXXX - 00XX XXXXX
XXXXXX XXXX, XXX XXXXXX 00000
000-000-0000
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 1
ARTICLE 2 DEMISE AND TERM 9
ARTICLE 3 RENT 9
ARTICLE 4 USE OF DEMISED PREMISES 10
ARTICLE 5 PREPARATION OF DEMISED PREMISES AND
COMMENCEMENT DATE 10
ARTICLE 6 TAX AND OPERATING EXPENSE PAYMENTS 11
ARTICLE 7 COMMON AREAS 13
ARTICLE 8 SECURITY 14
ARTICLE 9 SUBORDINATION 15
ARTICLE 10 QUIET ENJOYMENT 16
ARTICLE 11 ASSIGNMENT, SUBLETTING AND MORTGAGING 17
ARTICLE 12 COMPLIANCE WITH LAWS 21
ARTICLE 13 INSURANCE AND INDEMNITY 22
ARTICLE 14 RULES AND REGULATIONS 25
ARTICLE 15 ALTERATIONS 26
ARTICLE 16 LANDLORD'S AND TENANT'S PROPERTY 28
ARTICLE 17 REPAIRS AND MAINTENANCE 29
ARTICLE 18 ELECTRIC ENERGY 30
ARTICLE 19 HEAT, VENTILATION AND AIR-CONDITIONING 33
ARTICLE 20 OTHER SERVICES: SERVICE INTERRUPTION 35
ARTICLE 21 ACCESS, CHANGES AND NAME 37
ARTICLE 22 MECHANICS' LIENS AND OTHER LIENS 38
ARTICLE 23 NON-LIABILITY AND INDEMNIFICATION 38
ARTICLE 24 DAMAGE OR DESTRUCTION 40
ARTICLE 25 EMINENT DOMAIN 42
ARTICLE 26 SURRENDER 44
ARTICLE 27 CONDITIONS OF LIMITATION 44
ARTICLE 28 RE-ENTRY BY LANDLORD 45
ARTICLE 29 DAMAGES 46
ARTICLE 30 AFFIRMATIVE WAIVERS 49
ARTICLE 31 NO WAIVERS 49
ARTICLE 32 CURING TENANT'S DEFAULTS 50
ARTICLE 33 BROKER 50
ARTICLE 34 NOTICES 51
ARTICLE 35 ESTOPPEL CERTIFICATES 52
ARTICLE 36 ARBITRATION 52
ARTICLE 37 RIGHT OF FIRST OFFER 53
ARTICLE 38 BUILDING NAME 54
ARTICLE 39 ENVIRONMENTAL LAWS 54
ARTICLE 40 MISCELLANEOUS 56
ARTICLE 41 PARKING 62
ARTICLE 42 BROADCAST INTERFERENCE 63
EXHIBIT A LAND
EXHIBIT B INTENTIONALLY OMITTED
EXHIBIT C RULES & REGULATIONS
EXHIBIT D FLOOR PLAN
EXHIBIT E CLEANING STANDARDS
072700
081000
081100
THIS LEASE dated , 2000 made between RFG Co., LTD., a corporation of
the Country of Japan, having an office at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx
Xxxxxx ("Landlord") and FIBERTECH & WIRELESS, INC., a Delaware corporation,
having an office at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx ("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: Thirty-One Thousand One Hundred Sixty-Six & 33/100
($31,166.33) Dollars.
B. Additional Charges: All amounts that become payable by the Tenant to
Landlord hereunder other than the Fixed Rent. The term "Additional Charge"
shall be interchangeable with the term "Additional Rent".
C. Architect: Deleted
D. Base Year: 0000
X. Xxxxxx: Xxxxx Xxx Xxxx Realty
F. Building: "Newport Financial Center", 000 Xxxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx.
G. Business Days: All days except Saturdays after 1:00 P.M., Sundays,
days observed by the federal or state government as legal holidays and such
other days as shall be designated as holidays by the applicable operating
engineers union or building service employees union contract.
H. Business Hours: Generally customary daytime business hours but not
before 8:00 A.M. or after 6:00 P.M. and Saturdays 9:00 A.M. to 1:00 P.M.
I. Calendar Year: Any twelve-month period commencing on January 1.
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J. Commencement Date: September 15, 2000 or the date on which the
Landlord notifies Tenant that Landlord has obtained the Prime Landlord's
consent to this Lease, whichever is later.
K. Common Areas: All areas, spaces and improvements in the Building and
on the Land which Landlord makes available from time to time for the common
use and benefit of the tenants and occupants of the Building and which are not
exclusively available for use by a single tenant or occupant, including,
without limitation, parking areas, roads, walkways, landscaped and planted
areas, community rooms, if any, the managing agent's office, if any, and
public rest rooms, if any.
L. Demised Premises: 9,842 rentable square feet ("r.s.f.") located on
the seventh (7th) floor as shown on Exhibit X.
X. Expiration Date: June 13, 2009
N. Fixed Rent:
(i) $38.00 per r.s.f. or Three Hundred Seventy-Three Thousand Nine
Hundred Ninety-Six & 00/100 ($373,996.00) Dollars per year for the period
commencing on the Commencement Date and ending on June 30, 2004, payable at
the rate of Thirty-One Thousand One Hundred Sixty-Six & 33/100 ($31,166.33)
Dollars per month; and
(ii) $45.00 per r.s.f. or Four Hundred Forty-Two Thousand Eight Hundred
Ninety & 00/100 ($442,890.00) Dollars commencing on July 1, 2004 and ending on
the Expiration Date, payable at the rate of Thirty-Six Thousand Nine Hundred
Seven & 50/100 ($36,907.50) Dollars per month as hereinafter provided.
O. 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.
P. Land: The land described in Exhibit A, upon which the Building is
located.
Q. Legal Requirements: Laws and ordinances of all federal, state and
local governments, and rules, regulations, orders and directives of all
departments, subdivisions, bureaus, agencies or offices thereof, and of any
other governmental, public, quasi-public authorities having jurisdiction over
the Land and Building now in force or which may be in force hereafter during
the Term of this Lease.
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R. Master Lease: Agreement of Lease, dated June 14, 1988, as amended or
may be amended, between Newport Office Center I Company, as Landlord ("Prime
Landlord"), and Recruit U.S.A., Inc., as Tenant, covering a portion of the
first (1st) floor, including the lobby area, the roof and the entire second
(2nd) through fifteenth (15th) floors in the Building which Master Lease was
assigned by Newport Office Properties Corp., the successor to Recruit U.S.A.,
Inc., by Assignment to the Landlord, dated as of March 1, 1993.
S. Mortgage: A mortgage and/or a deed of trust.
T. Mortgagee: A holder of a mortgage or a beneficiary of a deed of
trust.
U. Office Component: A portion of the 2nd and 6th floors of the Building
and the entire 0xx, 0xx, 0xx, 0xx, 12th, 14th and 15th floors, representing a
total of 272,273 rentable s.f. in the Building.
V. Operating Expenses: All costs and expenses, and taxes thereon, if
any, paid or incurred by Landlord in connection with the Office Component of
Building, the Building utility and service systems, the sidewalks, curbs,
plazas and other areas adjacent to the Building, and with respect to the
services provided tenants, including, without limitation: (i) salaries, wages
and bonuses paid to, and the cost of any hospitalization, medical, surgical,
union and general welfare benefits (including group life insurance), any
pension, retirement or life insurance plan or any other benefit or similar
expense relating to employees of Landlord engaged in the operation, cleaning,
repairs, safety, management, security or maintenance of the Land and/or the
Building or in providing services to tenants; (ii) social security,
unemployment and other payroll taxes, the cost of providing disability and
worker's compensation coverage imposed by any requirements of law, union
contract or otherwise with respect to said employees; (iii) the cost of
casualty, rent, liability, fidelity, plate glass and any other insurance; (iv)
the cost of repairs, replacements, maintenance and painting; (v) expenditures
for improvements and equipment which are made by reason of Legal Requirements
or Insurance Requirements; however, in the event such expenditures constitute
"capital expenditures" under generally accepted accounting principles
consistently applied, such capital expenditures shall be amortized over the
useful life of the improvement or equipment and included in Operating Expenses
hereunder to the extent that said useful life occurs during the then remaining
balance of the Lease together with interest at the prime rate declared by the
Chemical Bank of New York plus 2% per annum as of the date of the commencement
of construction of the improvement or the purchase or lease of equipment or as
of the date of the expenditure is made, whichever is earlier; (vi) the cost or
rental of all building and cleaning
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supplies, tools, materials and equipment; (vii) the cost of uniforms, work
clothes and dry cleaning; (viii) window cleaning, concierge, guard, watchman
or other security personnel, service or system, if any; (ix) management fees
or if no managing agent is employed by Landlord, a sum in lieu thereof which
is not in excess of then prevailing rates for management fees payable for
first-class office buildings; (x) charges of independent contractors
performing work included within this definition of Operating Expenses; (xi)
telephone and stationery; (xii) legal, accounting and other professional fees
and disbursements incurred in connection with the operation and management of
the Building and Land; (xiii) association fees and dues; (xiv) decorations;
(xv) depreciation of hand tools and other movable equipment used in the
operation, cleaning, repair, safety, management, security or maintenance of
the Building; (xvi) the cost of painting and/or decorating and/or other
maintenance of the public or common areas of the Building and Land; (xvii) the
cost of all interior and exterior gardening and landscaping of the Building
and Land and all temporary exhibitions located thereon; (xviii) the cost of
maintenance, repair and/or replacement of the curtain wall facade; (xix) all
operating expenses, project maintenance fees and charges required to be paid
by Landlord to Prime Landlord pursuant to the terms of the Master Lease; (xx)
the cost of pest and vermin extermination for the common areas of the Building
and the Land; and (xxi) Utility Costs (as hereinafter defined), provided,
however, that Operating Expenses shall exclude or have deducted from them, as
the case may be:
(a) amounts actually received by Landlord through insurance
proceeds, condemnation awards, warranties and service
contracts, or otherwise, to the extent they are compensation
for sums previously included in Operating Expenses hereunder;
(b) brokerage commissions;
(c) Real Estate Taxes;
(d) the cost of electricity furnished to the Demised Premises or
any other space leased to tenants as reasonably estimated by
Landlord;
(e) financing and refinancing costs, rents payable under the Master
Lease or any Superior Lease, and mortgage interest and mortgage
payments due under any Mortgage;
(f) depreciation except as otherwise expressly herein provided;
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(g) cost and expenses incurred in connection with the enforcement
of leases and disputes with tenants in the Building, including
without limitation, court costs, attorney's fees and
disbursements;
(h) cost and expenses incurred in connection with leasing or re-
leasing space in the Building such as space planning,
architectural, engineering, attorney's fees and advertising and
promotional expenses;
(i) expenses in connection with the operation, cleaning, repair,
safety, management, security, maintenance or other services of
any kind provided exclusively to any portion of the Building
which is leased or used for retail purposes and which do not
benefit the office tenants of the Building;
(j) the cost of installing, operating and maintaining a specialty
improvement, including, without limitation, an observatory,
broadcasting, cafeteria or dining facility or athletic,
luncheon or recreational club;
(k) costs, including taxes, permit, license and inspection costs,
incurred with respect to the installation of tenant or other
occupants improvements made for tenants in the Building or
incurred in renovation or otherwise improving, decorating,
painting or redecorating vacant space for such tenants;
(l) marketing and promotional costs, including, but not limited to,
advertising expenses, leasing commissions, attorneys fees in
connection with the negotiation and preparation of letters,
deal memos, letters of intent, consents, subordination, non-
disturbance and attornment agreements, leases, subleases and/or
assignments, and other costs and expenses incurred in
connection with lease, sublease and/or assignment negotiations
and transactions with present or prospective tenants or other
occupants of the Building; any funds or money given to any
tenants in cash, by offset or otherwise, or the cost of any
work done for any tenants in connection with the leasing of
space in the Building; lease termination costs (including any
taxes required to be paid in connection with the surrender or
termination of
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any lease); "takeover" expenses, including, but not limited to,
expenses incurred by Landlord with respect to space located at
another building of any kind or nature in connection with the
leasing of space in the Building; costs incurred in removing
and storing the property of former tenants or occupants of the
Building;
(m) all costs incurred in connection with a sale or transfer of all
or any portion of the Land and/or the Building or any leasehold
interest therein or any Person of whatever tier owning an
interest therein;
(n) any costs that duplicate costs for which Landlord is reimbursed
by Tenant under other provisions of this Lease;
(o) expenses (including, without limitation, attorneys' fees and
overtime pay) incurred in curing a default by Landlord under
this Lease or any other lease of space in the Building,
including, without limitation, a contract for services at the
Building, or under any mortgage or insurance policy affecting
the Building to the extent that such expenses are greater than
the expenses Landlord would have incurred had Landlord
performed such obligation timely;
(p) costs and expenses incurred by Landlord in connection with any
obligation of Landlord to indemnify any Building tenant or
occupant (including, without limitation, Tenant) pursuant to
its lease or otherwise.
W. Permitted Use: Except as prohibited by the Master Lease,
telecommunications services and co-location services for Tenant's customers
and general offices, subject to all applicable laws, ordinances, rules and
regulations of any governmental boards or bodies having jurisdiction thereof.
X. Person: A natural person or persons, a partnership, a corporation, or
any other form of business or legal association or entity.
Y. Prime Landlord: Newport Office Center I Company.
Z. Intentionally Omitted.
AA. Real Estate Taxes: The real estate taxes, assessments and special
assessments imposed upon the Building and Land single by any federal, state,
municipal or other governments or
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governmental bodies or authorities, any alternative or substitute charges,
including any so-called "service charge" resulting from any abatements or
other special reductions included in Real Estate Taxes now or hereafter during
the term of this Lease, including, without limitation, service charges payable
pursuant to a certain agreement dated August 25, 1987 between Mid Xxxxxx Urban
Renewal Company and the City of Jersey City. Any expenses incurred by Landlord
in contesting such taxes or assessments and/or the assessed value of the
Building and Land shall be allocated to the period of time to which such
expenses relate. Tenant shall not be obligated or required to pay any tax on
the income or receipts of Landlord. 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.
BB. Rent: The Fixed Rent; Additional Rent and Additional Charges.
CC. Rules and Regulations: The reasonable rules and regulations that may
be promulgated by Landlord from time to 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 C.
DD. Security Deposit: Ninety-Three Thousand Four Hundred Ninety-Eight &
99/100 ($93,498.99) Dollars.
EE. Successor Landlord: As defined in Section 9.03.
FF. Superior Lease: Any lease to which this Lease is, at the time
referred to, subject and subordinate.
GG. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
HH. Superior Mortgage: Any Mortgage to which this Lease is, at the time
referred to, subject and subordinate.
II. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the time
referred to.
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JJ. Tenant's Fraction:
(i) "Tenant's Operating Fraction" for the Operating Expenses
attributable to the Office Component of the Building and
Landshall be 3.615%. If the size of the Demised Premises, the
Office Component or the Building shall be changed from the
initial size thereof, due to any taking, any construction or
alteration work, any reallocation of the rentable square
footage attributable to either the Office Component or Data
Component of the Building, or otherwise, the Tenant's Operating
Fraction shall be changed to the fraction the numerator of
which shall be the rentable square footage of the Demised
Premises and the denominator of which shall be the rentable
square footage of the Office Component of the Building. The
term "Data Component" of the Building shall refer to the
entire 8th, 9th, 10th and 11th floors, representing at total of
135,635 r.s.f.;
(ii) "Tenant's Real Estate Fraction" for Tenant's proportionate
share of Real Estate Taxes for the Building and Land shall be
2.413%. If the size of the Demised Premises or the Building
shall be changed from the initial size thereof, due to any
taking, any construction or alteration work or otherwise, the
Tenant's Real Estate Fraction shall be changed to the fraction
the numerator of which shall be the rentable square footage of
the Demised Premises and the denominator of which shall be the
rentable square footage of the Building.
KK. Tenant's Property: As defined in Section 16.02.
LL. Intentionally Omitted.
MM. Term: The period commencing on the Commencement Date and ending 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.
NN. Unavoidable Delays: A delay arising from or as a result of a strike,
lockout, or labor difficulty, explosion, sabotage, riot or civil commotion,
act of war, fire or other catastrophe, inability to satisfy Legal
Requirements, an act of the other party or any other 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.
OO. Utility Costs: Landlord's cost (incurred directly or through
independent contractors) for all electricity (to the extent Landlord is not
directly reimbursed therefor by individual tenants), steam, water, gas or
other fuel and utilities supplied to the Building or the Land, including in
each case, any surcharges, fuel adjustments and taxes payable by Landlord in
connection therewith.
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ARTICLE 2
DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Demised Premises, for the Term. Promptly following the
Commencement Date, at the option of the Landlord, the parties hereto shall
enter into an agreement in form and substance satisfactory to Landlord and
Tenant setting forth the Commencement Date.
ARTICLE 3
RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month during the Term. 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. Upon execution of the Lease, Tenant shall pay the
Advance Rent which shall be applied to the first month's Fixed Rent following
the Commencement Date.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord or Landlord's agent, at its office, or such other place, 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.
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
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designation or request by Tenant as to the items to which any such payments
shall be credited. Notwithstanding the foregoing, in the event Tenant in good
faith disputes a liability asserted by Landlord, Tenant may designate the
item(s) to which its payments should be credited provided Tenant's designation
does not prejudice Landlord's position with respect to the dispute.
3.05. Any payment due Landlord under this Lease which is not paid within
ten (10) days of written notice of non-payment shall, from the due date until
such payment is received by Landlord, bear interest at the prime rate of
Chemical Bank of New York plus 4% per annum (the "Late Payment Rate") ,
provided however, the aforesaid interest shall not be imposed unless Landlord
fails to receive an overdue payment within five (5) days of Landlord's written
notice to Tenant thereof.
ARTICLE 4
USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
Use, and Tenant shall not use or permit or suffer the use of the Demised
Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit, other than a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises or any part thereof, Tenant shall duly
procure and thereafter maintain such license or permit, and submit the same to
Landlord for inspection. Tenant shall at all times comply with the terms and
conditions of each such license or permit. Tenant shall not at any time use or
occupy, or suffer or permit anyone to use or occupy the Demised Premises, or
do or permit anything to be done in the Demised Premises, in any manner which
(a) violates the Certificate of Occupancy for the Demised Premises or for the
Building, (b) causes or is liable to cause injury to the Building or any
equipment, facilities or systems therein; (c) constitutes a violation of the
Legal Requirements or Insurance Requirements; (d) impairs or tends to impair
the character, reputation or appearance of the Building as a first-class
office building; (e) impairs the proper and economic maintenance, operation
and repair of the Building and/or its equipment, facilities or systems, or (f)
interferes with the Quiet Enjoyment rights of the other tenants in the
Building.
ARTICLE 5
PREPARATION OF DEMISED PREMISES
AND COMMENCEMENT DATE
5.01. Tenant has inspected the Demised Premises and accepts the same "as
is" in their presently existing condition,
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and Landlord shall have no obligation to perform any work in order to prepare
the Demised Premises for Tenant's occupancy.
5.02. Subject to Section 1.01(J) Tenant shall occupy the Demised Premises
promptly on the Commencement Date and possession thereof is delivered to
Tenant by Landlord giving to Tenant a notice of such effect. Except as
expressly provided to the contrary in this Lease the taking of possession by
Tenant of the Demised Premises shall be conclusive evidence as against Tenant
that the Demised Premises and the Building were in good and satisfactory
condition at the time such possession was taken.
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 Areas of the Building and any other buildings and
other improvements on the Land, including without limitation the right to move
and/or remove same, provided same shall not unreasonably block or interfere
with Tenant's means of ingress or egress to and from the Demised Premises;
provided, however, Landlord shall not cause a material adverse impact on the
conduct of Tenant's business, nor shall Landlord do anything inconsistent with
maintaining the Building as a first class office building.
ARTICLE 6
TAX AND OPERATING EXPENSE PAYMENTS
6.01. Tenant shall pay, as Additional Rent, to Landlord, as hereinafter
provided, Tenant's share of the Real Estate Taxes. Tenant's share of the Real
Estate Taxes shall be the Real Estate Taxes for the Building for the period in
question, less the Real Estate Taxes attributable to the Base Year, multiplied
by the Tenant's Real Estate Fraction [Section 1.0l (JJ) (ii)], plus the Real
Estate Taxes in respect of the Land for the period in question, less the Real
Estate Taxes attributable to the Land for the Base Year, multiplied by the
Tenant's Real Estate Fraction. If any portion of the Building shall be exempt
from all or any part of the Real Estate Taxes, then for the period of time
when such exemption is in effect, the rentable space on such exempt portion
shall be excluded when making the above computations in respect of the part of
the Real Estate Taxes for which such portion shall be exempt. Landlord shall
estimate the annual amount of Tenant's proportionate share of the Real Estate
Taxes (which estimate may be changed by Landlord at any time and from time to
time) , and Tenant shall pay to Landlord 1/12th of the amount so estimated on
the first day of each month in advance. Tenant shall also pay to Landlord on
demand from time to time the amount which, together with said monthly
installments, will be sufficient in Landlord's estimation to pay Tenant's
proportionate share of any Real Estate Taxes thirty (30) days prior to the
date when such Real Estate Taxes
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shall first become due. When the amount of any item comprising Real Estate
Taxes is finally determined for a real estate fiscal tax year, Landlord shall
submit to Tenant a statement in reasonable detail of the same, and the figures
used for computing Tenant's proportionate share of the same, and if Tenant's
proportionate share so stated is more or less than the amount theretofore paid
by Tenant for such item based on Landlord's estimate, Tenant shall pay to
Landlord the deficiency, or Landlord shall refund to Tenant the excess, within
ten (10) Business 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.
6.02. Tenant shall pay, as Additional Rent, to Landlord, as hereinafter
provided Tenant's share of the Operating Expenses. Tenant's share of the
Operating Expenses shall be the Operating Expenses for the period in question,
less the Operating Expenses paid by Landlord during the Base Year, multiplied
by Tenant's Operating Fraction (Section l.0l (JJ) (i) ]. Landlord shall
estimate Tenant's annual proportionate share of the Operating Expenses (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
Tenant's proportionate share 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) Business Days after such notice Landlord
and Tenant shall adjust for any overpayment or underpayment during the prior
months of the then current Calendar Year or partial Calendar Year. After the
end of each Calendar Year, including any partial Calendar Year at the
beginning of the Term, and after the end of the Term, Landlord shall submit to
Tenant a statement in reasonable detail stating Tenant's proportionate share
of the Operating Expenses for such Calendar Year, or partial Calendar Year in
the event the Term shall end on a date other than a December 31st and stating
the Operating Expenses for the period in question and the figures used for
computing Tenant's proportionate share, and if Tenant's proportionate share 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) Business Days after submission of such
statement of Tenant's proportionate share.
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6.03. Each such statement given by Landlord pursuant to Section 601 or
Section 602 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 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) Business
Days after receipt of such statement, pay the Additional Charges in accordance
with Landlord's statement, without prejudice to Tenant's position. If the
dispute shall be determined in Tenant's favor, Landlord shall within ten (10)
Business Days pay to Tenant the amount of Tenant's overpayment resulting from
compliance with Landlord's statement together with interest thereon from the
date of Tenant's payment of the Additional Charges estimate to the Landlord at
the rate of 8% per annum. In addition, Tenant shall have a right to audit
Landlord's books and records with respect to Operating Expenses and Real
Estate Taxes for the Demised Premises on one (1) occasion during any Lease
Year upon twenty (20) days prior written notice to Landlord. During any such
audit Tenant or Tenant's representative shall not be entitled to remove any
books or records from Landlord's place of business.
ARTICLE 7
COMMON AREAS
7.01. Subject to the provisions of Section 5.05, Landlord will operate,
manage, equip, light, repair and maintain, or cause to be operated, managed,
equipped, lighted, repaired and maintained, the Common Areas for their
intended purposes. Landlord reserves the right, at any time and from time to
time, to construct within the Common Areas kiosks, fountains, aquariums,
planters, pools and sculptures, and to install vending machines, telephone
booths, benches and the like, provided same shall not unreasonably block or
interfere with Tenant's means of ingress or egress to and from the Demised
Premises; provided however, Landlord shall not cause a material adverse impact
on the conduct of Tenant's business, nor shall Landlord do anything
inconsistent with maintaining the Building as a first class office building.
7.02. Tenant, its subtenants and concessionaires, and their respective
officers, employees, agents, customers and invitees, shall have the non-
exclusive right to use the Common Areas, 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. Landlord reserves the right, at any time
and from time to time, to close temporarily all or any portions
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of the Common Areas when in Landlord's reasonable judgment any such closing is
necessary or desirable (a) to make repairs or changes or to effect
construction, (b) to prevent the acquisition of public rights in such areas,
(c) to discourage unauthorized parking, or (d) to protect or preserve natural
persons or property. Landlord may do such other acts in and to the Common
Areas as in its judgment may be desirable to improve or maintain same. In
connection with the foregoing, Landlord shall make reasonable efforts to avoid
a material adverse impact on the conduct of Tenant's business and shall
provide adequate ingress and egress to the Demised Premises.
ARTICLE 8
SECURITY
8.01. Upon execution of this Lease, Tenant shall deposit with Landlord the
Security Deposit for the full and faithful payment and performance by Tenant
of Tenant's obligations under this Lease. If Tenant defaults in the full and
prompt payment and performance of any of its obligations under this Lease,
including, without limitation, the payment of Rent, Landlord may use, apply or
retain the whole or any part of the Security Deposit so deposited to the
extent required for the payment of any Rent or any other sums as to which
Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of Tenant's
obligations under this Lease, including, without limitation, any damages or
deficiency in the reletting of the Demised Premises, whether such damages or
deficiency accrue before or after summary proceedings or other re-entry by
Landlord. If Landlord shall so use, apply or retain the whole or any part of
the Security Deposit, Tenant shall, upon demand, immediately deposit with
Landlord a sum equal to the amount so used, applied and retained as the
Security Deposit. If Tenant shall fully and faithfully pay and perform all of
Tenant's obligations under this Lease, the Security Deposit or any balance
thereof to which Tenant is entitled shall be returned or paid over to Tenant,
with interest at the then current passbook savings rate, after the date on
which this Lease shall expire or sooner end or terminate, and after delivery
to Landlord of entire possession of the Demised Premises. In the event of any
sale or leasing of the Building and/or the Land, Landlord shall have the right
to transfer the Security Deposit to which Tenant is entitled to the vendee or
lessee and Landlord shall thereupon be released by Tenant from all liability
for the return or payment thereof and Tenant shall look solely to the new
landlord for the return or payment of the same. The provisions hereof shall
apply to every transfer or assignment made of the same to a new landlord. The
Tenant shall not assign or encumber or attempt to
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assign or encumber the monies deposited herein as security, and neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
ARTICLE 9
SUBORDINATION
9.01. This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to all Mortgages affecting the Land and/or Building,
whether or not such Mortgages shall also cover other lands and/or buildings,
to each and every advance made or hereafter to be made under such Mortgages,
to all renewals, modifications, replacements and extensions of such Mortgages
and spreaders and consolidations of such Mortgages, to the Master Lease, all
present or future ground leases and grants of term of the Building, Land or
parts thereof. The provisions of this Section 9.01 shall be self-operative and
no further instrument of subordination shall be required. In confirmation of
such subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, Prime Landlord or the Mortgagee of any such Mortgage
or any of their respective successors in interest may reasonably request to
evidence such subordination; and if Tenant fails to execute, acknowledge or
deliver any such instruments within ten (10) Business Days after request
therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute and deliver
any such instruments for and on behalf of Tenant. Landlord shall make good
faith efforts to assist Tenant in obtaining a Non-Disturbance Agreement in
Tenant's favor from Prime Landlord. Landlord shall not be required to expend
any funds in rendering such good faith assistance.
9.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to
Landlord, Prime Landlord and each Superior Mortgagee and each Superior Lessor
whose name and address shall previously have been furnished to Tenant, and (b)
until a reasonable period for remedying such act or omission shall have
elapsed following the giving of such notice and following the time when such
Superior Mortgagee, Prime Landlord or Superior Lessor shall have become
entitled under such Superior Mortgage, Master Lease or Superior Lease, as the
case may be, to remedy the same (which reasonable period shall in no event be
less than the period to which Landlord would be entitled under this Lease or
otherwise, after similar notice, to effect such remedy), provided such
Superior Mortgagee, Prime Landlord or
15
Superior Lessor shall with due diligence give Tenant notice of intention
to, and commence and continue to, remedy such act or omission.
9.03. If the Prime Landlord or any Superior Lessor or Superior Mortgagee
shall succeed to the rights of Landlord under this Lease, whether through
possession or foreclosure action or delivery of a new lease or deed, then at
the request of such party so succeeding to Landlord's rights ("Successor
Landlord") and upon such Successor Landlord's written agreement to accept
Tenant's attornment, Tenant shall attorn to and recognize such Successor
Landlord as Tenant's Landlord under this Lease and shall promptly execute and
deliver any instrument that such Successor Landlord may reasonably request to
evidence such attornment. Upon such attornment this Lease shall continue in
full force and effect as a direct lease between the Successor Landlord and
Tenant upon all of the terms, conditions and covenants as are set forth in
this Lease except that the Successor Landlord shall not (a) be liable for any
previous act or omission of Landlord under this Lease; (b) be subject to any
offset, not expressly provided for in this Lease, which theretofore shall have
accrued to Tenant against Landlord; 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 Rent, unless such modification or prepayment
shall have been expressly approved in writing by the Successor Landlord.
9.04. If the Prime Landlord or any then present or prospective Superior
Mortgagee shall require any modification(s) of this Lease, Tenant shall
promptly execute and deliver to Landlord such instruments effecting such
modification(s) as Landlord shall request, provided that such modification(s)
do not adversely affect, except to a de minimis extent, any of Tenant's
rights or Landlord's obligations under this Lease, for example, and not by way
of limitation, changes to the Term, Fixed Rent, Additional Rent and location
of the Demised Premises. Landlord shall reimburse Tenant for Tenant's
reasonable attorney's fees in reviewing any such modification.
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 Leases and
Mortgages.
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ARTICLE 11
ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease or
offer or advertise to do so, (b) sublet the Demised Premises or any part
thereof, or offer or advertise to do so, or allow the same to be used,
occupied or utilized by anyone other than Tenant, or (c) mortgage, pledge,
encumber or otherwise hypothecate this Lease in any manner whatsoever, without
in each instance obtaining the prior written consent of Landlord.
11.02. Any proposed assignee, sublessee or transferee, whether or not
Landlord's consent is required hereunder, shall in any event:
(a) except in the event of a sublease, have a net worth at
least equal to Tenant as of the date of this Lease; and
(b) demonstrate financial responsibility reasonably
necessary to fulfill its obligations hereunder; and
(c) occupy the Demised Premises for the Permitted Use and
only the Permitted Use, as described in this Lease; and
(d) in the reasonable opinion of Landlord, be a tenant whose
occupancy will be in keeping with the dignity and
character of a first class office building and the use
and occupancy of the Building and whose occupancy will
not be more objectionable or more hazardous than that of
Tenant herein or impose any additional burden upon
Landlord in the maintenance and operation of the
Building and shall, in the reasonable opinion of the
Landlord, be eligible, suitable and qualified as a
tenant at Newport Financial Center in accordance with
the provisions of this Lease.
In connection with any proposed assignment, sublease or transfer to which
Landlord's consent is required, Tenant shall pay to the Landlord on demand (i)
the reasonable costs (not including attorney's fees) that may be incurred by
the Landlord,
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including, without limitation, the reasonable costs of making investigations
as to the acceptability of the proposed assignee or sublessee and (ii) the
reasonable attorney's fees of Landlord and Prime Landlord, if such consent of
Prime Landlord is required by the Master Lease.
Landlord agrees that any co-location customers of Tenant with whom Tenant
enters into an agreement to provide telecommunications services at the Demised
Premises shall not be deemed a sublessee or assignee who is subject to the
provisions of this Lease.
11.03. An assignment of this Lease as to which Landlord's consent shall
be required shall be deemed to include: (i) if Tenant is a corporation not
listed on a recognized securities exchange, one or more sales or transfers of
stock, by operation of law or otherwise, or creation of new stock, by which an
aggregate of more than 50% of Tenant's stock shall be vested in a party or
parties who are non-stockholders as of the date hereof, and (ii) if Tenant is
a sole owner, partnership or joint venture, the transfer of any interest in
the Tenant, whether by sale, exchange, merger, consolidation or otherwise.
Notwithstanding clause (i) of the immediately preceding sentence, any
transaction of the type described therein shall not require the consent of
Landlord if the assignee or transferee is listed on a recognized securities
exchange or is "controlled", as such term is defined in clause (a) below, by
an entity which is listed on a recognized securities exchange.
The consent of Landlord shall not be required with respect to
transactions with a corporation into which the Tenant may be merged or
consolidated or to any corporation which shall be an affiliate, subsidiary,
parent or successor of Tenant, or of a corporation into which or with which
Tenant may be merged or consolidated, or to a partnership, the majority
interest in which shall be owned by stockholders of Tenant. Nevertheless,
Tenant shall provide Landlord with concurrent written notice of any such
assignment or sublease.
For the purposes of this Article, a "subsidiary" or "affiliate" or
"successor" of Tenant shall mean the following:
(a) an "affiliate" shall mean any corporation which, directly or
indirectly, controls or is controlled by or is under common control with
Tenant. For this purpose "control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of such corporation, whether through the ownership of voting
securities or by contract or otherwise;
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(b) a "subsidiary" shall mean any corporation, not less than 50% of
whose outstanding stock shall, at the time, be owned directly or indirectly by
Tenant; and
(c) a "successor" of Tenant shall mean:
(i) a corporation in which or with which Tenant, its corporate
successors or assigns, is merged or consolidated, in accordance with
applicable statutory provisions for merger or consolidation of corporations,
provided that by operation of law or by effective provisions contained in the
instruments of merger or consolidation, the liabilities of the corporations
participating in such merger or consolidation are assumed by the corporation
surviving such merger or created by such consolidation, or
(ii) a corporation acquiring this Lease and the terms hereby demised
and a substantial portion of the property and assets of Tenant, its corporate
successors or assigns, or
(iii) a corporate successor to a successor corporation becoming such
either by the methods described in (i) or (ii) provided that in the completion
of such merger, consolidation, acquisition or assumption, the successor shall
have a net worth of no less than that of Tenant immediately prior thereto.
11.04. If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect Rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default collect
Rent from the subtenant or occupant. In either event, Landlord may apply the
net amount collected to the Rent, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of any of the provisions of
Section 11.01 or Section 11.02, or the acceptance of the assignee, subtenant
or occupant as tenant, or a release of Tenant from the performance by Tenant
of Tenant's obligations under this Lease. The consent by Landlord to any
assignment, mortgaging, subletting or use or occupancy by others shall not in
any way be considered to relieve Tenant from obtaining the express written
consent of Landlord to any other or further assignment, mortgaging or
subletting or use or occupancy by others not expressly permitted by this
Article 11. References in this Lease to use or occupancy by others (that is,
anyone other than Tenant) shall not be construed as limited to subtenants and
those claiming under or through subtenants but shall be construed as including
also licensees and others claiming under or through Tenant, immediately or
remotely.
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11.05. Any permitted assignment or transfer, whether made with Landlord's
consent or without Landlord's consent, shall be made only if, and shall not be
effective until, the assignee or transferee shall execute, acknowledge and
deliver to Landlord an agreement in form and substance satisfactory to
Landlord whereby the assignee or transferee shall assume Tenant's obligations
under this Lease from and after the effective date of the assignment or
transfer and whereby the assignee or transferee shall agree that all of the
provisions in this Article 11 shall, notwithstanding such assignment or
transfer, continue to be binding upon it in respect to all future assignments
and transfers. Notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance
of Rent by Landlord from an assignee, transferee or any other party, the
original Tenant and any other person(s) who at any time was or were Tenant
shall remain fully liable for the payment of the Rent and for Tenant's other
obligations under this Lease.
11.06. The liability of the originally 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.
11.07. The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises or the Building directory, or otherwise, shall
not operate to vest any right or interest in this Lease or in the Demised
Premises, nor shall it be deemed to be the consent of Landlord to any
assignment or transfer of this Lease or to any sublease of the Demised
Premises or to the use or occupancy thereof by others.
11.08. Without limiting any of the provisions of Article 27, if pursuant
to the Federal Bankruptcy Code (or any similar law hereafter enacted having
the same general purpose), Tenant is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease, adequate assurance
of future performance by an assignee expressly permitted under such Code shall
be deemed to mean the deposit of cash security in an amount equal to the sum
of one (1) year's Fixed Rent plus an amount equal to the Additional Charges
for the Calendar Year preceding the year in which such assignment is intended
to become effective, which deposit shall be held by Landlord for the balance
of the Term, without interest, as security for the full performance of all of
Tenant's obligations under this Lease, to be held and applied in the manner
specified for the Security Deposit in Section 8.01.
20
11.09. In the event of any assignment or sublease of the Demised Premises
which requires the payment of Fixed Rent, Additional Rent and other charges in
excess of the amounts payable to the Landlord as set forth in this Lease, then
the "net excess or profit" shall be evenly divided and paid to Tenant and to
Landlord as Additional Rent and shall be due and payable at such times as shall
be due and payable by such assignee or subtenant to the Tenant. In the event the
Tenant fails to make payment of such excess or profit in violation of this
Lease, Landlord may collect such rent directly from the assignee or subtenant.
The "net excess or profit" shall mean the amount remaining after payment of
Fixed Rent, Additional Rent and other standard, customary, and reasonable
charges, marketing, brokerage and other professional fees and expenses
reasonably incurred by Tenant.
ARTICLE 12
COMPLIANCE WTTH LAWS
12.01. Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
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 such law or requirement of any public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 12.02.
12,02. Tenant may contest by appropriate proceedings prosecuted diligently
and in good faith, the validity, or applicability to the Demised Premises, of
any Legal Requirement, provided that (a) Landlord shall not be subject to
criminal penalty or to prosecution for a crime, and neither the Demised Premises
nor any part thereof shall be subject to being condemned or vacated by reason of
non-compliance or otherwise by reason of such contest; (b) before the
commencement of such contest, Tenant shall furnish to Landlord either (i) the
bond of a surety company satisfactory to Landlord, which bond shall be, as to
its provisions and form, satisfactory to Landlord and shall be in an amount at
least equal to 125% of the cost of such compliance (as estimated by a reputable
contractor designated by Landlord) and shall indemnify Landlord against the cost
thereof and against all liability for damages, interest, penalties and expenses
(including reasonable attorney's fees and expenses), resulting from or incurred
in connection with such contest or non-compliance, or (ii) other security in
place of such bond
21
satisfactory to Landlord; (c) such non-compliance or contest shall not
constitute or result in any violation of any Superior Lease or Superior
Mortgage, or if any such Superior Lease and/or Superior Mortgage shall permit
such non-compliance or contest on condition of the taking of action or
furnishing of security by Landlord, such action shall be taken and such
security shall be furnished at the expense of Tenant; and (d) Tenant shall
keep Landlord advised as to the status of such proceedings. Without limiting
the application of the above, Landlord shall be deemed subject to prosecution
for a crime if Landlord, or its managing agent, or any officer, director,
partner, shareholder or employee of Landlord or its managing agent, as an
individual, is charged with a crime of any kind or degree whatsoever, whether
by service of 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.
12.03. The Tenant acknowledges that the Building is not in an enterprise
zone.
12.04. Landlord shall comply with all then existing Legal Requirements and
shall pay all the cost, expenses, fines, penalties and damages which may be
imposed upon Tenant for any violation by Landlord of the Legal Requirements
existing at the time of the completion of Tenant's Work. Landlord shall comply
with all Legal Requirements applicable to the Building (other than the Demised
Premises) during the Term.
ARTICLE 13
INSURANCE AND INDEMNITY
13.01. Landlord shall maintain or cause to be maintained All-Risk
insurance in respect of the Building and other improvements on the Land
normally covered by such insurance (except for the property Tenant is required
to cover with insurance under Section 13.02 and similar property of other
tenants and occupants of the Building and except for buildings and other
improvements which are on land neither owned by nor leased to Landlord) for
the benefit of Landlord, any Superior Lessors, any Superior Mortgagees and any
other parties Landlord may at any time and from time to time designate, as
their interests may appear, but not for the benefit of Tenant, and shall
maintain rent insurance as required by Prime Landlord or any Superior Lessor
or any Superior Mortgagee. The All-Risk insurance will be in the amounts
required by the Superior Lessor or any Superior Mortgagee but not less than
the amount sufficient to avoid the effect of the coinsurance provisions of the
applicable policy or policies. Landlord may also maintain any other forms and
types of insurance which Landlord shall deem
22
reasonable in respect to the Building and Land. Landlord shall have the right
to provide any insurance maintained or caused to be maintained by it under
blanket policies.
13.02. Tenant shall maintain the following insurance:
(a) comprehensive general public liability insurance in respect of tne
Demised Premises and the conduct and operation of business therein, with
limits of not less than $6,000,000 for bodily injury or death and $3,000,000
for property damage, including water damage and sprinkler leakage legal
liability, (b) All-Risk insurance in respect to Tenant's stock in trade,
fixtures, furniture, furnishings, removable floor coverings, equipment, signs,
and all other property of Tenant in the Demised Premises, in any amounts
required by Prime Landlord or any Superior Lessor or 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 coinsurance
provisions of the applicable policy or policies; (c) workers' compensation
insurance; (d) rental insurance in an amount equal to not less than one (1)
year's Fixed Rent and Additional Rent, which shall be automatically renewable
annually and (e) any other insurance required for compliance with the
Insurance Requirements. Tenant shall deliver to Landlord and any additional
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 thereof, 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
do business in New Jersey, and all such policies shall contain a provision
whereby the insurer shall provide written notice to Landlord and any
additional insured(s) at least twenty (20) days prior to cancellation or
modification of such policies.
13.03. Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy
the Demised Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company or companies whereby the fire insurance
or any other insurance then in effect in respect 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 Use. Landlord shall give Tenant written notice in the event Landlord
becomes aware of Tenant's breach of the provisions Of this Section 13.03. In
case of a breach of the provisions of this Section 13.03, in addition to all
other rights and remedies of Landlord hereunder, Tenant shall (a) indemnify
Landlord, Prime Landlord, Superior Lessors and the Superior Mortgagees, and
hold
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Landlord, Prime Landlord, Superior Lessors and Superior Mortgagees harmless from
and against any loss which would have been covered by insurance which shall have
become void or suspended because of such breach by Tenant and (b) pay to
Landlord any and all increases of premiums on any insurance, including, without
limitation, rent insurance, resulting from any such breach. Landlord represents
that the Permitted Use complies with Landlord's Insurance Requirements.
13.04. Subject to Section 13.03 and to the extent not covered by Tenant's
insurance, Tenant shall indemnify, defend and hold harmless Landlord, Prime
Landlord, Superior Mortgagee and all Superior Lessors 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, caused by Tenant, its agents, servants, representatives or
employees; (b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners, joint venturers, directors,
officers, agents, employees or contractors; (c) any accident, injury or damage
whatever (unless caused solely by Landlord's negligence) occurring in the
Demised Premises, caused by Tenant, its agents, servants, representatives or
employees; and (d) any breach or default by Tenant in the full and prompt
payment and performance of Tenant's obligations under this Lease. Tenant's
obligation to indemnify shall also include all costs, expenses and liabilities
incurred in or in connection with each such claim or action or proceeding
brought thereon, including without limitation, all reasonable attorney's fees,
expert fees and expenses. In case any action or proceeding is brought against
Landlord, Prime Landlord, Superior Mortgagee and/or any Superior Lessor and/or
its or their partners, joint venturers, directors, officers, agents and/or
employees by reason of such claim, Tenant upon notice from Landlord, Prime
Landlord, Superior Mortgagee and/or such Superior Lessor, shall resist and
defend such action or proceeding by counsel reasonably satisfactory to Landlord.
13.05. Landlord, Prime Landlord, Superior Mortgagee or any Superior Lessor,
shall not be liable to or responsible for, and Tenant hereby releases Landlord,
Prime Landlord, Superior Mortgagee and Superior Lessor from all liability and
responsibility to Tenant and any person claiming by, through or under Tenant, by
way of subrogation, for any injury, loss or damage to any person or property in
the Demised Premises or to Tenant's business irrespective of the cause of such
injury, loss or damage. This release shall apply to the extent that such injury,
loss or damage to person or property is covered and
24
actually paid by insurance, regardless of whether such insurance is payable to
or protects Landlord, Tenant or both. Nothing herein shall be construed to
impose any other or greater liability upon Landlord than would have existed in
the absence of this provision. Further, Tenant shall require its insurers to
include in all of Tenant's insurance policies which could give rise to a right
of subrogation against Landlord, Prime Landlord, Superior Mortgagee and
Superior Lessor a clause or endorsement whereby the insurer waives any rights
of subrogation against Landlord, Prime Landlord, Superior Mortgagee and such
Superior Lessor or permits the insured, prior to any loss, to agree with a
third party to waive any claim it may have against said third party without
invalidating the coverage under the insurance policy. The release in favor of
Landlord, Prime Landlord, Superior Mortgagee and Superior Lessors, contained
herein, is in addition to, and not in substitution for, or in diminution of
the hold harmless and indemnification provisions contained in this Article and
in Article 23.
13.06. Except as provided herein, Tenant shall not be liable or
responsible for and Landlord hereby releases Tenant from all liability and
responsibility to Landlord and any person claiming by, through or under
Landlord by way of subrogation for any injury, loss or damage to any person or
property in the Demised Premises irrespective of the cause of such injury,
loss or damage. This release shall apply to the extent that such injury, loss
or damage to person or property is covered by insurance, regardless of whether
such insurance is payable to or protects Landlord, Tenant or both. Nothing
herein shall be construed to impose any other or greater liability upon Tenant
than would have existed in the absence of this provision. Further, Landlord
shall require its insurers to include in all of Landlord's insurance policies
which could give rise to a right of subrogation against Tenant, a clause or
endorsement whereby the insurer waives any right of subrogation against Tenant
or permits the insured, prior to any loss, to agree with a third party to
waive any claim against said third party without invalidating the coverage
under the insurance policy.
ARTICLE 14
RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations (attached hereto as Exhibit C) and such
reasonable changes therein (whether by modification, elimination or addition)
as Landlord at any time or times hereafter may make and communicate to Tenant,
which, in Landlord's 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
25
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. Nothing
contained in this Lease shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations against any other tenant or any
employees or agents of any other tenant, and Landlord shall not be liable to
Tenant for violation of the Rules and Regulations by any other tenant or its
employees, agents, invitees or licensees. Landlord shall give Tenant notice of
any change in the Rules and Regulations. Landlord shall not enforce the Rules
and Regulations against Tenant in an arbitrary or discriminatory manner. Tenant
shall comply with all of the rules, regulations, instructions and directions
contained in the Newport Financial Center Tenant Guide, a copy of which has been
provided to Tenant and Tenant has acknowledged receipt thereof. Tenant shall
further comply with any rules, regulations, instructions or directions posted
in, on or about the Building.
ARTICLE 15
ALTERATIONS
15.01. Tenant shall not make any alterations or additions to the Demised
Premises, or make any holes or cuts in the walls, ceilings, roofs or floors
thereof, or change the architectural treatment of the Demised Premises without
the Landlord's prior written consent, which consent shall not be unreasonably
withheld; provided, however, the Tenant may make non-structural alterations or
improvements to the Demised Premises consistent with the use of said Demised
Premises for the Permitted Use by giving prior written notice to the Landlord.
Tenant shall submit to Landlord plans and specifications for such work at the
time notice is given to Landlord or at any time requested by Landlord. Further,
Tenant shall be permitted to construct and run communication conduit, not in
excess of 4" in diameter, subject to Landlord's prior written consent of
detailed plans and specifications for any such conduit work and provided further
such work does not in Landlord's sole judgment adversely affect the rights of
other tenants or lawful occupants in the Building or adversely affect the rights
and obligations of Landlord herein. Without respect to whether, in fact the
alterations are constructed, Tenant shall pay to Landlord upon demand the
reasonable cost and expense of Landlord for (a) reviewing the plans and
specifications; (b) inspecting the alterations to determine whether the same are
being performed in accordance with the approved plans and specifications and all
Legal Requirements, including, without limitation, the fees of any architect or
engineer employed by Landlord for such purpose. With respect to any alteration,
estimated to cost more than Ten
26
Thousand ($10,000.00) Dollars, Tenant shall pay to Landlord, as an Additional
Charge, within five (5) days after demand, fifteen (15%) percent of the cost
of such alterations for indirect job costs, general conditions and
coordination of the work. Notwithstanding the foregoing, such Additional
Charge of 15% described in the previous sentence shall not apply to Tenant's
alterations performed on or about the Commencement Date. Upon the completion
of each alteration, Tenant shall deliver to the Landlord a certificate signed
by an officer of Tenant, in form and substance reasonably satisfactory to
Landlord, certifying the cost of the alteration. Before proceeding with any
alterations, Tenant shall fully and promptly comply with and observe the Rules
and Regulations then in force in respect of the making of alterations. Any
review or approval by Landlord of any plans and/or specifications with respect
to any alterations is solely for Landlord's benefit, and without any
representation or warranty whatsoever to Tenant in respect 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 with all applicable Legal Requirements and Insurance
Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in
quality and class to the better of (a) the original installations of the
Building, or (b) the then standards for the Building established by Landlord.
Alterations shall be performed by Contractors subject to Landlord's reasonable
approval. Alterations shall be made in such manner as not to unreasonably
interfere with or delay and as not to impose any additional expense upon
Landlord in the construction, maintenance, repair or operation of the
Building; and if any such additional expense shall be incurred by Landlord as
a result of Tenant's making of any alterations, Tenant shall pay any such
additional expense upon demand. Throughout the making of alterations, Tenant
shall carry, or cause to 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 and any Superior Lessor whose name and address shall
previously have been furnished to Tenant shall be named as parties insured, in
such limits as Landlord may reasonably require, with insurers reasonably
satisfactory to Landlord. Tenant shall furnish Landlord with reasonably
satisfactory evidence that such insurance is in effect at or before the
commencement of alterations and on request at reasonable intervals thereafter
during the making of alterations.
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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 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 the 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 Tenant shall not be
deemed to have been installed by or for the account of Tenant without expense to
Landlord, shall not be considered as the Tenant's Property and shall be deemed
the property of Landlord.
16.03. In the event at or before the Expiration Date or the date of any
earlier termination of this Lease, or within thirty (30) days after the
Expiration Date or an earlier termination date, Tenant removes from the Demised
Premises all of the Tenant's Property (except such items thereof as Landlord
shall have expressly permitted to remain, which property shall become the
property of the Landlord if not removed), Tenant shall repair any damage to the
Demised Premises, the Building and the Common Areas resulting from any
installation and/or removal of the Tenant's Property. Any items of the Tenant's
Property which shall remain in the Demised Premises after the Expiration Date or
after a period, of thirty (30) days following the Expiration Date or an earlier
termination date, may, at the option of the Landlord, be deemed to have been
abandoned, and in such case such items may be retained by Landlord as its
property or disposed of by Landlord, without accountability, in such manner as
Landlord shall determine at Tenant's expense.
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ARTICLE 17
REPAIRS AND MAINTENANCE
17.01. Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein. Tenant, at its expense, shall
be responsible for all repairs, interior and exterior, structural and
non-structural, ordinary and extraordinary, in and to the Demised Premises, the
premises of other tenants, the Building (including the facilities and systems
thereof), and the Common Areas the need for which arises out of (a) the
performance of alterations by Tenant, (b) the installation, use or operation of
the Tenant's Property in the Demised Premises, (c) the moving of the Tenant's
Property in or out of the Building, or (d) the act, omission, misuse or neglect
of Tenant or any of its subtenants or its or their employees, agents,
contractors or invitees. Tenant shall promptly replace all scratched, damaged or
broken doors and glass in and about the Demised Premises and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Demised Premises and for the repair and maintenance of all
sanitary and electrical fixtures and equipment therein. Tenant shall promptly
make all repairs in or to the Demised Premises for which Tenant is responsible,
and any repairs required to be made by Tenant to the mechanical, electrical,
sanitary, heating, ventilating, air-conditioning or other Systems of the
Building shall be performed only by contractor(s) designated by Landlord. Any
other repairs in or to the Building, its facilities and Systems or the premises
of other tenants for which Tenant is responsible shall be performed by Landlord
at Tenants expense; but Landlord may, at its option, before commencing any such
work or at any time thereafter, require Tenant to furnish to Landlord such
security, in form (including, without limitation, a bond issued by a corporate
surety licensed to do business in New Jersey) and amount, as Landlord shall deem
necessary to assure the payment for such work by Tenant.
17.02. Landlord shall be responsible for all repairs and maintenance in and
to the Building (including the facilities and systems and structure thereof),
except for those repairs and maintenance for which Tenant is responsible
pursuant to any of the provisions of this Lease. Tenant shall give Landlord
written notice of any repairs it believes Landlord should make. In the event
Landlord has not commenced making the repairs within ten (10) Business Days
subsequent to Landlord's receipt of this notice, Tenant may elect to give
Landlord written notice of Tenant's intention to do the repair in the event
Landlord has not commenced the repair within five (5) Business Days of
Landlord's receipt of such written notice, tenant may do the repair and Landlord
shall reimburse Tenant for all reasonable costs in connection therewith. The
foregoing notwithstanding, Tenant shall at no time and in no event be entitled
to make, or
29
cause to be made, any repairs or replacements to, or provide maintenance for,
the electrical, UPS and EPS systems (as hereinafter defined), and the heating,
ventilating and air-conditioning systems in the Building.
17.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and
obligations under this Lease be reduced or abated in any manner whatsoever, by
reason of any inconvenience, annoyance, interruption or injury to business
arising from Landlord's doing any repairs, maintenance, or changes which
Landlord is required or permitted by this Lease, or required by law, to make
in or to any portion of the Building.
ARTICLE 18
ELECTRIC ENERGY
18.01. Electric current will be supplied to the Demised Premises at the
commencement of the Term in accordance with the provisions of subdivision A of
this Section 18.01. However, at any time and from time to time during the Term
of this Lease, provided it is then permissible under applicable law or Public
Service Regulation, Landlord shall have the option to have electric current
supplied to the Demised Premises in accordance with the subdivision of this
Section not then applicable, including, without limitation, reverting to the
method under which electricity was originally or previously supplied.
A. Checkmetering.
Electric current will be supplied by Landlord to the Demised Premises to
service Tenant's telecommunications, data processing, supplemental air-
conditioning and other related equipment, and Tenant will pay Landlord or
Landlord's designated agent, as Additional Rent for such service, the amounts
(hereinafter called the "Electricity Additional Rent"), as determined by a
meter or checkmeter installed for the purpose of measuring such consumption,
at charges, terms and rates set, from time to time during the Term of this
Lease by Landlord, but not less than those specified in the service
classification in effect on June 12, 1988, pursuant to which the then owner of
the Building purchased electric current from the public utility corporation
(the "Utility Company"), serving the part of the City of Jersey City where the
Building is located, together with Landlord's administrative charges,
calculated at the rate of 15% of the Electricity Additional Rent as billed to
the Tenant In the event that a checkmeter is not installed and fully and
accurately operating on the Commencement Date, then the Electricity Additional
Rent for the period when the checkmeter is not so functioning shall be based
upon the average of the first
30
three (3) months of meter operation. Landlord at its option may, from time to
time, increase the Electricity Additional Rent based upon changes occurring
subsequent to the aforementioned date in the method, rates (including, without
limitation, time of day and seasonal rate differentials) or manner by which
Landlord thereafter purchases electricity for the Building. Such increases in
the Electricity Additional Rent shall be in the amount which bears the same
proportion to the Electricity Additional Rent, payable prior to such increase,
as the increase in the average cost per kilowatt hour payable in accordance
with the rates and other charges pursuant to which Landlord will purchase
electricity after such change bears to the average cost per kilowatt hour
payable in accordance with the rates and other charges prior to such change. The
periods to be used for the aforesaid computation shall be the billing periods
ending in February and August immediately preceding such change, or such other
period or periods as Landlord, in its sole discretion, may from time to time
elect. "Average cost per kilowatt hour" is defined as including energy charges,
demand charges, time of day charges, fuel adjustment charges (as determined for
each month of said period and not averages), rate adjustment charges, sales
taxes and/or any other factors used by the Utility Company in computing its
charges to Landlord, applied to the kilowatt hours of energy and the kilowatts
of demand purchased by Landlord during a given xxxx period. Where more than one
meter measures the electric service to Tenant, the electric service rendered
through each meter may be computed and billed separately in accordance with the
provisions herein above set forth. Bills for the Electricity Additional Rent
(the "Bills") shall be rendered to Tenant at such time as Landlord may elect
and the amount, as computed from the meter, shall be the Electricity Additional
Rent.
B. Direct Supply.
Tenant shall obtain electric energy directly from the Utility Company
furnishing electric service to the Building. The costs of such service shall be
paid by Tenant directly to such Utility Company, but a default by Tenant in the
timely payment of any xxxx or charge of such Company shall be deemed a default
by Tenant under this Lease.
18.02. Notwithstanding anything to the contrary contained in this Lease,
Tenant shall neither utilize or be entitled to utilize more than 800 amps at 480
volts of electrical power for Tenant's Permitted Use at the Demised Premises
("Tenant's Power A1location"). Tenant shall notify Landlord in writing its
final determination of the amount of Tenant's Power Allocation within sixty
(60) days after the date hereof. In the event that Tenant exceeds Tenant's Power
Allocation, Landlord shill promptly notify Tenant and Tenant shall diminish its
electrical power usage. In the event that Tenant continues to
31
fail to reduce its electrical power usage consistent with Tenant's Power
Allocation, then Landlord may unilaterally reduce such electrical power use to
conform to Tenant's Power Allocation.
18.03. Landlord shall have full and unrestricted access to all
air-conditioning and heating equipment, and to all other utility installations
servicing the Building and the Demised Premises. Landlord reserves the right
temporarily to reasonably interrupt, curtail, stop or suspend electrical,
air-conditioning, heating service, and all other utility, or other services,
because of Landlord's inability to obtain, or difficulty or delay in obtaining,
labor or materials necessary therefor, or in order to comply with governmental
restrictions in connection therewith, or in order for the Landlord to perform
any preventive maintenance in connection with the Building or any Building
system, or for any cause beyond Landlord's reasonable control. No diminution or
abatement of Fixed Rent, Additional Rent, or other compensation shall be or will
be claimed by Tenant, nor shall this Lease or any of the obligations of Tenant
hereunder be affected or reduced by reason of such interruptions, stoppages or
curtailments, the causes of which are hereinabove enumerated, nor shall the same
give rise to a claim in Tenant's favor that such failure constitutes actual or
constructive, total or partial eviction from the Demised Premises, unless such
interruptions, stoppages or curtailments have been due to the intentional or
willful misconduct of Landlord.
18.04. Landlord shall not be liable or responsible to Tenant in any way for
any loss, damage or expense which Tenant may sustain or incur as a result of
any (i) interruption, curtailment or failure (whether or not temporary) or (ii)
defect in the supply, character, quantity, availability or suitability of
electricity (including UPS and EPS power as such terms may hereinafter be
defined in Article 19) furnished to the Demised Premises by reason of any
requirement, act or omission of the Utility Company or any other company
servicing the Building with electricity or for the performance of any
maintenance or repair required hereunder or for any other reason except if and
to the extent the same is caused by or results from the intentional or willful
misconduct of Landlord.
18.05. If either the quantity or character of electrical service is changed
by the Utility Company or other company supplying electricity to the Building or
is no longer available or suitable for Tenant's requirements, no such change,
unavailability or unsuitability shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
in the payment of Fixed Rent, or relieve Tenant from any of its obligations
under this Lease, or
32
impose any liability upon Landlord, or its agents, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
18.06. In the event that Tenant does not pay the Electricity Additional Rent
owing by Tenant pursuant to this Article within ten (10) Business Days after the
request for same by Landlord, Landlord may, without further notice and in
addition to any other remedies Landlord may have, discontinue the service of
electricity to the Demised Premises without releasing Tenant from any liability
under this Lease and without Landlord incurring any liability for any damage or
loss sustained by Tenant as the result of such discontinuance. If any tax is
imposed upon Landlord's receipts from the sale or resale of electric current to
Tenant by any Federal, state or municipal authority, Tenant agrees that, unless
prohibited by law, Tenant's proportionate share of such tax shall be passed on
to, and included in the xxxx of, and paid by Tenant to Landlord as Additional
Rent.
18.07. Tenant will make no electrical installations, alterations, additions
or changes to electrical equipment or appliances without the prior written
consent of Landlord in each instance. With respect to Tenant's initial
electrical installations on or about the Commencement Date, any such initial
electrical installations shall be performed by electrical contractors approved
by Landlord and subject to Landlord's consent and approval of Tenant's
electrical plans. Tenant will at all times comply with the rules, regulations,
terms and conditions applicable to service, equipment, wiring and requirements
of the Utility Company supplying electricity to the Building. Tenant covenants
and agrees that at all times its use of electric current will not exceed the
capacity of existing feeders to the Building or the risers or wiring
installation and Tenant will not use any electrical equipment which, in
Landlord's sole judgment, will overload such installations or interfere with
the use thereof by other tenants of the Building. In the event that, in
Landlord's sole judgment, Tenant's electrical requirements necessitate
installation of an additional riser, risers or other proper and necessary
equipment, the same shall be installed by Landlord at Tenant's sole expense and
shall be chargeable and collectible as Additional Rent and paid within ten (10)
days after the rendition of a xxxx to Tenant therefor.
ARTICLE 19
HEAT, VENTILATION AND AIR-CONTIDTIONING
19.01. Landlord, at its expense, (but included in Operating Expenses
pursuant to Article 6), shall maintain and operate the base Building heating,
ventilating and air-conditioning systems (hereinafter called the "Systems"), and
33
shall furnish heat, ventilating and air-conditioning (hereinafter collectively
called "HVAC services"), in the Demised Premises through the Systems, during
Business Hours on Business Days throughout the year. If Tenant shall require
base Building HVAC services at any time other than during Business Hours
(herein referred to as "after hours") Landlord may, if reasonably possible,
furnish such after hours HVAC service upon reasonable advance notice from
Tenant, and Tenant shall pay to Landlord within five (5) days after demand, as
Additional Rent, the sum of $150.00 per hour per quadrant of the Building for
such after hours HVAC service. The term "quadrant" of the Building shall mean
a contiguous one-quarter of the rentable square footage of an entire floor of
the Building as designated by the Landlord.
19.02. Landlord shall supply to the Demised Premises Uninterruptible Power
Supply ("UPS") and Emergency Power Supply ("EPS") for data processing and data
transmission. Landlord shall also provide access and allow Tenant to connect
to Landlord's chilled water data air-conditioning system at the Demised
Premises for UPS and EPS ("Data Air-Conditioning") EPS, UPS and Data Air-
Conditioning shall be supplied on a 24 hour/7 day per week basis. Tenant shall
pay to the Landlord, as and for Additional Rent, the sum of Four Hundred &
00/100 ($400.00) Dollars per KVA per annum for each of the KVAs reserved for
Tenant's use for UPS and EPS for the period commencing with the Commencement
Date and ending June 30, 2004. For the period July 1, 2004 through and ending
on the Expiration Date, Access Charges for UPS and EPS (as hereinafter
defined) shall be calculated at the rate of Four Hundred Fifty & 00/100
($450.00) Dollars per KVA per annum. The amount of KVAs for UPS and EPS shall
not be more than 600 KVAs nor less than 400 KVAs. Following the Commencement
Date and until the amount of Tenant's UPS and EPS is determined, Tenant shall
pay Access Charges (as hereinafter defined) based upon the minimum amount of
KVAs set forth in the preceding sentence. Tenant shall notify Landlord in
writing of the final amount of UPS and EPS power required within sixty (60)
days after the date hereof at which time Access Charges shall be appropriately
adjusted and any Access Charges, calculated from the Commencement Date,
remaining unpaid by Tenant shall be paid within ten (10) days after receipt of
Landlord's invoice for same. Tenant shall also pay to the Landlord, as and for
Additional Rent the sum of Four Hundred & 00/100 ($400. 00) Dollars per ton
per annum for each of the tons reserved for Tenant for Data Air-Conditioning
for the period commencing with the Commencement Date and ending June 30, 2004.
Thereafter, for the period commencing July 1, 2004 through and ending on the
Expiration Date, Access Charges for Data Air-Conditioning shall be calculated
at the rate of Four Hundred Fifty & 00/100 ($450.00) Dollars per ton per
annum. The amount of tons for Data Air-Conditioning shall not be more than 120
tons nor less than 60 tons. Following the Commencement Date and until the
amount of Tenant's Data Air-Conditioning is determined, Tenant shall pay
34
Access Charges (as hereinafter defined) based upon the minimum amount of tons
set forth in the preceding sentence. Tenant shall notify Landlord in writing of
the final amount of Data Air-Conditioning power required within sixty (60) days
after the date hereof at which time Access Charges shall be appropriately
adjusted and any Access Charges, calculated from the Commencement Date,
remaining unpaid by Tenant shall be paid within ten (10) days after receipt of
Landlord's invoice for same. Additional Rent for UPS, SPS and Data Air
Conditioning may be collectively referred to herein as "Access Charges". Access
Charges shall be pro-rated monthly and shall be paid by Tenant at the same time
and manner as Fixed Rent is paid pursuant to Section 3.01.
19.03. Landlord shall furnish necessary passenger elevator service during
Business Hours and shall have a passenger elevator subject to call at all other
times. If Landlord shall at any time have elected to furnish operator service
for any automatic elevators, Landlord shall have the right to discontinue
furnishing such service. If Tenant shall require the use of the Building's
freight elevators, Landlord shall provide a freight elevator for the use of
Tenant, provided Tenant gives Landlord reasonable notice of the time and use of
such elevators to he made by Tenant and Tenant pays Landlord's usual and
reasonable charges for the use thereof, as an Additional Charge, within ten (10)
Business Days after demand, including without limitation, any expense for
operator service for such elevator which Landlord may deem necessary in
connection with Tenant's use of such elevator. Landlord shall have the right to
change the operation or manner of operating any of the elevators in the Building
and shall have the right to discontinue, temporarily or permanently, the use of
any one or more cars in any of the banks of elevators provided reasonable
elevator service is provided to the Demised Premises. Tenant shall pay, as and
for Additional Rent, for freight elevator use the sum of $75.00 per hour when
such use occurs during Business Hours on Business Days and $150.00 per hour when
such use occurs during non-Business Hours or non-Business Days.
ARTICLE 20
OTHER SERVICES: SERVICE INTERRUPTON
20.01. Landlord shall keep the outside ground level clean and free of debris
and trash and shall use its best efforts to keep the Building area free of
loiterers.
20.02. Landlord shall furnish adequate hot and cold water to the Demised
Premises, for drinking, lavatory and cleaning purposes and Tenant shall pay, as
and for Additional Rent, for said water the sum of $100.00 per month. If Tenant
uses water for any other purpose, Landlord may install and maintain, at Tenant's
expense, meters to measure Tenant's
35
consumption of cold water and/or hot water for such other purpose. Tenant shall
reimburse Landlord for the quantities of cold water and hot water shown on such
meters on demand; provided however, Landlord shall not charge Tenant more than
the cost to Landlord for such water and Landlord shall not cut off the flow of
such water.
20.03. Except as otherwise specifically provided herein, the Landlord shall
not be liable for full or partial interruption of any of the above services or
utilities described in this Article or Article 19 from conditions beyond
Landlord's control, but Landlord shall take immediate action to restore the
services and utilities. The Rent shall not xxxxx, in whole or in part, during
any such interruption or partial interruption of any of the above services or
utilities from conditions beyond the Landlord's control, but Landlord shall
take immediate action to restore the services and utilities.
20.04. (a) Provided Tenant shall keep the Demised Premises in good order,
Landlord, at its expense, but included in Operating Expenses, shall cause the
Demised Premises, but excluding any portions of the Demised Premises used for
the storage, preparation, service or consumption of food or beverages, to be
cleaned, substantially in accordance with the standards set forth in Exhibit E
attached hereto. Tenant shall pay to Landlord as Additional Rent on demand
Landlord's charges for (A) cleaning work in the Demised Premises or the Building
required because of (i) misuse or neglect on the part of Tenant or its agents,
employees, contractors, licensees or invitees (ii) use of portions of the
Demised Premises for the storage, preparation, service, or consumption of food
or beverages, reproduction, data processing or computer operations, private
lavatories or toilets or other special purposes requiring greater or more
difficult cleaning work than office areas, (iii) interior glass surfaces, (iv)
non-Building standard materials or finishes installed by Tenant or at its
request, (v) increases in frequency or scope in any of the items set forth in
Exhibit E as shall have been requested by Tenant, and (B) removal from the
Demised Premises and the Building of (i) so much refuse and rubbish of Tenant as
shall exceed that normally accumulated in the daily routine of ordinary business
office occupancy and (ii) all of the refuse and rubbish of Tenant's machines and
of any eating facilities requiring special handling and (C) additional cleaning
work in the Demised Premises or the Building required because of the use of the
Demised Premises by Tenant after hours. Landlord and its cleaning contractor and
their employees shall have access to the Premises at all times except during
Business Hours on Business Days and, to the extent that it will not unreasonably
interfere with the operation of Tenant's business, during Business Hours.
Landlord and its cleaning contractor and their employees shall have the use of
Tenant's light, power and water in the Demised Premises, without charge
therefor, as may be
36
reasonably required for the purpose of cleaning the Demised Premises. If
Tenant is permitted hereunder to and does have a separate area for the
storage, preparation, service or consumption of food or beverages in the
Demise Premises, Tenant, at its sole cost and expense, shall cause all
portions of the Demised Premises so used to be cleaned daily in manner
reasonably satisfactory to Landlord.
(b) The cleaning services required to be furnished by Landlord
pursuant to this Section may be furnished by a contractor or contractors
employed by Landlord and Tenant agrees that Landlord shall not be deemed in
default of any of its obligations under this Section unless such default shall
continue for an unreasonable period of time after notice from Tenant to
Landlord setting forth the specific nature of such default.
ARTICLE 21
ACCESS, CHANGES AND NAME
21.01. Except for the space within the inside surfaces of all walls, hung
ceiling, floors, windows and doors bounding the Demised Premises, all of the
Building, including, without limitation, exterior Building walls, core
corridor walls and doors and any core corridor entrance, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric
or other utilities, sinks or other Building facilities and the use thereof, as
well as access thereto through the Demised Premises for the purpose of
operating, maintenance, decoration and repair, are reserved to Landlord.
Landlord also reserves the right to install, erect, use and maintain pipes,
ducts and conduits in and through the Demised Premises, provided such are
properly enclosed.
21.02. Landlord and its agents shall have the right to enter and/or pass
through the Demised Premises at any time or times (a) to examine the Demised
Premises and to show them to the Prime Landlord, actual and prospective
Superior Lessors, Superior Mortgagees, or prospective purchasers of the
Building, and (b) to make such repairs, alterations, additions and
improvements in or to the Demised Premises and/or in or to the Building or its
facilities and equipment as Landlord is required or desires to make. Landlord
shall be allowed to take all materials into and upon the Demised Premises that
may be required in connection therewith, without any liability to Tenant and
without any reduction of Tenant's obligations hereunder. During the period of
eighteen (18) months prior to the Expiration Date or the date when Tenant has
given Landlord notice of Tenant's intention to terminate this Lease pursuant
to the provisions herein, Landlord
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and its agents may exhibit the Demised Premises to prospective tenants.
Landlord shall give notice to the Tenant reasonable under the circumstances
and make reasonable efforts to avoid a material adverse impact on the conduct
of Tenant's business. Notwithstanding the foregoing, except in the event of an
emergency, any entry by Landlord to the Demised Premises shall be accompanied
by Tenant's representative.
21.03. 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.
21.04. Landlord reserves the right, at any time and from time to time, to
make such changes, alterations, additions and improvements in or to the
Building and the fixtures and equipment thereof as Landlord shall deem
necessary or desirable, provided however, Landlord shall not cause a material
adverse impact on the conduct of Tenant's business, nor shall Landlord do
anything inconsistent with maintaining the Building as a first class
office building.
ARTICLE 22
MECHANICS' LIENS AND OTHER LIENS
22.01. Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to
subject Landlord's interest or estate to any liability under any mechanic's
or other lien law. If any mechanic's or other lien or any notice of intention
to file a lien is filed against the Land, or any part thereof, or the Demised
Premises, or any part thereof, for any work, labor, service or materials
claimed to have been performed or furnished for or on behalf of Tenant or
anyone holding any part of the Demised Premises through or under Tenant,
Tenant shall cause the same to be canceled and discharged of record by
payment, bond or order of a court of competent jurisdiction within thirty (30)
days after notice by Landlord to Tenant.
ARTICLE 23
NON-LIABILITY AND INDEMNIFICATION
23.01. None of Landlord, Prime Landlord, Superior Mortgagee, Superior
Lessor, their respective partners, joint venturers, directors, officers,
agents, servants or employees 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
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caused by or resulting from the intentional or willful misconduct of Landlord,
Prime Landlord, Superior Mortgagee, Superior Lessor or its or their respective
agents, servants or employees in the operation or maintenance of the Land or
Building to the extent caused by such intentional or willful misconduct.
Further, Landlord, Prime Landlord, Superior Mortgagee, Superior Lessor or
their respective partners, joint venturers, directors, officers, agents,
servants or employees shall not be liable to Tenant (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 work, performed by someone
other than Landlord, or by public or quasi-public work; or (b) even in the
event of intentional or willful misconduct, 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, against or under Tenant.
23.02. Tenant shall indemnify, defend and hold harmless Landlord, Prime
Landlord, Superior Mortgagees, all Superior Lessors and its and their
respective partners, joint venturers, directors, officers, agents, servants
and employees from and against any and all claims arising from or in
connection with (a) the conduct or management of the Demised Premises or of
any business therein, or any work or thing whatsoever done, or any condition
created (other than by Landlord) in the Demised Premises during the Term or
during the period of time, if any, prior to the Commencement Date that Tenant
may have been given access to the Demised Premises, caused by Tenant, its
agents, servants, representatives or employees; (b) any act, omission or
negligence of Tenant or any of its subtenants or licensees or its or their
partners, joint venturers, directors, officers, agents, employees or
contractors; (c) any accident, injury or damage whatever (unless caused solely
by Landlord's negligence) occurring in the Demised Premises caused by Tenant,
its agents, servants, representatives or employees; and (d) any breach or
default by Tenant in the full and prompt payment and performance of Tenant' s
obligations under this Lease. Tenant's obligation to indemnify shall also
include all costs, expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon, including, without
limitation, all reasonable attorney's fees, expert fees and expenses. In the
event any action or proceeding is brought against Landlord, Prime Landlord,
Superior Mortgagee and/or any Superior Lessor and/or its or their partners,
joint venturers, directors, officers, agents and/or employees by reason of any
such claim, Tenant, upon notice shall resist and defend such action or
proceeding, by counsel reasonably satisfactory to Landlord.
23.03. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Land and Building
(or the proceeds received by Landlord on a sale of such estate and property
but not the
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proceeds of any financing or refinancing thereof) in the event of any claim
against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas, and Tenant agrees that the liability of the 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 judgment
(or other judicial process) or for the satisfaction of any other remedy of
Tenant arising out of, or in connection with, this Lease, the relationship of
Landlord and Tenant or Tenant's use of the Demised Premises or the Common
Areas and if Tenant shall acquire a lien on or interest in any other
properties or assets by judgment or otherwise, Tenant shall promptly release
such lien on or interest in such other properties and assets by executing,
acknowledging and delivering to Landlord an instrument to that effect prepared
by Landlord's attorneys. Tenant hereby waives the right of specific
performance and any other remedy allowed in equity if specific performance or
such other remedy could result in any liability of Landlord for the payment of
money to Tenant or to any third party.
ARTICLE 24
DAMAGE OR DESTRUCTION
24.0l. 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 provided in this Article 24), Landlord shall repair
the damage and restore and rebuild the Building and/or the Demised Premises
(except for the Tenant's Property, Tenant's Work or any alterations or
improvements to the Demised Premises requested or performed by Tenant) with
reasonable dispatch after notice to it of the damage or destruction and the
collection of the insurance proceeds attributable to such damage.
24.02. Subject to the provisions of Section 24.05, if all or part of the
Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises,
for the period from the date of the damage or destruction to (a) the date the
damage to the Demised Premises shall be substantially repaired, or (b) if the
Building and not the Demised Premises is so damaged or destroyed, the date on
which the Demised Premises shall be made tenantable; provided
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however, should Tenant reoccupy a portion of the Demised Premises during the
period the repair or restoration work is taking place and prior to the date
that the Demised Premises are substantially repaired or made tenantable, the
Rent allocable to such reoccupied portion based upon the proportion which the
area of the reoccupied portion of the Demised Premises bears to the total area
of the Demised Premises, shall be payable by Tenant from the date of such
occupancy.
24.03. If (a) the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other casualty, or (b) the Building shall be
so damaged or destroyed by fire or other casualty (whether or not the Demised
Premises are damaged or destroyed) that its repair or restoration requires the
expenditure, as estimated by a reputable contractor or architect designated by
Landlord, of more than twenty (20%) percent (or ten (l0%) percent if such
casualty occurs during the last two (2) years of the Term) of the full
insurable value of the Building immediately prior to the casualty, or (c) the
Building shall be damaged or destroyed by fire or other casualty (whether or
not the Demised Premises are damaged or destroyed) and either the loss shall
not be covered by Landlord's insurance or the net insurance proceeds (after
deducting all expenses in connection with obtaining such proceeds) shall, in
the estimation of a reputable contractor or architect designated by Landlord,
be insufficient to pay for the repair or restoration work, then, in any such
case Landlord may terminate this Lease by giving Tenant notice to such effect
within ninety (90) days after the date of the fire or other casualty and the
Lease shall terminate sixty (60) days thereafter.
24.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises or of the Building pursuant to this Article
24. Landlord shall use its best efforts to make such repair or restoration
promptly and in such manner as 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 Business Hours on Business
Days. Landlord shall not be required to restore fixtures, improvements or
other property of Tenant. The word "restore" as used in this Article shall
include repairs.
24.05. Notwithstanding any of the foregoing provisions of this Article 24,
if Landlord, Prime Landlord or any Superior Lessor or any Superior Mortgagee
shall be unable to collect all of the insurance proceeds (including without
limitation, rent insurance proceeds) applicable to damage or destruction of
the Demised Premises or the Building by fire or other casualty by reason of
some act or omission on the part of Tenant or any of
41
its subtenants or its or their partners, directors, officers, servants,
employees, agents or contractors, then without prejudice to any other remedies
which may be available against Tenant, there shall be no abatement or
reduction of 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. The provisions of this section shall be
subject to the terms of Section 13.06.
24.06. Landlord will not carry insurance of any kind on the Tenant's
Property or Tenant's Work, 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 or to replace the Tenant's Property or Tenant's Work.
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
contingency in the absence of an express agreement, now or hereafter in force,
shall have no application in such case.
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 rentable square
footage 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 rentable
square footage of the Demised Premises shall be so taken or conveyed, this
Lease shall terminate only in respect of the part so taken or conveyed as of
the day possession shall be taken by such authority, but either party shall
have the right to terminate this Lease upon notice given to the other party
within thirty (30) days after such taking of possession. If more than 25% of
the rentable square footage of the Building shall be so taken or conveyed,
Landlord, may, by notice to Tenant, terminate this Lease as of the day
possession shall be taken. If this Lease shall continue in effect as to any
portion of the Demised Premises not so taken or conveyed, the Rent shall be
computed as of the day possession shall be taken on the basis of the remaining
rentable square footage 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
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the extent of the net award or other compensation (after deducting all
expenses in connection with obtaining the award or other compensation),
available to Landlord for the improvements taken or conveyed (excluding any
award or other compensation for land or for the unexpired portion of the term
of any Superior Lease), make all necessary alterations so as to constitute the
remaining Building a complete architectural and tenantable unit, except for
the Tenant's Property, and Tenant shall make all alterations or replacements
to the Tenant's Property and decorations in the Demised Premises. Landlord
shall give notice of any and all condemnation proceedings and eminent domain
negotiations so that Tenant may protect its own rights. All awards and
compensation for any taking or conveyance, whether for the whole or a part of
the Land or Building, the Demised Premises or otherwise, shall be the property
of Landlord, and Tenant hereby assigns to Landlord all of Tenant's right,
title and interest in and to any and all such awards and compensation,
including, without limitation, any award or compensation for the value of the
unexpired portion of the Term. Tenant shall be entitled to claim, prove and
receive in the condemnation proceeding such award or compensation as may be
allowed for the Tenant's non-depreciated leasehold improvements and for loss
of business, goodwill, and depreciation or injury to and cost of removal of
the Tenant's Property.
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 taking of the Tenant's
Property and for moving expenses, and Landlord shall be entitled to receive
that portion which represents reimbursement for the cost of restoration of the
Demised Premises. This Lease shall be and remain unaffected by such taking and
Tenant shall continue to be responsible for all of its obligations hereunder
insofar as such obligations are not affected by such taking and shall continue
to pay the Rent in full when due. If the period of temporary use or occupancy
shall extend beyond the Expiration Date, that part of the award or payment
which 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.
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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. Tenant shall also remove all of Tenant's Property therefrom except as
otherwise expressly provided in this Lease. Further, at Landlord's election,
Tenant shall remove, if required by Landlord, all underfloor cabling, wiring,
power distribution units and conduits, installed for Tenant's use.
26.02. If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises 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 twice the monthly Fixed Rent and Additional Rent in effect during the
last month of the Term.
26.03. No act or thing done by Landlord or its agents shall be deemed an
acceptance of or a surrender of the Demised Premises, and no agreement to
accept such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 27
CONDITIONS OF LIMITATION
27.01. This Lease is subject to the limitation that whenever Tenant or any
Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for relief
under any chapter of the Federal Bankruptcy Code (Title 11 of the United
States Code) or any similar order or decree under any federal or state law,
now in existence or hereafter enacted having the same general purpose, and
such order or decree shall have not been stayed or vacated within 30 days
after entry, or (c) shall cause, suffer, permit or consent to the appointment
of a receiver, trustee, administrator, conservator, sequestrator, liquidator
or similar official in any federal, state or foreign judicial or nonjudicial
proceeding, to hold, administer and/or liquidate all or substantially all of
its assets, and such appointment shall not have been revoked, terminated,
stayed or vacated and such official discharged of his duties within 30 days of
his appointment, then Landlord, at any time after the occurrence of any such
event, may give Tenant a notice of intention to end the Term at the expiration
of five (5) days from the date of service of such notice of intention, and
upon the expiration of said five
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(5) day period, whether or not the Term shall theretofore have commenced, this
Lease shall terminate with the same effect as if that day were the Expiration
Date of this Lease, but Tenant shall remain liable for damages as provided in
Article 29.
27.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Rent, and such default shall
continue for ten (10) days after notice thereof, or (b) if Tenant shall,
whether by action or inaction, be in default of any of its obligations under
this Lease (other than a default in the payment of Rent) and such default
shall continue and not be remedied within thirty (30) days after Landlord
shall have given to Tenant a notice specifying the same, or, in the case of
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, Prime Landlord, Superior Mortgagor or Superior Lessor to
prosecution for a crime (as more particularly described in the last sentence
of Section 12.02.) or termination of any Superior Lease or foreclosure of any
Superior Mortgage, if Tenant shall not, (i) within said 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) to 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 five (5)
days from the date of the service of such notice of intention, and upon the
expiration of said five (5) days, whether or not the Term shall theretofore
have commenced, this Lease shall terminate with the same effect as if that day
were the Expiration Date of this Lease, but Tenant shall remain liable for
damages as provided in Article 29.
ARTICLE 28
RE-ENTRY BY LANDLORD
28.01. If Tenant shall default in the payment of any Rent, and such
default shall continue for ten (10) Business Days after notice thereof, or if
this Lease shall terminate as provided in Article 27, Landlord or Landlord's
agent 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,
45
prosecution or damages therefor, and may repossess the same, and may remove
any Person therefrom, to the end that Landlord may have, hold and enjoy the
Demised Premises. The word "re-enter" as used herein, is not restricted to its
technical legal meaning. If this Lease is terminated under the provisions of
Article 27, or if Landlord shall re-enter the Demised Premises under the
provisions of this Article 28, or in the event of the termination of this
Lease, or of re-entry, by or under any summary dispossess or other proceedings
or action or any provision of law by reason of default hereunder on the part
of Tenant, Tenant shall thereupon pay to Landlord the Rent payable up to the
time of such termination of this Lease, or of such recovery of possession of
the Demised Premises by Landlord, as the case may be, and shall also pay to
Landlord damages as provided in Article 29.
28.02. In the event of a breach or threatened breach by a party of any of
its obligations under this Lease, the other party shall also have the right of
injunction.
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 re-
entry, by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all monies, if any, paid by Tenant to
Landlord whether as Advance Rent, Security Deposit (and interest thereon, if
any) or otherwise, but such monies shall be credited by Landlord against any
Rent due from Tenant at the time of such termination or re-entry or, at
Landlord's option, against any damages payable by Tenant under Article 29 or
pursuant to law.
ARTICLE 29
DAMAGES
29.01. If this Lease is terminated under the provisions of Article 27, or
if Landlord shall re-enter the Demised Premises under the provisions of
Article 28, or in the event of the termination of this Lease, or of re-entry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Tenant
shall pay as Additional Charges to Landlord as a condition precedent to the
dismissal of any summary dispossess or other proceeding or action for 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 present value of the aggregate amount of the Rent which
46
would have been payable by Tenant (conclusively presuming the average
monthly Additional Rent to be the same as were the average monthly
Additional Rent 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 discounted to
present value by utilizing a discount rate of six (6%) percent per annum;
or
(b) Sums equal to the Fixed Rent and the Additional Charges which would
have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Demised Premises, payable upon the due
dates therefor specified herein following such termination or such re-
entry and until the Expiration Date, provided, however, that if Landlord
shall relet the Demised Premises during said period, Landlord shall credit
Tenant with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents as and
when received by Landlord from such reletting the expenses incurred or
paid by Landlord in terminating this Lease or in reentering the Demised
Premises and in securing possession thereof, as well as the expense 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
reletting, except to the extent that such net rents are actually received
by Landlord. If the Demised Premises or any part thereof should be relet
in combination with other space, then proper apportionment on a square
foot basis shall be made of the rent received from such reletting and of
the expenses of reletting.
If the Demised Premises or any part thereof 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 facia, be the
fair and reasonable rental value for the Demised Premises, or part thereof, to
relet
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during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure or refusal 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 or
refusal to relet or failure to collect the rent shall release or affect
Tenant's liability for damages or otherwise under this Lease. Landlord shall
be under no obligation in reletting the Demised Premises to give priority to
the leasing thereof over other vacant space in the Building.
29.02. Suit or suits for the recovery of any 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 and/or obtain
as damages by reason of the termination of this Lease or re-entry on the
Demised Premises for the default of Tenant under this Lease an amount equal to
the maximum amount permitted by any statute or rule of law in effect at the
time when the governing proceedings have been initiated, whether or not such
amount is greater than, equal to, or less than any of the sums referred to in
Section 29.01.
29.03. In addition, if this Lease is terminated under the provisions of
Article 27, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 28, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof; and (c) for the breach of any
covenant of Tenant set forth above in this Section 29.03, Landlord shall be
entitled immediately without notice or other action by Landlord, to recover,
and Tenant shall pay as and for liquidated damages therefor, the cost of
performing such covenant (as estimated by an independent contractor selected
by Landlord).
29.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights
and remedies under this Article 29, if any Rent or damages payable hereunder
by Tenant to
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Landlord are not paid within five (5) days after notice therefor, the same
shall bear interest at the Late Payment Rate pursuant to Section 3.05 from the
due date thereof until paid, and the amount(s) of such interest shall be
Additional Charges hereunder.
29.05. In addition to any remedies which Landlord may have under this
Lease, if there shall be a default hereunder by Tenant which shall not have
been remedied within the applicable grace period, Landlord shall not be
obligated to furnish to Tenant or the Demised Premises any HVAC services, or
any building services; and the discontinuance of any one or more of such
services shall be without liability by Landlord to Tenant and shall not
reduce, diminish or otherwise affect any of Tenant's covenants and obligations
under this Lease.
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 them might have under or by reason of any present
or future law, to redeem the Demised Premises or to have a continuance of this
Lease after being dispossessed or ejected from the Demised Premises by process
of Law or under the terms of this Lease or after the termination of this Lease
as provided in this Lease.
30.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any non-compulsory counterclaim of
any kind in any action or proceeding commenced by Landlord to recover
possession of the Demised Premises.
ARTICLE 31
NO WAIVERS
31.01. The failure of the Landlord 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
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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 ten (10) days from
the date Landlord gives Tenant notice of the default. Bills for any expenses
incurred by Landlord in connection with 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 attorney's fees and
expenses, involved in collecting 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 Dispossess 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 interest rate
provided in Section 3.05 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. Parties represent that no broker except the Broker was instrumental
in bringing about or consummating this Lease and that the parties have had no
conversations or negotiations with any broker except the Broker concerning the
leasing of the Demised Premises. Parties agree to indemnify and hold harmless
each 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 each with any broker other than the Broker. Landlord shall
pay any brokerage commissions due the Broker for the leasing of the Demised
Premises as defined in Section 1.01(L) pursuant to a separate agreement
between Landlord and the Broker.
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ARTICLE 34
NOTICES
34.41. 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 delivered by any nationally
recognized over-night delivery service, or sent by United States registered or
certified mail, return receipt requested, addressed to the other party at the
following addresses:
As to Tenant: Fibertech & Wireless, Inc.
c/o Access Colo, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
With a copy to: Xxxxxx Xxxxxxxx,Esq.
Xxxxxxxxxxx & Xxxxxxxx, LLP
1251 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
As to Landlord: International Career information, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Vice President
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx, Hanlon, Doherty,
XxXxxxxxx & Xxxxxxx
00 Xxxxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Any such notices shall be deemed to have been given, rendered or made on the
date received if delivered by hand or 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.
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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
not modified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and
stating the modifications), certifying the dates to which the Fixed Rent and
Additional Charges have been paid, stating whether or not, to the best
knowledge of the party giving the statement, the requesting party is in
default in performance of any of its obligations under this Lease, and, if so,
specifying each such default of which the party giving the statement shall
have knowledge and stating whether or not, to the best knowledge of the party
giving the statement, any event has occurred which with the giving of notice
or passage of time, or both, would constitute such a default of the requesting
party, and, if so, specifying each such event; and 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. Such dispute shall be submitted to the arbitration of three (3)
disinterested persons, one of whom shall be chosen by each of the parties
hereto, and the third by the two arbitrators so chosen; and the award and
finding of said arbitrators, or of any two of them, shall be final and
conclusive on any questions or matters so submitted to them. In case an
arbitration is not otherwise arranged, either party desiring such submission
to arbitration shall notify the other party in writing of the matter which it
desires to submit to arbitration, designating its arbitrator in such notice.
Within twenty (20) days thereafter, the party thus notified shall name its
arbitrator, and notify the other party of such selection. The arbitrators thus
selected shall immediately proceed to select the third arbitrator as
aforesaid, and with him to consider and determine all matters submitted. In
case the party notified of the desired submission to arbitration shall fail,
upon due notification, to name an arbitrator, the arbitrator selected by the
other party shall have the right to
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proceed alone and determine the matters thus submitted, and his award shall be
final and conclusive upon the parties hereto. In the event that the two
arbitrators first selected shall be unable to agree upon the third arbitrator
within twenty (20) days after the selection of the second arbitrator, either
party hereto, upon giving ten (10) days notice in writing to the other party,
or to the arbitrator selected by such other party, may apply to the Superior
Court of New Jersey for the appointment of a third arbitrator, and any
arbitrator appointed by such court upon such application shall have the same
powers and duties as if appointed by the two arbitrators first selected as
hereinbefore provided. The award in such arbitration may be enforced on
application of either party by the order or judgment of a court of competent
jurisdiction.
36.02. If any delay in complying with any requirement or this Lease by
Landlord might subject Tenant to any fine or penalty, or to prosecution for a
crime, or materially interfere with Tenant's use and enjoyment of the Demised
Premises or its access thereto, of if it would constitute a default by Tenant
under any permitted mortgage, or of any of the foregoing, Tenant shall have the
right to remedy such default and in such event the sole question to be
determined by the arbitrators shall be whether Landlord is liable for Tenant's
costs and expenses of curing such default.
36.03. Each party to the arbitration shall pay the costs or fees of the
arbitrator selected by it and all further costs and fees, including court costs
in connection with the arbitration, shall be shared equally by the two parties
to the arbitration. Each party shall bear the cost of its own attorneys and
experts and the additional expenses of presenting its own proofs.
ARTICLE 37
RIGHT OF FIRST OFFER
37.01. Provided Tenant is not in default pursuant to the terms and
provisions of this Lease, Tenant shall have a Right of First Offer to lease the
additional space in the Building (described in Exhibit F attached hereto) which
shall become vacant and available for lease. Landlord will advise Tenant of the
availability of said space and the terms and conditions Landlord would be
willing to accept with respect to the leasing of said space, and Tenant shall
have ten (10) Business Days within which to respond to Landlord's offer. Should
Tenant decline Landlord's offer or fail to respond, time being of the essence
thereof, then, in such event, Tenant shall lose any prospective rights of
first offer, and Landlord shall be free to lease said space to any other Tenant.
53
ARTICLE 38
BUILDING NAME
38.01. The Building may be designated and known by any name or address
Landlord may choose from time to time in Landlord's sole discretion. Tenant
agrees not to refer to the Building by any name or address other than as
designated by Landlord. The Building may be named after any person, firm, or
otherwise, whether or not such name is, or resembles, the name of a tenant of
the Building. In no event shall Tenant use, in connection with its business or
otherwise, any photographic or other type of representation of the Building.
In the event the Building is named after any person, firm or otherwise,
Tenant, in connection with its business or otherwise, shall not refer to the
Building by such name but shall only use the street address of the Building.
38.02. Tenant shall have the right, subject to Landlord's prior written
consent, to have its name included in the Building directory.
ARTICLE 39
ENVIRONMENTAL LAWS
39.01. Tenant acknowledges the existence of federal, state and local
environmental laws, rules and regulations including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
42 U.S.C. 9601-9657, the Resource Conservation and Recovery Act (RCRA) 42
U.S.C. 6901-6987, the State of New Jersey Industrial Site Recovery Act of 1983
(ISRA) N.J.S.A. l3:lK-6 to 18 and the Spill and Compensation and Control Act
N.J.S.A. 58:10-23.11 et seq., all of which, together with any successor
legislation, are collectively referred to hereinafter as the "Environmental
Laws". Tenant agrees, from and after the date hereof, to act in compliance
with the Environmental Laws and that it shall not perform any acts in
violation of the Environmental Laws. Tenant represents to the Landlord that
Tenant's Standard Industrial Classification (SIC) Number, as used on its
Federal Tax Return, will not, under the applicable rules and regulations
existing as of the date hereof, subject the Demised Premises, the Building or
the Land to ISRA applicability. Tenant represents to Landlord and covenants
that Tenant will not change to an operation with a different SIC Number
without Landlord's and Prime Landlord's prior written consent. Any such
proposed change shall be sent in writing to Landlord sixty (60) days prior to
the proposed change. Landlord or Prime Landlord may deny consent, if, inter
alia, the different SIC Number would subject the Demised Premises, the
Building or the Land to ISRA applicability.
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39.02. Upon the occurrence of any event requiring Tenant's compliance with
ISRA, or if Landlord by reason of any act or omission or failure to act or not
act on the part of Tenant, shall be required to comply with ISRA, Tenant shall
make all necessary filings with the New Jersey Department of Environmental
Protection ("DEP") and any other relevant federal, state, county or municipal
legal authority and, at its own expense, shall cause all necessary tests and
studies to be performed. Landlord shall complete such documents and otherwise
cooperate (provided such cooperation does not subject Landlord to any fee,
cost, expense or liability or require performance by Landlord of Tenant's
obligation hereunder) as may be reasonably requested by Tenant or required by
the ISRA requirements of the DEP. In the event an environmental clean-up is
required, the Landlord shall have an unrestricted right to inspect, as often
as it deems necessary in its sole discretion, during and after such clean-up.
39.03. Tenant hereby agrees to execute such documents and provide such
information as Landlord reasonably requires to assure compliance with ISRA or
to comply with the Environmental Laws, and rules or regulations of any other
relevant federal, state, county or municipal legal authority. Tenant shall
bear all costs and expenses incurred by Landlord associated with any required
ISRA compliance resulting from Tenant's use of the Demised Premises or any
acts and/or omissions which Tenant, its agents, employees, invitees or
independent contractors initiate, including, without limitation, state agency
fees, engineering fees, clean-up costs, filing fees and suretyship expenses.
As used in this Lease, ISRA compliance shall include applications for
determinations of non applicability from the appropriate legal authority.
Tenant agrees to indemnify and hold Landlord and Prime Landlord harmless from
and against any fines, suits, proceedings, claims and actions and any other
cost, expense or liability of any kind arising under the Environmental Laws,
rules or regulations resulting from Tenant's failure to comply with this
Article 39 or Tenant's failure to provide all information, make all
submissions and take all actions required by any legal authority, including
reasonable attorney's fees.
39.04. Tenant shall immediately provide Landlord with copies of all
correspondence, reports, notices, orders, findings, declarations and other
materials pertinent to Tenant's compliance hereunder or any other
environmental enforcement requirements under any Environmental Laws as they
are issued or received by Tenant. More specifically, but not limiting the
foregoing, Tenant shall promptly provide Landlord with: (i) all documentation
and correspondence provided to DEP pursuant to the Worker and Community Right
to Know Act, N.J.S.A. 34: 5A-1 et seq. and the regulations promulgated
thereunder; (ii) all reports and notices made by Tenant pursuant to the
Hazardous Substance Discharge-reports and Notices Act, N.J.S.A. 13: 1K-15 et
seq. and
55
the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq.,
and the regulations promulgated thereunder; and (iii) any notices,
correspondence and submissions made by Tenant to DEP, the United States
Environmental Protection Agency, the United States Occupational Safety and
Health Administration, or any other legal authority which requires submission of
any information concerning environmental matters of hazardous wastes or
substances, and any notices, correspondence, documents and directives received
by Tenant from any of said authorities.
39.05. In addition to any other remedies of Landlord pursuant to this Lease,
Tenant's failure to abide by the terms of this Article 39 shall survive the
Expiration Date or earlier termination of the Term of this Lease. Tenant's
failure to abide by the terms of this Article shall be restrainable by
injunction.
39.06. Tenant shall indemnify, defend and hold Landlord, Prime Landlord,
Superior Lessors and Superior Mortgagees harmless from and against all claims,
liabilities, losses, damages and costs, foreseen or unforeseen, including
without limitation, reasonable attorney's fees, engineering and other
professional and expert fees and costs, which Landlord may incur by reason of
Tenant's action or non-action with regard to Tenant's obligations under this
Article.
39.07. At expiration or earlier termination of this Lease, Landlord may
require and Tenant shall obtain a statement from the DEP of compliance with
ISRA, its amendments or rules and regulations promulgated thereunder, or a
Letter of Non-Applicability, as the case may be.
ARTICLE 40
MISCELLANEOUS
40.01. 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 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.
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40.02. 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.
40.03. 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 from any
liability for loss or damage to any of the Tenant's Property in connection
with such subletting or letting.
40.04. 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
40.04 shall not be construed as modifying the conditions of limitation
contained in Article 27.
40.05. Except for Tenant's obligations to pay Rent, the time for Landlord
or Tenant, as the case may be, to perform any of its respective obligations
hereunder shall be extended if and to the extent that the performance thereof
shall be prevented due to any Unavoidable Delays. 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 40.05, 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 the Landlord's reasonable control.
40.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration or earlier
termination of this Lease.
40.07. Tenant shall not exercise its rights under Article 15 or any other
provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing, labor disruption or dispute
or any interference with the business of Landlord or any tenant or occupant of
the Building.
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40.08. Tenant shall give prompt notice to Landlord of (a) any occurrence
in or about the Demised Premises for which Landlord might be liable, (b) any
fire or other casualty in the Demised Premises, (c) any damage to or defect in
the Demised Premises, including the fixtures and equipment thereof, for the
repair of which Landlord might be responsible, and (d) any damage to or defect
in any part of the Building's sanitary, electrical, heating, ventilating, air-
conditioning, elevator or other systems located in, on or passing through the
Demised Premises or any part thereof.
40.09. 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. Each covenant, agreement,
obligation or other provision of this Lease on Tenant's part to be performed,
shall be deemed and construed as a separate and independent covenant of
Tenant, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require.
40.10. If deemed necessary by Landlord, no person will be allowed access
to the Building without a security pass which shall be issued by Landlord upon
written request of Tenant. Tenant shall be fully liable for the acts of all
persons for whom a security pass is requested. All security passes shall be
returned to Landlord in the event the persons to whom they were issued are no
longer employed by Tenant or are otherwise not entitled to access to the
Building. In no event shall Landlord be liable for its refusal to allow access
to the Building to any person who does not have a security pass.
40.11. As part of its security program for the Building, Landlord may
restrict entry to the elevator lobby of the Building by use of an
electronically controlled lock activated by a "card-key" which is
electronically programmed with a special access code to permit entry. Landlord
will issue card-keys to Tenant, provided that Tenant shall pay to Landlord a
charge for each card issued at the rates established from time to time by
Landlord for all tenants of the Building. Tenant may obtain a replacement of
any lost or stolen card-key, provided that Tenant shall pay to Landlord its
then established charges for the issuance of replacement cards and for
reprogramming of the security card access system to permit the use of the
replacement cards issued. Landlord shall have no liability to Tenant, its
employees, invitees or any other person for any
58
injuries, damages, losses, costs or expenses, including, without limitation,
theft of property, suffered or incurred by anyone by reason of the non-
operation or malfunction of said card-key entry system.
40.12. Whenever in this Lease Tenant is required to obtain Landlord's
consent or approval, Tenant understands that Landlord may be required to
first obtain the consent or approval of Prime Landlord pursuant to the Master
Lease. If Prime Landlord should delay any such consent or approval, Landlord
may similarly delay any consent or approval to Tenant. If Prime Landlord
should refuse such consent or approval, Landlord shall be released from any
obligation to grant its consent or approval, whether or not Prime Landlord's
refusal, in Tenant's opinion, is arbitrary or unreasonable. Tenant agrees that
Landlord shall not have any duty or responsibility with respect to obtaining
such consent or approval of Prime Landlord when the same is required under the
terms of the Master Lease, other than the mere transmissions by Landlord to
Prime Landlord of Tenant's request for such consent or approval.
40.13. With respect to any provisions of this Lease which provide, in
effect, the Landlord shall not unreasonably withhold or unreasonably delay any
consent or approval, Tenant in no event shall be entitled to make, nor shall
Tenant make, any claim and Tenant hereby waives any claim, for money damages;
nor shall Tenant claim any money damages by way of set-off, counterclaim or
defense, based upon any claim or assertion by Tenant that Landlord has
unreasonably withheld or unreasonably delayed any consent or approval; but
Tenant's sole remedy shall be an action or proceeding to enforce any such
provision, or for specific performance, injunction or declaratory judgment.
Landlord shall not be deemed to have unreasonably withheld or delayed its
consent or approval if the same or similar consent or approval is required to
be obtained from Prime Landlord pursuant to the terms of the Master Lease and
Prime Landlord withholds or delays its consent or approval.
40.14. To the extent that Landlord, its agents, employees or licensees
have access to the Demised Premises pursuant to the provisions of this Lease
or otherwise, Landlord agrees to indemnify, defend and save harmless Tenant
from and against all bodily harm and personal injury, loss, claim and damage
to or of any person or property of whatever nature arising from any act,
omission, fault, misconduct or negligence of Landlord, or Landlord's
contractors, licensees, agents, servants or employees, unless caused by the
Tenant's negligence or willful misconduct. This indemnity and hold harmless
clause shall include indemnity against all costs, expense and liabilities paid
or incurred in or in connection with any such claim or proceeding brought
thereon and the defense thereof, and shall include reasonable attorney's fees.
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40.15. Except as otherwise provided, if the Master Lease terminates for
any reason whatsoever prior to the date on which this Lease is scheduled to
expire, this Lease shall thereupon terminate. Landlord shall not be liable to
Tenant by reason of any such termination and thereafter shall have no further
obligations of any kind whatsoever. Notwithstanding the foregoing, Landlord
shall not voluntarily terminate the Master Lease without an agreement from
Prime Landlord to continue this Lease as a direct Lease between Prime Landlord
and Tenant.
40.16. This Lease is subject to the Master Lease, and Tenant accepts this
Lease subject to the Master Lease, as amended and supplemented and any
amendments and supplements to the Master Lease hereafter made between Prime
Landlord and Landlord.
40.17. (a) If Tenant is a corporation, each person executing this Lease on
behalf of Tenant hereby covenants, represents and warrants that Tenant is a
duly incorporated or duly qualified, if a foreign corporation, corporation and
is authorized to do business in the State of New Jersey (a copy of evidence
thereof shall be supplied by Tenant to Landlord upon request); and that each
person executing this Lease on behalf of Tenant is an officer of Tenant and is
duly authorized to execute, acknowledge and deliver this Lease to Landlord (a
copy of resolution to such effect shall be supplied by Tenant to Landlord upon
request).
(b) If Tenant is a partnership (or is comprised of two (2) or more
persons, individually, or as joint venturers or as copartners of a
partnership), or if Tenant's interest in this Lease shall be assigned to a
partnership (or to two (2) or more persons, individually, or as joint
venturers or as co-partners of a partnership) (any such partnership and such
persons are referred to in this Article as the "Partnership Tenant"), the
following shall apply: (i) the liability of each of the parties comprising the
Partnership Tenant shall be joint and several (ii) each of the parties
comprising the Partnership Tenant hereby consents in advance to, and agrees to
be bound by, any modifications, termination, discharge or surrender of this
Lease which may hereafter be made, and by any notices which may hereafter be
given, by the Partnership Tenant or by any of the parties comprising the
Partnership Tenant, (iii) any notices given or rendered to the Partnership
Tenant or to any of the parties comprising the Partnership Tenant shall be
deemed given or rendered to the Partnership Tenant and to all such parties and
shall be binding upon the Partnership Tenant and all parties, (iv) if the
Partnership Tenant shall admit new partners, all such new partners shall, by
their admission to the Partnership Tenant, be deemed to have assumed
performance of all of the terms of this Lease on Tenant's part to be performed
and (v) the Partnership Tenant shall give prompt notice to Landlord of the
admission of any Such new partners, and upon demand of
60
Landlord, shall cause each such new partner to execute and deliver to Landlord
and agreement in form satisfactory to Landlord, wherein each such new partner
shall assume performance of all of the terms of this Lease on Tenant's part to
be performed (but neither Landlord's failure to request any such agreement nor
the failure of any such new partner to execute or deliver any such agreement
to Landlord shall vitiate the provisions of this Section).
40.18. All Exhibits to this Lease are hereby incorporated into this Lease,
and references to "this Lease" shall include all Exhibits.
40.19. Tenant shall not place a load upon any floor that exceeds the floor
load per square foot that such floor was designed to carry or which is allowed
by any laws.
40.20. Tenant acknowledges that there may be noise, dust, vibrations and
other effects from construction work occurring near or about the Building and
that Tenant shall have no claims against Landlord for any disruption caused by
same or interruption or interference with Tenant's business resulting from
same and that Landlord shall have no liability otherwise to Tenant therefor.
40.21. In the event Tenant is in arrears in the payment of Rent, Tenant
waives Tenant's right, if any, to designate the items against which any
payments made by or refunds payable to Tenant are to be credited and Landlord
may apply any payments made by Tenant to any items Landlord sees fit,
irrespective of and notwithstanding any designation or requests by Tenant as
to the items against which any such payments shall be credited.
40.22. In the event Landlord incurs legal, investigative and/or other
professional fees and expenses in connection with any request to Landlord by
Tenant for any action, other than that specifically required of the Landlord
pursuant to the provisions of the Lease, then, in that event, the reasonable
cost of such legal, investigative and/or other professional fees and expenses,
incurred by the Landlord, shall be paid on demand by Tenant to the Landlord.
40.23. The person signing this Lease on behalf of Tenant personally
represents and warrants to Landlord that (i) all action necessary to be taken
and all consents necessary to be obtained to fully authorize the execution,
delivery and performance of this Lease by Tenant has been duly taken or
obtained, as the case may be and (ii) he or she is a duly authorized officer
of Tenant who has full power and authority to execute and deliver this Lease
on behalf of Tenant and bind Tenant to all of the terms and conditions hereof.
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40.24. Telephone installation and service shall be the sole responsibility
of Tenant at Tenant's sole cost and expense unless agreed otherwise in writing
between Landlord and Tenant. Tenant shall make all arrangements for telephone
service with the company supplying said service, including the deposit
requirement for the furnishing of service. Landlord shall not be responsible
for any delays occasioned by failure of the telephone company to furnish
service.
40.25. If at any time Tenant believes that Landlord has not acted
reasonably in the granting or withholding of any approval or consent, as to
which consent the Landlord has expressly agreed to act reasonably, or absent
such agreement, a court of competent jurisdiction, arbitrator or arbitration
panel would require Landlord to act reasonably, then Tenant's sole remedy
shall be to seek injunctive relief or specific performance, and no action for
monetary or punitive damages shall in any event or under any circumstances be
maintained by Tenant against Landlord.
40.26. Except as otherwise provided herein, Landlord shall only be deemed
to be in default under the terms of this Lease if Landlord shall violate,
neglect, or fail to observe, keep or perform any covenant or agreement which
is not observed, kept or performed by Landlord within forty-five (45) days
after receipt by Landlord of written notice by Tenant of such breach which
notice shall specifically set forth the nature of the breach. Landlord shall
not be considered in default so long as Landlord commences to cure the breach
in a diligent and prudent manner and is allowed such additional time as is
reasonably necessary to correct the breach.
40.27. In the event Tenant is, for any reason, entitled to protection by
virtue of Sovereign Immunity, Tenant hereby unconditionally waives such
Sovereign Immunity with respect to the performance of the terms and conditions
under this Lease.
40.28. This Lease may be executed in one or more counterparts, each of
which shall be original, and all of which shall constitute one and the same
instrument.
ARTICLE 41
PARKING
41.01. Landlord agrees that Tenant shall have the right to use two (2)
unassigned spaces in the parking facilities furnished by the Prime Landlord to
the Landlord at the rate of $180.00 per space per month, subject to periodic
adjustments upon thirty (30) days prior written notice to the Tenant, during
the term of the Lease. Such right shall be exercised within sixty
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(60) days of the execution of the within Lease and shall be effective
immediately upon receipt of such notice. Tenant's right to use the parking
facilities shall terminate on the Expiration Date or earlier termination of the
Lease.
41.02. Tenant shall not be entitled to assign or sublicense its parking
rights under this Lease.
41.03. Tenant shall, indemnify, defend, and hold Landlord harmless from and
against any and all claims, lawsuits, damages or actions for property loss or
personal injuries to
third parties, arising out of, or in connection with, Tenant's use of the
parking facilities.
41.04. Tenant shall be responsible for any and all loss or damage to
Tenant's property, by fire or other casualty, ordinary wear and tear, or from
any other cause or circumstance that may occur. Landlord shall not be liable for
any damage or injury from any cause which may be sustained by Tenant or any
other person.
43.05. Tenant, Tenant's employees or Tenant's visitors shall use the
parking spaces solely for the parking of personal motor vehicles.
ARTICLE 42
BROADCAST INTERFERENCE
42.01. Interference: As used in this Lease, "interference" with
broadcasting activity means:
(a) interference within the meaning of the provisions of the recommended
practices of the Electronics Industries Association and the rules and
regulations of the Federal Communications Commission ("FCC") as in effect from
time to time, or
(b) a material impairment of the quality of either sound or picture signals
on a broadcasting activity as may be defined by the FCC at any hour during the
period of operation of the activity, as compared with that which would be
obtained if no other broadcaster were broadcasting from the Building or had any
equipment on the building or in the Demised Premises.
Tenant shall take reasonable, prompt and diligent actions to prevent and
shall promptly remove or cause to be removed any interference with broadcast
activities of Landlord, other tenants of Landlord, or other occupants of the
Building caused by Tenant's use of the Demised Premises.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
LANDLORD:
ATTEST:
RFG CO., LTD.
BY: International Career
Information, Inc., as Agent
/s/ Xxxxx Xxxxxxxxx BY: /s/ Xxxxxx X. Xxxxxx
------------------- --------------------
Name: XXXXX XXXXXXXXX XXXXXX X. XXXXXX
Title: SR.V.P./C.F.O. Sr. Vice President
TENANT
ATTEST: FIBERTECH & WIRELESS, INC.
/s/ Xxxxx X. Xxxxxxx BY: /s/ A. Xxxx Xxxx
-------------------- ----------------
Name: XXXXX X. XXXXXXX Name: A. XXXX XXXX
Title: SVP OPERATIONS Title: PRES/CEO
64
