EXHIBIT 10.12
SUBLEASE
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THIS SUBLEASE, dated as of the 30 day of April, 1997, between NIPPON
TRAVEL AGENCY PACIFIC INC., a Hawaii corporation having an office at lll
Xxxxxxx Xxxxxx Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxxxx (herein called "Sublessor")
and PILOT NET WORK SERVICES, INC., a California corporation having an office
at x000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxxx 00000 (herein called
"Subtenant").
W I T N E S S E T H:
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1. DEMISE AND TERM. Sublessor hereby leases to Subtenant, and
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Subtenant hereby hires from Sublessor, those certain premises (herein called the
"Subleased Premises" constituting a portion of Suite 317 (+ 2,582 square feet)
as shown on Exhibit A attached hereto and made a part hereof, in the building
(herein called the "Building") located at lll Xxxxxxx Xxxxxx, Xxxxx 000 Xxxxxx
Xxxx, Xxx Xxxxxx, being a part of the premises which were leased to Sublessor
under the Main Lease (as hereinafter defined) together with the appurtenances to
the Subleased Premises which are demised to Sublessor under the Main Lease. The
term of this Sublease shall been the period commencing on the date (herein
called ("the Commencement Date"), which is the date on which for the first time
the Subtenant's Work (as hereinafter defined) under the Subtenant Work Letter
(as hereinafter defined) shall have been substantially completed and a temporary
or permanent certificate of occupancy shall have been issued permitting the use
of the Subleased Premises for the use permitted in Paragraph 12 below, and
ending at 11:59 p.m. of January 21, 2002 (the "Expiration Date"), or as sooner
terminated as herein provided. The work under the Subtenant Work Letter shall
have deemed substantially completed notwithstanding the fact that minor or
insubstantial details of construction, mechanical adjustment or decoration
remain to be performed, the non-completion of which does not materially
interfere with Subtenant's use of the Subleased Premises.
2. RENT. Subtenant shall pay to Sublessor rent (herein called the
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"Fixed Rent") the annual rate of $66,486.50 in equal monthly installments
$5,540.54 in advance on the first day of each month during the term of this
Sublease, commencing on the Commencement Date, except that the first full
monthly installment due under this Sublease is being paid
on the signing of this Sublease. If the Commencement Date is not the first day
of a month, Fixed Rent for the second month shall be apportioned on the basis of
the number of days in the first incomplete month. Fixed Rent and all other
amounts payable by Subtenant to Sublessor under the provisions of this Sublease
(herein called the "Additional Charges") shall be paid promptly when due,
without notice or demand therefor, and without deduction, abatement counterclaim
or setoff of any amount or for any reason whatsoever. Fixed Rent and additional
Charges shall be paid to Sublessor in lawful money of the United States at the
address of Sublessor set forth at the head of this Sublease or to such other
person and/or at such same address as Sublessor may from time to time designate
by written notice to Subtenant. No payment by Subtenant or receipt by Sublessor
of any lesser amount than the amount stipulated to be paid hereunder shall be
deemed other than on account of the earliest stipulated Fixed Rent or Additional
Charges; nor shall any endorsement or statement on any check or letter be deemed
an accord and satisfaction, and Sublessor may accept any check or payment
without prejudice to Sublessor's right to recover the balance due or to pursue
any other remedy available to Sublessor. Any provision in the Main Lease
referring to "Fixed Rent" incorporated herein by reference shall be deemed to
refer to the Fixed Rent due under the Sublease. Any provision in the Main Lease
referring to "Additional Rent" or "Additional Charges" incorporated herein by
reference shall be deemed to refer to the Additional Charges due under this
Sublease.
3. ADDITIONAL RENT. Subtenant shall pay to Sublessor on demand...
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any and all amounts payable by Sublessor to the Main Landlord pursuant to the
provisions of Sections 6.01 and 6.02 of the Main Lease in respect of the
Subleased Premises only, for all periods occurring within the term of this
Sublease, excluding the portion of the term which precedes the Commencement
Date. For purposes of determining the amounts payable by Subtenant pursuant to
this Paragraph 3, any of the aforesaid amounts payable by Sublessor under the
Main Lease which cover a fiscal or other period any part of which occurs before
the Commencement Date or after the expiration of the term of this Sublease,
shall be apportioned according to the number of days in such period which occur
within the portion of the term of the Sublease which starts on the Commencement
Date. For purposes of determining the payments due from Sublessor with respect
to the Subleased Premises to the Main Landlord
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pursuant to Sections 6.01 and 6.02 of the Main Lease Subtenant's "Real Estate
Fraction" (as defined in Section 1.01(JJ)(ii) of the Main Lease) shall be
.635% and Subtenant's "Operating Fraction" (as defined in Section 1.0l(JJ)(i)
of the Main Lease) shall be .841% (calculated as 52% of Sublessor's fraction,
subject to adjustment hereunder if Sublessor's fraction changes).
4. SUBORDINATE TO MAIN LEASE. This Sublease is and shall be subject
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and subordinate to the lease (the "Main Lease") dated January 23, 1992 between
Newport Office Properties Corp. (the "Main Landlord"), as lessor and Sublessor,
as 1essee, and to the matters to which the Main Lease is or shall be subject and
subordinate including, but not limited to, the Prime Lease between the Main
Landlord and Newport Office Center 1 Company (the "Prime Landlord"). A copy of
the Main Lease has been delivered to and examined by Subtenant and is attached
hereto as Exhibit C. A copy of the Prime Lease has been delivered to and
examined by Subtenant. If for any reason the term of the Main Lease shall
terminate prior to the expiration date of this Sublease, including, without
limitation, a termination caused by Sublessor's exercise of any right of
Sublessor under the Main Lease to terminate the Main Lease by reason of fire,
casualty or condemnation, this Sublease shall thereupon be terminated; provided,
however, that Sublessor shall not exercise any of its rights to amend or
terminate the Main Lease or take any action (or fail to take any action) which
would amend or cause the termination of the Main Lease in a manner which
adversely affects Subtenant or the Subleased Premises without Subtenant's prior
written consent, which consent shall not be unreasonably withheld. Sublessor
shall not be liable to Subtenant as a result of such termination if either (a)
Subtenant shall be in material default under this Sublease and has failed to
cure such default within the specified cure period, (b) Subtenant consents to
such termination, or (c) such termination shall have been effected without
Sublessor's consent, action or fault. Sublessor represents and warrants that to
its knowledge (i) the document attached as Exhibit C is a true, correct and
complete copy of the Main Lease, and that the Main Lease represents the entire
agreement between Sublessor and Main Landlord with respect to the lease of the
Demised Premises (as defined in the Main Lease) or the Subleased Premises, and
there are no other leases (other than the Prime Lease) currently in effect which
relate to the Subleased Premises, (ii) there is no default on the part of
Sublessor under the Main Lease and Sublessor is not aware of any default on the
part of the Main Landlord under
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the Main Lease or the Prime Lease, (iii) Sublessor has not, prior to the date
hereof, assigned, encumbered or otherwise transferred any interest of
Sublessor as tenant under the Main Lease with respect to the Demised Premises or
the Subleased Premises and (iv) Sublessor will not amend the Main Lease in a
manner which adversely affects Subtenant or the Subleased Premises without the
prior written consent of Sublessee, which shall not be unreasonably withheld.
5. INCORPORATION BY REFERENCE. The terms, covenants and conditions
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of the Main Lease are incorporated herein by reference so that, except to the
extent that they are inapplicable or modified by the provisions of this Sublease
for the purpose of incorporation by reference, each and every term, covenant and
condition of the Main Lease binding or inuring to the benefit of the Main
Landlord shall, in respect of this Sublease, bind or inure to the benefit of
Sublessor, and each and every term, covenant and condition of the Main Lease
binding upon or inuring to the benefit of the lessee thereunder shall, in
respect of this Sublease, bind or inure to the benefit of Subtenant, with the
same force and effect as if such terms, covenants and conditions were completely
set forth in this Sublease, and as if the words "Landlord" and "Tenant", or
words of similar import, wherever the same appear in the Main Lease, were
construed to mean, respectively, "Sublessor" and "Subtenant" in this Sublease,
and as if the words "Demised Premises," or words of similar import, wherever the
same appear in the Main Lease, were construed to mean "Subleased Premises" in
this Sublease, and as if the word "Lease," or words of similar import, wherever
the same appear in the Main Lease, were construed to mean this "Sublease", and
as if the word "Master Lease" or words of similar import, wherever the same
appear in the Main Lease, were construed to mean "Prime Lease" in this Sublease;
provided, however, that with respect to (i) Sections 1.01(K), 1.01(V), l.0l(CC),
21.01, 21.04, 40.10 and 40.01 and Articles 14 and 38, the term "Landlord" shall
continue to refer to the Main Landlord, (ii) the parentheticals under Sections
13.04(a), 13.04(c), 23.02(a) and 23.02(c) shall also include the Main Landlord,
and (iii) the reference to "Landlord" on the eighth line of Section 23.01 shall
also refer to the Main Landlord. The time limits contained in the Main Lease for
the giving of notices, making of demands or performing of any act, condition or
covenant on the part of the lessee thereunder, or for the exercise by the lessee
thereunder of any right, remedy or option, are changed for
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the purposes of incorporation herein by reference by shortening the same in each
instance by five day, so that in each instance Subtenant shall have five days
less time to observe or perform hereunder than Sublessor has as the lessee
under the Main Lease; provided, however that where Sublessor has five or fewer
days to observe or preform under the Main Lease, Subtenant shall have half of
such time to observe or perform hereunder (in the event of an uneven number of
days, Subtenant shall have until noon of the odd day). Articles 5; 7; 8; 18; 19;
20; 33; 34; and 00, Xxxxxxxx 0.00(X), (X), (X), (X), (X), (X), (XX), (XX); 3.01;
3.05; 12.03; 12.04; 13.01; 17.02; 23.03; 26.02; 29.05; and 40.15 and Exhibits B
and E shall be deemed deleted for the purposes of incorporation by reference in
this Sublease. For purposes of incorporating herein by reference the provisions
of Article 1 of the Main Lease, Section 1.0l(JJ) is modified as set forth in
Paragraph 3 of this Sublease. If any of the express provisions of this Sublease
shall conflict with any of the provisions incorporated by reference, such
conflict shall be resolved in every instance in favor of the express provisions
of this Sublease.
6. PERFORMANCE BY MAIN LANDLORD. Upon the request of Subtenant,
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Sublessor, at Subtenant's sole cost and expense, shall use reasonable efforts to
cause the Main Landlord to observe and/or perform the obligations of the Main
Landlord under the Main Lease which relate to the Subleased Premises, and
Sublessor shall have a reasonable time to enforce its rights to cause such
observance or performance after request for such enforcement has been made by
Subtenant; provided, however that Sublessor shall not be required to incur any
expense or expend any sums to obtain such enforcement, except to the extent of
funds advanced by Subtenant to Sublessor for such purpose. Subtenant shall not
in any event have any rights in respect of the Subleased Premises greater than
Sublessor's rights under the Main Lease, and, notwithstanding any provision to
the contrary, as to obligations contained in this Sublease by the incorporation
by reference of the provisions of the Main Lease or as to any obligation of the
Main Landlord, Sublessor shall not be required to take any payment, provide any
services or perform any obligation, and Sublessor shall have no liability to
Subtenant for any matter whatsoever, except for Sublessor's obligation to pay
the rent and additional rent due under the Main Lease and, for Sublessor's
obligations set forth hereunder. Sublessor shall not be responsible for any
failure or interruption, for any reason
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whatsoever, of the services or facilities that may be appurtenant to or
supplied at the Building by the Main Landlord or otherwise, inc1uding, without
limitation, heat, air conditioning, water, elevator service and cleaning
service, if any; and no failure to furnish, or interruption of, any such
services or facilities shall give rise to any (a) abatement, diminution or
reduction of Subtenant's obligations under this Sublease, unless Sublessor's
obligations under the Main Lease have been abated or reduced, (b) constructive
eviction, whether in whole or in part, or (c) liability on the part of the
Sublessor. Nothing contained in this Sublease shall be construed to create
privity of estate or of contract between Subtenant and the Main Landlord.
7. NO BREACH OF MAIN LEASE. Neither Sublessor nor Subtenant shall
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do, omit to do, or permit to be done any act or thing which may constitute a
breach or violation of any term, covenant or condition of the Main Lease by the
lessee thereunder, whether or not such act or thing is permitted under the
provisions of this Sublease.
8. INDEMNITY. Except to the extent caused by the negligence or
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willful misconduct of Sublessor, Subtenant shall indemnify, defend and hold
harmless Sublessor from and against all losses, costs, damages, expenses and
liabilities, including, without limitation, reasonable attorneys' fees, which
Sublessor may incur or pay out by reason of (a) any accidents, damages or
injuries to persons or property occurring in, on or about the Subleased Premises
(unless the same shall have been caused by Sublessor's negligence or
willful misconduct), (b) any breach or default hereunder on Subtenant's part,
(c) any work done in or to the Subleased Premises, or (d) any act, omission or
negligence on the part of Subtenant and/or its officers, employees, agents,
customers and/or invitees, or any person claiming through or under Subtenant.
Except to the extent caused by the negligence or willful misconduct of
Subtenant, Sublessor shall indemnify, defend and hold harmless Subtenant from
and against all losses, costs, damages, expenses and liabilities, including
without limitation, reasonable attorneys' fees, which Subtenant may incur or pay
out by reason of (a) any accidents, damages or injuries to persons or property
occurring in, on or about the Subleased Premises caused by Sublessor's
negligence or willful misconduct or (b) any breach on Sublessor's part or (c)
any act, omission or negligence on the part of Sublessor and/or its officers,
employees or agents.
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9. RELEASES. Subtenant hereby releases the Main Landlord to the
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extent that Sublessor released the Main Landlord from liability by way of
subrogation and/or the Main Landlord was relieved of liability or responsibility
pursuant to the provisions of Article 13 of the Main Lease, and Subtenant will
cause its insurance carriers to include any clauses or endorsements in favor
of the Main Landlord which Sublessor is required to provide pursuant to the
provisions of the Main Lease.
10. LATE CHARGES. If payment of any Fixed Rent or Additional Charges
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shall not have been paid by the 10th day after receiving notice of such
nonpayment from Sublessor, a late charge of the maximum lawful interest rate
shall be calculated from the date on which such amount was due, on the amount
overdue and shall be payable as damages for Subtenant's failure to make prompt
payment. The late charges for any month shall be payable on the first day of the
following month, and in default of any payment of late charges, if payment of
any late charge shall not have been paid by the 10th day after receiving notice
of such nonpayment from Sublessor, Sublessor shall have (in addition to all
other remedies) the same rights as provided in this Sublease (including the
provisions incorporated by reference) for non-payment of Fixed Rent). For the
purposes of this Paragraph 10, a court of appropriate jurisdiction shall decide
any good faith dispute between Sublessor and Subtenant with respect to whether
Subtenant failed to timely make payment of Fixed Rent or Additional Rent under
this Sublease, and such final determination shall govern whether Sublessor is
entitled to any late charges pursuant to this Paragraph 10. In no event shall
this Paragraph 10 limit any of Sublessor's other rights or remedies under this
Sublease. Nothing in this Section contained and no acceptance of late charges by
Sublessor shall be deemed to extend or change the time for payment of Fixed Rent
or Additional Charges.
11. ELECTRICITY. (a) Subtenant shall pay to Sublessor from time to
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time on Sublessor's demand (which demands shall be made not more frequently
than Sublessor is required to pay electric charges to the Main Landlord) a
charge for Subtenant's proportionate share of electric energy consumption, at
the rate which the Main Landlord shall then be using to determine Sublessor's
electric charges under the Main Lease, pursuant to Article 18 of the Main Lease.
(b) In the absence of a direct meter, Subtenant shall pay to Sublessor 52% of
Sublessor's electric charges under the Main Lease. If Subtenant desires to
install equipment
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other than administrative office equipment within the Subleased Premises (and
the required consents, if any, have been received), then Subtenant shall first
install and pay for a direct meter to measure the consumption of electric
energy within the Subleased Premises.
12. USE. Subtenant shall use and occupy the Subleased Premises for
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general and executive offices for Subtenant's business and for no other purpose,
except that Subtenant shall have the right to install its computer equipment in
the Subleased Premises; provided however, that the Main Landlord's consent
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and the Prime Landlord's consent are obtained. Subtenant's use shall be subject
to all applicable laws, ordinances, rules and regulations of any governmental
boards or bodies having jurisdiction thereof. Subtenant shall comply with the
certificate of occupancy relating to the Subleased Premises.
13. CONDITION OF SUBLEASED PREMISES. Subtenant is leasing the
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Subleased Premises "as is" and Sublessor shall have no obligation to
furnish, render or supply any work, labor, services, material, fixtures,
equipment or decorations to make the Subleased Premises ready for Subtenant's
occupancy, except as provided in Paragraph 31 of this Sublease, and except that
on the Commencement Date the Subleased Premises shall be vacant and Sublessor
shall have removed all of its personal property therefrom. In making and
executing this Sublease, Subtenant has relied solely on such investigations,
examinations and inspections as Subtenant has chosen to make or has made
Subtenant acknowledges that Sublessor has afforded Subtenant the opportunity for
full and complete investigations, examinations, and inspections.
14. CONSENTS AND APPROVALS. In any instance when Sublessor's
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consent or approval is required under this Sublease and Sublessor has agreed not
to unreasonably withhold or delay such consent or approval, Sublessor's refusal
to consent to or approve any matter or thing shall be deemed reasonable if,
inter alia, such consent or approval has not been obtained from the Main
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Landlord or the Prime Landlord and such consent or approval is required under
the terms of the Main Lease or the Prime Lease.
15. NOTICES. All notices, consents, approvals, demands and requests
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(collectively "Notices") which are required or desired to be given by either
party to the other hereunder shall be in writing and shall be hand-delivered or
delivered by any nationally recognized over-night delivery service, or sent by
United States registered or certified mail
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and deposited in a United States post office, return receipt requested and
postage prepaid. Notices which are served upon Sublessor or Subtenant in the
manner provided herein shall be deemed to have been given or served for all
purposes hereunder on the date received if delivered by hand or on the business
day next following the date on which such Notice shall have been mailed as
aforesaid. All Notices given to Subtenant shall be addressed to Subtenant at its
address set forth at the head of this Sublease, if given prior to the
Commencement Date or after termination of this Sublease, or at the Subleased
Premises, if given during the term of this Sublease or at such other place as
Subtenant may from time to time designate in a notice given in accordance with
the provisions of this Paragraph. All Notices given to Sublessor shall be
addressed to Sublessor at its address set forth at the head of this Sublease,
with a copy to Xxxxxxxx X. Xxxxxx, Esq., Xxxxxxx & Xxxxxx, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000. Sublessor may from time to time change the names and/or
addresses to which Notices given to Sublessor shall be addressed and sent as
aforesaid, by designating such other names and/or addresses in a Notice given in
accordance with the provisions of this Paragraph.
16. ASSIGNMENT AND SUBLETTING.
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A. The provisions of Article 11 of the Main Lease are incorporated
herein by reference. For the purposes of incorporation by reference, the words
"Landlord" and "Tenant", or words of similar import, wherever the same appear
in the Main Lease, were construed to mean, respectively, "Sublessor" and
"Subtenant" in this Sublease, and as if the words "Demised Premises," or words
of similar import, wherever the same appear in the Main Lease, were construed to
mean "Subleased Premises" in this Sublease, and as if the word "Lease," or words
of similar import, wherever the same appear in the Main Lease, were construed to
mean this "Sublease", and as if the word "Master Lease" or words of similar
import, wherever the same appear in the Main Lease were construed to mean "Prime
Lease" in this Sublease.
B. Neither the consent of Sublessor to an assignment, subletting,
concession, or license, nor the references in this Sublease to assignees,
subtenants, concessionaires or licensees, shall in any way be construed to
relieve Subtenant of the requirement of obtaining the consent of Sublessor to
any further assignment or subletting or to the making
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of any assignment, subletting, concession or license for all or any part of
the Subleased Premises. In the event Sublessor consents to any assignment of
this Sublease, the assignee shall execute and deliver to Sublessor an agreement
in form and substance reasonably satisfactory to Sublessor whereby the assignee
shall assume all of Subtenant's obligations under this Sublease accruing from
and after the effective date of the assignment. Notwithstanding any assignment
or subletting, including, without limitation, any assignment or subletting
permitted or consented to, the original Subtenant named herein and any other
person(s) who at any time was or were Subtenant shall remain fully liable on
this Sublease, and if this Sublease shall be amended, modified, extended or
renewed, the original Subtenant named herein and any other person(s) who at any
time was or were Subtenant shall remain fully liable on this Sublease as so
amended, modified, extended or renewed. Any violation of any provision of this
Sublease during the term hereof by any assignee, subtenant or other occupant
shall be deemed a violation by the original Subtenant named herein, the then
Subtenant and any person(s) who at any time was or were Subtenant, it being the
intention and meaning that the original Subtenant named herein, the then
Subtenant and any other person(s) who at any time was or were Subtenant shall
all be liable to Sublessor for any and all acts and omissions of any and all
assignees, subtenants and other occupants of the Subleased Premises. If this
Sublease shall be assigned or if the Subleased Premises or any part thereof
shall be sublet or occupied by any person or persons other than the original
Subtenant named herein, Sublessor may collect rent from any such assignee and/or
any subtenants or occupants, and apply the net amounts collected to the Fixed
Rent and Additional Charges, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this Paragraph,
or the acceptance of the assignee, subtenant or occupant as Subtenant, or a
release of any person from the further performance by such person of the
obligations of Subtenant under this Sublease.
C. Subtenant may not assign or sublet this Sublease without first
obtaining any required consent of Sublessor or the Main Landlord or the Prime
Landlord. Provided Subtenant obtains any required consent of the Main Landlord
or the Prime Landlord, Subtenant may assign this Sublease to the acquiror of all
or substantially all of its business, stock or assets.
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D. If Subtenant shall at any time or times during the term of this
Sublease desire to assign this Sublease or sublet all or part of the premises
(other than an assignment or subletting which is permitted to occur under this
Paragraph 16 without Sublessor's consent), Subtenant shall give notice thereof
to Sublessor, which notice shall be accompanied by a description of the proposed
transaction (i.e, whether the proposed transaction is an assignment or sublease)
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and which in the case of a sub1ease shall identify the proposed space and term
(the "Deal Memo") Such notice shall be deemed an offer from Subtenant to
Sublessor whereby Sublessor (or Sublessor's designee) may, at its option, (i)
terminate this Sublease (if the proposed transaction is an assignment or a
sublease of all or substantially all of the premises with a term that extends
into the last year of the term of this Sublease, as the same may have then been
extended), or (ii) terminate this Sublease with respect to the space covered by
the proposed sublease for the proposed term of the sublease (but, if the
proposed transaction is a sublease of part of the premises which extends into
the last year of the term of this Sublease, as the same may have then been
extended, then Sublessor may terminate this Sublease with respect to such space
for the remainder of this Sublease). Said option may be exercised by Sublessor
by notice to Subtenant at any time within 15 business days after such notice has
been given by Subtenant to Sublessor; and during such 15 business day period
Subtenant shall not assign this Sublease or sublet such space to any person.
E. If Sublessor exercises its option to terminate this Sublease
pursuant to Subparagraph 16(D), then, this Sublease shall end and expire on the
date that such assignment or sublet was to be effective (in the case of an
assignment) or commence (in the case of a sublease), as the case may be, and the
Fixed Rent and Additional Charges shall be paid and apportioned to such date.
F. If Sublessor exercises its option to terminate this Sublease in
part, in any case where Subtenant desires to sublet part of the premises, then,
(a) this Sublease shall end and expire with respect to such part of the premises
on the date that the proposed sublease was to commence; and (b) from and after
such date the Fixed Rent and Additional Charges shall be adjusted, based upon
the proportion that the rentable area of the premises remaining bears to the
total rentable area of the premises and Subtenant will be relieved of any
liability with respect to such space which accrues during the term of the
recapture. Upon
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the end of the period of the termination (where the termination is effective for
less than all of the term), Sublessor shall deliver to Subtenant the space which
was the subject of the termination, free of all tenancies, occupancies and
personal property, in substantially the same condition (e.g., Sublessor may
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perform minor alterations) as at the commencement of the termination period,
reasonable wear and tear excepted. The cost of separating the space which is the
subject of the termination from the balance of the premises (demising walls,
doors, etc.), and the cost of removing such items of separation, shall be borne
by Sublessor.
17. INSURANCE. Subtenant shall maintain throughout the term of this
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Sublease (i) comprehensive general public liability insurance in respect of the
Subleased Premises and the conduct and operation of business therein, with
Sublessor and the Main Landlord as additional insureds, with limits of not less
than $3,000,000 for bodily injury or death, and $1,000,000 for property
damage, including water damage and sprinkler leakage legal liability, (ii)
All-Risk insurance in respect to Subtenant's stock in trade fixtures, furniture,
furnishings, removable floor coverings, equipment, signs, and all other property
of Subtenant in the Subleased Premises, in any amounts required by the Main
Landlord 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, (iii) workers'
compensation insurance; and (iv) any other insurance required under the Main
Lease even if such insurance is greater than that required by subclauses (i),
(ii) and (iii) of this Paragraph 17. Subtenant shall deliver to Sublessor a
fully paid-for policy or policies or certificates prior to the Commencement
Date. Subtenant shall procure and pay for renewals of such insurance from time
to time before the expiration thereof, and Subtenant shall deliver to Sublessor
such renewal policy or certificate 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 the State of New York, and all such
policies shall contain a provision whereby the same cannot be cancelled or
modified unless Sublessor is given at least 10 days' prior written notice of
such cancellation or modification.
18. INTENTIONALLY DELETED
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19. ALTERATIONS. The provisions of Article 15 of the Main Lease are
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incorporated herein by reference. For the purposes of incorporation by
reference, the words
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"Landlord" and "Tenant", or words of similar import, wherever the same appear in
the Main Lease, were construed to mean, respectively, "Sublessor" and
"Subtenant" in this Sublease, and as if the words "Demised Premises," or words
of similar import, wherever the same appear in the Main Lease, were construed to
mean "Subleased Premises" in this Sublease, and as if the word "Lease," or words
of similar import, wherever the same appear in the Main Lease, were construed to
mean this "Sublease", and as if the word "Master Lease" or words of similar
import, wherever the same appear in the Main Lease, were construed to mean
"Prime Lease" in this Sublease. Subtenant shall not make or cause, suffer or
permit the making of any alteration, addition, change, replacement, installation
or addition (collectively "Alterations") in or to the Subleased Premises without
obtaining any required consent of Sublessor or the Main Landlord or the Prime
Landlord in each instance. In no event shall Subtenant be required to pay the
Additional Charge referred to under Section 15.01 of the Main Lease to both
Sublessor and the Main Landlord.
20. RIGHT TO CURE SUBTENANT'S DEFAULTS. If Subtenant shall at any
----------------------------------
time fail to make any payment or perform any other obligation of Subtenant
hereunder, then Sublessor shall have the right, but not the obligation, after 10
days' notice to Subtenant, or without notice to Subtenant in the case of any
emergency, and without waiving or releasing Subtenant from any obligations of
Subtenant hereunder, to make such payment or perform such other obligation of
Subtenant in such manner and to such extent as Sublessor shall deem necessary,
and in exercising any such right, to pay any incidental costs and expenses,
employ attorneys, and incur and pay reasonable attorneys' fees. Subtenant shall
pay to Sublessor upon demand all sums so paid by Sublessor and all incidental
costs and expenses of Sublessor in connection therewith, together with interest
thereon at the rate of one and one-half percent per calendar month or any part
thereof or the then maximum lawful interest rate, whichever shall be less, from
the date of the making of such expenditures. For the purposes of this Paragraph
20, a court of appropriate jurisdiction shall decide any good faith dispute
between Sublessor and Subtenant with respect to whether Subtenant failed to
timely make payment or perform any other obligation under this Sublease, and
such final determination shall govern whether Sublessor is entitled to any sums
expended by it (plus interest) pursuant to this
-13-
Paragraph 20. In no event shall this Paragraph 20 limit any of Sublessor's other
rights or remedies under this Sublease.
21. BROKERAGE. Each party represents to the other that no broker or
---------
other person had any part, or was instrumental in any way, in bringing about
this Sublease other than Xxxxxxx & Xxxxxxxxx of New Jersey, Inc. (the "Broker"),
and each party shall pay, and shall indemnify, defend and hold harmless, the
other party from and against, any claims made by any broker or other person
(other than the Brokers) for a brokerage commission, finder's fee, or similar
compensation, by reason of or in connection with this Sublease, and any loss,
liability, damage, cost and expense (including, without limitation, reasonable
attorneys' fees) in connection with such claims if such other broker or other
person claims to have had dealings with the indemnifying party. Sublessor agrees
to pay a commission to the Broker in accordance with a separate agreement
between Sublessor and the Broker, but such agreement by Sublessor shall not be
deemed to be or construed as a covenant for the benefit of any third party.
22. WAIVER OF JURY TRIAL AND RIGHT TO COUNTERCLAIM.
----------------------------------------------
Subtenant and Sublessor hereby waive all right to trial by jury in any summary
or other action, proceeding or counterclaim arising out of or in any way
connected with this Sublease, the relationship of Sublessor and Subtenant, the
Subleased Premises and the use and occupancy thereof, and any claim of injury or
damages. If Sublessor commences any summary proceeding against Subtenant,
Subtenant will not interpose any counterclaim of any nature or description in
any such proceeding (unless failure to impose such counterclaim would preclude
Subtenant from asserting in a separate action the claim which is the subject of
such counterclaim), and will not seek to consolidate such proceeding with any
other action which may have been or will be brought in any other court by
Subtenant.
23. NO WAIVER. The failure of Sublessor to insist in any one or more
---------
cases upon the strict performance or observance of any obligation of Subtenant
hereunder or to exercise any right or option contained herein shall not be
construed as a waiver or relinquishment for the future of any such obligation of
Subtenant or any right or option of Sublessor. Sublessor's receipt and
acceptance of Fixed Rent or Additional Charges, or Sublessor's acceptance of
performance of any other obligation by Subtenant, with knowledge
-14-
of Subtenant's breach of any provision of this Sublease, shall not be deemed a
waiver of such breach. No waiver by Sublessor of any term, covenant or condition
of this Sublease shall be deemed to have been made unless expressed in writing
and signed by Sublessor.
24. COMPLETE AGREEMENT. There are no representations, agreements,
------------------
arrangements or understandings, oral or written, between the parties relating to
the subject matter of this Sublease which are not fully expressed in this
Sublease. This Sublease cannot be changed or terminated orally or in any manner
other than by a written agreement executed by both parties.
25. SUCCESSORS AND ASSIGNS. The provisions of this Sublease, except
-----------------------
as herein otherwise specifically provided, shall extend to, bind and inure to
the benefit of the parties hereto and their respective personal representatives,
heirs, successors and permitted assigns. In the event of any assignment or
transfer of the leasehold estate under the Main Lease, the transferor or
assignor, as the case may be, shall be and hereby is entirely relieved and freed
of all further obligations under this Sublease; provided, however, that the
transferee or assignee of the leasehold, as the case may be, has agreed in
writing to assume all of the obligations, liabilities and responsibilities under
the Main Lease.
26. NO PERSONAL LIABILITY. Sublessor's partners and principals,
---------------------
disclosed or undisclosed, shall have no personal liability under this Sublease.
27. INTERPRETATION. Irrespective of the place of execution or
--------------
performance, this Sublease shall be governed by and construed in accordance with
the laws of the State of New Jersey. If any provision of this Sublease or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Sublease and the
application of that provision to other persons or circumstances shall not be
affected but rather shall be enforced to the extent permitted by law. The table
of contents, captions, headings and titles, if any, in this Sublease are solely
for convenience of reference and shall not affect its interpretation. This
Sublease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Sublease to be drafted. If
any words or phrases in this Sublease shall have been stricken out or otherwise
eliminated, whether or not any other words or phrases have been added, this
Sublease shall be construed as if the words or phrases so stricken out or
-15-
otherwise eliminated were never included in this Sublease and no implication or
inference shall be drawn from the fact that said words or phrases were so
stricken out or otherwise eliminated. Each covenant, agreement, obligation or
other provision of this Sublease shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making same, not
dependent on any other provision of this Sublease unless otherwise expressly
provided. All terms and words used in this Sublease, 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. The word "person" as used in this
Sublease shall mean a natural person or persons, a partnership, a corporation or
any other form of business or legal association or entity. This Sublease shall
not be deemed to constitute an offer by Sublessor nor shall this Sublease be
binding upon Sublessor unless and until one or more counterparts of this
Sublease shall have been executed by Sublessor and unconditionally delivered to
Subtenant.
28. BUILDING DIRECTORY LISTINGS. Subject to the prior written
---------------------------
consent of the Main Landlord and paying any fee required by the Main Landlord,
Subtenant shall be entitled to use its proportionate share of those lines on the
Building's lobby directory which have been made available to Sublessor pursuant
to the Main Lease.
29. SECURITY DEPOSIT. Subtenant has deposited with Sublessor the sum
----------------
of $16,621.62 as security for the due performance and observance by Subtenant of
the terms, provisions and conditions of this Sublease. Sublessor will deposit
said sum in a bank account with a commercial bank or trust company, which
account shall bear interest at "money market" rates. In the event Subtenant
materially defaults in respect of any of the terms, provisions and conditions of
this Sublease on the part of Subtenant to be observed or performed hereunder,
and such default shall continue beyond the grace period, if any, in which
Subtenant is permitted to cure such default, Sublessor may use, apply or retain
the whole or any part of the security so deposited, together with the interest
earned thereon, to the extent required for the payment of any Fixed Rent,
Additional Charges or any other sum as to which Subtenant is in default or for
any sum which Sublessor may expend or be required to expend by reason of
Subtenant's aforesaid default, including, but not limited to, any damages or
deficiency in the reletting of the Subleased Premises, whether such damages or
deficiency
-16-
accrued before or after summary proceedings or other re-entry by Sublessor. In
the event that Subtenant shall faithfully comply with all the terms, provisions,
covenants and conditions of this Sublease, (i) $5,540.54 of the security shall
be returned to Subtenant promptly after the first anniversary of the
Commencement Date, and (ii) the remaining security together with the interest
earned thereon shall be returned to Subtenant promptly after the end of the term
of this Sublease and after delivery of possession of the Subleased Premises to
Sublessor.
30. CONSENT OF LESSOR UNDER MAIN LEASE AND UNDER PRIME LEASE. The
--------------------------------------------------------
term of this Sublease shall not commence until (i) the Main Landlord shall have
given its written consent hereto in accordance with the terms of the Main Lease,
(ii) the Prime Landlord shall have given its written consent hereto in
accordance with the terms of the Prime Lease and (iii) Sublessor shall have
notified Subtenant that such consents have been given. Sublessor shall not be
obligated to take any action to obtain such consents other than to request such
consents from the Main Landlord. Sublessor shall notify Subtenant of the
granting or denial of the Main Landlord's consent and the Prime Landlord's
consent to this Sublease, and if such consents shall be granted, Sublessor shall
furnish Subtenant with copies thereof. If the Main Landlord and the Prime
Landlord do not give their respective consent to this Sublease for any reason
within 45 days after it shall have been executed and delivered and submitted to
the Main Landlord, then at any time after the expiration of said 45-day period,
either party hereto may cancel this Sublease by giving written notice to the
other party, and if such notice shall be given, this Sublease shall be deemed
cancelled and have no further force or effect. If this Sublease shall be
cancelled as aforesaid, then (a) if Subtenant is then in possession of all or
any part of the Subleased Premises, Subtenant shall immediately quit and
surrender to Sublessor the Subleased Premises, shall remove all of its property
and repair all damage caused by such removal and restore the Subleased Premises
to the condition in which they were prior to the installation of the items so
removed, and (b) Sublessor shall return to Subtenant all Fixed Rent, if any,
prepaid by Subtenant and Subtenant's security deposit, less so much of such
deposit, if any, which Sublessor shall have applied or shall be entitled to
retain in accordance with the provisions of Paragraph 29 of this Sublease to
remedy any default by Subtenant hereunder.
-17-
31. SUBTENANT'S WORK.
----------------
A. Sublessor and Subtenant have attached the Subtenant's Sealed
Construction Plan (the "Subtenant's Work Letter") as Exhibit B, describing the
Subtenant's Work (the "Subtenant's Work") to be performed to the Subleased
Premises by Sublessor on behalf of Subtenant at Sublessor's expense. All work
described in the Subtenant's Plan shall be performed by an architect and general
contractor pre-approved by the Sublessor and Subtenant pursuant to plans and
specifications mutually approved and signed by the parties, which are attached
as Exhibit B. The Subtenant's Work must be performed and completed in a manner
reasonably satisfactory to Subtenant.
B. Subtenant has inspected the Subleased Premises and accepts the
same "as is" in their presently existing condition, and Sublessor shall have no
obligation to perform any work in order to prepare the Subleased Premises for
Subtenant's occupancy other than as set forth in Exhibit B.
C. Subtenant shall occupy the Subleased Premises promptly after the
same are Ready for Occupancy (as defined in Section 1.01(Z) of the Main Lease)
and possession thereof is delivered to Subtenant by Sublessor giving to
Subtenant written notice of such effect. Except as expressly provided to the
contrary in this Sublease, with the exception of latent defects, the taking of
possession by Subtenant of the Subleased Premises shall be conclusive evidence
as against Subtenant that the Subleased Premises and the Building were in good
and satisfactory condition at the time such possession was taken, subject to the
provisions of Subparagraph 31(D) below.
D. If the substantial completion of the Subtenant's Plan is delayed
due to any act or omission of Subtenant or any of its employees, agents or
contractors (including, without limitation, (i) any delays due to changes in or
additions to the Subtenant's Plan or (ii) any delays by Subtenant in the
submission of plans, drawings, specifications or other information or in
approving any additional drawings or estimates or in giving any authorization or
approvals), then the Subleased Premises shall be deemed Ready for Occupancy on
the date when they would have been ready but for such delay(s). The Subleased
Premises shall be conclusively presumed to be in satisfactory condition on the
Commencement Date except for the minor or insubstantial details of which
Subtenant gives
-18-
Sublessor notice within 30 days after the Commencement Date specifying such
details with reasonable particularity.
32. SURRENDER OF POSSESSION. In the event that Subtenant does not
-----------------------
timely surrender possession of the Subleased Premises, in the condition required
to be surrendered, on the expiration of the term or earlier termination hereof
following the exercise of Sublessor's remedies for Subtenant's material default
as provided in this Sublease, Subtenant agrees to continue to pay Sublessor
Fixed Rent in an amount equal to three times the Fixed Rent due under this
Sublease (the "Holdover Rent") until Subtenant surrenders possession in
accordance with the terms hereof. For the purposes of this Paragraph 32, a court
of appropriate jurisdiction shall decide any good-faith dispute between
Sublessor and Subtenant with respect to whether Subtenant is in material default
under the terms of this Sublease, and such final determination shall govern
whether Sublessor is entitled to the Holdover Rent. In no event shall the
foregoing in any way limit any of Sublessor's other rights or remedies under
this Sublease.
33. RIGHT OF FIRST REFUSAL. If at any time during the term of this
----------------------
Sublease Sublessor desires to sublet the remainder of Suite 317 adjacent to the
Subleased Premises, then Sublessor agrees it (i) will promptly advise Subtenant
of such available space, (ii) will offer the space to Subtenant on substantially
the same terms as would be offered to any proposed subtenant and (iii) will
negotiate in good faith with Subtenant on rental terms for the space. If
Sublessor and Subtenant cannot agree on such rental terms within seven (7) days
after notice to Subtenant of such available space, then Sublessor thereafter
shall be free to rent such space to whomever it wishes and on whatever terms it
desires.
-19-
LEASE AGREEMENT
BETWEEN
NEWPORT OFFICE PROPERTIES CORP.
AND
NIPPON TRAVEL AGENCY PACIFIC, INC.
A HAWAII CORPORATION
DATED: JANUARY 23, 1992
PREPARED BY
PANEPINTO, PAOLINO, XXXXXXX & XXXXXX
XXXXXXX XXXXXX XXXXX
XXXXXX XXXX, XXX XXXXXX 00000
000-000-0000
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS..................................... 1
ARTICLE 2 DEMISE AND TERM................................. 8
ARTICLE 3 RENT............................................ 8
ARTICLE 4 USE OF DEMISED PREMISES......................... 9
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................................... 14
ARTICLE 10 QUIET ENJOYMENT................................. 16
ARTICLE 11 ASSIGNMENT, SUBLETTING AND MORTGAGING........... 16
ARTICLE 12 COMPLIANCE WITH LAWS............................ 20
ARTICLE 13 INSURANCE AND INDEMNITY......................... 22
ARTICLE 14 RULES AND REGULATIONS........................... 25
ARTICLE 15 ALTERATIONS..................................... 25
ARTICLE 16 LANDLORD'S AND TENANT'S PROPERTY................ 27
ARTICLE 17 REPAIRS AND MAINTENANCE......................... 28
ARTICLE 18 ELECTRIC ENERGY................................. 29
ARTICLE 19 HEAT, VENTILATION AND AIR-CONDITIONING.......... 35
ARTICLE 20 OTHER SERVICES: SERVICE INTERRUPTION............ 36
ARTICLE 21 ACCESS, CHANGES AND NAME........................ 37
ARTICLE 22 MECHANICS' LIENS AND OTHER LIENS................ 38
ARTICLE 23 NON-LIABILITY AND INDEMNIFICATION............... 39
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................................... 50
ARTICLE 35 ESTOPPEL CERTIFICATES..................... 51
ARTICLE 36 ARBITRATION............................... 52
ARTICLE 37 INTENTIONALLY OMITTED..................... 53
ARTICLE 38 BUILDING NAME............................. 53
ARTICLE 39 ENVIRONMENTAL LAWS........................ 53
ARTICLE 40 MISCELLANEOUS............................. 55
ARTICLE 41 PARKING................................... 61
EXHIBIT A LAND
EXHIBIT B TENANT WORK LETTER
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D FLOOR PLAN
EXHIBIT E CLEANING STANDARDS
THIS LEASE dated January 23, 1992 made between NEWPORT OFFICE
PROPERTIES CORP., a Delaware Corporation, having an office at 000 Xxxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx ("Landlord") and NIPPON TRAVEL AGENCY PACIFIC,
INC., a Hawaii Corporation, having an office at 000 Xxxx 00xx Xxxxxx, Xxxxx 000,
Xxx Xxxx, Xxx Xxxx 00000 ("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: Nine Thousand Four Hundred Seventy-Nine & 17/100
($9,479.17) 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: 1992
E. Broker: Chilmark
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.
J. Commencement Date: January 1, 1992 or the date on which the
Landlord notifies Tenant that Landlord has obtained the Prime Landlord's consent
to this Lease or the date on which the Demised Premises are Ready for Occupancy,
whichever is latest.
K. Common-Areas: All areas, spaces and improvements in the Building
and on the Land which Landlord makes available
1
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: 5,000 rentable s.f. located on the third (3rd)
floor as shown on Exhibit X.
X. Expiration Date: The date that is the day before the tenth (10th)
anniversary of the Commencement Date if the Commencement Date is the first day
of a month, or the tenth (10th) anniversary of the last day of the month in
which the Commencement Date occurs if the Commencement Date is not the first day
of a month. However, if the Term is extended by Tenant's effective exercise of
Tenant's rights, if any, to extend the Term, the "Expiration Date" shall be
changed to the last day of the latest extended period as to which Tenant shall
have effectively exercised its right to extend the Term. For the purposes of
this definition, the earlier termination of this Lease shall not affect the
"Expiration Date."
N. Fixed Rent:
(i) $22.75 per rentable s.f. or One Hundred Thirteen Thousand
Seven Hundred Fifty & 00/100 ($113,750.00) Dollars per year for the period
commencing on the Commencement Date and ending on the day before the fifth (5th)
anniversary of the Commencement Date if the Commencement Date is the first day
of the month or the fifth (5th) anniversary of the last day of the month in
which the Commencement Date occurs if the Commencement Date is not the first day
of a month, payable at the rate of Nine Thousand Four Hundred Seventy-Nine &
17/100 ($9,479.17) Dollars per month as hereinafter provided.
(ii) $25.75 per rentable s.f. or One Hundred Twenty-Eight
Thousand Seven Hundred Fifty & 00/100 ($128,750.00) Dollars per year for the
period commencing on the first month following the fifth (5th) anniversary of
the Commencement Date and ending on the Expiration Date, payable at the rate of
Ten Thousand Seven Hundred Twenty-Nine & 17/100 ($10,729.17) 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.
2
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.
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 Landlord, as Tenant, covering a portion of the first (lst)
floor, including the lobby area, the roof and the entire second (2nd) through
fifteenth (15th) floors in the Building.
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 3rd, 4th, 5th, 7th, 8th, 12th, 14th and 15th floors,
representing a total of 306,181 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 engage in the operation, cleaning, repairs,
safety, management providing 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; (vi) the cost or rental of all building and cleaning
supplies, tools, materials and equipment; (vii) the cost of uniforms, work
clothe and dry cleaning; (viii) window cleaning, concierge, guard, watchman or
other security personnel, service or system, if any;
3
(vix) 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;
(g) cost and expenses incurred in connection with the enforcement of
leases and disputes with tenants in the Building, including
without
4
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, attorneys' 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 are 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.
W. Permitted Use: General and executive 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. Ready for Occupancy: The condition of the Demised Premises when
for the first time the Tenant's Work under the Tenant Work Letter shall have
been substantially completed and a temporary or permanent Certificate of
Occupancy shall have been issued permitting use of the Demised Premises for the
Permitted Use. The work under the Tenant Work Letter shall be deemed
substantially completed notwithstanding the fact that minor or insubstantial
details of construction, mechanical adjustment or decoration remain to be
performed, the noncompletion of which does not materially interfere with
Tenant's use of the Demised Premises.
AA. Real Estate Taxes: The real estate taxes, assessments and special
assessments imposed upon the Building and Land by any federal, state, municipal
or other governments or 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,
5
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 (the "Financial Agreement"). Pursuant to the said Financial
Agreement, an Annual Service Charge in lieu of Real Estate Taxes is due to the
City of Jersey City for a total period of fifteen (15) years as follows: $1.66
per rentable square foot for a period of five (5) years, commencing July 1989;
$2.07 per rentable square foot for the next five (5) years and $2.49 per
rentable square foot for the last five (5) years. Any expenses incurred by
Landlord in contesting such taxes or assessments and/or the assessed value of
the Building and Land, which expenses 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: Eighteen Thousand Nine Hundred Fifty-Eight &
34/100 ($18,958.34) Dollars as provided in Article 8 herein.
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.
6
II. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the
time referred to.
JJ. Tenant's Fraction:
(i) "Tenant's Operating Fraction" for the Operating Expenses
attributable to the Office Component of the Building and Land shall be 1.63%. 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 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;
(ii) "Tenant's Real Estate Fraction" for Tenant's proportionate
share of Real Estate Taxes for the Building and Land shall be 1.23%. 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. Tenant's Work: The facilities, materials and work which will be
undertaken by and for the account of Tenant to equip, decorate and furnish the
Demised Premises for Tenant's occupancy in accordance with the provisions of
Article 5.01 and Exhibit B attached hereto.
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, accident, riot or
civil commotion, act of war, fire or Other catastrophe, Legal Requirement or an
act of the other party and any cause beyond the reasonable control of that
party, provided that the party asserting such Unavoidable Delay has exercised
its best efforts to minimize such delay.
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
7
surcharges, fuel adjustments and taxes payable by Landlord in connection
therewith.
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. (a) 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.
(b) Notwithstanding the Fixed Rent described herein, Tenant
shall not be responsible for and shall not pay Fixed Rent for the following
periods:
(i) for the first nine (9) consecutive months following the
Commencement Date; and
(ii) for the first three (3) consecutive months following the
first anniversary of the Commencement Date.
Following the Free Rent Period(s), Tenant shall pay Fixed Rent as
herein set forth. All Additional Charges shall however be due notwithstanding
the Free Rent Period(s) for Fixed Rent. In the event that Tenant defaults under
any of the terms of this Lease, the entire Fixed Rent, otherwise due for the
Free Rent Period(s), shall become immediately due and payable to the Landlord.
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
8
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
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 five (5) 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 6% (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
9
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. Landlord and Tenant have attached a Tenant Work Letter as
Exhibit B, describing the Tenant's Work to be performed to the Demised Premises
by the Landlord on behalf of the Tenant at Landlord's expense. All work
described in the Tenant Work Letter shall be performed by an architect and
general contractor chosen by the Landlord in its sole discretion pursuant to
plans and specifications mutually approved and signed by the parties.
5.02. Tenant has inspected the Demised Premises and accepts the same
"as is" in their presently existing condition, and Landlord shall have no
obligation to perform any work in order to prepare the Demised Premises for
Tenant's occupancy other than as set forth in the Tenant's Work Letter.
5.03. Subject to Section 1.01(J) Tenant shall occupy the Demised
Premises promptly after the same are Ready for Occupancy (as defined in Section
1.01(Z) above) 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, with the exception of latent defects, 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, subject to the provisions of
Section 5.04 below.
5.04. If the substantial completion of the Tenant's Work under the
Tenant Work letter shall be delayed due to (a) any act or omission of Tenant at
any of its employees, agents or contractors (including, without limitation, (i)
any delays due to changes in or additions to the Tenant's Work or (ii) any
delays by Tenant in the submission of plans, drawings, specifications or other
information or in approving any working drawings or
10
estimates or in giving any authorization or approvals), then the Demised
Premises shall be deemed Ready for Occupancy on the date when they would have
been ready but for such delay(s). The Demised Premises shall be conclusively
presumed to be in satisfactory condition on the Commencement Date except for the
minor or insubstantial details of which Tenant gives Landlord notice within
thirty (30) days after the Commencement Date specifying such details with
reasonable particularity.
5.05. 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. Further, in the
event of any relocation of the Demised Premises, Landlord shall provide Tenant
with six (6) months written notice prior to the relocation and Landlord shall be
responsible for all reasonable costs of Tenant associated with such relocation.
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 1.01(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
11
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 1.01(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
begin on a date other than a January 1st and/or, end on a date other than a
December 31st, as the case may be, and stating the Operating Expenses for the
period in question and the figures used for computing Tenant's proportionate
share, and if Tenant's proportional 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.
12
6.03. Each such statement given by Landlord pursuant to Section 6.01
or Section 6.02 shall be conclusive and binding upon Tenant unless within sixty
(60) 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.
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 of the Common Areas when
in Landlord's reasonable judgment any such closing is necessary or desirable (a)
to make repair 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
13
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 as provided by Landlord's
Security Deposit Account for tenants of the Building, 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 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
14
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.
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 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
15
Successor Landlord shall not (a) be liable for any previous act or omission of
Landlord under this Lease; (b) be subject to any offset, not expressly provided
for in this Lease, which theretofore shall have accrued to Tenant against
Landlord; or (c) be bound by any previous modification of this Lease or by any
previous prepayment of more than one month's Fixed Rent or Additional Charges,
unless such modification or prepayment shall have been expressly approved in
writing by the Prime Landlord, the Superior Lessor of the Superior Lease or the
Mortgagee of the Superior Mortgage through or by reason of which the Successor
Landlord shall have succeeded to the rights of Landlord under this Lease.
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 in any material respect any of Tenant's rights 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.
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.
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 which consent shall not
be unreasonably withheld or delayed.
11.02. Any proposed assignee, sublessee or transferee, whether or not
Landlord's consent is required hereunder, shall in any event:
16
(a) 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 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,
Tenant shall pay to the Landlord on demand (i) the reasonable costs (not
including attorney's fees) that may be incurred by the Landlord, 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.
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 security 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
partnership or joint venture, the transfer of any interest in the Tenant,
whether by sale, exchange, merger, consolidation or otherwise.
Landlord shall grant its consent to assignments of this Lease
pursuant 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
17
majority interest in which shall be owned by stockholders of Tenant.
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;
(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.
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
18
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.
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
19
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.
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 paid to Landlord by Tenant 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 charges, marketing, brokerage and other professional
fees and expenses reasonably incurred by Tenant.
ARTICLE 12
----------
COMPLIANCE WITH 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
20
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 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 shall have the right to use the Demised Premises for
the permitted Use. The Landlord represents and warrants that Tenant's proposed
use is currently lawful under the Jersey City zoning Ordinance and the Permitted
Use is lawful under current applicable governmental requirements or regulation
with respect to land use.
12.04. Landlord shall comply with all then existing Legal Requirement
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. If any changes or additions are required to be made
to the Building and/or Land due to a change in Legal Requirements after the
Commencement Date, Landlord shall perform same, and the cost thereof shall be
amortized with interest at the annual Prime Rate of interest as declared by the
Chemical Bank of New York plus two (2%) percent as of the date of such charge or
addition to the Building and/or the Land, calculated over the useful life of the
change or addition and Tenant's Operating Fraction thereof shall be applied to
such amount. Tenant shall pay such amortized amount monthly,
21
as and for Additional Rent, Based on the number of years of the useful life
thereof falling within the remainder of 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, Prime 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 Prime
Landlord, any Superior Lessor or any Superior Mortgagee but not less than the
amount sufficient to avid 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 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 the Demised
Premises and the conduct and operation of business therein, with Landlord named
as an additional insured, and at Landlord's request with the Prime Landlord, any
Superior Lessors, and Superior Mortgagees as additional insured(s), with limit
of not less than $3,000,000 for bodily injury or death and $1,000,000 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 10% 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; and (d) 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 expiation thereof, and Tenant shall deliver to
22
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 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 Uses. 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 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
23
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 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
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. Exit 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 or 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 or
24
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 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.
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 as an office 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
25
by Landlord. Except with respect to the work done by Landlord or by Tenant to
complete the Demised Premises pursuant to the Tenant Work Letter (Exhibit B),
and 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
Thousand ($10,000.00) Dollars, Tenant shall pay to Landlord, as an Additional
Charge, within five (5) days after demand, ten (10%) percent of the cost of such
alterations for indirect job costs, general conditions and coordination of the
work. 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
certificate 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 installation 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 name as parties insured, in such limits as Landlord may
reasonably
26
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.
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 any 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 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
27
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.
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, (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 Tenant's 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
28
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.
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 B
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 either of the
subdivisions 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 office 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 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. 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
29
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,
from time to time elect. "Average cost per kilowatt hour" is defined as
including energy charges, demand charges, time of 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 public
utility in computing its charges to Landlord, applied to the kilowatt hour 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 hereinabove set forth. Bills ~~ the
Electricity Additional Rent (the "Bills") shall be render to Tenant at such time
as Landlord may elect and the amount, computed from the meter, shall be the
Electricity Additional Rent.
B. Tenant's Proportionate Share of Electricity Service
---------------------------------------------------
(i) For the purpose of this subdivision B:
(a) The term "Electric Rate" shall mean the greater at the
time in question of the public utility rate schedule (including all surcharges,
demand charges, time of day charges, seasonal rate adjustment charges, taxes,
fuel adjustments, taxes regularly passed on to consumers by the public utility,
and other sums payable in respect thereof) for the supply of electric current
(1) to Landlord for the entire Building, as if Landlord were to purchase current
solely for the Demised Premises; or (2) to Tenant for the Demised Premises, as
if Tenant were to Purchase electric current solely for the Demised Premises.
Notwithstanding the foregoing provisions of this Paragraph B, if the public
utility rate schedule (with such inclusions) applicable to Landlord for the
purchase of electric current for the entire Building shall be increased, and the
percentage of the increase in such rate schedule shall exceed the percentage of
the increase, if any, in the public utility rate schedule (with such inclusions)
applicable to Landlord for the purchase of electric current solely for the
Demised Premises, then the percentage of the increase in the cost to Landlord
for the purchase of electric current for the entire Building shall be used in
determining the Electric Rate.
30
(b) The term "Base Electric Rate" shall mean the Electric
Rate in effect on the date the Lease is executed.
(ii) (a) Landlord shall furnish electric current to the Demised
Premises in such reasonable quantities as may be required by Tenant to service
its ordinary office equipment and air-conditioning equipment installed in the
Demised Premises as of the Commencement Date during Business Hours on Business
Days. Tenant shall pay to Landlord as the Electricity Additional Rent or Charge
for such electricity service the sum of $ ??? per annum, per rentable square
foot, based upon a maximum electricity demand of five (5) xxxxx per rentable
square foot of the Demised Premises for space only within the Demised Premises
together with Landlord's administrative charge, calculated at the rate of 15% of
the Electricity Additional Rent as billed to the Tenant. If the Tenant shall
require electric service on any days or hours other than those set forth above
(herein called "after hours service"), Landlord shall furnish the same upon
advance notice from Tenant given prior to (i) 4:00 P.M. of any Business Day if
service is requested to be provided during the next following non-Business Day
or (ii) 3:00 P.M. of any Business Day if service is requested to be provided
during non-business Hours of that Business Day. If Landlord furnishes such
after-hours service, Tenant shall pay Landlord's then established charges
thereof as Additional Rent and Charge upon demand.
(b) If Landlord shall have previously furnished electric current
in accordance with either subdivision A or C of this Section, or if Tenant's use
of electric current shall exceed the amount of demand or consumption set forth
herein, or if the Electric Rate shall increase over the Base Electric Rate, the
Electricity Additional Rent or Charge shall be proportionately increased, in
light of the then prevailing Electric Rate, to reflect the election to utilize
the method set forth in this subdivision B, the increase in the amount of demand
or consumption, or the increase in the Electric Rate, as the case may be, and if
the parties cannot agree thereon, the amount of such adjustment shall be
determined by a reputable electrical engineer, to be selected by Landlord, whose
fees shall be paid equally by both parties. Tenant shall have the right to
dispute the amount of the adjustment so determined provided Tenant submits a
survey and determination of such adjustment made at its sole expense, by a
reputable and independent electrical engineer, within thirty (30) days after
receipt of a copy of the determination of Landlord's engineer. If Landlord and
Tenant are unable to resolve the differences between them within thirty (30)
days after receipt by Landlord of a copy of the determination of Tenant's
engineer, the dispute shall be decided by arbitration. Pending the resolution of
such dispute by agreement or arbitration as aforesaid, Tenant shall pay the
amount of the adjustment as determined by Landlord's engineer, without prejudice
to Tenant's position. Tenant agrees that for the
31
purposes of this Section 18.01B(ii) the amount of electrical consumption and
demand estimated by Landlord as Tenant's consumption of and demand for
electrical current at the time electric current is first furnished to Tenant
under the provisions of this subdivision B shall be deemed to be the minimum
quantities of consumption and demand used by Tenant, despite the fact that
Tenant's actual consumption of and demand for usage of electric current may be
less than such amount. In no event shall any adjustment made pursuant to this
Section 18.01B(ii) (b) reduce the electricity Additional Rent or Charge.
(iii) Landlord may furnish to Tenant, from time to time during the
Term of this Lease, a written statement (an "Estimate Statement") setting forth
the Landlord's estimate of Electricity Additional Rent and any increase which
has occurred or which Landlord expects to occur in the Electricity Additional
Rent or Charge pursuant to the provisions of Section 18.0lB (ii) (b) hereof for
the twelve-month period commencing on the first day of the month immediately
succeeding the month in which such Estimate Statement was sent to Tenant. Tenant
shall pay to Landlord, as Additional Rent, on the first day of each month
following receipt of the Estimate Statement and each month thereafter until its
receipt of a new Estimate Statement, an amount equal to one-twelfth (1/12th) of
the amount of such Estimate Statement on account of the Electricity Additional
Rent or Charge for the ensuing period.
(iv) If Landlord shall have furnished Tenant an Estimate Statement
pursuant to Section 18.01B(iii) above, then, as promptly as reasonably
practicable thereafter, Landlord shall furnish to Tenant a statement (the
"Electricity Statement") for the period beginning with the effective date of the
previous Estimate Statement given by Landlord to Tenant and ending with the last
day of the period during which such previous Estimate Statement remained in
effect. If the Electricity Statement shall show that the sums paid by Tenant
under Section 18.0lB exceeded the Electricity Additional Rent or Charge which
Tenant was actually obligated to pay for such period, Landlord shall promptly
either refund to Tenant the amount of such excess or permit Tenant to credit the
amount of such excess against subsequent increases in the Electricity Additional
Rent or Charge payable under this Section; and if the Electricity Statement for
such period shall show that the sums so paid by Tenant were less than the
Electricity Additional Rent or Charge which Tenant was obligated to pay for such
Period, Tenant shall pay the amount of such deficiency within ten (10) days
after receipt of said Electricity Statement. Landlord may, but is not obligated
to, give Tenant an Electricity Statement together with an Estimate Statement.
(v) Each such Electricity Statement given by Landlord pursuant to
Section 18.0lB(iv) above shall be conclusive
32
and binding upon Tenant unless within thirty (30) days after receipt of such
Electricity Statement, Tenant shall notify Landlord that it disputes the
correctness of the Electricity Statement, specifying the particular respects in
which the Electricity Statement is claimed to be incorrect. If such dispute
shall not have been settled by agreement, either party may submit the dispute to
arbitration within ninety (90) days after receipt of such Electricity Statement.
Pending the resolution of such dispute by agreement or arbitration as aforesaid,
Tenant shall pay the increase in the Electricity Additional Rent or Charge in
accordance with the Electricity Statement, without prejudice to Tenant's
position, as herein provided. If the dispute shall be resolved in Tenant's favor
Landlord shall forthwith pay to Tenant the amount of Tenant's overpayment of the
Electricity Additional Rent, resulting in compliance with the Electricity
Statement.
C. Direct Supply.
-------------
Tenant shall obtain electric energy directly from public utility
company furnishing electric service to the Building. The costs of such service
shall be paid by Tenant directly to such public utility, but a default by Tenant
in timely payment of any hill or charge of such company shall be deemed a
default by Tenant under this Lease.
18.02. Landlord shall have full and unrestricted access to all air-
conditioning and heating equipment, and to other utility installations servicing
the Building and the Demised Premises. Landlord reserves the right temporarily
to reasonably interrupt, curtail, stop or suspend air-conditioning and 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 for any other 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.
18.03. 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
33
of electricity (including UPS power) 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 any other reason except if and to
the extent the same is caused by or results from the intention of or willful
misconduct of Landlord.
18.04. 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 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.
18.05. 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.
18.06. 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. Tenant will at all times comply
with the rules, regulations, terms and conditions applicable to service,
equipment, wiring and requirements of the public utility 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 Landlords 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
34
Additional Rent and paid within ten (10) days after the rendition of a xxxx to
Tenant therefor.
ARTICLE 19
----------
HEAT, VENTILATION AND AIR-CONDITIONING
--------------------------------------
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
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 square footage of a floor of the Building as designated by the Landlord.
19.02. 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 service elevator for the
use of Tenant, provided Tenant gives Landlord reasonable notice of the time and
use of such elevators to be 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 be entitled
to utilize the freight elevator service during Business Hours on Business Days
on two (2) occasions per day without charge. Except as set forth above, 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.
35
ARTICLE 20
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OTHER SERVICES: SERVICE INTERRUPTION
------------------------------------
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. If Tenant uses
water for any other purpose, Landlord may install and maintain, at Tenant's
expense, meters to measure Tenant's 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
36
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 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. Upon reasonable notice to the Tenant except in the event of an
emergency, 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
37
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 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.
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 fifteen (15) days after notice by Landlord to
Tenant.
38
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 caused by or resulting from the
intentional or willful misconduct of Landlord, its 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 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
39
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 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 agree 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
---------------------
24.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as 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) 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
40
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 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 (10%) 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.
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 by reason of some act or omission on the part of Tenant or any of
its subtenants or its or their partners,
41
directors, officers, servants, employees, agents or contractors, either (a)
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, or (b) the Demised
Premises or the Building shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, then without
prejudice to any other remedies which may be available against Tenant, there
shall be no abatement or reduction of 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, 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.
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
42
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 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 expired 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.
43
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 (5) day period, whether or not the Term shall
theretofore have
44
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, prosecution or damages therefor, and may repossess the
same, and may remove any Person therefrom, to the end that Landlord may
45
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 came 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 value of the excess, if any, of (i) the aggregate
amount of the Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges to be
the same as were the average monthly
46
Additional Charges Payable for the year, or if less than 365 days have
then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period
commencing with such earlier termination of this Lease or the date of
any such re-entry, as the case may be, and ending with the Expiration
Date, over (ii) the aggregate fair market rental value of the Demised
Premises for the same period; 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 during the term of the reletting. Landlord shall not be liable in any
way whatsoever for its failure or refusal to relet the
47
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.
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 mat 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 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.
48
29.05. In addition to any remedies which Landlord may have under
this Lease, if there shall be a material monetary 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. Landlord shall provide Tenant with ten (10) days prior written
notice in addition to the notice of default, indicating the date on which HVAC
services or other building services shall be discontinued.
ARTICLE 30
----------
AFFIRMATIVE WAIVERS
-------------------
30.01. Tenant, on behalf of itself and any and all person 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 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 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.
49
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 other 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.
ARTICLE 34
----------
NOTICES
-------
34.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall
50
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 address hereinabove set
forth (except that after the Commencement Date, Tenant's address, unless Tenant
shall give notice to the contrary, shall be the Building) as to Landlord, with a
copy to the attention of Xxxxxx X. Xxxxxxx, Esq. of Panepinto, Paolino, Xxxxxxx
& Xxxxxx, Journal Square Plaza, Jersey City, New Jersey and 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. Landlord shall also send notices
to Tenant in compliance with this paragraph to the attention of Xxxxxxx X.
Xxxxx, Esq. of Xxxxx & Xxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Either
party may, by notice as aforesaid, designate a different address or addresses
for notices, statements, demands, consents, approvals or other communications
intended for it.
ARTICLE 35
----------
ESTOPPEL CERTIFICATES
---------------------
35.01. Each party shall, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice,
execute and deliver to the requesting party a statement certifying that this
Lease is 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.
51
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 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 of 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
52
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
----------
INTENTIONALLY OMITTED
---------------------
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. (a) 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 Environmental Clean-Up
Responsibility Act of 1983 (ECRA) N.J.S.A. 13:1K-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 ECRA applicability. Tenant represents to
53
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 ECRA applicability.
(b) Upon the occurrence of any event requiring Tenant's compliance
with ECRA, 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 ECRA, 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 ECRA
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.
(c) Tenant hereby agrees to execute such documents and provide such
information as Landlord reasonably requires to assure compliance with ECRA 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 ECRA
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, ECRA 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 Section 39.01 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.
(d) Tenant shall immediately provide Landlord with copies of all
correspondence, reports, notices, orders, findings, declarations and other
materials pertinent to Tenant's
54
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 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.
(e) In addition to any other remedies of Landlord pursuant to this
Lease, Tenant's failure to abide by the terms of this Section 39.01 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.
(f) 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.
(g) At expiration or earlier termination of this Lease, Landlord may
require and Tenant shall obtain a statement from the DEP of compliance with
ECRA, 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
55
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.
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.
56
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.
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
57
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 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
58
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.
40.15. 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.
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
59
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 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 (1) 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
60
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.
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. 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.
40.26. 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
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PARKING
-------
41.01. Landlord agrees that Tenant shall have the right to use five
(5) unassigned spaces in the parking facilities furnished by the Prime Landlord
to the Landlord at the rate of $115.00 per space per month, subject to periodic
adjustments, during the term of the Lease. Such right shall be exercised within
sixty (60) days of the execution of the within Leasee. Such right to use the
parking facilities shall terminate with this Lease.
61
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
LANDLORD:
ATTEST: NEWPORT OFFICE PROPERTIES CORP.
/s/ Xxxxxxx Xxxxx BY: /s/ Koshi Okamota
--------------------------- ----------------------------
Name: XXXXXXX XXXXX XXXXX XXXXXXX
Title: RE SPECIALIST Senior Vice President
TENANT:
ATTEST: NIPPON TRAVEL AGENCY PACIFIC, INC.
BY: /s/ Jun Ishiyama
__________________________ ---------------------------
Name: Name: Jun Ishiyama
Title Title: President
00
XXXXX XX XXX XXXXXX )
) ss:
COUNTY OF XXXXXX )
On this day of , 1991, before me personally came Xxxxx
Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he is
the Senior Vice President of Newport Office Properties Corp., the corporation
described in and which executed the foregoing instrument, as Landlord, and the
he signed his name thereto by order of the Board of Directors of said
corporation.
/s/ Xxxxxx X. Xxxxxx
--------------------------------
XXXXXX X. XXXXXX
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On this 13th day of January, 1992, before me personally came Jun
Ishiyama, to me known, who being by me duly sworn, did depose and say that he is
the President of Nippon Travel Agency Pacific, Inc., the corporation described
in and which executed the foregoing instrument, as Tenant, and the he signed his
name thereto by order of the Board of Directors of said corporation.
/s/ Xxxxxx Xxxxxxxx
--------------------------------
XXXXXX XXXXXXXX
(SEAL)
63
EXHIBIT A
DESCRIPTION OF THE REAL PROPERTY
BEGINNING at a point at the southwesterly corner of the herein described,
having coordinates in the New Jersey Plane Coordinate System of N 690,094.82
feet and E 2,175,100.78 feet, said point further described as being the
following courses from the intersection of the easterly line of Tract 1-B (also
known as Washington Boulevard) of Newport City with the southwesterly most line
of lands of Newport City as shown on certain maps entitled "Final Subdivision
Plan for Newport City, Jersey City, Xxxxxx County, New Jersey," filed December
12, 1985 as Maps 3195 and 3196 and as amended by Maps 3206 and 3207 filed May
20, 1986;
a. Along said easterly line of Tract l-B, N 08 degrees 21 minutes O1
seconds E, 406.64 feet to a point of curvature, thence;
b. Along the same, northerly along a curve to the right having a radius
of 740.00 feet, an arc distance of 221.32 feet to a point of rectangular,
thence;
c. Still along the same, N 25 degrees 29 minutes 13 seconds E, 128.99
feet to a point at the intersection of the same with the southerly line of the
herein described as produced westerly, thence;
d. Along said line, S 83 degrees 42 minutes 51 seconds E, 102.94 feet to
the aforesaid point of beginning and running, thence;
1. N 6 degrees 17 minutes 09 seconds E, 131.67 feet,
thence;
2. S 83 degrees 42 minutes 51 seconds E, 419.50 feet,
thence;
3. S 6 degrees 17 minutes 09 seconds W, 131.67 feet to a point in an
existing marine bulkhead, thence;
4. Along said bulkhead, N 83 degrees 42 minutes 51 seconds W, 419.50
feet to the point of BEGINNING.
HEREIN DESCRIBED CONTAINING 55,234 SQUARE FEET OR 1.2680 ACRES. DESCRIPTION
IN ACCORDANCE WITH A CERTAIN PLAN ENTITLED "SUBDIVISION PORTION OF TRACT 2,
NEWPORT CITY CENTER - 1, TAX MAP LOT - B10A IN XXXXX-00, XXXX XX XXXXXX XXXX,
XXXXXX XXXXXX, XXX XXXXXX," DRAWING NO. 00-000-00, DATED JULY 3, 1983, REV. JULY
8, 1986, PREPARED BY XXXXXXX ENGINEERING, RIDGEFIELD PARK, NEW JERSEY.
EXHIBIT B
WORK LETTER
I. PARTITIONS The Tenant will be entitled to one linear foot of
drywall partition per 10 square feet of rentable
area. All partitions within the premises will be 2
5/8" 16 gauge metal studs at 24" o.c. with one
layer of 5/8" gypsum board on each side. Metal
studs will extend to the underside of the hung
ceiling and affixed to "T" bar.
II. BASE New partitions as described in Paragraph I above
will receive 4" straight vinyl base on each side
of the partition. The color may be a choice of the
manufacturer's standard black or xxxxx.
III. PAINTING All partitions will be painted two coats: one coat
of primer and one coat of latex paint (flat
finish). All door frames and trim will be painted
two coats: one coat of primer and one coat latex
enamel (semi-gloss finish).
IV. DOORS a. Tenant Entrance Door: The Tenant will be
entitled to two (2) 2'6" x 7'0" hollow metal doors
and bucks. b. Interior Doors: The Tenant will be
entitled to one 3'0" x 7'0" solid core hardwood
veneer door and metal frame per 20 linear feet of
partitioning.
V. HARDWARE a. Entrance Door: The entrance door will be
fitted with a concealed closer, silencers, two (2)
pairs of hinges and two lever sets Yale 4500
series Augustine AU. Latch set hardware shall be a
satin chrome finish.
b. Interior Doors: Each door will be fitted with
silencers, one and a half pairs of hinges and one
latchset. Hardware will be a satin chrome finish
with satin chrome levers.
VI. SUSPENDED The Tenant will be entitled to a suspended
CEILINGS acoustic ceiling throughout the demised premises.
Suspended ceilings will be 2' x 2' Xxxxxxxxx
fissured acoustical tile with a rectangular edge
on a half inch exposed grid suspension system.
VII. FLOORING Except for building common areas, Landlord to
furnish and install 9" cement filled panels
throughout. Landlord to furnish and install 18" x
18" 4502 floor carpet tiles of existing stock.
VIII. WINDOW All exterior windows are provided with venetian
TREATMENT mini blinds for all perimeter windows.
IX. LIGHTING The Tenant will be entitled to one light fixture
per 150 square feet of rentable area. Light
fixtures are 2' x 4' 18 cell parabolic lense with
return air slot. Initial xxxxxxx will be by
Landlord at Landlord's expense. Cost of
replacement lamps will be at Tenant's expense.
X. ELECTRICAL 120/208 volt electrical service will be provided
SERVICE not to exceed 6 xxxxx per square foot of rentable
area for all lighting and power.
The Tenant will be entitled to one or more surface
mounted electrical panelboards as determined by
the Landlord's electrical engineer for the
Tenant's power and lighting. The panelboards will
be located within the demised premises in the
closest location to the electrical closet on that
floor.
XI. TELEPHONE, The Tenant will be entitled to the following
POWER OUTLETS, quantities of building standard duplex power
& SWITCHING outlets, building standard telephone boxes, and
building standard switches:
a. One 120 volt duplex power outlet for each 150
square feet of rentable area, and
b. One telephone outlet box for each 200 square
feet of rentable area, and
c. One standard toggle-style light switch for
each private office and
other switches as required to meet the applicable
code for open areas.
All switches and outlets will be ivory color with
stainless steel coverplates.
All telephone boxes shall be standard wall rough-
in boxes to receive the Tenant's telephone outlet
and shall be served by stub conduit extended to a
point above the suspended ceiling ready to receive
the Tenant's wiring.
XII. HEATING, The Tenant will be entitled to a system as
HVAC VENTILATION & required to serve the building standard work
AIR letter materials and quantities which will satisfy
CONDITIONING the following criteria:
The air conditioning system shall be capable of
providing inside conditions of not more than 78
degrees Fahrenheit, drybulb, and 50 percent
relative humidity, with outside conditions of not
more than 90 degrees dry bulb and 75 degrees wet
bulb, except that as the outside temperature
conditions vary the inside space conditions shall
be maintained approximately as follows:
Outside Conditions Inside Conditions
66 - 72 db 72 plus/minus 2 db, 50% RH plus/minus 5
72 - 80 db 75 plus/minus 2 db, 50% RH plus/minus 5
85 - 90 db 78 plus/minus 2 db, 50% RH plus/minus 5
There are seven thermostatically controlled VAV
boxes providing seven zones of control per
quadrant.
The heating system shall be capable of providing
an inside temperature of 72 degrees F. dry bulb,
plus/minus 2 when the outside condition is 0
degrees F. dry bulb.
XIII. SPRINKLER Landlord has furnished and installed chrome head
per 170 rentable square feet and will move heads
to suit Tenant's needs and as per code.
XIV. EXIT LIGHTS Landlord has furnished and installed three (3)
McPhilden ER 45 AR - 2 GF exit lights per quadrant
of full floor.
The parties agree that the Landlord shall construct or cause to be
constructed the Tenant's Work under this Tenant Work Letter on behalf of the
Tenant pursuant to stamped and sealed Plans and Specifications signed and
mutually approved by the parties.
Except as otherwise provided hereinafter, the cost of the Tenant's Work
hereunder and the cost of construction pursuant to the stamped and sealed plans
and specifications signed and mutually approved by the parties shall be the
responsibility of the Landlord. However, Tenant shall contribute the sum of
$10,350.00 (Tenant's Share) toward the cost of Tenant's Work which amount shall
be promptly paid to Landlord or Landlord's Contractor upon submission of an
invoice when Tenant's Work has been substantially completed. Landlord shall be
responsible for and shall pay for architects fees, engineering fees and all
filing fees related to the construction. If Tenant fails to make payment of the
Tenant's Share within ten (10) days of the submission of an invoice, the Late
Payment Rate under Section 3.05 shall apply.
EXHIBIT C
RULES AND REGULATIONS
1. Sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any tenant or used for any purpose other than for ingress or egress from the
Building and for delivery of merchandise and equipment in a prompt and efficient
manner using elevators and passageways designated for such delivery by Landlord.
There shall not be used in any space, or in the public hall of the Building,
either by any tenant or by jobbers or others in the delivery or receipt of
merchandise, and hand trucks, except those equipped with rubber tires and
sideguards.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the Building; and no tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the Building and tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors, and/or vibrations, or unreasonably interfere in any way with other
tenants or those having business therein, nor shall any animals or birds be kept
in or about the demised premises or the Building. Smoking or carrying lighted
cigars or cigarettes in the elevators of the Building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Landlord.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside of the
demised premises if the same is visible from the outside of the demised premises
without the prior written consent of Landlord, except that the name of tenant or
any subtenant may appear on the entrance door of the demised premises. In the
event of the violation of the foregoing by tenant, Landlord may remove same
without any liability, and may charge the expense incurred by such removal to
tenant(s)
violating this rule. Interior signs on doors and a directory tablet, if any,
shall be subject to the prior written approval of Landlord.
6. Except as provided in Article 15, no tenant shall xxxx, paint, drill
into, or in any way deface any part of the demised premises or the Building of
which they form a part. No boring, cutting or stringing of wire shall be
permitted, except with the prior written consent of Landlord, and as Landlord
may direct.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or mechanisms thereof. Each tenant must, upon the termination of his
tenancy, restore the Landlord all keys of stores, offices and toilet rooms, and
passes to the Building, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys so furnished, such tenant shall
pay to Landlord the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the demised premises
only on the freight elevators and through the service entrances and corridors,
and only during Business Hours, and in a manner approved by Landlord. Landlord
reserves the right to inspect all freight to be brought into the Building and to
exclude from the Building all freight which violates any of these Rules and
Regulations of the Lease of which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
10. Landlord reserves the right to exclude from the Building at all hours
all persons who do not present a pass to the Building signed by Landlord.
Landlord will furnish passes to persons for whom any tenant requests same in
writing. Each tenant shall be responsible for all persons for whom he requests
such passes and shall be liable to Landlord for all acts of such persons.
11. Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of the
Building, or its desirability as a first class office building, and upon written
notice from Landlord, tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substance (other than chemicals used in ordinary office use in
quantities customary therefor), or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the Premises.
13. Tenant agrees to abide by all reasonable rules and regulations issued
by the Landlord with respect to services for heating, ventilating and air-
conditioning, and if required, to keep all windows in the demised premises
closed at all times.
14. Tenant shall not move any safe, heavy machinery, heavy equipment,
bulky matter, or fixtures into or out of the Building without Landlord's prior
written consent which shall not be unreasonably withheld. If such safe,
machinery, equipment, bulky matter or fixtures requires special handling, all
work in connection therewith shall comply with all laws and regulations
applicable thereto and shall be done during such hours as Landlord may
designate.
15. No tenant shall use, or permit the use of, fire exits for ingress to
or egress from the demised premises. No tenant shall invite to the demised
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, elevators and other facilities of the Building by the
ground floor tenants. No tenant shall encumber or obstruct, or permit the
encumbrance or obstruction of any of the Retail Premises, or the sidewalks,
plazas, entrances, corridors, elevators, fire exits or stairways of the
Building. Landlord reserves the right to control and operate the public portions
of the Building, the public facilities, as well as facilities furnished for the
common use of tenants, in such manner as Landlord deems best for the benefit of
tenants generally and consistent with a first-class office building with retail
tenants.
16. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or the employees, licensees or invitees of such
tenants, shall be paid by such tenant as provided in the Lease.
17. No window or other air-conditioning units shall be installed by any
tenant, and only such window coverings as are supplied or permitted by Landlord
shall be used in the demised premises. Tenant shall be permitted to install
opaque window panels.
18. All entrance doors in the demised premises shall be left locked when
the demised premises are not in use. Entrance doors shall not be left open at
any time.
19. No bicycles, mopeds or vehicles of any kind shall be kept in or about
the Building or permitted therein.
20. The exterior windows and doors that reflect or admit light and air
into any premises or the halls, passageways or other public places in the
Building, shall not be covered or obstructed by any tenant, nor shall any
articles be placed on the windowsills.
21. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them.
[FLOOR PLAN APPEARS HERE]
EXHIBIT E
CLEANING STANDARDS
Office Areas - Nightly (excluding Saturdays, Sundays and Holidays)
----------------------
Vacuum all carpeted areas and sweep hard floors.
Empty and damp wipe ashtrays.
Empty wastepaper baskets.
Remove wastepaper and waste materials to a designated area on the premises.
Dust and wipe clean furniture, fixtures, desk equipment, telephones and window
xxxxx with specially treated cloths.
Dust baseboards, chair rails, trim, louvres, pictures, charts, doors, etc.,
within reach.
Disinfect water fountains and coolers
Office Areas - Periodic
-----------------------
Dust pictures, frames, charts, graphs, and similar wall hangings not reached in
nightly cleaning, monthly.
Dust vertical surfaces such as partitions, ventilating louvres, etc. not reached
in nightly cleaning, monthly.
Damp-mop hard floors, monthly.
Common Lavatories - Nightly
---------------------------
Sweep and wash flooring with approved germicidal detergent solution, using spray
tank method.
Wash and polish mirrors, powder shelves, bright work, etc., including
flushometers, piping and toilet seat hinges.
Wash both sides of toilet seats, wash basins, bowls and urinals with approved
germicidal detergent solution.
Dust partitions, tile walls, dispensers, doors and receptacles.
Empty and clear towel and sanitary disposal receptacles.
Remove wastepaper and refuse to a designated area in the premises.
Fill toilet tissue, soap and towel dispensers.
