EXHIBIT 10.11
LEASE AGREEMENT
BETWEEN
RFG CO., LTD.
A CORPORATION OF THE COUNTRY OF JAPAN
AND
PILOT NETWORK SERVICES, INC.
A California Corporation
DATED: October 25, 1995
PREPARED BY:
XXXXXXXX, XXXXXX & XXXXXXXXX
00 XXXXXXXXXX XXXXXX - 00XX XXXXX
XXXXXX XXXX, XXX XXXXXX 00000
000-000-0000
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS .............................................. 1
ARTICLE 2 DEMISE AND TERM .......................................... 7
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 ....................... 10
ARTICLE 7 COMMON AREAS ............................................. 12
ARTICLE 8 SECURITY ................................................. 13
ARTICLE 9 SUBORDINATION ............................................ 14
ARTICLE 10 QUIET ENJOYMENT .......................................... 15
ARTICLE 11 ASSIGNMENT, SUBLETTING AND MORTGAGING .................... 15
ARTICLE 12 COMPLIANCE WITH LAWS ..................................... 19
ARTICLE 13 INSURANCE AND INDEMNITY .................................. 21
ARTICLE 14 RULES AND REGULATIONS .................................... 24
ARTICLE 15 ALTERATIONS .............................................. 24
ARTICLE 16 LANDLORD'S AND TENANT'S PROPERTY ......................... 26
ARTICLE 17 REPAIRS AND MAINTENANCE .................................. 27
ARTICLE 18 ELECTRIC ENERGY .......................................... 28
ARTICLE 19 HEAT, VENTILATION AND AIR-CONDITIONING ................... 34
ARTICLE 20 OTHER SERVICES: SERVICE INTERRUPTION ..................... 35
ARTICLE 21 ACCESS, CHANGES AND NAME ................................. 37
ARTICLE 22 MECHANICS' LIENS AND OTHER LIENS ......................... 38
ARTICLE 23 NON-LIABILITY AND INDEMNIFICATION ........................ 38
ARTICLE 24 DAMAGE OR DESTRUCTION .................................... 40
ARTICLE 25 EMINENT DOMAIN ............................................ 42
ARTICLE 26 SURRENDER.................................................. 43
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 CARING TENANT'S DEFAULTS .................................. 49
ARTICLE 33 BROKER..................................................... 50
ARTICLE 34 NOTICES ................................................... 50
ARTICLE 35 ESTOPPEL CERTIFICATES ..................................... 51
ARTICLE 36 ARBITRATION................................................ 52
ARTICLE 37 OPTION TO RENEW ........................................... 53
ARTICLE 38 BUILDING NAME ............................................. 53
ARTICLE 39 ENVIRONMENTAL LAWS ........................................ 54
ARTICLE 40 MISCELLANEOUS ............................................. 56
ARTICLE 41 PARKING.................................................... 62
EXHIBIT A LAND
EXHIBIT B INTENTIONALLY OMITTED
EXHIBIT C RULES & REGULATIONS
EXHIBIT D FLOOR PLAN
EXHIBIT E CLEANING STANDARDS
THIS LEASE dated October 25, 1995 made between RFG CO., LTD., a
corporation of the Country of Japan, having an office at 000 Xxxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx 00000 ("Landlord") and PILOT NETWORK SERVICES, INC., a
California Corporation, having an office at 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxxxx 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: Six Thousand Six Hundred Thirty-Two & 17/100
($6,632.17) 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: 1995
E. Broker: Newmark Partners, Inc.
0000 Xxxxx 00 Xxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
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: October 24, 1995 or the date on which the
Landlord notifies Tenant that Landlord has obtained the Prime Landlord's consent
to this Lease, whichever is later.
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K. Common Areas: All areas, spaces and improvements in the Building
and on the Land which Landlord makes available from time to time for the common
use and benefit of the tenants and occupants of the Building and which are not
exclusively available for use by a single tenant or occupant, including, without
limitation, parking areas, roads, walkways, landscaped and planted areas,
community rooms, if any, the managing agent's office, if any, and public rest
rooms, if any.
L. Demised Premises: 3,061 rentable square feet ("r.s.f.")., located
on the third (3rd) floor as shown on Exhibit X.
X. Expiration Date: The date that is the day before the second (2nd)
anniversary of the Commencement Date if the Commencement Date is the first day
of a month, or the second (2nd) 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 a purposes of
this definition, the earlier termination of this Lease shall not affect the
"Expiration Date."
N. Fixed Rent: $26.00 per r.s.f. or Seventy-Nine Thousand Five Hundred
Eighty-Six & 00/100 ($79,586.00) Dollars per year for the period commencing on
the Commencement Date and ending on the Expiration Date, payable at the rate of
Six Thousand Six Hundred Thirty-Two & 17/100 ($6,632.17) 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.
P. Land: The land described in Exhibit A, upon which the Building is
located.
Q. Legal Requirements: Laws and ordinances of all federal, state and
local governments, and rules, regulations, orders and directives of all
departments, subdivisions, bureaus, agencies or offices thereof, and of any
other governmental, public, quasi-public authorities having jurisdiction over
the Land and Building now in force or which may be in force hereafter during the
Term of this Lease.
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R. Master Lease: Agreement of Lease, dated June 14, 1988, as amended
or may be amended, between Newport Office Center I Company, as Landlord ("Prime
Landlord"), and Recruit U.S.A., Inc., as Tenant, covering a portion of the first
(1st) floor, including the lobby area, the roof and the entire second (2nd)
through fifteenth (15th) floors in the Building which Master Lease was assigned
by Newport Office Properties Corp., the successor to Recruit U.S.A., Inc., by
Assignment to the Landlord, dated as of March 1, 1993.
S. Mortgage: A mortgage and/or a deed of trust.
T. Mortgagee: A holder of a mortgage or a beneficiary of a deed of
trust.
U. Office Component: A portion of the 2nd and 6th floors of the
Building and the entire 0xx, 0xx, 0xx, 0xx, 12th, 14th and 15th floors,
representing a total of 272,273 rentable s.f. in the Building.
V. Operating Expenses: All costs and expenses, and taxes thereon, if
any, paid or incurred by Landlord in connection with the Office Component of
Building, the Building utility and service systems, the sidewalks, curbs, plazas
and other areas adjacent to the Building, and with respect to the services
provided tenants, including, without limitation: (i) salaries, wages and bonuses
paid to, and the cost of any hospitalization, medical, surgical, union and
general welfare benefits (including group life insurance), any pension,
retirement or life insurance plan or any other benefit or similar expense
relating to employees of Landlord engaged in the operation, cleaning, repairs,
safety, management, security or maintenance of the Land and/or the Building or
in providing services to tenants; (ii) social security, unemployment and other
payroll taxes, the cost of providing disability and worker's compensation
coverage imposed by any requirements of law, union contract or otherwise with
respect to said employees; (iii) the cost of casualty, rent, liability,
fidelity, plate glass and any other insurance; (iv) the cost of repairs,
replacements, maintenance and painting; (v) expenditures for improvements and
equipment which are made by reason of Legal Requirements or Insurance
Requirements; however, in the event such expenditures constitute "capital
expenditures" under generally accepted accounting principles consistently
applied, such capital expenditures shall be amortized over the useful life of
the improvement or equipment and included in Operating Expenses hereunder to the
extent that said useful life occurs during the then remaining balance of the
Lease together with interest at the prime rate declared by the Chemical Bank of
New York plus 2% per annum as of the date of the commencement of construction of
the improvement or the purchase or lease of equipment or as of the date of the
expenditure is made, whichever is earlier; (vi) the cost or rental of all
building and cleaning
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supplies, tools, materials and equipment; (vii) the cost of uniforms, work
clothes and dry cleaning; (viii) window cleaning, concierge, guard, watchman or
other security personnel, service or system, if any; (ix) management fees or if
no managing agent is employed by Landlord, a sum in lieu thereof which is not in
excess of then prevailing rates for management fees payable for first-class
office buildings; (x) charges of independent contractors performing work
included within this definition of Operating Expenses; (xi) telephone and
stationery; (xii) legal, accounting and other professional fees and
disbursements incurred in connection with the operation and management of the
Building and Land; (xiii) association fees and dues; (xiv) decorations; (xv)
depreciation of hand tools and other movable equipment used in the operation,
cleaning, repair, safety, management, security or maintenance of the Building;
(xvi) the cost of painting and/or decorating and/or other maintenance of the
public or common areas of the Building and Land; (xvii) the cost of all interior
and exterior gardening and landscaping of the Building and Land and all
temporary exhibitions located thereon; (xviii) the cost of maintenance, repair
and/or replacement of the curtain wall facade; (xix) all operating expenses,
project maintenance fees and charges required to be paid by Landlord to Prime
Landlord pursuant to the terms of the Master Lease; (xx) the cost of pest and
vermin extermination for the common areas of the Building and the Land; and
(xxi) Utility Costs (as hereinafter defined), provided, however, that Operating
Expenses shall exclude or have deducted from them, as the case may be:
(a) amounts actually received by Landlord through insurance
proceeds, condemnation awards, warranties and service
contracts, or otherwise, to the extent they are compensation
for sums previously included in Operating Expenses hereunder;
(b) brokerage commissions;
(c) Real Estate Taxes;
(d) the cost of electricity furnished to the Demised Premises or
any other space leased to tenants as reasonably estimated by
Landlord;
(e) financing and refinancing costs, rents payable under the
Master Lease or any Superior Lease, and mortgage interest and
mortgage payments due under any Mortgage;
(f) depreciation except as otherwise expressly herein provided;
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(g) cost and expenses incurred in connection with the enforcement of
leases and disputes with tenants in the Building, including
without limitation, court costs, attorney's fees and
disbursements;
(h) cost and expenses incurred in connection with leasing or re-
leasing space in the Building such as space planning,
architectural, engineering, 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. Intentionally Deleted.
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, including, without limitation, service
charges payable pursuant to a certain agreement dated August 25, 1987 between
Mid Xxxxxx Urban Renewal Company and the City of Jersey City. Any expenses
incurred by Landlord in contesting such taxes or assessments and/or the assessed
value of the Building and Land, which expenses shall be allocated to the period
of time to which such expenses relate. Tenant shall not be obligated or required
to
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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: Thirteen Thousand Two Hundred Sixty-Four &
34/100 ($13,264.34)
EE. Successor Landlord: As defined in Section 9.03.
FF. Superior Lease: Any lease to which this Lease is, at the time
referred to, subject and subordinate.
GG. Superior Lessor: The lessor of a Superior Lease or its successor
in interest, at the time referred to.
HH. Superior Mortgage: Any Mortgage to which this Lease is, at the
time referred to, subject and subordinate.
II. Superior Mortgagee: The Mortgagee of a Superior Mortgage at
the time referred to.
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 1.124%.
If the size of the Demised Premises, the Office Component or the Building shall
be changed from the initial size thereof, due to any taking, any construction or
alteration work, any reallocation of the rentable square footage attributable to
either the Office Component or Data Component of the Building, or otherwise, the
Tenant's Operating Fraction shall be changed to the fraction the numerator
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of which shall be the rentable square footage of the Demised Premises and the
denominator of which shall be the rentable square footage of the Office
Component of the Building. The term "Data Component" shall mean the entire 8th,
9th, 10th and 11th floors, representing a total of 135,635 r.s.f, in the
Building;
(ii) "Tenant's Real Estate Fraction" for Tenant's proportionate share
of Real Estate Taxes for the Building and Land shall be .7504%. If the size of
the Demised Premises or the Building shall be changed from the initial size
thereof, due to any taking, any construction or alteration work or otherwise,
the Tenant's Real Estate Fraction shall be changed to the fraction the numerator
of which shall be the rentable square footage of the Demised Premises and the
denominator of which shall be the rentable square footage of the Building.
KK. Tenant's Property: As defined in Section 16.02.
LL. Intentionally Deleted.
MM. Term: The period commencing on the Commencement Date and ending
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
NN. Unavoidable Delays: A delay arising from or as a result of a
strike, lockout, or labor difficulty, explosion, sabotage, riot or civil
commotion, act of war, fire or other catastrophe, inability to satisfy Legal
Requirements, an act of the other party or any other cause beyond the reasonable
control of that party, provided that the party asserting such Unavoidable Delay
has exercised its best efforts to minimize such delay.
00. Utility Costs: Landlord's cost (incurred directly or through
independent contractors) for all electricity (to the extent Landlord is not
directly reimbursed therefor by individual tenants), steam, water, gas or other
fuel and utilities supplied to the Building or the Land, including in each case,
any surcharges, fuel adjustments and taxes payable by Landlord in connection
therewith.
ARTICLE 2
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DEMISE AND TERM
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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.
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ARTICLE 3
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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 Free Rent Period (as hereinafter defined).
(b) Notwithstanding the Fixed Rent described herein, Tenant
shall not be responsible for and shall not pay Fixed Rent for the period
commencing with the Commencement Date and ending two (2) months thereafter (the
"Free Rent Period(s)"). 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, then the entire Fixed Rent,
otherwise due for the Free Rent Period(s), shall be amortized over the Term of
the Lease at the prime rate of interest charged by the Chemical Bank of New York
plus 2% as of the Commencement Date and Tenant shall promptly pay in a lump sum
the pro rata amount of the Fixed Rent otherwise due for the Free Rent Periods
plus the aforesaid interest for the unexpired portion of the Term of the Lease.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord or Landlord's agent, at its office, or such other place, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other person, and
any check received by Landlord shall be deemed received subject to collection.
If any check is mailed by Tenant, Tenant shall post such check in sufficient
time prior to the date when payment is due so that such check will be received
by Landlord on or before the date when payment is due.
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
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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) Business 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% per annum (the "Late Payment Rate"),
provided however, the aforesaid interest shall not be imposed unless Landlord
fails to receive an overdue payment within five (5) Business Days of Landlord's
written notice to Tenant thereof.
ARTICLE 4
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USE OF DEMISED PREMISES
-----------------------
4.01. Tenant shall use and occupy the Demised Premises for the
Permitted Use, and Tenant shall not use or permit or suffer the use of the
Demised Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit, other than a Certificate
of Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises or any part thereof, Tenant shall duly procure
and thereafter maintain such license or permit, and submit the same to Landlord
for inspection. Tenant shall at all times comply with the terms and conditions
of each such license or permit. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy the Demised Premises, or do or permit
anything to be done in the Demised Premises, in any manner which (a) violates
the Certificate of Occupancy for the Demised Premises or for the Building; (b)
causes or is liable to cause injury to the Building or any equipment, facilities
or systems therein; (c) constitutes a violation of the Legal Requirements or
Insurance Requirements; (d) impairs or tends to impair the character, reputation
or appearance of the Building as a first-class office building; (e) impairs the
proper and economic maintenance, operation and repair of the Building and/or its
equipment, facilities or systems; or (f) interferes with the Quiet Enjoyment
rights of the other tenants in the Building.
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ARTICLE 5
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PREPARATION OF DEMISED PREMISES
-------------------------------
AND COMMENCEMENT DATE
---------------------
5.01. Tenant has inspected the Demised Premises and accepts the same
"as is" in their presently existing condition, except for certain minor
alterations to the Demised Premises which shall be performed pursuant to plans
and specifications approved by Landlord. Landlord shall have no other obligation
to perform any work in order to prepare the Demised Premises for Tenant's
occupancy.
5.02. Tenant shall occupy the Demised Premises promptly on the
Commencement Date and possession thereof is delivered to Tenant by Landlord.
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.
5.03. Landlord reserves the right, at any time and from time to time,
to increase, reduce or change the number, type, size, location, elevation,
nature and use of the Common Areas of the Building and any other buildings and
other improvements on the Land, including without limitation the right to move
and/or remove same, provided same shall not unreasonably block or interfere with
Tenant's means of ingress or egress to and from the Demised Premises; provided,
however, Landlord shall not cause a material adverse impact on the conduct of
Tenant's business, nor shall Landlord do anything inconsistent with maintaining
the Building as a first class office building.
ARTICLE 6
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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
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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 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. After the Base Year, 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
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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 proportionate share so stated for such period is more or less than the
amount paid for such period, Tenant shall pay to Landlord the deficiency, or
Landlord shall refund to Tenant the excess, within ten (10) Business Days after
submission of such statement of Tenant's proportionate share.
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. Tenant shall be permitted to audit Landlord's books
relating to Operating Expenses for the Office Component of the Building on one
(1) occasion per year during Business Hours on Business Days upon thirty (30)
days prior written notice to the Landlord.
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 do
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
12
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
repairs or changes or to effect construction, (b) to prevent the acquisition of
public rights in such areas, (c) to discourage unauthorized parking, or (d) to
protect or preserve natural persons or property. Landlord may do such other acts
in and to the Common Areas as in its judgment may be desirable to improve or
maintain same. In connection with the foregoing, Landlord shall make reasonable
efforts to avoid a material adverse impact on the conduct of Tenant's business
and shall provide adequate ingress and egress to the Demised Premises.
ARTICLE 8
---------
SECURITY
--------
8.01. Upon execution of this Lease, Tenant shall deposit with Landlord
the Security Deposit for the full and faithful payment and performance by Tenant
of Tenant's obligations under this Lease. If Tenant defaults in the full and
prompt payment and performance of any of its obligations under this Lease,
including, without limitation, the payment of Rent, Landlord may use, apply or
retain the whole or any part of the Security Deposit so deposited to the extent
required for the payment of any Rent or any other sums as to which Tenant is in
default or for any sum which Landlord may expend or may be required to expend by
reason of Tenant's default in respect of any of Tenant's obligations under this
Lease, including, without limitation, any damages or deficiency in the reletting
of the Demised Premises, whether such damages or deficiency accrue before or
after summary proceedings or other re-entry by Landlord. If Landlord shall so
use, apply or retain the whole or any part of the Security Deposit, Tenant
shall, upon demand, immediately deposit with Landlord a sum equal to the amount
so used, applied and retained as the Security Deposit. If Tenant shall fully and
faithfully pay and perform all of Tenant's obligations under this Lease, the
Security Deposit or any balance thereof to which Tenant is entitled shall be
returned or paid over to Tenant, without interest, 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
13
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 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.
14
9.03. If the Prime Landlord or any Superior Lessor or Superior
Mortgagee shall succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease or deed,
then at the request of such party so succeeding to Landlord's rights ("Successor
Landlord") and upon such Successor Landlord's written agreement to accept
Tenant's attornment, Tenant shall attorn to and recognize such Successor
Landlord as Tenant's Landlord under this Lease and shall promptly execute and
deliver any instrument that such Successor Landlord may reasonably request to
evidence such attornment. Upon such attornment this Lease shall continue in full
force and effect as a direct lease between the Successor Landlord and Tenant
upon all of the terms, conditions and covenants as are set forth in this Lease
except that the Successor Landlord shall not (a) be liable for any previous act
or omission of Landlord under this Lease; (b) be subject to any offset, not
expressly provided for in this Lease, which theretofore shall have accrued to
Tenant against Landlord; or (c) be bound by any previous modification of this
Lease or by any previous prepayment of more than one month's Fixed Rent or
Additional Rent, unless such modification or prepayment shall have been
expressly approved in writing by the Successor Landlord.
9.04. If the Prime Landlord or any then present or prospective
Superior Mortgagee shall require any modification(s) of this Lease, Tenant shall
promptly execute and deliver to Landlord such instruments effecting such
modification(s) as Landlord shall request, provided that such modification(s) do
not adversely affect 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
15
advertise to do so, or allow the same to be used, occupied or utilized by anyone
other than Tenant, or (c) mortgage, pledge, encumber or otherwise hypothecate
this Lease in any manner whatsoever, without in each instance obtaining the
prior written consent of Landlord.
11.02. Any proposed assignee, sublessee or transferee, whether or not
Landlord's consent is required hereunder, shall in any event:
(a) have a net worth at least equal to Tenant as of the
date of this Lease; and
(b) demonstrate financial responsibility reasonably
necessary to fulfill its obligations hereunder; and
(c) occupy the Demised Premises for the Permitted Use and
only the Permitted Use, as described in this Lease; and
(d) in the reasonable opinion of Landlord, be a tenant whose
occupancy will be in keeping with the dignity and
character of a first class office building and the use
and occupancy of the Building and whose occupancy will
not be more objectionable or more hazardous than that of
Tenant herein or impose any additional burden upon
Landlord in the maintenance and operation of the Building
and shall, in the reasonable opinion of the Landlord, be
eligible, suitable and qualified as a tenant at Newport
Financial Center in accordance with the provisions of
this Lease.
In connection with any proposed assignment, sublease or transfer,
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
16
hereof; and (ii) if Tenant is a sole owner, partnership or joint venture, the
transfer of any interest in the Tenant, whether by sale, exchange, merger,
consolidation or otherwise.
Subject to Section 11.02, 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 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.
17
11.04. If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect Rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default collect
Rent from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 11.01 or
Section 11.02, or the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any assignment,
mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article 11. References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and others
claiming under or through Tenant, immediately or remotely.
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.
18
11 07. The listing of any name other than that of Tenant, whether on
the doors of the Demised Premises or the Building directory, or otherwise, shall
not operate to vest any right or interest in this Lease or in the Demised
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this Lease or to any sublease of the Demised Premises or to the
use or occupancy thereof by others.
11.08. Without limiting any of the provisions of Article 27, if
pursuant to the Federal Bankruptcy Code (or any similar law hereafter enacted
having the same general purpose), Tenant is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease, adequate assurance of
future performance by an assignee expressly permitted under such Code shall be
deemed to mean the deposit of cash security in an amount equal to the sum of one
(1) year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease, to be held and applied in the manner specified for
the Security Deposit in Section 8.01.
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 standard, customary, and reasonable 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
19
long as Tenant shall be contesting the validity thereof, or the applicability
thereof to the Demised Premises, in accordance with Section 12.02.
12.02. Tenant may contest by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated by reason of non-compliance or otherwise by reason of such contest; (b)
before the commencement of such contest, Tenant shall furnish to Landlord either
(i) the bond of a surety company satisfactory to Landlord, which bond shall be,
as to its provisions and form, satisfactory to Landlord and shall be in an
amount at least equal to 125% of the cost of such compliance (as estimated by a
reputable contractor designated by Landlord) and shall indemnify Landlord
against the cost thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorney's fees and expenses),
resulting from or incurred in connection with such contest or non-compliance, or
(ii) other security in place of such bond 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 regulations
with respect to land use.
12.04. Landlord shall comply with all then existing Legal Requirements
and shall pay all the cost, expenses, fines, penalties and damages which may be
imposed upon Tenant for any violation by Landlord of the Legal Requirements
existing at the
20
time of the completion of Tenant's Work. Landlord shall comply with all Legal
Requirements applicable to the Building (other than the Demised Premises) during
the Term.
ARTICLE 13
----------
INSURANCE AND INDEMNITY
-----------------------
13.01. Landlord shall maintain or cause to be maintained All-Risk
insurance in respect of the Building and other improvements on the Land normally
covered by such insurance (except for the property Tenant is required to cover
with insurance under Section 13.02 and similar property of other tenants and
occupants of the Building and except for buildings and other improvements which
are on land neither owned by nor leased to Landlord) for the benefit of
Landlord, 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 avoid the effect of the coinsurance provisions of the
applicable policy or policies. Landlord may also maintain any other forms and
types of insurance which Landlord shall deem 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 limits
of not less than $2,000,000 for bodily injury or death and $2,000,000 for
property damage, including water damage and sprinkler leakage legal liability,
(b) All-Risk insurance in respect to Tenant's stock in trade, fixtures,
furniture, furnishings, removable floor coverings, equipment, signs, and all
other property of Tenant in the Demised Premises, in any amounts required by
Prime Landlord or any Superior Lessor or any Superior Mortgagee but not less
than 80% of the full insurable value of the property covered and not less than
the amount sufficient to avoid the effect of the coinsurance provisions of the
applicable policy or policies; (c) workers' compensation insurance; (d) rental
insurance in an amount equal to not less than one (1) year's Fixed Rent and
Additional Rent, which shall be automatically renewable annually and (e) any
other insurance required for compliance with the Insurance Requirements. Tenant
shall deliver to Landlord and any additional insured(s)
21
certificates for such fully paid-for policies at least 10 days before the
Commencement Date. Tenant shall procure and pay for renewals of such insurance
from time to time before the expiration thereof, and Tenant shall deliver to
Landlord and any additional insured(s) certificates therefor at least 30 days
before the expiration of any existing policy. All such policies shall be issued
by companies of recognized responsibility licensed to do business in New Jersey,
and all such policies shall contain a provision whereby the insurer shall
provide written notice to Landlord and any additional insured(s) at least twenty
(20) days prior to cancellation or modification of such policies.
13.03. Tenant shall not do, permit or suffer to be done any act,
matter, thing or failure to act in respect of the Demised Premises or use or
occupy the Demised Premises or conduct or operate Tenant's business in any
manner objectionable to any insurance company or companies whereby the fire
insurance or any other insurance then in effect in respect to the Land and
Building or any part thereof shall become void or suspended or whereby any
premiums in respect of insurance maintained by Landlord shall be higher than
those which would normally have been in effect for the occupancy contemplated
under the Permitted Use. Landlord shall give Tenant written notice in the event
Landlord becomes aware of Tenant's breach of the provisions of this Section
13.03. In case of a breach of the provisions of this Section 13.03, in addition
to all other rights and remedies of Landlord hereunder, Tenant shall (a)
indemnify Landlord, Prime Landlord, Superior Lessors and the Superior
Mortgagees, and hold 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
22
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 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. Except as provided herein, Tenant shall not be liable or
responsible for and Landlord hereby releases Tenant from all liability and
responsibility to Landlord and any person claiming by, through or under Landlord
by way of subrogation for
23
any injury, loss or damage to any person or property in the Demised Premises
irrespective of the cause of such injury, loss or damage. This release shall
apply to the extent that such injury, loss or damage to person or property is
covered by insurance, regardless of whether such insurance is payable to or
protects Landlord, Tenant or both. Nothing herein shall be construed to impose
any other or greater liability upon Tenant than would have existed in the
absence of this provision. Further, Landlord shall require its insurers to
include in all of Landlord's insurance policies which could give rise to a right
of subrogation against Tenant, a clause or endorsement whereby the insurer
waives any right of subrogation against Tenant or permits the insured, prior to
any loss, to agree with a third party to waive any claim against said third
party without invalidating the coverage under the insurance policy.
ARTICLE 14
----------
RULES AND REGULATIONS
---------------------
14.01. Tenant and its employees and agents shall faithfully observe
and comply with the Rules and Regulations (attached hereto as Exhibit C) and
such reasonable changes therein (whether by modification, elimination or
addition) as Landlord at any time or times hereafter may make and communicate to
Tenant, which, in Landlord's judgment, shall be necessary for the reputation,
safety, care or appearance of the Land and Building, or the preservation of good
order therein or the operation or maintenance of the Building or its equipment
and 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
24
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
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 (S10,000.00) Dollars, Tenant shall pay to Landlord, as an Additional
Charge, within five (5) days after demand, eight (8%) 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
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance with all applicable Legal Requirements and Insurance
Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of (a) the original installations of the Building, or
(b) the then standards for the Building established by Landlord. Alterations
shall be performed by Contractors subject to Landlord's reasonable approval.
Alterations shall be made in such manner as not to unreasonably interfere with
or delay and as not to impose any additional expense upon Landlord in the
construction, maintenance, repair or operation of the Building; and if any such
additional expense shall be incurred by Landlord as a result of Tenant's making
of any alterations, Tenant shall pay any such additional expense upon demand.
Throughout the making of alterations, Tenant shall carry, or cause to be
carried, workmen compensation insurance in statutory limits and general
25
liability insurance, with completed operation endorsement, for any occurrence in
or about the Building, under which Landlord and its managing agent and any
Superior Lessor whose name and address shall previously have been furnished to
Tenant shall be named as parties insured, in such limits as Landlord may
reasonably require, with insurers reasonably satisfactory to Landlord. Tenant
shall furnish Landlord with reasonably satisfactory evidence that such insurance
is in effect at or before the commencement of alterations and on request at
reasonable intervals thereafter during the making of alterations.
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 unless otherwise
agreed by the parties hereto.
16.02. All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant without expense to Landlord and
can be removed without structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of the Tenant and may be removed by Tenant at any time
during the Term; provided that if any of the Tenant's Property is removed,
Tenant shall repair or pay the cost of repairing any damage to the Demised
Premises, the Building or the exterior Common Areas, resulting from the
installation and/or removal thereof. Any equipment or other property for which
Landlord shall have granted any allowance or credit to Tenant shall not be
deemed to have been installed by or for the account of Tenant without expense to
Landlord, shall not be considered as the Tenant's Property and shall be deemed
the property of Landlord.
16.03. In the event at or before the Expiration Date or the date of
any earlier termination of this Lease, or within thirty (30) days after the
Expiration Date or an earlier termination date, Tenant removes from the Demised
Premises all of the Tenant's Property (except such items thereof as Landlord
shall have expressly permitted to remain, which property shall
26
become the property of the Landlord if not removed), Tenant shall repair any
damage to the Demised Premises, the Building and the Common Areas resulting from
any installation and/or removal of the Tenant's Property. Any items of the
Tenant's Property which shall remain in the Demised Premises after the
Expiration Date or after a period of thirty (30) days following the Expiration
Date or an earlier termination date, may, at the option of the Landlord, be
deemed to have been abandoned, and in such case such items may be retained by
Landlord as its property or disposed of by Landlord, without accountability, in
such manner as Landlord shall determine at Tenant's reasonable 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
27
the provisions of this Lease. Tenant shall give Landlord written notice of any
repairs it believes Landlord should make. In the event Landlord has not
commenced making the repairs within ten (10) Business Days subsequent to
Landlord's receipt of this notice, Tenant may elect to give Landlord written
notice of Tenant's intention to do the repair. In the event Landlord has not
commenced the repair within five (5) Business Days of Landlord's receipt of such
written notice, Tenant may do the repair and Landlord shall reimburse Tenant for
all reasonable costs in connection therewith. The foregoing notwithstanding,
Tenant shall at no time and in no event be entitled to make, or cause to be
made, any repairs or replacements to, or provide maintenance for, the
electrical, UPS and EPS systems (as hereinafter defined), and the heating,
ventilating and air-conditioning systems in the Building.
17.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, or changes which Landlord is required
or permitted by this Lease, or required by law, to make in or to any portion of
the Building.
ARTICLE 18
----------
ELECTRIC ENERGY
---------------
18.01. Electric current will be supplied to the Demised Premises at
the commencement of the Term in accordance with the provisions of subdivision A
of this Section 18.01. However, at any time and from time to time during the
Term of this Lease, provided it is then permissible under applicable law or
Public Service Regulation, Landlord shall have the option to have electric
current supplied to the Demised Premises in accordance with 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, purchase and installed by Landlord at Landlord's expense, 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
28
to which the then owner of the Building purchased electric current from the
public utility corporation (the "Utility Company"), serving the part of the City
of Jersey City where the Building is located, together with Landlord's
administrative charges, calculated at the rate of 7% of the Electricity
Additional Rent as billed to the Tenant. In the event that a checkmeter is not
installed and fully and accurately operating on the Commencement Date, then the
Electricity Additional Rent for the period when the checkmeter is not so
functioning shall be based upon the average of the first three (3) months of
meter operation. Landlord at its option may, from time to time, increase the
Electricity Additional Rent based upon changes occurring subsequent to the
aforementioned date in the method, rates (including, without limitation, time of
day and seasonal rate differentials) or manner by which Landlord thereafter
purchases electricity for the Building. Such increases in the Electricity
Additional Rent shall be in the amount which bears the same proportion to the
Electricity Additional Rent, payable prior to such increase, as the increase in
the average cost per kilowatt hour payable in accordance with the rates and
other charges pursuant to which Landlord will purchase electricity after such
change bears to the average cost per kilowatt hour payable in accordance with
the rates and other charges prior to such change. The periods to be used for the
aforesaid computation shall be the billing periods ending in February and August
immediately preceding such change, or such other period or periods as Landlord,
in its sole discretion, may from time to time elect. "Average cost per kilowatt
hour" is defined as including energy charges, demand charges, time of day
charges, fuel adjustment charges (as determined for each month of said period
and not averages), rate adjustment charges, sales taxes and/or any other factors
used by the Utility Company in computing its charges to Landlord, applied to the
kilowatt hours of energy and the kilowatts of demand purchased by Landlord
during a given xxxx period. Where more than one meter measures the electric
service to Tenant, the electric service rendered through each meter may be
computed and billed separately in accordance with the provisions hereinabove set
forth. Bills for the Electricity Additional Rent (the "Bills") shall be rendered
to Tenant at such time as Landlord may elect and the amount, as computed from
the meter, shall be the Electricity Additional Rent.
B. 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 Utility Company,
and other sums payable in respect thereof) for
29
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 Utility Company 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 Utility
Company 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.
(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 $1.25 per annum, per rentable square
foot, based upon Tenant's representation of 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 7% 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 therefor 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
30
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 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 18.01B (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
31
show that the sums paid by Tenant under Section 18.01B 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 18.01B(iv) above shall be conclusive and binding upon Tenant, unless
within thirty (30) days after the 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 from compliance with the Electricity Statement.
C. Direct Supply.
-------------
Tenant shall obtain electric energy directly from the Utility Company
furnishing electric service to the Building. The costs of such service shall be
paid by Tenant directly to such Utility Company, but a default by Tenant in the
timely payment of any xxxx or charge of such Company shall be deemed a default
by Tenant under this Lease.
18.02. Landlord shall have full and unrestricted access to all air-
conditioning and heating equipment, and to all other utility installations
servicing the Building and the Demised Premises. Landlord reserves the right
temporarily to reasonably interrupt, curtail, stop or suspend electrical, air-
conditioning, heating service, and all other utility, or other services, because
of Landlord's inability to obtain, or difficulty or delay in obtaining, labor or
materials necessary therefor, or in order to comply with governmental
restrictions in
32
connection therewith, or in order for the Landlord to perform any preventive
maintenance in connection with the Building or any Building system, or for any
cause beyond Landlord's reasonable control. No diminution or abatement of Fixed
Rent, Additional Rent, or other compensation shall be or will be claimed by
Tenant, nor shall this Lease or any of the obligations of Tenant hereunder be
affected or reduced by reason of such interruptions, stoppages or curtailments,
the causes of which are hereinabove enumerated, nor shall the same give rise to
a claim in Tenant's favor that such failure constitutes actual or constructive,
total or partial eviction from the Demised Premises, unless such interruptions,
stoppages or curtailments have been due to the intentional or willful misconduct
of Landlord. Landlord shall use its best efforts to restore the Demised Premises
in the event of any such interruption, curtailment, stoppage or suspension in a
timely fashion.
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 of electricity (including UPS and EPS power as such terms may
hereinafter be defined in Article 19) furnished to the Demised Premises by
reason of any requirement, act or omission of the Utility Company or any other
company servicing the Building with electricity or for the performance of any
maintenance or repair required hereunder or for any other reason except if and
to the extent the same is caused by or results from the intentional or willful
misconduct of Landlord.
18.04. 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
33
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 Utility Company supplying electricity
to the Building. Tenant covenants and agrees that at all times its use of
electric current will not exceed the capacity of existing feeders to the
Building or the risers or wiring installation and Tenant will not use any
electrical equipment which, in Landlord's sole judgment, will overload such
installations or interfere with the use thereof by other tenants of the
Building. In the event that, in Landlord's sole judgment, Tenant's electrical
requirements necessitate installation of an additional riser, risers or other
proper and necessary equipment, the same shall be installed by Landlord at
Tenant's sole expense and shall be chargeable and collectible as Additional Rent
and paid within ten (10) days after the rendition of a xxxx to Tenant therefor.
ARTICLE 19
----------
HEAT, VENTILATION AND AIR-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 rentable square footage of an entire floor of the Building as designated
by the Landlord.
19.02. Landlord shall supply to the Demised Premises Uninterruptible
Power Supply ("UPS") and Emergency Power Supply ("EPS") for data processing and
data transmission. Tenant shall pay to the Landlord, as and for Additional Rent,
the sum of Three
34
Hundred Fifty-Eight & 00/100 ($358.00) Dollars per KVA per annum for each of the
ten (10) KVAs reserved for Tenant's use for UPS and EPS. Additional Rent for UPS
and EPS may be collectively referred to herein as "Access Charges." Access
Charges shall be pro-rated monthly and shall be paid by Tenant at the same time
and manner as Fixed Rent is paid pursuant to Section 3.01.
19.03. Landlord shall furnish necessary passenger elevator service
during Business Hours and shall have a passenger elevator subject to call at all
other times. If Landlord shall at any time have elected to furnish operator
service for any automatic elevators, Landlord shall have the right to
discontinue furnishing such service. If Tenant shall require the use of the
Building's freight elevators, Landlord shall provide a freight elevator for the
reasonable use of Tenant without charge, provided Tenant gives Landlord
reasonable notice of the time and use of such elevators to be made by Tenant and
such use takes place during Business Hours on Business Days. Except as set forth
in the preceding sentence, Tenant shall pay Landlord's usual and reasonable
charges for the use thereof during non-business hours or non-business days, as
Additional Rent, 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.
ARTICLE 20
----------
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 and Tenant shall
pay, as and for Additional Rent, for said water the sum of $100.00 per month. If
Tenant uses water for any other purpose, Landlord may install and maintain, at
Tenant's expense, meters to measure Tenant's 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.
35
20.03. Except as otherwise specifically provided herein, the Landlord
shall not be liable for full or partial interruption of any of the above
services or utilities described in this Article or Article 19 from conditions
beyond Landlord's control, but Landlord shall take immediate action to restore
the services and utilities. The Rent shall not xxxxx, in whole or in part,
during any such interruption or partial interruption of any of the above
services or utilities from conditions beyond the Landlord's control, but
Landlord shall take immediate action to restore the services and utilities.
20.04. (a) Provided Tenant shall keep the Demised Premises in good
order, Landlord, at its expense, but included in Operating Expenses, shall cause
the Demised Premises, but excluding any portions of the Demised Premises used
for the storage, preparation, service or consumption of food or beverages, to be
cleaned, substantially in accordance with the standards set forth in Exhibit E
attached hereto. Tenant shall pay to Landlord as Additional Rent on demand
Landlord's charges for (A) cleaning work in the Demised Premises or the Building
required because of (i) misuse or neglect on the part of Tenant or its agents,
employees, contractors, licensees or invitees (ii) use of portions of the
Demised Premises for the storage, preparation, service, or consumption of food
or beverages, reproduction, data processing or computer operations, private
lavatories or toilets or other special purposes requiring greater or more
difficult cleaning work than office areas, (iii) interior glass surfaces, (iv)
non-Building Standard materials or finishes installed by Tenant or at its
request, (v) increases in frequency or scope in any of the items set forth in
Exhibit E as shall have been requested by Tenant, and (B) removal from the
---------
Demised Premises and the Building of (i) so much refuse and rubbish of Tenant as
shall exceed that normally accumulated in the daily routine of ordinary business
office occupancy and (ii) all of the refuse and rubbish of Tenant's machines and
of any eating facilities requiring special handling and (C) additional cleaning
work in the Demised Premises or the Building required because of the use of the
Demised Premises by Tenant after hours. Landlord and its cleaning contractor and
their employees shall have access to the Premises at all times except during
Business Hours on Business Days and, to the extent that it will not unreasonably
interfere with the operation of Tenant's business, during Business Hours.
Landlord and its cleaning contractor and their employees shall have the use of
Tenant's light, power and water in the Demised Premises, without charge
therefor, as may be 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.
36
(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 advance notice Landlord and its agents shall
have the right to enter and/or pass through the Demised Premises at any time or
times, upon reasonable advance notice (except in the event of an emergency) (a)
to examine the Demised Premises and to show them to the Prime Landlord, actual
and prospective Superior Lessors, Superior Mortgagees, or prospective purchasers
of the Building, and (b) to make such repairs, alterations, additions and
improvements in or to the Demised Premises and/or in or to the Building or its
facilities and equipment as Landlord is required 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,
37
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.
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
38
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 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 agrees that the liability of the
Landlord arising out of or in connection with this Lease, the relationship of
Landlord and Tenant or Tenant's use of the Demised Premises or the Common Areas
shall be limited to such estate and property of Landlord (or sale proceeds). No
other properties or assets of Landlord or any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of any judgment
(or other judicial process) or for the satisfaction of any other
39
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 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
40
(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 and the
Lease shall terminate sixty (60) days thereafter.
24.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises or of the Building pursuant to this Article 24.
Landlord shall use its best efforts to make such repair or restoration promptly
and in such manner as to not unreasonably interfere with Tenant's use and
occupancy of the Demised Premises, but Landlord shall not be required to do such
repair or restoration work except during Business Hours on Business Days.
Landlord shall not be required to restore fixtures, improvements or other
property of Tenant. The word "restore" as used in this Article shall include
repairs.
24.05. Notwithstanding any of the foregoing provisions of this Article
24, if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, 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.
41
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 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
42
of any and all condemnation proceedings and eminent domain negotiations so that
Tenant may protect its own rights. All awards and compensation for any taking or
conveyance, whether for the whole or a part of the Land or Building, the Demised
Premises or otherwise, shall be the property of Landlord, and Tenant hereby
assigns to Landlord all of Tenant's right, title and interest in and to any and
all such awards and compensation, including, without limitation, any award or
compensation for the value of the unexpired portion of the Term. Tenant shall be
entitled to claim, prove and receive in the condemnation proceeding such award
or compensation as may be allowed for the Tenant's non-depreciated leasehold
improvements and for loss of business, goodwill, and depreciation or injury to
and cost of removal of the Tenant's Property.
25.02. If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or payment
for such taking which represents compensation for the taking of the Tenant's
Property and for moving expenses, and Landlord shall be entitled to receive that
portion which represents reimbursement for the cost of restoration of the
Demised Premises. This Lease shall be and remain unaffected by such taking and
Tenant shall continue to be responsible for all of its obligations hereunder
insofar as such obligations are not affected by such taking and shall continue
to pay the Rent in full when due. If the period of temporary use or occupancy
shall extend beyond the Expiration Date, that part of the award or payment which
represents compensation for the use and occupancy of the Demised Premises
(or a part thereof) shall be divided between Landlord and Tenant so that Tenant
shall receive (except as otherwise provided below) so much thereof as represents
compensation for the period up to and including the Expiration Date and Landlord
shall receive so much thereof as represents compensation for the period after
the Expiration Date.
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.
43
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 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
44
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 have,
hold and enjoy the Demised Premises. The word "re-enter" as used herein, is not
restricted to its technical legal meaning. If this Lease is terminated under the
provisions of Article 27, or if Landlord shall re-enter the Demised Premises
under the provisions of this Article 28, or in the event of the termination of
this Lease, or of re-entry, by or under any summary dispossess or other
proceedings or action or any provision of law by reason of default hereunder on
the part of Tenant, Tenant shall thereupon pay to Landlord the Rent payable up
to the time of such termination of this Lease, or of such recovery of possession
of the Demised Premises by Landlord, as the case may be, and shall also pay to
Landlord damages as provided in Article 29.
45
28.02. In the event of a breach or threatened breach by a party of any
of its obligations under this Lease, the other party shall also have the right
of injunction.
28.03. If this Lease shall terminate under the provisions of Article
27, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article 28, or in the event of the termination of this Lease, or re-entry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Landlord
shall be entitled to retain all monies, if any, paid by Tenant to Landlord
whether as Advance Rent, Security Deposit (and interest thereon, if any) or
otherwise, but such monies shall be credited by Landlord against any Rent due
from Tenant at the time of such termination or re-entry or, at Landlord's
option, against any damages payable by Tenant under Article 29 or pursuant to
law.
ARTICLE 29
----------
DAMAGES
-------
29.01. If this Lease is terminated under the provisions of Article 27,
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 28, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay as
Additional Charges to Landlord as a condition precedent to the dismissal of any
summary dispossess or other proceeding or action for damages, at the election of
Landlord, either:
(a) A sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be,
represents the then present value of the aggregate amount of the Rent
which would have been payable by Tenant (conclusively presuming the
average monthly Additional Rent to be the same as were the average
monthly Additional Rent payable for the year, or if less than 365 days
have then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period
commencing with such earlier termination of this Lease or the date of
any such re-entry, as the case may be, and ending with the Expiration
Date; 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
46
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 Demised Premises or any
part thereof, or if the Demised Premises or any part thereof are relet, for its
failure to collect the rent under such reletting, and no such failure or refusal
To relet or failure to collect the rent shall release or affect Tenant's
liability for damages or otherwise under this Lease. Landlord shall be under no
obligation in reletting the Demised Premises to give priority to the leasing
thereof over other vacant space in the Building.
29.02. Suit or suits for the recovery of any such damages, or any
installments thereof, may be brought by Landlord at any time and from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the Term would have expired if it
had not been so terminated under the provisions of Article 27 or
47
under any provision of law, or had Landlord not re-entered the Demised Premises.
Nothing herein contained shall be construed to limit or preclude recovery by
Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by reason
of any default hereunder on the part of Tenant. Nothing herein contained shall
be construed to limit or prejudice the right of Landlord to prove and/or obtain
as damages by reason of the termination of this Lease or re-entry on the Demised
Premises for the default of Tenant under this Lease an amount equal to the
maximum amount permitted by any statute or rule of law in effect at the time
when the governing proceedings have been initiated, whether or not such amount
is greater than, equal to, or less than any of the sums referred to in Section
29.01.
29.03. In addition, if this Lease is terminated under the provisions
of Article 27, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 28, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof; and (c) for the breach of any
covenant of Tenant set forth above in this Section 29.03, Landlord shall be
entitled immediately without notice or other action by Landlord, to recover, and
Tenant shall pay as and for liquidated damages therefor, the cost of performing
such covenant (as estimated by an independent contractor selected by Landlord).
29.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 29, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid within five (5) days after notice therefor, the
same shall bear interest at the Late Payment Rate pursuant to Section 3.05 from
the due date thereof until paid, and the amount(s) of such interest shall be
Additional Charges hereunder.
29.05. In addition to any remedies which Landlord may have under this
Lease, if there shall be a default hereunder by Tenant which shall not have been
remedied within the applicable grace period, Landlord shall not be obligated to
furnish to Tenant or the Demised Premises any HVAC services, or any building
services; and the discontinuance of any one or more of such services shall be
without liability by Landlord to Tenant and shall not reduce, diminish or
otherwise affect any of Tenant's covenants and obligations under this Lease.
48
ARTICLE 30
----------
AFFIRMATIVE WAIVERS
-------------------
30.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or them might have under or by reason of any present or future
law, to redeem the Demised Premises or to have a continuance of this Lease after
being dispossessed or ejected from the Demised Premises by process of Law or
under the terms of this Lease or after the termination of this Lease as provided
in this Lease.
30.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any 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.
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,
49
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 be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered, or delivered by any nationally
recognized over-night delivery service, or sent by United States registered or
certified mail, return receipt requested, addressed to the other party at the
following addresses:
As to Tenant: Pilot Network Services, Inc.
0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: M. Xxxxxxxx Xxxxxxx
Chief Financial Officer
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With a copy to: Venture Law Group
0000 Xxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx, Esq.
As to Landlord: International Career Information, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxx
Senior Vice President
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx, Xxxxxx & Xxxxxxxxx
00 Xxxxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Any such notices shall be deemed to have been given, rendered or made
on the date received if delivered by hand or the second day after the day so
mailed unless mailed outside the State of New Jersey, in which case it shall be
deemed to have been given, rendered or made on the third Business Day after the
day so mailed. Either party may, by notice as aforesaid, designate a different
address or addresses for notices, statements, demands, consents, approvals or
other communications intended for it.
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.
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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.
52
36.03. Each party to the arbitration shall pay the costs or fees of
the arbitrator selected by it and all further costs and fees, including court
costs in connection with the arbitration, shall be shared equally by the two
parties to the arbitration. Each party shall bear the cost of its own attorneys
and experts and the additional expenses of presenting its own proofs.
ARTICLE 37
----------
OPTION TO RENEW
---------------
37.01. Tenant shall have an option to renew this Lease, for one (1)
time only, for a further period of five (5) years (the "Renewal Period"),
provided Tenant is not in default under any terms of this Lease, upon the giving
of written notice to the Landlord at least four (4) months prior to the
Expiration Date. Except for this Article 37 and, further, except for the amount
of Fixed Rent as set forth in Section 1.01(N), all other terms and conditions of
this Lease shall continue during the Renewal Period. Fixed Rent during the
Renewal Period shall be at fair market rental for first class office buildings
in the New York - New Jersey metropolitan area and the "Gold Coast" area of the
New Jersey Waterfront. In no event, however, shall Fixed Rent for Tenant, as
determined by agreement between the parties or by an appraiser, as hereinafter
provided, be less than $26.00 per rentable square foot. Should the parties be
unable to agree as to the fair market rental within sixty (60) days of Tenant's
notice to the Landlord exercising the option contained in this Article, then the
Fixed Rent for the Renewal Period shall be determined by an independent
appraiser selected by the Landlord in its sole discretion.
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.
53
ARTICLE 39
----------
ENVIRONMENTAL LAWS
------------------
39.01. Tenant acknowledges the existence of federal, state and local
environmental laws, rules and regulations including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) 42
U.S.C. 9601-9657, the Resource Conservation and Recovery Act (RCRA) 42 U.S.C.
6901-6987, the State of New Jersey Industrial Site Recovery Act of 1983 (ISRA)
N.J.S.A. 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 ISRA applicability. Tenant
represents to Landlord and covenants that Tenant will not change to an operation
with a different SIC Number without Landlord's and Prime Landlord's prior
written consent. Any such proposed change shall be sent in writing to Landlord
sixty (60) days prior do the proposed change. Landlord or Prime Landlord may
deny consent, if, inter alia, the different SIC Number would subject the Demised
----------
Premises, the Building or the Land to ISRA applicability.
39.02. Upon the occurrence of any event requiring Tenant's compliance
with ISRA, or if Landlord by reason of any act or omission or failure to act or
not act on the part of Tenant, shall be required to comply with ISRA, Tenant
shall make all necessary filings with the New Jersey Department of Environmental
Protection ("DEPE") and any other relevant federal, state, county or municipal
legal authority and, at its own expense, shall cause all necessary tests and
studies to be performed. Landlord shall complete such documents and otherwise
cooperate (provided such cooperation does not subject Landlord to any fee, cost,
expense or liability or require performance by Landlord of Tenant's obligation
hereunder) as may be reasonably requested by Tenant or required by the ISRA
requirements of the DEPE. In the event an environmental clean-up is required,
the Landlord shall have an unrestricted right to inspect, as often as it deems
necessary in its sole discretion, during and after such clean-up.
39.03. Tenant hereby agrees to execute such documents and provide such
information as Landlord reasonably requires to assure compliance with ISRA or to
comply with the Environmental Laws, and rules or regulations of any other
relevant federal, state, county or municipal legal authority. Tenant shall bear
54
all costs and expenses incurred by Landlord associated with any required ISRA
compliance resulting from Tenant's use of the Demised Premises or any acts
and/or omissions which Tenant, its agents, employees, invitees or independent
contractors initiate, including, without limitation, state agency fees,
engineering fees, clean-up costs, filing fees and suretyship expenses. As used
in this Lease, ISRA compliance shall include applications for determinations of
non applicability from the appropriate legal authority. Tenant agrees to
indemnify and hold Landlord and Prime Landlord harmless from and against any
fines, suits, proceedings, claims and actions and any other cost, expense or
liability of any kind arising under the Environmental Laws, rules or regulations
resulting from Tenant's failure to comply with this Article 39 or Tenant's
failure to provide all information, make all submissions and take all actions
required by any legal authority, including reasonable attorney's fees.
39.04. Tenant shall immediately provide Landlord with copies of all
correspondence, reports, notices, orders, findings, declarations and other
materials pertinent to Tenant's compliance hereunder or any other environmental
enforcement requirements under any Environmental Laws as they are issued or
received by Tenant. More specifically, but not limiting the foregoing, Tenant
shall promptly provide Landlord with: (i) all documentation and correspondence
provided to DEPE 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 DEPE, the United States Environmental Protection
Agency, the United States Occupational Safety and Health Administration, or any
other legal authority which requires submission of any information concerning
environmental matters of hazardous wastes or substances, and any notices,
correspondence, documents and directives received by Tenant from any of said
authorities.
39.05. In addition to any other remedies of Landlord pursuant to this
Lease, Tenant's failure to abide by the terms of this Article 39 shall survive
the Expiration Date or earlier termination of the Term of this Lease. Tenant's
failure to abide by the terms of this Article shall be restrainable by
injunction.
39.06. Tenant shall indemnify, defend and hold Landlord, Prime
Landlord, Superior Lessors and Superior Mortgagees harmless from and against all
claims, liabilities, losses, damages and costs, foreseen or unforeseen,
including without limitation, reasonable attorney's fees, engineering and
55
other professional and expert fees and costs, which Landlord may incur by reason
of Tenant's action or non-action with regard to Tenant's obligations under this
Article.
39.07. At expiration or earlier termination of this Lease, Landlord
may require and Tenant shall obtain a statement from the DEPE of compliance with
ISRA, its amendments or rules and regulations promulgated thereunder, or a
Letter of Non-Applicability, as the case may be.
ARTICLE 40
----------
MISCELLANEOUS
-------------
40.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith.
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
56
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 is respective
obligations hereunder shall be extended if and to the extent that the
performance thereof shall be prevented due to any Unavoidable Delays. Except as
expressly provided to the contrary, the obligations of Tenant hereunder shall
not be affected, impaired or excused, nor shall Landlord have any liability
whatsoever to Tenant, (a) because Landlord is unable to fulfill, or is delayed
in fulfilling, any of its obligations under this Lease due to any of the matters
set forth in the first sentence of this Section 40.05, or (b) because of any
failure or defect in the supply, quality or character of electricity, water or
any other utility or service furnished to the Demised Premises for any reason
beyond the Landlord's reasonable control.
40.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration or earlier
termination of this Lease.
40.07. Tenant shall not exercise its rights under Article 15 or any
other provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing, labor disruption or dispute or
any interference with the business of Landlord or any tenant or occupant of the
Building.
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
57
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require.
40.10. If deemed necessary by Landlord, no person will be allowed
access to the Building without a security pass which shall be issued by Landlord
upon written request of Tenant. Tenant shall be fully liable for the acts of all
persons for whom a security pass is requested. All security passes shall be
returned to Landlord in the event the persons to whom they were issued are no
longer employed by Tenant or are otherwise not entitled to access to the
Building. In no event shall Landlord be liable for its refusal to allow access
to the Building to any person who does not have a security pass.
40.11. As part of its security program for the Building, Landlord may
restrict entry to the elevator lobby of the Building by use of an electronically
controlled lock activated by a "card-key" which is electronically programmed
with a special access code to permit entry. Landlord will issue card-keys to
Tenant, provided that Tenant shall pay to Landlord a charge for each card issued
at the rates established from time to time by Landlord for all tenants of the
Building. Tenant may obtain a replacement of any lost or stolen card-key,
provided that Tenant shall pay to Landlord its then established charges for the
issuance of replacement cards and for reprogramming of the security card access
system to permit the use of the replacement cards issued. Landlord shall have no
liability to Tenant, its employees, invitees or any other person for any
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.
58
40.13. With respect to any provisions of this Lease which provide, in
effect, the Landlord shall not unreasonably withhold or unreasonably delay any
consent or approval, Tenant in no event shall be entitled to make, nor shall
Tenant make, any claim and Tenant hereby waives any claim, for money damages;
nor shall Tenant claim any money damages by way of set-off, counterclaim or
defense, based upon any claim or assertion by Tenant that Landlord has
unreasonably withheld or unreasonably delayed any consent or approval; but
Tenant's sole remedy shall be an action or proceeding to enforce any such
provision, or for specific performance, injunction or declaratory judgment.
Landlord shall not be deemed to have unreasonably withheld or delayed its
consent or approval if the same or similar consent or approval is required to be
obtained from Prime Landlord pursuant to the terms of the Master Lease and Prime
Landlord withholds or delays its consent or approval.
40.14. To the extent that Landlord, its agents, employees or licensees
have access to the Demised Premises pursuant to the provisions of this Lease or
otherwise, Landlord agrees to indemnify, defend and save harmless Tenant from
and against all bodily harm and personal injury, loss, claim and damage to or of
any person or property of whatever nature arising from any act, omission, fault,
misconduct or negligence of Landlord, or Landlord's contractors, licensees,
agents, servants or employees, unless caused by the Tenant's negligence or
willful misconduct. This indemnity and hold harmless clause shall include
indemnity against all costs, expense and liabilities paid or incurred in or in
connection with any such claim or proceeding brought thereon and the defense
thereof, and shall include reasonable attorney's fees.
40.15. Landlord shall provide Tenant with periodic notice on not less
than two (2) occasions per year if any additional space on the third (3rd) floor
of the Building shall become vacant and available for lease. Landlord shall have
no other obligation to lease such premises to Tenant except to provide such
periodic notice.
40.16. 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.
40.17. 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. Landlord warrants and represents that (i) subject to
Section 1.01(J) the Lease is permitted under the terms of the Master
59
Lease; (ii) the leasing of the Demised Premises does not constitute a breach of
the Master Lease; (iii) to the best of Landlord's knowledge, there are no
present breaches of the Master Lease and (iv) the Master Lease is currently in
full force and effect.
40.18. (a) If Tenant is a corporation, each person executing this
Lease on behalf of Tenant hereby covenants, represents and warrants that Tenant
is a duly incorporated or duly qualified, if a foreign corporation, corporation
and is authorized to do business in the State of New Jersey (a copy of evidence
thereof shall be supplied by Tenant to Landlord upon request); and that each
person executing this Lease on behalf of Tenant is an officer of Tenant and is
duly authorized to execute, acknowledge and deliver this Lease to Landlord (a
copy of resolution to such effect shall be supplied by Tenant to Landlord upon
request).
(b) If Tenant is a partnership (or is comprised of two (2) or
more persons, individually, or as joint venturers or as copartners of a
partnership), or if Tenant's interest in this Lease shall be assigned to a
partnership (or to two (2) or more persons, individually, or as joint venturers
or as co-partners of a partnership) (any such partnership and such persons are
referred to in this Article as the "Partnership Tenant"), the following shall
apply: (i) the liability of each of the parties comprising the Partnership
Tenant shall be joint and several (ii) each of the parties comprising the
Partnership Tenant hereby consents in advance to, and agrees to be bound by, any
modifications, termination, discharge or surrender of this Lease which may
hereafter be made, and by any notices which may hereafter be given, by the
Partnership Tenant or by any of the parties comprising the Partnership Tenant,
(iii) any notices given or rendered to the Partnership Tenant or to any of the
parties comprising the Partnership Tenant shall be deemed given or rendered to
the Partnership Tenant and to all such parties and shall be binding upon the
Partnership Tenant and all parties, (iv) if the Partnership Tenant shall admit
new partners, all such new partners shall, by their admission to the Partnership
Tenant, be deemed to have assumed performance of all of the terms of this Lease
on Tenant's part to be performed and (v) the Partnership Tenant shall give
prompt notice to Landlord of the admission of any such new partners, and upon
demand of 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).
60
40.19. All Exhibits to this Lease are hereby incorporated into this
Lease, and references to "this Lease" shall include all Exhibits.
40.20. 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.
40.21. 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.
40.22. 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.
40.23. 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.
40.24. The person signing this Lease on behalf of Tenant personally
represents and warrants to Landlord that (i) all action necessary to be taken
and all consents necessary to be obtained to fully authorize the execution,
delivery and performance of this Lease by Tenant has been duly taken or
obtained, as the case may be and (ii) he or she is a duly authorized officer of
Tenant who has full power and authority to execute and deliver this Lease on
behalf of Tenant and bind Tenant to all of the terms and conditions hereof.
40.25. 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
61
for the furnishing of service. Landlord shall not be responsible for any delays
occasioned by failure of the telephone company to furnish service.
40.26. If at any time Tenant believes that Landlord has not acted
reasonably in the granting or withholding of any approval or consent, as to
which consent the Landlord has expressly agreed to act reasonably, or absent
such agreement, a court of competent jurisdiction, arbitrator or arbitration
panel would require Landlord to act reasonably, then Tenant's sole remedy shall
be to seek injunctive relief or specific performance, and no action for monetary
or punitive damages shall in any event or under any circumstances be maintained
by Tenant against Landlord.
40.27. Except as otherwise provided herein, Landlord shall only be
deemed to be in default under the terms of this Lease if Landlord shall violate,
neglect, or fail to observe, keep or perform any covenant or agreement which is
not observed, kept or performed by Landlord within forty-five (45) days after
receipt by Landlord of written notice by Tenant of such breach which notice
shall specifically set forth the nature of the breach. Landlord shall not be
considered in default so long as Landlord commences to cure the breach in a
diligent and prudent manner and is allowed such additional time as is reasonably
necessary to correct the breach.
40.28. 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.
40.29. This Lease may be executed in one or more counterparts, each
of which shall be original, and all of which shall constitute one and the same
instrument.
ARTICLE 41
----------
PARKING
-------
41.01. Landlord agrees that Tenant shall have the right to use three
(3) unassigned spaces in the parking facilities furnished by the Prime Landlord
to the Landlord at the rate of $135.00 per space per month, subject to periodic
adjustments upon thirty (30) days prior written notice to the Tenant, during the
term of the Lease. Such right shall be exercised within sixty (60) days of the
execution of the within Lease and shall be effective immediately upon receipt of
such notice. Tenant's right to use the parking facilities shall terminate on the
Expiration Date or earlier termination of the Lease.
62
41.02. Tenant shall not be entitled to assign or sublicense its
parking rights under this Lease.
41.03. Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all claims, lawsuits, damages or actions for property
loss or personal injuries to third parties, arising out of, or in connection
with, Tenant's use of the parking facilities.
41.04. Tenant shall be responsible for any and all loss or damage to
Tenant's property, by fire or other casualty, ordinary wear and tear, or from
any other cause or circumstance that may occur. Landlord shall not be liable for
any damage or injury from any cause which may be sustained by Tenant or any
other person.
41.05. Tenant, Tenant's employees or Tenant's visitors shall use the
parking spaces solely for the parking of personal motor vehicles.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
LANDLORD:
ATTEST: RFG CO., LTD.
BY: International Career
Information, Inc., as Agent
[SIGNATURE ILLEGIBLE] BY: /s/ Xxxxx Xxxxxxx
---------------------------- ----------------------------
Name: XXXXX XXXXXXX
Title: Senior Vice President
TENANT:
ATTEST: PILOT NETWORK SERVICES, INC.
/s/ Xxxxxx X. Xxxxxxx BY: /s/ M.Xxxxxxxx Xxxxxxx
------------------------ -----------------------------
Name: Xxxxxx X. Xxxxxxx Name: M. XXXXXXXX XXXXXXX
Title: Director of Finance Title: CHIEF EXECUTIVE OFFICER
63
STATE OF NEW JERSEY )
) SS.:
COUNTY OF XXXXXX )
BE IT REMEMBERED, that on October , 1995 before me, the subscriber,
a Notary Public of the State of New Jersey personally appeared ________________
who, being by me duly sworn on his oath, deposed and made proof to my
satisfaction, that he is the _______________________ of International Career
Information, Inc., a Delaware corporation, the entity that executed the within
instrument as agent for RFG Co., Ltd.; that deponent knows that Xxxxx Xxxxxxx is
the Senior Vice President of said corporation.
The execution as well as the making of this instrument has been duly
authorized by a proper resolution of the Board of Directors of the said
corporation; that the deponent well knows the corporate seal of said
corporation; that the seal affixed to the said instrument is the proper
corporate seal and was thereto affixed and said instrument signed and delivered
by said Xxxxx Xxxxxxx as and for the voluntary act and deed of said corporation
in the presence of the deponent who thereupon subscribed his name thereto as
attesting witness.
[SIGNATURE ILLEGIBLE]
----------------------------------
Sworn to and subscribed
before me on the date
aforesaid
/s/ XXXXXX X. XXXXXX
----------------------------------
Notary Public
[Notarial Seal]
64
STATE OF )
) ss.:
COUNTY OF )
BE IT REMEMBERED, that on October , 1995 before me, the subscriber,
a Notary Public of the State of New Jersey personally appeared ________________
who, being by me duly sworn on his oath, deposed and made proof to my
satisfaction, that he is the _________________ of Pilot Network Services, Inc.,
a _______________________ corporation, the entity that executed the within
instrument; that deponent knows that ____________________ is the ______________
of said corporation.
The execution as well as the making of this instrument has been duly
authorized by a proper resolution of the Board of Directors of the said
corporation; that the deponent well knows the corporate seal of said
corporation; that the seal affixed to the said instrument is the proper
corporate seal and was thereto affixed and said instrument signed and delivered
by said ___________________ as and for the voluntary act and deed of said
corporation in the presence of the deponent who thereupon subscribed his name
thereto as attesting witness.
______________________________________
Name:
Sworn to and subscribed
before me on the date
aforesaid
___________________________
Notary Public
[Notarial Seal]
65
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 1-B, N 08 degrees 21 minutes 01
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
INTENTIONALLY OMITTED
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, any 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.
Common Lavatories - Periodic Cleaning
--------------------------------------
Machine scrub flooring with approved germicidal detergent solution as necessary.
Wash partitions, tile walls and enamel surfaces with approved germicidal
detergent solution once a month.
Dust exterior of lighting fixtures once a month.
High dust once a month.
FIRST AMENDMENT TO LEASE
------------------------
THIS FIRST AMENDMENT TO LEASE (the "First Amendment"), dated November
19, 1997, made by and between RFG CO., LTD. ("Landlord"), a corporation of the
Country of Japan, having an office at Newport Financial Center, 000 Xxxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 and PILOT NETWORK SERVICES, INC.
("Tenant"), a corporation of the State of California having an office at 000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH:
-----------
WHEREAS, on October 25, 1995, Landlord and Tenant entered into a lease
agreement (the "Lease") for certain demised premises (the "Demised Premises"),
consisting of 3,061 rentable square feet ("rsf") on the third (3rd) floor of
Newport Financial Center, 111 Pavonia Avenue, Jersey City, New Jersey (the
"Building"); and
WHEREAS, Tenant desires to (i) exercise its Option to Renew the Lease
pursuant to Article 37 thereof for a renewal period, commencing November 1, 1997
and expiring October 31, 2002; (ii) on April 1, 2002, add to the present Demised
Premises 2,582 rsf located on the third (3rd) floor of the Building so that the
total Demised Premises leased to Tenant shall be 5,643 rsf; (iii) make such
other amendments, modifications and changes to the Lease as the parties shall
agree herein; and
WHEREAS, Landlord is agreeable to such extension pursuant to the
provisions of this First Amendment.
1
NOW, THEREFORE IN CONSIDERATION of the mutual promises and covenants
hereinafter contained, the adequacy and sufficiency of which are herein
acknowledged, the parties hereto agree as follows:
1. Effective on November 1, 1997, the following subsections of
Article 1 of the Lease are deleted in their entirety and are hereby amended,
supplemented and modified to read as follows:
1.01(B) Base Year: 1998
1.01(J) Commencement Date: November 1, 1997.
1.01(L) Demised Premises: 3,061 rentable square feet ("rsf") located
on the third (3rd) floor of the Building as shown on Exhibit D. As of
April 1, 2002, the term "Demised Premises" shall also include certain
additional premises, consisting of 2,582 rsf, located on the third
(3rd) floor of the Building; thereafter, the Demised Premises shall
consist of 5,643 rsf on the third floor of the building.
1.01(M) Expiration Date: October 31, 2002
1.01(N) Fixed Rent:
(i) $30.00 per rsf or Ninety-One Thousand Eight Hundred Third &
00/100 ($91,830.00) Dollars per year for the period commencing
on the Commencement Date and ending on June 30, 1998, payable
at the rate of Seven Thousand Six Hundred Fifty-Two & 20/100
($7,652.20) Dollars per month, as hereinafter provided; and
(ii) $32.00 per rsf or Ninety-Seven Thousand Nine Hundred Fifty-Two
& 00/l00 ($97,952.00) Dollars per year for the period
commencing on July 1, 1998 and ending on the March 31, 2002,
payable at the rate of Eight Thousand One Hundred Sixty-Two &
67/100 ($8,162.67) Dollars per month, as hereinafter provided;
and
(iii) $32.00 per rsf or One Hundred Eighty Thousand Five Hundred
Seventy-Six & 00/100 ($180,576.00) Dollars per year for the
period commencing on April 1, 2002, and ending on the
Expiration Date, payable at the rate of Fifteen Thousand Forty-
Eight & 00/100 ($15,048.00) Dollars per month, as hereinafter
provided.
2
1.0l(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
1.124%. Commencing on April 1, 2002, Tenant's Operating Fraction for
the Operating Expenses attributable to the Office Component of the
Building and Land shall be 2.073%. If the size of the Demised
Premises, the Office Component or the Building shall be changed from
the initial size thereof, due to any taking, any construction or
alteration work, any reallocation of the rentable square footage
attributable to either the Office Component or Data Component of the
Building, or otherwise, the Tenant's Operating Fraction shall be
changed to the fraction the numerator of which shall be the rentable
square footage of the Demised Premises and the denominator of which
shall be the rentable square footage of the Office Component of the
Building. The term "Data Component" shall mean the entire 8th, 9th,
10th and 11th floors, representing a total of 135,635 r.s.f, in the
Building;
(ii) "Tenant's Real Estate Fraction" for Tenant's
proportionate share of Real Estate Taxes for the Building and Land
shall be .7504%. Commencing on April 1, 2002, Tenant's Real Estate
Fraction for Tenant's proportionate Share of Real Estate Taxes for the
Building and Land shall be 1.383%. 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.
2. Effective on November 1, 1997, Section 19.02 of the Lease is
deleted in its entirety and is hereby amended, supplemented and modified to read
as follows:
19.02. Landlord shall supply to the Demised Premises Uninterruptible
Power Supply ("UPS") and Emergency Power Supply ("EPS") for data
processing and data transmission. Tenant shall pay to the Landlord, as
and for Additional Rent, the sum of Three Hundred Fifty-Eight & 00/100
($358.00) Dollars per KVA per annum for each of the ten (10) KVAs
reserved for Tenant's use for UPS and EPS. In the event Tenant desires
to increase the amount of UPS and EPS power reserved for Tenant's use
so that such total amount reserved is greater than ten (10) KVAs, then
Tenant shall notify Landlord in writing of the amount of any
additional UPS and EPS reserved power it requests and the effective
date for such increase. Within twenty (20) days after the date of
Tenant's written notice, Landlord shall advise Tenant whether such
additional UPS and EPS reserved power is available on the date which
Tenant has requested. If it is available, Landlord shall with
reasonable promptness provide such additional amount of UPS and EPS
reserved power to Tenant on the
3
date which Tenant has requested. Thereupon, Tenant shall pay to
Landlord as and for Additional Rent the sum of $400.00 per KVA per
annum for any amount of additional UPS and EPS power reserved to
Tenant in excess of the ten (10) KVAs initially reserved by Tenant.
Additional Rent for UPS and EPS may be collectively referred to herein
as "Access Charges." Access Charges shall be pro-rated monthly and
shall be paid by Tenant at the same time and manner as Fixed Rent is
paid pursuant to Section 3.01.
3. Effective on November 1, 1997, Article 37 of the Lease is hereby
deleted in its entirety and is hereby amended, supplemented and modified to read
as follows:
ARTICLE 37
OPTION TO RENEW
---------------
37.01. Tenant shall have an Option to Renew this Lease for one (1)
time only for a further period, commencing November 1, 2002 and ending
June 13, 2009 (the "Renewal Period") provided Tenant is not in default
under any terms of this Lease, upon the giving of written notice to
Landlord at least four (4) months prior to the Expiration Date. Except
as specifically provided in this Article 37, all other terms and
conditions of this Lease shall continue during the Renewal Period.
Fixed Rent during the Renewal Period shall be:
(i) $32.00 per rsf or One Hundred Eighty Thousand Five Hundred
Seventy-Six & 00/100 ($180,576.00) Dollars per year for the
period commencing on November 1, 2002 and ending on June 30,
2004, payable at the rate of Fifteen Thousand Forty-Eight &
00/100 ($15,048.00) Dollars per month, as hereinabove provided in
Article 3; and
(ii) $38.00 per rsf or Two Hundred Fourteen Thousand Four Hundred
Thirty Four & 00/100 ($214,434.00) Dollars per year for the
period commencing on July 1, 2004 and ending on June 13, 2009,
payable at the rate of Seventeen Thousand Eight Hundred Sixty-
Nine & 50/100 ($17,869.50) Dollars per month, as hereinabove
provided in Article 3.
Access Charges during the Renewal Period for all UPS and EPS reserved
power for Tenant's use as described in Section 19.02 shall be
calculated at the rate of $400.00 per KVA per annum and payable in the
manner set forth in Section 3.01 and Section 19.02. The Base Year for
Additional Rent for Operating Expenses and Real Estate Taxes shall be
1998.
4
37.02. Within sixty (60) days after the commencement of the Renewal
Period (i.e. November 1, 2002) Landlord shall repaint and re-carpet
the Demised Premises pursuant to Building standards.
4. All the terms, conditions and covenants of the Lease, not
specifically modified, altered or amended herein, including all Exhibits
thereto, shall remain unchanged and in full force and effect as contained in the
Lease.
5. Except as amended, supplemented and modified by this First
Amendment, the Lease and all covenants, agreements, terms, provisions,
conditions and exhibits thereto are hereby in all respects ratified and
confirmed. The provisions of this First Amendment shall be effective upon
execution hereof for the date set forth herein. Capitalized terms used, but not
defined in this First Amendment, shall have their respective meanings as set
forth in the Lease.
IN WITNESS WHEREOF, the parties hereto have set their hand and seal on
the date first above written.
ATTEST: LANDLORD:
RFG CO., LTD.
BY: INTERNATIONAL CAREER
INFORMATION, INC., AS AGENT
/s/ Xxxxx Xxxxxxxxx BY: /s/ Xxxxx Xxxxxxx
---------------------------------- -------------------------------
XXXXX XXXXXXXXX XXXXX XXXXXXX
CHIEF FINANCIAL OFFICER SENIOR VICE PRESIDENT
ATTEST: TENANT:
PILOT NETWORK SERVICES, INC.
/s/ Xxxxxx X. Xxxxxxx BY: /s/ M. Xxxxxxxx Xxxxxxx
---------------------------------- -------------------------------
NAME: Xxxxxx X. Xxxxxxx NAME: M. Xxxxxxxx Xxxxxxx
TITLE: Vice President of Finance TITLE: President & CEO
5
STATE OF NEW JERSEY )
) SS.:
COUNTY OF XXXXXX )
BE IT REMEMBERED, that on 19 November 1997 before me, the subscriber,
a Notary Public of the State of New Jersey personally appeared Xxxxx Xxxxxxxxx,
being by me duly sworn on his oath, deposed and made proof to my satisfaction,
that he is the Chief Financial Officer of International Career Information,
Inc., a Delaware corporation, the entity, that executed the within instrument as
agent for RFG Co., Ltd.; that deponent knows that Xxxxx Xxxxxxx is the Senior
Vice President of said corporation.
The execution as well as the making of this instrument has been duly
authorized by a proper resolution of the Board of Directors of the said
corporation; that the deponent well knows the corporate seal of said
corporation; that the seal affixed to the said instrument is the proper
corporate seal and was thereto affixed and said instrument signed and delivered
by said Xxxxx Xxxxxxx as and for the voluntary act and deed of said corporation
in the presence of the deponent who thereupon subscribed his name thereto as
attesting witness.
/s/ Xxxxx Xxxxxxxxx
----------------------------------------
XXXXX XXXXXXXXX
CHIEF FINANCIAL OFFICER
SWORN TO AND SUBSCRIBED
BEFORE ME ON THE DATE
AFORESAID
/s/ Xxxxxx X. Xxxxxx
-------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
6
STATE OF CALIFORNIA )
) SS.:
COUNTY OF ALAMEDA: )
BE IT REMEMBERED, that on Nov. 14th, 1997 before me, the subscriber, a
Notary Public of the State of California personally appeared X. Xxxxxxxx who,
being by me duly sworn on her oath, deposed and made proof to my satisfaction,
that she is the Xxxxxxx of Pilot Network Services, Inc., a California
corporation, the entity that executed, the within instrument; that deponent
knows that she is the President/CEO of said corporation.
The execution as well as the making of this instrument has been duly
authorized by a proper resolution of the Board of Directors of the said
corporation; that the deponent well knows the corporate seal of said
corporation; that the seal affixed to the said instrument is the proper
corporate seal and was thereto affixed and said instrument signed and delivered
by said Xxxxxxxx X. Xxxxxxx as and for the voluntary act and deed of said
corporation in the presence of the deponent who thereupon subscribed his name
thereto as attesting witness.
/s/ M. Xxxxxxxx Xxxxxxx
------------------------------------
NAME:
SWORN TO AND SUBSCRIBED
BEFORE ME ON THE DATE
AFORESAID
/s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
7
--------------------------------------------------------------------------------
AGREEMENT OF LEASE
Between
NEWPORT OFFICE CENTER I CO.,
as Landlord
and
RECRUIT U.S.A., INC.,
as Tenant
Premises:
A portion of the 1st floor (including the
lobby area), the roof and the entire
2nd through 15th floors in the building
known as Newport Office Center I, at
Newport, Jersey City, New Jersey
Dated: June 14, 1988
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
Article 1 - Definitions................................... 1
Article 2 - Demise; Premises; Delivery of Premises;
Term; Rent.................................. 10
Article 3 - Use and Occupancy............................. 13
Article 4 - Condition of the Premises; Condition of
Building.................................... 17
Article 5 - Alterations; Installations; Tenant's
Property and Tenant's Work.................. 23
Article 6 - Floor Load.................................... 30
Article 7 - Repairs and Maintenance....................... 30
Article 8 - Window Cleaning............................... 32
Article 9 - Requirements of Law........................... 33
Article 10 - Subordination................................. 37
Article 11 - Rules and Regulations......................... 40
Article 12 - Insurance..................................... 41
Article 13 - Destruction of the Premises;
Property Loss or Damage..................... 45
Article 14 - Eminent Domain................................ 48
Article 15 - Assignment and Subletting..................... 52
Article 16 - Access to Premises............................ 62
Article 17 - Non-Liability of Landlord, Lessors and
Mortgagees; Tenant's Indemnification........ 65
Article 18 - Conditions of Limitation...................... 67
Article 19 - Re-Entry by Landlord; Remedies................ 70
Article 20 - Curing Defaults............................... 73
Article 21 - No Representations by Landlord;
Landlord's Approval......................... 74
Article 22 - End of Term; Holdover......................... 75
Article 23 - Quiet Enjoyment............................... 77
Article 24 - No Waiver..................................... 77
Article 25 - Waiver of Trial by Jury;
No Counterclaims............................ 78
Article 26 - Inability to Perform.......................... 79
Article 27 - Bills and Notices............................. 79
Article 28 - Additional Payments........................... 80
Article 29 - Services; Tenant's Management of the
Building.................................... 85
Article 30 - Electricity................................... 88
Article 31 - Status of Tenant; Tenant's Agreements
and Covenants............................... 90
Article 32 - Captions...................................... 92
Article 33 - Construction of Lease......................... 92
Article 34 - Parties Bound................................. 93
Article 35 - Brokers....................................... 93
Article 36 - Adjacent Excavation; Shoring;
Darkening of Windows........................ 94
Article 37 - Miscellaneous................................. 94
Article 38 - Arbitration................................... 96
Article 39 - Signage; Building Name........................ 97
Article 40 - Parking....................................... 99
Article 41 - Renewal Options............................... 104
Article 42 - Tenant's Purchase Option...................... 112
Article 43 - Tenant's Roof and Underground
Installations............................... 117
Article 44 - Security Deposit (Letter of Credit)........... 119
Article 45 - Landlord's Representations
and Warranties.............................. 121
Exhibit 1 - Floor Plans of Premises
Exhibit 2 - Description of the Real Property
Exhibit 3 - Newport Project Site Plan
Exhibit 4 - Base Building Work
Exhibit 5 - Remaining Base Building Work Schedule
Exhibit 6 - Mortgages and Superior Leases
Exhibit 7 - Rules and Regulations
Exhibit 8 - Location of Interim and Permanent Parking Facilities
Exhibit 9 - Schedule of Building Plans and Specifications
AGREEMENT OF LEASE ("this Lease") made this 14th day of June, 1988,
between NEWPORT OFFICE CENTER I CO., a New Jersey general partnership, having an
office at 0 Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 ("Landlord") and RECRUIT
U.S.A., INC., a Delaware corporation, having an office at 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H:
- - - - - - - - - -
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
DEFINITIONS
-----------
Section 1.01. For the purposes of this Lease, the following terms
shall have the meanings ascribed to them below:
(a) "Additional Rent" shall mean all sums other than Fixed Rent due
and payable by Tenant to Landlord under this Lease, including,
without limitation "Operating Expenses", "Real Estate Taxes",
"Tenant's Project Maintenance Fee" and the "Parking Fee" (as such
terms are hereinafter defined).
(b) "Applicable Rental Rates" shall mean the following amounts for and
during the initial Term:
(i) an amount equal to $ per rentable square foot per
annum for the "Premises" [(as such term is hereinafter defined)
except, however, for purposes of this subsection 1.01(b), the term
"Premises" shall not include the portion of the first (1st) floor,
the lobby and the roof included in the Premises as defined in
subsection 1.01(bb) hereof] for and during the period commencing
on the Rent Commencement Date and expiring on the day immediately
preceding the fifth (5th) anniversary of the Rent Commencement
Date;
(ii) an amount equal to $ per rentable square foot per
annum for the Premises for and during the period commencing on the
fifth (5th) anniversary of the Rent Commencement Date and expiring
on the day immediately preceding the tenth (10th) anniversary of
the Rent Commencement Date;
(iii) an amount equal to $ per rentable square foot per
annum for the Premises for and during the period commencing on the
tenth (10th) anniversary of the Rent Commencement Date and
expiring on the day immediately preceding the fifteenth (15th)
anniversary of the Rent Commencement Date; and
(iv) an amount equal to $ per rentable square foot per
annum for the Premises for and during the period commencing on the
fifteenth (15th) anniversary of the Rent Commencement Date and
expiring on the Expiration Date.
The Applicable Rental Rates for the Premises during any "Renewal
Term" (as such term is hereinafter defined) are as provided in
Article 41 hereof.
(c) "Base Building Facilities" shall mean the installations and
facilities described in Section 4.02 hereof.
(d) "Base Building Work" shall mean the construction and installations
described on Exhibit 4 annexed hereto and made a part hereof,
which Base Building Work Landlord shall cause to be performed in
accordance with the terms and provisions of this Lease, and all or
a portion of which Base Building Work shall be performed by or on
behalf of Mid Xxxxxx Urban Renewal Co., the ground sub-lessor of
the Building (as such term is hereinafter defined).
(e) "Brokers" shall mean Xxxxxxx & Wakefield, Inc. and Xxxxxx Xxxxxx &
Associates, Incorporated.
(f) "Building" shall mean the building known as Newport Office Center
I, located at Newport, in Jersey City, Xxxxxx County, State of New
Jersey.
(g) "Business Days" shall mean all days except (i) Saturdays, Sundays
and (ii) any days which shall be either (x) observed by both the
federal and state governments as legal holidays, or (y) designated
as a holiday by applicable Building service union employee service
contract or by any applicable operating engineers contract.
(h) "Business Hours" shall mean the hours between 8:00 A.M. and 6:00
P.M.
(i) "City" shall mean the City of Jersey City, and all departments,
subdivisions, bureaus, agencies or offices thereof.
(j) "Commencement Date" shall be as set forth and defined in Section
2.03 hereof.
(k) "Completion Date" shall be as set forth and defined in Section
4.02 hereof.
(l) "Expiration Date" shall be as set forth and defined in Section
2.03 hereof.
(m) "Fixed Rent" shall mean: (i) an annual rental rate of for the
period commencing on the Rent Commencement Date and ending on the
day
-2-
(n) "Force Majeure" shall mean and include strikes, labor troubles,
accidents or any events, circumstances, or causes whatsoever
beyond Landlord's reasonable control, including, without
limitation, delays caused by restrictions, regulations or
controls, mechanical breakdowns, shortages of or inability to
obtain labor, fuel, steam, water, electricity or materials, acts
of God, inability to obtain governmental approvals or consents,
enemy action, nuclear emergency, epidemics, landslides, lightning,
earthquakes, civil commotion, fires, floods or any other
casualties, events or circumstances.
(o) "Guaranty" shall mean that certain unconditional guaranty of
payment and performance executed by Recruit Co., Ltd. as
"Guarantor" in favor of Landlord guarantying the unconditional
performance by Tenant of all of Tenant's obligations hereunder,
including, but not limited to, the payment of Fixed Rent and
Additional Rent.
(p) "holder" or "mortgagee" shall mean the holder of, or mortgagee
under a Mortgage, or its successor-in-interest at the time.
(q) "Insurance Bodies" shall mean the New Jersey Board of Underwriters
and/or the New Jersey Fire Insurance Rating Organizatic and/or any
other similar body performing the same or similar functions and
having jurisdiction or cognizance over the Building, the Premises
and/or the Real Property.
(r) "Interest Rate" shall mean a rate per annum ??????????????? annum
above the then "Base Rate" on interest as established and publicly
announced by Manufacturers Hanover Trust Company in New York, New
York, or its successor, from time to time, as its "Base Rate" but
in no event will the Interest Rate
(s) "Landlord" shall mean only the tenant under the ground lease(s) of
the Building and/or the Real Property so that in the event of any
transfer or transfers of title to the Building or of Landlord's
interest in such ground lease(s), the transferor shall be and
hereby is relieved and freed of all obligations of Landlord under
this Lease accruing after such transfer(s), and it shall be
deemed, without further agreement, that such transferee has
assumed and agreed to perform and observe all obligations of
Landlord herein during the period it is the holder of Landlord's
interest under this Lease.
(t) "Landlord's Delay" shall mean (i) any actual and material delay
(A) in the "substantial completion" (as such term is hereinafter
defined) in a timely fashion, of any item of Remaining Base
Building Work, and/or (B) in the performance or completion of
Tenant's Initial Work (provided Tenant has given Landlord notice
of the existence of such delay within a reasonable time after
Tenant became aware or should have become aware of such delay)
actually resulting from Landlord's failure to have substantially
completed in a timely fashion, any item of Remaining Base Building
Work such that Tenant is materially delayed in the performance of
Tenant's Initial Work, or (ii) any act or omission of any nature
of Landlord, its agents or employees which shall actually and
materially delay the performance or completion of Tenant's Initial
Work; provided, however, that no such delay shall be deemed to be
-------- -------
a Landlord's Delay to the extent that Tenant, or any "Third Party
Tenant" (as such term is hereinafter defined), shall have caused
or materially contributed thereto, and further provided that no
such delay shall be deemed to be a Landlord's Delay unless Tenant
has given Landlord notice of the existence of such delay within a
reasonable time after Tenant became aware or should have become
aware of such delay. Further, if a delay in substantially
completing Tenant's Initial Work or if any substantial portion of
such delay is the result of Force Majeure and such delay would not
have occurred but for a Landlord's Delay, such delay shall be
added as part of the Landlord's Delay described above. In
determining that the delay in the performance or completion of
Tenant's Initial Work actually resulted from a Landlord's Delay,
Tenant must be able to demonstrate by reasonable evidence that
Tenant would have been able to perform a certain item of Tenant's
Initial Work or was then actually performing a certain item of
Tenant's Initial Work and Tenant's Initial Work was materially
delayed as a result of such Landlord's Delay. Nothing contained
herein
-4-
shall require Tenant to take any action which would be solely for
the purpose of demonstrating its preparedness to perform for
purposes of this subsection 1.01(t).
(u) "Legal Authorities" shall mean all Federal, "State" (as such term
is hereinafter defined) City, town, county, borough and village
governments and all departments, subdivisions, bureaus, agencies
or offices thereof, and of any other governmental, public or
quasi-public authorities having jurisdiction over the Building,
the Premises and/or the Real Property.
(v) "lessor" shall mean the lessor or landlord of a "Superior Lease"
(as such term is hereinafter defined) or its successor-in-interest
at the time.
(w) "Letter of Credit" shall mean the security instrument more
particularly described in Article 44 hereof.
(x) "Mortgage" shall mean each and every trust indenture and mortgage
which now or hereafter affects all or any part of the Real
Property, the Building and/or any Superior Lease and the leasehold
estate and interest created thereby, whether such trust indenture
or mortgage shall cover other land, buildings, improvements and/or
other leases, and to all renewals, extensions, supplements,
modifications, consolidations and replacements thereof and/or
thereto, substitutions therefor and/or advances made thereunder.
(y) "Operating Expenses" shall be as set forth and defined in Section
28.02 hereof.
(z) "Permitted Uses" shall mean any and all of the uses permitted by
Article 3 hereof.
(aa) "Preliminary Base Building Work" shall mean that portion or
portions of the Base Building Work, which has been completed to
such an extent that Tenant may enter the Premises in order to
perform Tenant's Initial Work. Landlord shall perform or cause to
be performed the Preliminary Base Building Work in accordance with
the terms and provisions of this Lease.
(bb) "Premises" shall mean and consist of a portion of the 1st floor
consisting of approximately seven hundred and eighty (780) square
feet and the lobby (which two areas shall be called the "First
Floor Premises"), the roof and the entire 2nd, 3rd, 4th, 5th, 0xx,
0xx, 0xx, 0xx, 10th, 11th, 12th, 14th and 15th floors of the
Building, except, however, for the Building's curtain wall facade.
The 1st floor area of the Premises containing approximately seven
hundred eighty (780) square feet is substantially as
-5-
shown by hatching on the floor plan annexed hereto as Exhibit 1-A
and made a part hereof. The lobby area of the Building is as
indicated by the words "Front Lobby", "Low Rise Lobby", "High Rise
Lobby" and "Rear Lobby", respectively, on the floor plan annexed
hereto as Exhibit 1-A. For purposes of this Lease, the first floor
of the Building is sometimes also referred to as the ground floor.
The 2nd to and including the 15th floor areas of the Premises are
substantially as shown on the plans and specifications described
on Exhibit 9 annexed hereto. The parties hereby acknowledge that
the Building does not include a floor numbered "13" and that floor
"14" would otherwise be numbered "13" and floor "15" would
otherwise be numbered "14".
(cc) "Project" shall mean the project known as Newport, Jersey City,
New Jersey, as more particularly shown on Exhibit 3 annexed hereto
and made a part hereof.
(dd) "Real Estate Taxes" shall be as set forth and defined in Section
28.03 hereof.
(ee) "Real Property" shall mean the Building, together with the plot
and parcel of land upon which the Building is situated, as
bounded, described and shown on Exhibit 2 annexed hereto and made
a part hereof.
(ff) "Remaining Base Building Work" shall mean that portion or portions
of Base Building Work not comprised of Preliminary Base Building
Work. Landlord shall perform or cause to be performed the
Remaining Base Building Work in accordance with the terms and
provisions of this Lease.
(gg) "Rent" shall mean and be deemed to include Fixed Rent, Additional
Rent and any and all increases thereto or thereof.
(hh) "Rent Commencement Date" shall be as set forth and defined in
Section 2.03 hereof.
(ii) "Retail Premises" shall mean that portion of the Building
described in subsection 7.0l(a)(v) hereof.
(jj) "State" shall mean the State of New Jersey and all departments,
subdivisions, bureaus, agencies or offices thereof.
(kk) "Structural Elements" shall be those portions of the Building
described in Article 5 hereof.
(ll) "Superior Lease" shall mean each and every ground, overriding or
underlying lease covering the Real Property and/or the Building
heretofore or hereafter existing.
-6-
(mm) "Tenant" shall mean Tenant herein named or any permitted assignee
or other successor in interest (immediate or remote) of Tenant
herein named, which at the time in question is the owner of
Tenant's estate and interest granted by this Lease, but the
foregoing provisions of this subsection shall not be construed to
permit any assignment of this Lease or to relieve Tenant herein
named or any assignee or other successor in interest (whether
immediate or remote) of Tenant herein named from the full and
prompt payment, performance and observance of the covenants,
obligations and conditions to be paid, performed and observed by
Tenant under this Lease.
(nn) "Tenant's Delay" shall mean any (i) inability or failure on the
part of Landlord to give possession of the Premises to Tenant as
provided in this Lease as a result of any action, inaction or
failure on the part of Tenant, any Third Party Tenant or their
agents, employees or contractors, or (ii) actual and material
delay in the performance or completion of any Remaining Base
Building Work as a result of any act or omission of any nature of
Tenant, its agents or employees, which shall actually and
materially delay the performance or completion of any Remaining
Base Building Work, including, without limitation, delays which
prevent actual performance of the Remaining Base Building Work,
delays due to postponement of any Remaining Base Building Work at
the request of Tenant or due to the prior or simultaneous
performance of Tenant's Initial Work with the performance of such
Remaining Base Building Work, or delays in the performance of the
Remaining Base Building Work resulting from any interference by
Tenant, any Third Party Tenant, or their agents, employees or
contractors, which shall actually and materially delay the
performance of the Remaining Base Building Work; provided,
--------
however, that no such delay shall be deemed to be a Tenant Delay
-------
to the extent that Landlord shall have caused or materially
contributed thereto, and further provided that no such delay shall
be deemed to be a Tenant's Delay unless Landlord has given Tenant
notice of the existence of such delay within a reasonable time
after Landlord became aware or should have become aware of such
delay. Further, if a delay in Landlord's delivery of possession
of the Premises to Tenant, or in substantially completing any
Remaining Base Building Work or if any substantial portion of such
delay is the result of Force Majeure and such delay would not have
occurred but for a Tenant's Delay, such delay shall be added as
part of the Tenant's Delay described above. In determining that
the delay in Landlord's delivery of possession of the Premises to
Tenant or in the performance or completion of any Remaining Base
Building Work actually resulted from a
-7-
Tenant's Delay, Landlord must be able to demonstrate by reasonable
evidence that Landlord would have been able to so deliver to
Tenant possession of the Premises or to perform a certain item of
Remaining Base Building Work or was then actually performing a
certain item of Remaining Base Building Work and the Remaining
Base Building Work was materially delayed as a result of such
Tenant's Delay. Nothing contained herein shall require Landlord to
take any action which would be solely for the purpose of
demonstrating its preparedness to deliver to Tenant possession of
the Premises or to perform any item of Remaining Base Building
Work.
(oo) "Tenant's Expense Payment" shall mean the payment described in
Section 28.01 hereof.
(pp) "Tenant's Initial Work" shall mean all work at and within the
Premises to be performed by or on behalf of Tenant in connection
with Tenant's initial occupancy and leasing of the Premises.
(qq) "Tenant's Project Maintenance Fee" shall be as set forth and
defined in Article 28 hereof.
(rr) "Tenant's Proportionate Share" shall mean ninety-five and five
hundred thirty-two one-thousandths (95.532%) percent.
(ss) "Term" or "Term of this Lease" shall mean the initial Term of this
Lease described in Section 2.02 hereof and any period subsequent
to the initial Term of this Lease granted to and properly extended
by Tenant pursuant to a validly exercised option or renewal right,
if any.
(tt) "Third Party Tenant" shall mean any other third party tenant,
subtenant, under-subtenant or other occupant who or which shall
use and/or occupy a portion or portions of the Premises pursuant
to any leasing or occupancy agreement with Tenant.
Section 1.02. The following terms, wherever used in this Lease (unless
expressly set forth to the contrary), shall have the respective meanings
specified in the Sections of this Lease set forth opposite such terms:
Term Section
---- -------
Additional Rent 1.01(a)
Alterations 5.01
Alteration Acts 5.06(a)
Alteration Documents 5.06(a)
Applicable Rental Rate 1.01(b)
acquisition 14.05
Base Building Facilities l.01(c)
Base Building Work 1.01(d)
Brokers 1.01(e)
Building 1.01(f)
-8-
Business Days 1.01(g)
Business Hours 1.01(h)
Condemnation 1.01(i)
Commencement date 14.05
Completion Date 1.01(j)
Date of Taking 1.01(k)
Deficiency 14.01
DEP 19.03(a)
ECRA 9.04(b)
Effective Date 9.04(a)
Environmental Laws 28.04(f)
Expense Payment Date 9.04(a)
Expense Statement 28.01(c)
Expiration Date 28.01(c)
Fixed Rent 1.01(1)
Force Majeure 1.01(m)
Guaranty 1.01(0)
Guarantor 1.01(0)
holder 1.01(n)
Index 1.01(p)
Intended Uses 28.04(f)
Insurance Bodies 3.01(a)
Interest Rate 1.01(q)
Landlord's Contribution 1.01(r)
Landlord 4.04(a)
Preamble and
1.01(s)
Landlord's Project Maintenance Fee 28.04(b)
Landlord's Delay 1.01(t)
Leasehold Mortgage 15.12
Leasehold Mortgagee 15.12
Legal Authorities 1.01(u)
lessor 1.01(v)
Letter of Credit 1.01(w)
Mortgage 1.01(x)
Non-disturbance Agreement 10.01(d)
office(s) 33.01(a)
Operating Expenses 1.01(y)
Parties 17.02(a)
Partnership Tenant 15.06(c)
Per Square Foot
Maintenance Fee 28.04(d)
Permitted Uses 1.01(z)
person 33.01(c)
Preceding Date 28.04(f)
Preliminary Base Building Work 1.0l(aa)
Premises 1.01(bb)
Project 1.01(cc)
Project Maintenance Fee 28.04(b)
Real Estate Taxes l.01(dd)
Real Property l.01(ee)
reenter/reentry 33.01(b)
Remaining Base Building Work 1.0l(ff)
Rent 1.01(gg)
Rent Commencement Date 1.0l(hh)
Retail Premises 7.01(ii)
Rules and Regulations 11.01
Special Installation Work 5.03(c)
State l.01(jj)
Structural Elements 1.01(kk
Successor landlord 10.04(a)
Superior Lease 1.01(ll)
-9-
Taking 14.01
Tenant l.01(mm)
Tenant's Delay l.01(nn)
Tenant's Estimated Expense Payment 28.01(b)
Tenant's Expense Payment l.01(oo)
Tenant's Initial Work 1.01(pp)
Tenant's Project Maintenance Fee 1.01(qq)
Tenant's Property 5.03(a)
Tenant's Proportionate Share 1.01(rr)
Tenant's Roof Installations 43.01
Tenant's Work 5.03(a)
Term 1.01(ss)
Third Party Tenant l.01(tt)
ARTICLE 2
DEMISE; PREMISES; DELIVERY OF PREMISES; TERM; RENT
--------------------------------------------------
Section 2.01. Landlord hereby leases to Tenant, and Tenant hereby
hires from Landlord, the Premises in the Building, for the Term hereinafter
stated, for the rents herein reserved at the Applicable Rental Rates and upon
subject to the terms of this Lease.
Section 2.02. The Premises are leased for a Term which shall commence
on the Commencement Date and shall expire on the Expiration Date unless the Term
shall sooner terminate pursuant to any of the terms of this Lease or pursuant to
law.
Section 2.03.
(a) (i) The Commencement Date shall be the date upon which this
Lease shall be duly executed and delivered to Landlord and Tenant. Landlord
shall deliver to Tenant, together with a fully executed original of this Lease,
a certification from Landlord's engineer or architect stating that (A) the
Preliminary Base Building Work shall have been completed to such an extent that
Tenant shall be able to enter the Premises for the performance of Tenant's
Initial Work and (B) access to all facilities and services comprising the
Preliminary Base Building Work have been made available to Tenant, subject,
however, to Landlord's rights to utilize such facilities and services, together
with Tenant's use of the same, in order for Landlord to perform the Remaining
Base Building Work as hereinafter provided.
(ii) Tenant will provide Landlord, on the Commencement Date,
with an acknowledgment in writing that Tenant has inspected, or caused the
Premises to be inspected, prior to the Commencement Date and that the
Preliminary Base Building Work has been completed to such an extent that Tenant
is able to enter the Premises for the performance of Tenant's Initial Work, but
subject, however, to Landlord's obligation to complete the work set forth on
Exhibit 5 annexed hereto and made a part hereof.
(b)
(c) Promptly following the occurrence of the Commencement Date,
Landlord and Tenant shall execute and
-10-
acknowledge an agreement, in form and substance reasonably satisfactory to both
Landlord and Tenant, setting forth, among other things, the Commencement Date
and Expiration Date; provided however, that Tenant's failure to so execute and
-------- -------
acknowledge such instrument shall not affect the validity of either of the
Commencement Date or the Expiration Date, as so determined.
(d) From and after the Commencement Date, Tenant or any of its
employees, agents or contractors may enter the Premises for the purpose of
inspecting or verifying the performance of any Preliminary Base Building Work,
performing Tenant's Initial Work, making preparations for the performance of
Tenant's Initial Work, inspecting or measuring the Premises, or performing any
decorating, furnishing or moving into the Premises.
(e) The Rent Commencement Date shall mean that date which is the
of the Commencement Date, which date may, however, be subject to postponement
subject to the terms and provisions of subsection 4.02(g) hereof.
Section 2.04.
(a) Tenant expressly waives any right to rescind this Lease or extend
the Term hereof pursuant to any applicable statute or ordinance of any Legal
Authority which would otherwise grant to Tenant any such right of rescission or
extension, and further waives the right to recover any damages which may result
from the inability of Landlord to deliver the Premises to Tenant on the
Commencement Date.
(b) (i) Landlord shall not be subject to any liability for failure
to give possession on the date on which the Preliminary Base Building Work shall
have been completed and the validity of this Lease shall not be impaired under
such circumstances.
(ii) Notwithstanding the foregoing provisions of this subsection
2.04(b) or any other provisions of this Lease, Landlord hereby agrees that the
Term of this Lease shall be extended for that period of time which shall be
equal to the number of days in the period from the date when completion of the
preliminary Base Building Work occurred to the date on which Landlord shall
actually give possession of the Premises to Tenant, unless Tenant, any Third
Party Tenant or their agents, employees or contractors have caused a Tenant's
Delay to exist which has resulted in the failure of Landlord to deliver
possession of the Premises, as aforesaid.
Section 2.05.
(a) (i) Tenant shall pay to Landlord promptly without notice or
demand, in lawful money of the United States of America, by check subject to
collection and drawn on a New York City or New Jersey bank or trust company
which is a member of the New York Clearinghouse Association, at the office of
Landlord or at such other place as Landlord may, at any time and from time to
time, by notice to Tenant designate, (A) Fixed Rent, in equal monthly
installments, in advance on the first day of each calendar month during the Term
from and after the Rent Commencement Date, and (B) Additional Rent, at the times
and in the manner set forth in this Lease.
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(ii) If Tenant shall fail to pay any installments of Fixed Rent
or any payment of Additional Rent within ten (10) days after such installment or
payment shall have become due, Tenant shall pay interest thereon to Landlord at
the Interest Rate, from the date when such installment or payment should have
been paid or tendered, as the case may be, to and including the date of payment
thereof, and such interest shall constitute Additional Rent.
(iii)
(b) There shall be no abatement of, deduction from a or counterclaim
or set-off against, Fixed Rent or Additional Rent, except as otherwise
specifically provided by this Lease.
(c) No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct amount of Fixed Rent or Additional 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 eat law provided.
(d) Any apportionments or prorations of Rent to be made under this
Lease shall be computed on the basis of a three hundred sixty (360) day year.
(e) (i) If any of the Rent payable under the terms, covenants and
provisions of this Lease shall be or become uncollectible, reduced or required
to be refunded because of any act or law enacted by any Legal Authority,
Landlord and Tenant shall enter into such agreement(s) and take such other steps
as Landlord may reasonably request and as may be legally permissible to permit
Landlord to collect the maximum rents which, at any time and from time to time,
during the continuance of such legal rent restriction may be legally permissible
(but not in excess of the amounts reserved theretofore under this Lease).
(ii) Upon the termination of such legal rent restriction, (A)
the Fixed Rent and/or Additional Rent shall become and thereafter be payable in
accordance with the amounts reserved herein for the periods following such
termination, and (B) Tenant shall pay to Landlord promptly upon being billed, to
the maximum extent legally permissible, an amount equal to (1) the Fixed Rent
and/or Additional Rent which would have been paid pursuant to this Lease but for
such legal rent restriction, less (2) the rents paid by Tenant during the period
----
such legal rent restriction was in effect.
(f) Additional Rent shall be deemed to be Rent and Tenant's failure to
pay Additional Rent shall be considered a failure to pay Fixed Rent hereunder
and Landlord shall be entitled to all rights and remedies provided herein or by
law in connection therewith.
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Section 2.06.
(a) If the Rent Commencement Date or Expiration Date shall occur on a
date other than the first day of a calendar month, Rent for the month in which
the Rent Commencement Date or Expiration Date occurs shall be pro-rated on a per
diem basis and Tenant shall pay to Landlord, on the Rent Commencement Date or
the first day of the month in which the Expiration Date occurs, an amount equal
to the same proportion of the monthly installment of Rent payable for such
month, as the number of days from and including the Rent Commencement Date bears
to the total number of days in said calendar month or from and including the
first day of the month in which the Expiration Date occurs until the Expiration
Date, bears to the total number of days in such calendar month.
(b) Such payment shall constitute payment of Rent for the period from
the Commencement Date to and including the last day of such calendar month or
from the first day of the month in which the Expiration Date occurs to and
including the Expiration Date.
Section 2.07. The parties hereto mutually acknowledge and agree that
any dispute between Landlord and Tenant as to (a) whether any work required to
be performed pursuant to this Article 2 or Article 4 hereof shall have been
substantially completed, (b) the existence of and whether, or to what extent
Tenant is responsible for any Tenant Delay, or (c) the existence of and whether,
or to what extent Landlord is responsible for a Landlord's Delay and any effect
on the Rent Commencement Date as a result thereof, shall be resolved by
arbitration pursuant to Article 38 hereof.
ARTICLE 3
USE AND OCCUPANCY
-----------------
Section 3.01.
(a) (i) Tenant may use and occupy the Premises for the Permitted
Uses and for no other purpose. The Permitted Uses shall consist of and include
only (A) the "Intended Uses" (as such term is hereinafter defined), and (B) all
other uses permitted by this Article 3 and the Certificate of Occupancy for the
Building in effect from time to time.
(ii) The Intended Uses for the Premises shall consist of (A) as
to the First Floor Premises, an electrical equipment room and a lobby area,
which electrical equipment room shall be utilized by Tenant for the installation
of electrical equipment required in connection with Tenant's use and occupancy
of the balance of the Premises utilized for office use, and (B) as to the
remainder of the Premises, excluding the roof, of corporate executive and
general office uses, data processing and such uses ancillary or related thereto
which shall be consistent with uses permitted by landlords in other first-class
office buildings located in the New York metropolitan area or the so-called
"Gold Coast" area of the City.
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(b) Tenant shall not use or occupy or suffer or permit the use or
occupancy of, any part of the Premises in any manner which will (i) prevent the
reasonable rendition to any tenant in the "Retail Premises" (as such term is
hereinafter defined) of any service customarily provided to retail tenants in
first-class office buildings located in the New York metropolitan area or the
so-called "Gold Coast" area of the City, (ii) prevent the reasonable use or
enjoyment of the Retail Premises, (iii) materially adversely affect the
appearance, character or reputation of the Building as a first-class office
building with retail stores, (iv) materially adversely affect the proper and
economic maintenance, operation and repair of, and/or which would, or be likely
to, cause injury to the Building and/or its equipment facilities or systems, or
(v) materially adversely affect Landlord's ability to obtain from reputable
insurance companies authorized to do business in the State, all risk property
insurance or liability, elevator, boiler or other insurance at standard rates
required to be furnished by Landlord under the terms of any Mortgage covering
the Building.
(c) The foregoing statement as to the nature of the business which may
be conducted by Tenant in the Premises shall not constitute a representation or
guaranty by Landlord that such business may be conducted in the Premises or is
lawful or permissible under any Certificate of Occupancy issued for the
Premises, or the Building, or is otherwise permitted by law.
Section 3.02. Tenant shall not use or permit the use of the Premises,
or any part thereof, (a) for the business of photographic, multilith or
multigraph reproductions or offset printing, except, however in connection with
or for Tenant's own requirements, (b) for manufacturing of any kind, (c) as a
restaurant or bar or for the sale of confectionery, soda, beverages, sandwiches,
ice cream or baked goods or for the preparation, dispensing or consumption of
food or beverages in any manner whatsoever, except, however, in connection with
or for Tenant's own requirements, and as expressly provided in Section 3.04
hereof, (d) as a news or cigar stand, (e) as an employment or travel agency,
except, however in connection with or for Tenant's own requirements, (f) as or
for any counselling services, schools, and/or training programs, accept,
however, in connection with or for Tenant's own requirements, (g) as a labor
union office, (h) as a physician's, dentist's, medical or psychiatric office,
medical dental laboratory, health or health related facilities, except, however,
in connection with or for Tenant's own requirements, (i) as a dance or music
studio, or health club or sports or exercise facility (except, however, in
connection with or for Tenant's own requirements, and which health club, sports
or exercise facilities shall in no event offer membership or use privileges to
the general public) (j) as a xxxxxx shop or beauty salon, except, however, for
or in Connection with Tenant's own requirements, (k) for the direct sale, at
retail or otherwise, of any goods or products of any sort or kind which would be
inconsistent with the Intended Uses and/or would result in the presence at the
Premises of the general public on any basis other than pursuant to prior
appointment with Tenant or any Third Party Tenants, (1) by any governmental
body, agency, authority or instrumentality, or by any foreign or domestic
governmental or quasi-governmental
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entity entitled, directly or indirectly, to diplomatic or sovereign immunity or
not subject to the service of process in, and the jurisdiction of the courts of
the State, (m) for the sale of traveler's checks and/or foreign exchange, (n)
for the conduct of an auction, (o) for gambling activities, or (p) for the
conduct of obscene, pornographic, similar or any other similarly disreputable
activities in the sole judgment of Landlord. Further Tenant agrees that the
Premises shall not be used for purposes similar to a telephone company switching
station or facility or a building whose purpose is primarily to house or locate
therein such equipment.
Section 3.03.
(a) (i) Tenant shall not use or occupy or permit the use or
occupancy of, the Premises in violation of the Certificate of Occupancy issued
for the Premises and/or for the Building. In the event that any department of
the City, the State or any other Legal Authority shall contend and/or declare
by notice, violation, order or in any other manner whatsoever, at any time or
from time to time during the Term, from and after the date hereof, that the
Premises are being used for a purpose which is a violation of any such
Certificate of Occupancy, Tenant shall, upon thirty (30) days' written notice
from Landlord or from the relevant Legal Authority, but not less than the period
set forth in such notice from the Legal Authority, if any, immediately
discontinue or cause the discontinuance of such use of the Premises.
(ii) Subject to the terms and provisions of Subsection 3.03(b)
below, failure by Tenant to discontinue or cause the discontinuance of such use
after such notice shall be a default by Tenant hereunder and Landlord shall have
the right to exercise any and all rights, privileges and remedies given to
Landlord by and pursuant to the provisions of this Lease.
(b) Notwithstanding the foregoing, Tenant may, at its sole cost and
expense (and, if necessary, in the name of, but without cost, liability or
expense to, Landlord), contest appropriate proceedings prosecuted diligently and
in good faith, the contention or declaration by any Legal Authority that the
Premises are used for a purpose which is in violation of the Certificate of
Occupancy for the Premises or the Building, and Landlord shall cooperate with
Tenant in such proceedings at Tenant's expense; provided, however, that: (i)
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Landlord shall not be subject to any civil penalty, criminal penalty or
prosecution for a crime, nor shall the Premises, or part thereof, be subject to
being condemned or vacated, by reason of such violation or otherwise by reason
of such contest; (ii) Tenant shall defend, indemnify and hold harmless Landlord
from and against any and all liability, loss and damage that Landlord shall
suffer by reason of such violation or contest, including, without limitation,
reasonable attorneys' fees and disbursements, court costs and other expenses
incurred by Landlord; (iii) such violation or contest shall not constitute or
result in any violation of any Superior Lease or Mortgage existing as of the
date of this Lease or of any Superior Lease or Mortgage executed after the date
hereof, provided that the terms of any future Superior Lease or Mortgage with
respect to the foregoing provisions of this subsection
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3.03(b) shall not impose any additional obligations upon Tenant other than those
obligations which are set forth in any such existing Superior Lease and Mortgage
with respect to such provisions; and (iv) Tenant shall keep Landlord regularly
advised as to the status of such proceedings.
Section 3.04.
(a) Tenant may elect to use a part or parts of the Premises (i) for
the operation of a kitchen and a dining room and/or cafeteria for Tenant or any
Third Party Tenant or the officers, employees, guests and invitees of Tenant or
any Third Party Tenant and/or as may otherwise be required by Tenant in
connection with its use of the Premises (but in no event for the sale or
consumption of food and/or beverages to or by the general public), and (ii) for
the installation and operation of food and beverage vending machines.
(b) Each use of the Premises set forth in SUBSECTION (3) above upon
the condition that (i) Tenant will provide (except to the extent already
installed by Landlord as part of the Base Building Work), operate and maintain,
at its sole cost and expense, proper ventilating equipment for the discharge of
any noxious or objectionable fumes, vapors and odors from such parts of the
Premises (except to the extent that they may, with the consent of Landlord,
which consent shall not be unreasonably withheld or delayed, be discharged or
eliminated by means of flues or other similar devices which may be installed by
Landlord or Tenant in the Building, at Tenant's sole cost and expense in
locations reasonably acceptable to Landlord) in such a manner that will not
enter the air conditioning or ventilating systems of the Building or otherwise
unreasonably annoy any other tenant or occupant of the Building, (ii) such parts
of the Premises as shall be so used by Tenant shall, at Tenant's sole cost and
expense, be at all times maintained by Tenant in a clean and sanitary condition
and free of refuse (including use of extermination services whenever required),
(iii) Tenant shall, at its sole cost and expense, keep all ventilating hoods
over ranges and cooking equipment, and all duct work to the main vertical
risers, if any, free of grease and lint accumulations in a manner and under
conditions reasonably satisfactory to Landlord, and will keep the exhaust system
operated in connection with the kitchen (whether such system is physically
located within the Premises or elsewhere in the Building) and all plumbing and
sanitary systems and installations serving such parts of the Premises to the
points they connect with the main vertical risers and stacks of the Building in
a good state of repair and operating condition, and shall install and maintain
cleanable grease traps which shall be cleaned by Tenant, at Tenant's sole cost
and expense, at such intervals as shall constitute the manufacturer's optimum
cycle for such cleaning, and (iv) Tenant shall comply with all laws and
requirements of Legal Authorities, including any health statutes or codes, and
obtain and maintain throughout the Term any and all licenses and permits
regarding such use.
(c) Tenant shall, at all reasonable times after notice to
Landlord, have the right to enter the Building's spaces and systems and
installations not contained in the Premises, to the extent reasonably necessary
to perform all obligations pursuant to this Section 3.04.
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Section 3.05.
(a) Notwithstanding the foregoing provisions of this Article 3,
Landlord hereby agrees that, provided Tenant cooperates with Landlord and Tenant
shall then have substantially completed or caused the substantial completion of
all of Tenant's Initial Work (i) substantially in accordance with plans and
specifications approved by Landlord, (ii) in compliance with all laws and
requirements of Legal Authorities and (iii) to such extent and in such manner as
shall be required by the Legal Authority, in question, to obtain a Certificate
of Occupancy for the Building, Landlord shall use its best efforts, provided,
that any costs actually incurred by Landlord in connection therewith shall be
shared equally by Landlord and Tenant (other than any costs incurred in
connection with the Base Building Work, which costs shall be borne solely by
Landlord), to obtain a Certificate of Occupancy for the Building which shall
enable Tenant to use and occupy the Premises for the Intended Uses set forth
above, for such other reasonably related uses as are reasonably requested by
Tenant and which are reasonably requested from applicable Legal Authority.
(b) Further, Landlord agrees that Landlord will, from time to time
during the Term, at Tenant's sole cost and expense and without any fee, cost,
expense or liability to Landlord, apply for a modification of the then existing
Certificate of Occupancy for the Building to permit such additional uses of the
Premises as may be reasonably desired by Tenant; provided, however, that such
additional uses will not materially adversely affect the reputation of the
Building as a first-class office building with retail stores, nor violate the
provisions of this Article 3 or any "Environmental Laws" as such term is
hereinafter deferred in Section 9.04 hereof or any other environmental related
covenants set forth in this Lease.
ARTICLE 4
CONDITION OF THE PREMISES; CONDITION OF BUILDING
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Section 4.01.
(a) Upon Landlord's completion of the Preliminary Base Building Work
and Tenant's entering into possession of or all of any part of the Premises for
any purpose including the performance of Tenant's Initial Work, Tenant shall be
deemed to have accepted the Preliminary Base Building Work and all or such
portion of the Premises in its "as is" condition, except, however, for latent
defects (which shall be the obligation of Landlord to repair, as hereinafter
provided), and for the completion of the Remaining Base Building Work which
Landlord shall cause to be performed as hereinafter provided.
(b) Tenant further agrees that Landlord shall have no obligation to
perform or cause to be performed any work, supply any materials, incur any
expenses or make any installations, in order to prepare the Premises for
Tenant's occupancy, except for the Remaining Base Building Work and as to
Landlord's obligation under Section 4.04 hereof to pay the "Landlord's
Contribution" (as such term is hereinafter defined) to Tenant.
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Section 4.02.
(a) Landlord agrees that upon the Commencement Date, Landlord will
proceed with due diligence and at Landlord's own cost and expense, to cause the
completion of the construction of a11 Remaining Base Building Work subject,
however, to Force Majeure and Tenant's Delays.
(b) (i) Landlord hereby agrees to "substantially complete" (as such
term is hereinafter defined) the Remaining Base Building Work in accordance with
the Remaining Base Building Work Schedule annexed hereto as Exhibit 5 and made a
part hereof, on or before the completion dates set forth thereon. Landlord
acknowledges that the dates for completion set forth on Exhibit 5 shall be
subject to extension only for Tenant's Delays.
(ii) As used in this subsection 4.02(b) hereof, an item of
Remaining Base Building Work shall be deemed to have been substantially
completed when the same has been completed, except for completion of
construction, facilities, mechanical adjustment, the non-completion or
inaccessibility of which shall not materially interfere with the performance of
Tenant's Initial Work and/or Tenant's use and occupancy of the Premises and/or
the Building for Permitted Uses.
(iii) Notwithstanding anything to the contrary set forth in this
Article 4 or elsewhere in this Lease, the date of substantial completion of any
item of Remaining Base Building Work shall be deemed to occur:
(A) one (1) day earlier than the actual date, for each day
of Tenant's Delay; and
(B) one (1) day later than the actual date, for each day of
Landlord's Delay.
(c) (i) Landlord and Tenant mutually acknowledge and agree that
Landlord's completion of certain portions of the Remaining Base Building Work
may be performed concurrently with the performance by Tenant of Tenant's Initial
Work.
(ii) Accordingly, Tenant, Landlord and their respective agents,
employees and contractors, shall cooperate and avoid any interference (at
Landlord's reasonable direction) with the other respective contractors,
laborers, material suppliers and other parties performing such completion of the
Remaining Base Building Work and Tenant's Initial Work, respectively, in order
to ensure the timely and efficient completion of such Base Building Work and
Tenant's Initial Work, and the avoidance of any unnecessary Tenant's Delays and
Landlord's Delays.
(iii) (A) Landlord and Tenant and their respective agents,
employees and contractors shall co-operate and avoid interference (at Landlord's
reasonable direction) with each other during the performance and completion of
the Remaining Base Building Work and Tenant's Initial Work in the use of the
Building's elevators.
(B) At such time as all Building elevators shall become
operational, as provided in the elevator delivery
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schedule set forth on Exhibit 5 annexed hereto and made a part hereof, Landlord
hereby agrees that Tenant shall have the exclusive use of two (2) high rise and
two (2) low rise elevators and the non-exclusive use, with Landlord and
Landlord's contractors, of the freight elevator, subject, however, to the
provisions of subsection (A) above, during the performance of Tenant's Initial
Work at the Premises.
(c) All of such elevators made exclusively available to Tenant
hereunder may be operated by Tenant's employees or agents, at Tenant's
discretion, provided, however, that all union rules are complied with. Any union
disputes arising out of the use of such elevators will be settled or ________
by Landlord at no expense or cost to Landlord, and Tenant shall comply forthwith
with the terms and provisions of any such settlement or resolution so arranged
by Landlord. During the performance of Tenant's Initial Work, Tenant shall have
control over the use of the freight elevator and shall comply with all union
obligations as provided in the preceding sentence, and shall make available to
Landlord, at Landlord's request the use of such freight elevator in order to
permit Landlord to expeditiously complete the Remaining Base Building Work.
(d) (i) Landlord shall provide Tenant with written notice of
Landlord's substantial completion of the Remaining Base Building Work as soon as
possible after the same shall have been substantially completed (the "Completion
Date").
(ii) Landlord, shall, as promptly as practicable after the
occurrence of the Completion Date, cause all Remaining Base Building Work to be
fully completed, and shall provide Tenant with a certificate of Landlord's
engineer or architect stating that all such Remaining Base Building Work has
been so completed.
(e) On the Completion Date, Landlord shall be deemed to have performed
all of its obligations hereunder with regard to installation of all Base
Building Work in the Building subject, however to Landlord's obligation, as
provided in subsection 4.02(d)(ii) above, to complete all Remaining Base
Building Work, and except, however, for latent defects (which shall be the
obligation of Landlord to repair, as hereinafter provided), and such items, the
non-completion of which shall not materially interfere with the normal use and
occupancy of the Premises and the Building for the Permitted Uses, unless within
ninety (90) days after the Completion Date or within the applicable warranty or
guaranty period for a particular item of Base Building Work, as the case may be,
whichever is longer, Tenant shall give written notice to Landlord specifying the
respects in which Landlord has not performed any of its obligations hereunder
with regard to the Base Building Work or the respects to which such item of Base
Building Work shall be defective; provided, however, that with respect to any
system in the Building which is only operated seasonally, Tenant may give such
written notice within sixty (60) days after the first time in which such system
is used in the appropriate season in the normal course of the operation of the
Building.
(f) (i) On the Completion Date, the Building shall be as to
appearance, type of construction and standards of
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workmanship and materials, in conformity with first-class office buildings
located in the New York metropolitan area or the so-called "Gold Coast" area of
the City, and the Building, as constructed, shall conform to the plans and
specifications listed on Exhibit 9 annexed hereto and made a part hereof; but
otherwise as to construction, workmanship, materials and equipment, such as in
Landlord's sole judgment shall be desirable except, however, that unless
otherwise expressly consented to by Tenant (which consent shall not be
unreasonably withheld or delayed), (A) the areas, floor elevations and other
characteristics of the Premises, as indicated on the floor plans attached hereto
shall be substantially as shown on said floor plans, as shall also the number
locations and other characteristics as indicated thereon of toilets, elevators
and stairs insofar as they serve Tenant or the Premises, and (B) the sanitary,
water, electrical, and other systems of the Building included as part of the
Base Building Work shall be in good and workmanlike condition.
(ii) As part of Base Building Work, Landlord shall deliver to
Tenant, on the Completion Date, the following Building standard or base
installations and facilities which Landlord hereby states will be in good
working order and condition on the Completion Date (collectively, the "Base
Building Facilities"):
1. two Mammoth air conditioning units per floor;
2. chillers and related equipment;
3. electrical wiring in Building core;
4. plumbing fixtures and equipment in the core bathrooms;
and
5. nine (9) elevators (eight (8) passenger and one (1)
freight).
In addition, Landlord shall deliver to Tenant on the Completion Date,
any warranties and guarantees which Landlord shall have received from various
manufacturers, contractors and suppliers regarding the Base Building Facilities.
(g) (i) Notwithstanding anything to the contrary set forth in this
Article 4 or elsewhere in this Lease, Landlord hereby agrees that if a
Landlord's Delay which results from the performance of any Remaining Base
Building Work shall cause a material delay in the performance of any Tenant's
Initial Work, such Landlord's Delay shall be deemed to postpone the occurrence
of the Rent Commencement Date for each day of such Landlord's Delay.
(ii) Additionally, Landlord hereby agrees that if Landlord shall
have been unable or shall have failed to substantially complete (A) the work
described on Exhibit 5 annexed hereto on the dates set forth therein, or (B) the
Remaining Base Building Work, other than that which is set forth on Exhibit 5,
on or before the Rent Commencement Date and such inability or failure on the
part of Landlord to have
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substantially completed such Remaining Base Building Work shall not have been
caused by Tenant's Delays, then such liability or failure shall be deemed to
postpone the occurrence of the Rent Commencement Date for each day after the
Rent Commencement Date that Landlord has failed or been unable to substantially
complete the Remaining Base Building Work as aforesaid.
Section 4.03.
(a) (i) Tenant hereby agrees to promptly advise Landlord in writing
of any latent defects discovered by Tenant in any Base Building Work performed
by or on behalf of Landlord.
(ii) Tenant shall advise Landlord in writing of any such latent
defect(s) within thirty (30) days after the same have been, or should have been,
with the exercise of due diligence, discovered by Tenant. Tenant shall have no
obligation to inspect premises occupied by Third Party Tenants to discover such
latent defects.
(b) Landlord shall, with due diligence and dispatch and as promptly as
is reasonably practicable, repair or cause the repair of such latent defect(s)
so discovered by Tenant except, however, that such repair shall be performed
only during Business Hours of Business Days and with contractors selected by
Landlord, and in no event shall Landlord be liable or obligated to incur any
overtime charges or expenses regarding the performance of the repair work;
provided, however, that if such defect unreasonably interferes with Tenant's use
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and occupancy of the Premises for the Intended Uses, Landlord hereby agrees to
perform or cause the performance of such repair at times other than during
Business Hours of Business Days utilizing, if necessary, overtime services of
Landlord's contractors.
(c) In no event shall Landlord be liable or responsible for the repair
of any latent defect in any portion of Preliminary Base Building Work or
Remaining Base Building Work, which shall be discovered by Tenant or any Third
Party Tenant at any time after the occurrence of the fifth (5th) anniversary of
the Commencement Date.
Section 4.04.
(a) Landlord shall contribute toward the actual cost of the Tenant's
Initial Work approved by Landlord (provided that such approval is required
pursuant to Section 5.01 hereof) the amount of $ , which has been
calculated by multiplying the amount of $ per rentable square foot times
the amount of rentable square feet contained in the Premises (the "Landlord's
Contribution").
(b) If the actual cost of Tenant's Initial Work shall be in excess of
the amount of Landlord's Contribution, then the entire amount of such excess
cost shall be paid solely by Tenant and Landlord shall be under no obligation to
pay any such excess.
(c) Landlord shall pay Landlord's Contribution to Tenant only if:
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(i) this Lease shall then be in full force and effect and
Tenant shall not then be in default in the observance or performance,
of any of the terms and provisions of this Lease which are of a
monetary nature, and in connection with which default Landlord shall
have commenced legal action against Tenant;
(ii) Tenant shall have actually spent or incurred a cost equal
to the full amount of the Landlord's Contribution for the performance
of Tenant's Initial Work hereunder; and
(iii) Tenant shall have submitted to Landlord:
(A) paid invoices covering all such Tenant's Initial Work so
performed and cancelled checks and/or receipted bills
evidencing the expenditure of monies equal to the full
amount of the Landlord's Contribution for such Initial
Tenant's Work; and
(B) a written certificate from Tenant's architect stating that:
(1) Tenant's Initial Work described on such invoices has
been substantially completed substantially in accordance
with the plans and specifications approved by Landlord (to
the extent such approval is required by the provisions of
Article 5 hereof); (2) such portion of Tenant's Initial
Work has been paid for in full by Tenant; and (3) all
contractors, subcontractors and materialmen have delivered
to Tenant waivers of lien with respect to such Tenant's
Initial Work so performed, copies of which shall have been
delivered to Landlord, or, that all contractors,
subcontractors and materialmen have delivered to Tenant,
prior to the commencement of such Tenant's Initial Work,
agreements whereby the contractors, subcontractors or
materialmen agree that they shall not file a notice of
intention with respect thereto.
(d) In the event that Tenant shall have complied with all of the
aforesaid conditions precedent to Landlord's disbursement to Tenant of all of
Landlord's Contribution, and Landlord shall thereafter fail to disburse
Landlord's Contribution to Tenant:
(i) within thirty (30) days after the date on which Landlord
should have disbursed such Landlord's Contribution to Tenant, as
aforesaid, the amount of such Landlord's Contribution shall accrue
interest thereon at the Interest Rate, from the date the same
should have been paid until the same has been paid (which interest
shall be paid together with Landlord's Contribution); and
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(ii) within ninety (90) days after the date on which Landlord
should have disbursed such Landlord's Contribution to Tenant, as
aforesaid, Tenant shall have the right to offset against payments
to Landlord of Fixed Rent then due and owing or to be due and
owing, the amount of such Landlord's Contribution (together with
any interest as provided in subsection 4.04(a)(i) above) which
should have been so disbursed to Tenant.
ARTICLE 5
ALTERATIONS; INSTALLATIONS; TENANT'S
------------------------------------
PROPERTY AND TENANT'S WORK
--------------------------
Section 5.01.
(a) Tenant shall not make or perform or permit the making or
performance of, any alterations, installations, improvements, additions or other
physical changes in or to the premises in connection with Tenant's Initial Work
or otherwise (collectively the "Alterations") which (i) affect the Structural
Elements" of the Building (as hereinafter defined), (ii) affect the character,
exterior appearance or the structural integrity of the Building or (iii) require
the consent of any holders of any Mortgage or lessor under any Superior Lease,
without first providing Landlord with written notice of the performance of such
Alterations and detailed plans and specifications for such Alterations (to the
extent required by this Article 5), and then obtaining Landlord's prior written
consent to each such Alteration in each instance, which consent shall not be
unreasonably withheld or delayed; provided, however, that the provisions of any
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future Superior Lease or Mortgage with respect to the necessity of consent and
standards therefor to any Alterations shall not be materially more onerous than
those which are set forth in any Superior Lease and Mortgage existing on the
date hereof, as same may be modified by a non-disturbance or similar agreement
delivered to Tenant in connection with the execution of this Lease. For purposes
of this Section 5.01 and 5.02, the term "Structural Elements" shall mean only
the following Building elements:
(A) foundation;
(B) concrete floor slabs, including steel rod structural
supports;
(C) concrete ceiling slabs, including steel rod structural
supports;
(D) structural Building column supports;
(E) Building roof; and
(F) curtain wall facade.
Landlord hereby agrees to use its best efforts to consider promptly any request
for its consent to an Alteration as required hereinabove and to respond thereto
within a reasonable time after Landlord has received such request.
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(b) Tenant may, upon ten (10) days prior written notice to Landlord
and without obtaining Landlord's prior written consent, make or perform all
other Alterations which do not (i) affect the Structural Elements of the
Building, (ii) affect the exterior appearance or structural integrity of the
Building nor (iii) require the consent of any holders of any Mortgage or lessor
under any Superior Lease; provided, however, that the provisions of any future
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Superior Lease or Mortgage with respect to the necessity of consent to any
Alterations and standards therefor shall not be materially more onerous than
those which are set forth in any Superior Lease and Mortgage existing on the
date hereof, as same may be modified by a non-disturbance or similar agreement
delivered to Tenant in connection with the execution of this Lease.
(c) All Alterations shall (i) not materially adversely affect any
service required to be furnished by Landlord to any tenant of the Retail
Premises, (ii) not materially reduce the value of the Building, without regard
to the use of the proposed Alteration, (iii) be performed in compliance with the
provisions of this Article 5, (iv) be done or performed at Tenant's sole cost
and expense and (v) be done or performed without any fee, cost, expense or
liability to Landlord. Unless Landlord is requested by Tenant to perform
services in connection with an Alteration and subject to the provisions of
Section 5.02(c) below, Landlord shall not be entitled to any supervisory fee in
connection with the performance of Tenant's Alterations.
(d) Landlord acknowledges and agrees that, notwithstanding the
provisions of Section 5.01(a), Tenant may install louvers on the south, west and
east sides of the second floor of the Premises, subject, however, to (i)
Landlord's approval of detailed plans and specifications and (ii) Landlord's
approval with respect to the aesthetics of such louvers, it being understood and
agreed that so long as the louvers do not detract from the overall appearance of
the Building as a first class office building with retail tenants, such louvers
shall be deemed to be in conformance with Landlord's aesthetic standards.
(e) In the event of a dispute as to whether an Alteration requires
the consent of Landlord pursuant to this Section 5.01, (i) upon the written
request of either Landlord or Tenant, the dispute shall be submitted to the
American Arbitration Association (the "Association") for disposition pursuant to
the "Expedited Procedures" of the Association; (ii) the decision of the
Association shall be final, and all actions necessary to implement the decision
of the Association shall be undertaken as soon as possible, but in no event
later than the (10) business days after the rendering of such decision; (iii)
judgment upon the dispute may be entered in any court having jurisdiction
thereof; and (iv) all fees payable to the Association for services rendered in
connection with the resolution of the dispute shall be paid for by the party
suffering the adverse decision of the Association. For purposes of this Section
5.01, the phrase "Expedited Procedures" of the Association shall mean those
procedures set forth in paragraphs 54 through 58 of that certain booklet
published by the Association and titled "Commercial Arbitration Rules", as
amended and in effect January 1, 1988.
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Section 5.02.
(a) Except as expressly provided to the contrary in Subsection 5.01(a)
above, prior to making any Alteration, Tenant shall, (i) at Tenant's sole cost
and expense, obtain all permits, approvals and certificates required by any
Legal Authorities or Insurance Bodies, provided that Landlord agrees cooperate
in obtaining the same at Tenant's sole cost and expense and at no fee, cost,
expense or liability to Landlord, and (ii) furnish to Landlord duplicate
original policies or original certificates of insurance of worker's compensation
(covering all persons to be employed by Tenant, and Tenant's contractors and
subcontractors in connection with such Alteration), comprehensive public
liability (including property damage coverage, completed operations/product
liability) insurance and builder's risk insurance including, if reasonably
available, coverage against "all risks of physical loss", the foregoing in such
form, with such companies, for such periods and in such amounts as Landlord may
reasonably require, naming Landlord, Landlord's employees and agents, and any
mortgagees or lessors having an interest in the Real Property, as additional
insureds.
(b) At least ten (10) days prior to making any Alterations not
affecting the Structural Elements costing in excess of $100,000, which sum shall
be increased by $25,000 on each anniversary of the Commencement Date during the
Term, Tenant shall submit to Landlord, for Landlord's review and advice (but in
no event for Landlord's approval), plans and specifications. At least ten (10)
days prior to making any Alteration affecting one or more of the Structural
Elements, Tenant shall submit to Landlord, for Landlord's prior written
approval, detailed plans and specifications (including layout, architectural,
mechanical, and structural drawings).
(c) (i) With respect to Tenant's performance of Alterations
pertaining to the Structural Elements, Tenant shall pay to Landlord, within
thirty (30) days after rendition of a xxxx therefor, together with reasonable
supporting documentation, as Additional Rent, Landlord's reasonable out-of-
pocket costs and expenses (including, without limitation, the reasonable costs
and fees of any independent architect, independent engineer or other independent
or outside consultant engaged by Landlord or any lessor or mortgagee having an
interest in the Real Property for such purpose) for (A) reviewing said plans and
specifications, and (B) inspecting the Alterations to determine whether the same
are being performed in accordance with all laws and requirements of Legal
Authorities and Insurance Bodies, and the provisions of any existing or future
Superior Lease or Mortgage. Landlord hereby agrees that the provisions of any
future Superior Lease or Mortgage regarding the performance of Alterations will
not impose any additional obligations upon Tenant other than those which are set
forth in any Superior Lease and Mortgage existing on the date hereof, as same
may be modified by a non-disturbance or similar agreement delivered to Tenant in
connection with the execution of this Lease.
(ii) Notwithstanding the foregoing provisions of this subsection
5.02(c), Landlord hereby agrees that for the period of the Term during which
Tenant has incurred expenditures of up to but not in excess of Thirty Million
and 00/100
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($30,000,000.00) for Alterations pertaining to the Structural Elements (the
"Expenditure Period"), Tenant shall be required to reimburse or pay to Landlord
only one-half (1/2) of the aforesaid costs and expenses incurred by Landlord,
pursuant to subsection 5.02(c)(i), with respect to the review of plans and
specifications for, and inspection of, Tenant's performance of such Alterations.
From and after the Expenditure Period, Tenant shall be obligated to fully
reimburse Landlord for all such costs and expenses described in subsection
5.02(c)(i) above.
(d) Landlord's review and/or approval, as the case may be, of any
plans or specifications shall not relieve Tenant of responsibility for the legal
sufficiency, fitness and technical competence thereof, and shall not be deemed
to constitute any representation or warranty of Landlord as to such legal
sufficiency or technical competence thereof.
(e) Upon completion of such Alteration, Tenant, at Tenant's sole cost
and expense, shall obtain certificates of final approval of such Alteration
required by any Legal Authority and shall furnish Landlord with copies thereof
together with copies of final "as built" plans (in the event Landlord, in its
reasonable discretion, determines that the Alterations are sufficiently
substantial and material so as to warrant the preparation of "as built" plans,
but in no event shall Landlord require as built" plans with respect to Tenant's
Initial Work more often than upon the completion of all work with respect to a
particular floor of the Premises);
(f) All materials and equipment to be incorporated in the Premises as
a result of all Alterations shall be new (or of equal value) and first quality,
and no such materials or equipment shall be subject to any lien, encumbrance,
chattel mortgage, title retention or security agreement.
(g) Tenant shall furnish Landlord with evidence reasonably
satisfactory to Landlord, such as an architect's cost certificate, receipted
bills and/or cancelled checks, which shall give evidence of Tenant's
expenditures regarding Tenant's performance of any Alteration performed by or on
behalf of Tenant during the Term, so that Landlord will be able to monitor the
compliance by, and the obligations of Tenant under the provisions of subsections
5.02(b) and (c) hereof.
Section 5.03.
(a) All personal property, furniture, furnishings, equipment and
movable fixtures and partitions supplied by or installed by or on behalf of
Tenant at Tenant's sole cost and expense and without any cost or expense by, or
contribution from Landlord (collectively, "Tenant's Property"), all Alterations
in and to the Premises which may be made by or on behalf of Tenant, at Tenant's
sole cost and expense, and without any cost or expense by, or contribution from
Landlord (Tenant's Property and Alterations are collectively called "Tenant's
Work"), prior to and during the Term, shall remain the property of Tenant and
Tenant may, upon the Expiration Date or earlier termination of the Term, remove
Tenant's Work from the Premises; provided, however, that Tenant shall repair any
-------- -------
damage to the Premises and the Building caused by such
-26-
removal, in a good and workmanlike manner, and restore the premises and the
Building to building standard condition suitable for general multi-tenanted
office use and occupancy (reasonable wear and tear excepted).
(b) Any of such Tenant's Work not so removed by Tenant at or prior to
the Expiration Date or earlier termination of the Term, shall become the
property of Landlord and shall remain upon and be surrendered with the Premises
as part thereof at the end of the Term.
(c) (i) Notwithstanding the foregoing provisions, upon notice to
Tenant no later than thirty (30) days prior to the Expiration Date or earlier
termination of the Term of this Lease, Landlord may require Tenant to remove all
or part of any Tenant's Work consisting of specialized or custom installations
not suitable for general multi-tenanted office use and occupancy, such as
computer or data processing installations, cafeteria, employee dining or lunch
rooms, vault areas, trading floors and the like (collectively, the "Special
Installation Work"). In such event, Tenant shall remove all such Special
Installation Work from the Premises prior to the Expiration Date or earlier
termination of the Term of this Lease, at Tenant's sole cost and expense, in
compliance with subsection 5.03(a) hereof.
(ii) Additionally, Tenant hereby agrees that prior to the
Expiration Date or earlier termination of the Term of this Lease, Tenant shall
restore or install, as the case may be in the Premises and Building, all Base
Building Facilities or installations or facilities which are equal in quality or
of better quality than the Base Building Facilities (subject to reasonable wear
and tear), all in good working order and condition so as to enable Landlord to
operate the Building as a first class building suitable for multi-tenant general
office use and occupancy.
(d) The covenants and agreements set forth in this Section 5.03 shall
survive the Expiration Date or earlier termination of the Term of this Lease.
Section 5.04.
(a) Tenant shall, at its sole cost and expense, and with diligence and
dispatch, procure the cancellation or discharge of all notices of violation
arising from or otherwise connected with Alterations, Tenant's Work or any
other work, labor, services or materials performed by or on behalf of or
supplied to Tenant, or any person claiming through or under Tenant, which shall
be issued by any Legal Authority and shall cause any mechanic's lien filed
against the Premises, the Building or the Real Property, for work claimed to
have been performed by or on behalf of, or materials claimed to have been
furnished to, Tenant, to be released by payment, bonding or otherwise as
required by law, within thirty (30) days after notice thereof from Landlord.
(b) Tenant shall defend, indemnify and save harmless Landlord from and
against any and all mechanic's and other liens and encumbrances filed in
connection with Alterations, Tenant's Work or any other work, labor, services or
materials performed by or on behalf of or supplied to Tenant, or any
-27-
person claiming through or under Tenant, including, without limitation, security
interests in any materials, fixtures or articles so installed in and
constituting part of the Premises and against all costs, expenses and
liabilities incurred in connection with any such lien or encumbrance or any
action or proceeding brought thereon.
Section 5.05.
(a) Tenant shall not, at any time prior to or during the Term,
directly or indirectly employ, or permit the employment of, any contractor,
mechanic or laborer in the Premises, whether in connection with any Tenant's
Work or Alteration or otherwise, if, in Landlord's sole judgment, exercised in
good faith, such employment will or is likely to cause any union labor conflict
with other union labor engaged by Landlord, Tenant or others at the Project. In
the event of any such labor conflict or notice from Landlord of the likelihood,
in Landlord's good faith judgment, of a labor conflict, Tenant, promptly
following notice from Landlord, shall cause all contractors, mechanics or
laborers causing or likely to cause such conflict, to immediately cease work and
leave the Building.
(b) If the moving of any safe, machinery, equipment, freight, bulky
matter or fixtures requires special handling, Tenant shall employ persons
holding a Master Rigger's license to do said work, and that all work performed
in connection therewith shall comply with all applicable laws and regulations of
any Legal Authority, including the City and State. Tenant shall indemnify
Landlord for, and hold Landlord harmless from and against any and all damages
sustained by persons or property and for any damages or monies paid by Landlord
in settlement of any claims or judgments, as well as for all reasonable expenses
and attorneys' fees and court costs incurred by Landlord in connection therewith
and all costs incurred in repairing any damage to the Building or appurtenances.
(c) The agreements set forth in this Section 5.05 shall survive the
Expiration Date or earlier termination of the Term of this Lease.
Section 5.06.
(a) Upon Tenant's written request and at Tenant's sole cost and
expense, and without any fee, cost, expense or liability to Landlord, Landlord
shall (i) promptly execute such reports, certificates, instruments, applications
and other documents relating to Alterations permitted or consented to under this
Article 5 (collectively, the "Alterations Documents"), and (ii) take such other
acts relating to such Alterations (collectively, the "Alterations Acts") which
can be legally executed or taken only by Landlord.
(b) In the event that an Alterations Document or an Alterations Act, as
the case may be, must be executed or taken by a lessor under a Superior Lease or
a holder of a Mortgage, as the case may be, then at Tenant's sole cost and
expense, Landlord shall utilize best efforts to obtain the cooperation of such
third party; provided, however, that Landlord incurs no fee, cost, expense or
-------- -------
liability in connection therewith nor
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is obligated to bring any action with respect thereto; Tenant shall, however,
have the right to bring an action in connection with the foregoing, in Tenant's
name or that of Landlord, provided that the bringing of such action shall not
expose Landlord to criminal or civil liability, and as to which action Landlord
agrees to provide its reasonable cooperation.
Section 5.07.
(a) Any and all space in and/or adjacent to the Premises used for
stairways, shafts, stacks, pipes, conduits, ducts, electric or other utilities,
sinks or other Building facilities, if and to the extent the same shall
exclusively service the ground floor portion of the Building not leased to
Tenant (other than internal stairways, pneumatic tube systems, conveyor systems
and independent air-conditioning systems which are installed by or on behalf of
Tenant or at Tenant's sole expense), the roof of the Building as provided in
Article 43 hereof and the Building's curtain wall facade and the use thereof, as
well as access thereto through the Premises (at and for such times as shall not
unreasonably interfere with Tenant's use ________ or occupancy of or the conduct
of its business at the Premises) for the purposes of such use and the operation,
improvement, replacement, addition, repair, maintenance or decoration thereof,
are expressly reserved to Landlord, and, subject to the provisions of Section
5.01 hereof, Landlord shall have the right to withhold its consent to any
Alteration requested to be made by Tenant which shall affect any of the same.
(b) Tenant further understands and agrees that if any such space in or
adjacent to the Premises or facilities service both the Premises and the ground
floor portion of the Building not leased to Tenant, Landlord as well as Tenant
shall have use thereof, subject, however, to the restrictions set forth herein
and necessary access thereto through the Premises, as provided herein.
Section 5.08. (a) In the event that Tenant shall perform any
Alteration which affects any of the Base Building Work and/or the Base Building
facilities, as to which Work and Facilities Landlord has provided Tenant with:
(i) any manufacturers' warranties and/or guarantees as provided in Article 4; or
(ii) its own warranty as to workmanship regarding such Work or Facilities, as
provided in Article 4 hereof, Tenant hereby agrees that, regardless of whether
Landlord has approved such Alteration and/or the plans and specifications
therefor, if such Alteration (x) violates the terms of any such manufacturers'
warranty and/or guaranty, as the case may be, such warranty or guarantee shall
no longer be valid and Tenant shall have no right to enforce the provisions
thereof against the guarantor or warrantor, as the case may be, which has issued
such warranty or guaranty, or (y) changes or modifies, in any material respect,
the Work or Facilities for which Landlord has provided its own warranty as to
workmanship, provided, however, that Landlord has not consented to such
modification or change, then to the extent such workmanship has caused the
defect or problem complained of by Tenant, such warranty from Landlord shall no
longer be valid and Tenant shall have no right to enforce the provisions thereof
against Landlord.
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(b) The parties hereto mutually acknowledge and agree that any
dispute between Landlord and Tenant as to any of the provisions of this Section
5.08 shall be resolved by arbitration pursuant to Article 38 hereof.
ARTICLE 6
FLOOR LOAD
----------
Section 6.01.
(a) Tenant shall not place a load upon any floor of the Premises
that (i) exceeds the floor load per square foot which such floor was designed to
carry, or (ii) which is not allowed by applicable laws and requirements of Legal
Authorities, or (iii) will exceed the overall floor load capacity for which the
Building has been designed and is capable of carrying.
(b) Business machines, computer equipment and mechanical equipment
in the Premises, shall, to the extent commercially feasible, be placed and
maintained by Tenant, at Tenant's sole cost and expense, and in such manner as
shall be sufficient, in Landlord's reasonable judgment, to absorb and prevent
unreasonable (i) vibration, (ii) noise, (iii) annoyance and (iv) inconvenience
to the tenants of the Retail Premises.
ARTICLE 7
REPAIRS AND MAINTENANCE
-----------------------
Section 7.01.
(a) (i) Tenant shall, at its sole cost and expense, with
reasonable dispatch, take good care of and maintain in good order and condition,
the Premises and the Building, except for the Retail Premises, and fixtures and
improvements therein, including, without limitation, the Tenant's Property.
(ii) Tenant shall be responsible for all repairs and
replacements interior and exterior, structural and non-structural, ordinary and
extraordinary foreseen or unforeseen, in and to the Premises.
(iii) Tenant shall also be responsible for the cost of all
repairs and replacements to the Building, its roof, facade and other structural
portions of the Building, including, but not limited to, all Structural
Elements, and all non-structural portions of the Building, including all
facilities and systems in the Building, whether or not such repairs and/or
replacements are interior and exterior, ordinary and extraordinary, foreseen or
unforeseen.
(iv) Further, Tenant shall make all structural and non-
structural repairs to the Premises, its fixtures and appurtenances as and when
needed to preserve them in good working order and condition. Notwithstanding the
foregoing, Landlord shall, at the sole cost and expense of Tenant, maintain,
repair and perform all Alterations affecting the curtain wall facade of the
Building.
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(v) Notwithstanding anything to the contrary contained in this
subsection 7.01(a), Landlord hereby agrees that the cost of any structural
repairs and/or replacements to the Building shall be (A) borne solely by
Landlord to the extent that such repairs and/or replacements pertain solely to
the ground floor portion of the Building which is leasable by Landlord to retail
tenants or other occupants (the "Retail Premises") or (B) borne by Landlord to
the extent that the existence of the Retail Premises shall have increased the
cost to Tenant of making or causing to be made such structural repairs and/or
replacements.
(b) Tenant shall promptly replace all scratched, damaged or broken
doors and glass in and about the Premises and/or Building, except for the Retail
Premises, including, without limitation, entrance doors to the Building and
shall be responsible for all repairs, maintenance and replacement of wall and
floor coverings in the Premises and/or the Building, except for the Retail
Premises and for all the repair and maintenance of all sanitary and electrical
fixtures and equipment therein.
(c) Tenant shall be responsible for all replacements to the lamps,
tubes, ballasts and starters in the lighting fixtures installed in the Premises
and/or the Building, except for the Retail Premises.
(d) If Tenant fails, after thirty (30) days' notice, to proceed
with due diligence to make repairs required by this Lease or by any Legal
Authority to be made by Tenant, or to make such repairs within a shorter period
of time if permitted or required by any Legal Authority, the same may be made by
Landlord, at Tenant's sole cost and expense, and all expenses thereof incurred
by Landlord shall be paid by Tenant to Landlord, as Additional Rent, within ten
(10) days of the rendition of bills and invoices therefor.
(e) Except as may be specifically provided in Article 13 of this
Lease, there shall be no allowance to Tenant for a diminution of rental value
and no liability on the part of Landlord to Tenant by reason of inconvenience,
annoyance or injury to business arising from Landlord, Tenant or others making,
or failing to make, any repairs, alterations, additions or improvements in or to
any portion of the Building or the Premises, or in or to fixtures, appurtenances
or equipment thereof.
Section 7.02.
(a) If the Premises and/or the Building, except for the Retail
Premises shall be or shall become infested with vermin, Tenant shall, at
Tenant's sole cost and expense, cause the same to be exterminated, at any time
and from time to time during the Term, to the reasonable satisfaction of
Landlord, and shall employ such exterminators and such exterminating company or
companies as shall be reasonably satisfactory to Landlord.
(b) If the Retail Premises shall be or shall become infested with
vermin, Landlord shall, at the Landlord's sole cost and expense, cause the same
to be exterminated.
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(c) The water, wash and electrical closets, mechanical rooms, fire
stairs and other 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.
Section 7.03. Any repairs made or performed by or on behalf of Tenant
or any person claiming through or under Tenant pursuant to this Article 7, shall
be of quality or class at least equal to the original work or construction in
the Premises and/or the Building, as the case may be, and shall be made in
conformity with, and subject to, the provisions of Article 5 hereof.
Section 7.04. Notwithstanding the provisions of this Article 7,
Landlord shall, at Tenant's cost and expense to the extent provided in Article
28 herein, take good care of and maintain, repair and replace in a manner
consistent with that of a first-class office building located in the New York
metropolitan area or the so-called "Gold Coast" area of the City:
(a) the plazas, sidewalks and curbs within the Real Property
including, without limitation, remove snow and ice therefrom;
(b) the public or common areas of the Real Property;
(c) all exterior gardening and landscaping; and
(d) the curtain wall facade of the Building.
ARTICLE 8
WINDOW CLEANING
---------------
Section 8.01.
(a) Tenant shall not require, permit, suffer or allow the cleaning of
any window in the Premises from the outside unless equipment and safety devices
required by any applicable law or statute of any Legal Authority are provided
and used.
(b) Tenant shall indemnify Landlord and hold Landlord harmless from
and against any and all liability as a result of Tenant's violation of the terms
of Section 8.01(a) above.
(c) The covenants and agreements set forth in this Section 8.01 shall
survive the Expiration Date or earlier termination of the Term of this Lease.
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ARTICLE 9
REQUIREMENTS OF LAW
-------------------
Section 9.01.
(a) Tenant shall, at Tenant's sole cost and expense, comply with all
present and future laws, orders and regulations of any Legal Authority, and with
all present and future directions of all public officers acting by or on behalf
of any Legal Authority, and all present and future rules, orders, regulations
and requirements of any Insurance Body which shall impose any violation, order
or duty upon Landlord or Tenant with respect to the Premises and/or the
Building, arising from, with respect to or as a result of (i) the use or
occupancy, or abatement of any nuisance in, on or about the Premises and/or the
Building, except, however, for the Retail Premises, the compliance of which
laws, orders, regulations and requirements of any Legal Authority or Insurance
Body regarding such Retail Premises shall, in such event, be the responsibility
of Landlord, (ii) Tenant's use of the Premises and the Building and the manner
of conduct by Tenant of its business at the Premises and the Building or
operation of its installations, equipment or other property therein, (iii) any
repair to, or alteration of or performance of any Tenant's Work at or within the
Premises performed by or on behalf of Tenant, (iv) any cause or condition
created by or at the instance of Tenant, or (v) a breach of any covenant,
agreement, term, provision or condition of this Lease on the part of Tenant to
be observed or performed.
(b) If Tenant shall have received notice from any Legal Authority
with respect to any of the foregoing, Tenant shall give Landlord prompt written
notice of any such lack of compliance with any of the foregoing, notwithstanding
that such compliance requires work which is structural or non-structural,
ordinary or extraordinary, foreseen or unforeseen.
(c) Tenant shall pay all of the costs, expenses, fines, penalties and
damages which may be imposed upon Landlord, any mortgagee and lessor by reason
of or arising out of Tenant's failure to fully and promptly comply with and
observe the provisions of this Section.
(d) Without limiting the generality of the foregoing, it is
specifically agreed that Tenant shall comply with all laws and requirements of
any Legal Authority that require the installation, modification or maintenance
of any gas, smoke or fire detector or alarm or any sprinkler or other system to
extinguish fires.
Section 9.02.
(a) Tenant shall not do or permit to be done any act or thing upon
the Premises which will invalidate or be in conflict with any insurance policies
covering the Building and fixtures and property therein and shall not do, or
permit anything to be done in or upon the Premises, or bring or keep anything
therein, except as now or hereafter permitted by the City's Fire Department,
Board of Fire Underwriters or any other Insurance Body or Legal Authority having
jurisdiction, and then only in such quantity and manner of storage as not to
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increase the rate for fire insurance applicable to the Building. Further,
Tenant agrees that Tenant shall not use the Premises in a manner which shall
increase the rate of fire insurance on the Building or on property located
therein, over that in similar type first-class office/commercial buildings
located in the New York metropolitan area or in the so-called "Gold Coast" area
of the City.
(b) If by reason of Tenant's failure to comply with the provisions of
this Article 9, the fire insurance rate shall, from and after the date of this
Lease, be higher than would otherwise be the case, Landlord's sole remedy under
this Lease for such increased fire insurance rate shall be to require Tenant to
reimburse Landlord for that part of all fire insurance premiums thereafter paid
by Landlord which shall have been charged because of such failure by Tenant.
Tenant shall make such reimbursement to Landlord, as Additional Rent, within ten
(10) days following notice from Landlord of any such outlay.
Section 9.03.
(a) If the Building's "sprinkler system" or any of its appliances
shall be damaged or injured, or shall not be in proper working order, Tenant
shall forthwith restore the same to good working condition at Tenant's sole cost
and expense.
(b) If any Insurance Body or any bureau, department or official of
the State or City governments or any other Legal Authority shall require or
recommend that any changes, modifications, alterations or additional sprinkler
heads or other equipment be made or supplied by reason of Tenant's business, or
the location of the partitions, trade fixtures, Tenant's Work, Tenant's
Property, or other contents of the Premises, Tenant shall, at Tenant's sole cost
and expense, promptly make and supply such changes, modifications, alterations,
additional sprinkler heads or other such equipment.
Section 9.04.
(a) Tenant acknowledges the existence of federal, state and local
environmental laws, rules and regulations (collectively, the "Environmental
Laws"), including, without limitation, the Environmental Clean Up Responsibility
Act of 1983 ("ECRA") and the Spill and Compensation and Control Act. Tenant
agrees, from and after the date hereof, to act in compliance with all such
Environmental Laws. Tenant shall not perform any acts in violation of
Environmental Laws. Tenant represents to 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 Premises or the Real Property to ECRA applicability. Tenant
represents to Landlord and covenants that Tenant will not change to an operation
with a different SIC Number without 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 may deny consent if, inter alia, the different SIC
----- ----
Number would subject the Premises or the Real Property to ECRA applicability.
Notwithstanding anything to the contrary set forth herein, in the event that
Tenant's SIC Number or the SIC
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Number of any subtenant or other party holding by, through or under Tenant shall
subject the Premises or the Real Property to ECRA applicability, the same shall
not constitute a violation hereunder and shall be permitted without the consent
of Landlord if the criteria of the so-called "office exemption" established
under Section 7:26B-1.8(a)(2) of the New Jersey Annotated Statutes shall be
satisfied.
(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 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 obligations hereunder) as may be reasonably
requested by Tenant or required by the ECRA requirements of the DEP. In the
event that the DEP or any other Legal Authority or such other relevant Legal
Authority shall require a clean-up of the Premises or the Real Property or other
remedial action in order to comply with any Environmental Law, or in the event
of the imposition of any fine or penalty arising out of an environmental
violation affecting the Premises, then, if and only if such cleanup or other
remedial actions shall have been caused by activities or occurrences during the
Term caused by Tenant, its agents, employees, invitees or independent
contractors, _____________ such obligations, remedial actions, fines and
penalties actually resulting from the conduct of Landlord, its employees,
agents, invitee or independent contractor whether before, during or after the
Term hereof arising out of performance of Landlord's obligations under this
Lease or otherwise, Tenant shall assume responsibility, at its sole cost and
expense, for such clean-up obligations, remedial actions, fines and penalties
not expressly excluded above.
(c) Tenant hereby agrees to execute such documents and provide such
information as Landlord reasonably deems necessary and to make such applications
as Landlord reasonably requires to assure compliance with ECRA or to comply with
any Environmental Laws, rules or regulations of any relevant 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 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 nonapplicability by the appropriate Legal Authority. Tenant
agrees to indemnify and hold Landlord harmless from and against any fines,
suits, proceedings, claims and actions and any other cost, expense or liability
of any kind arising under Environmental Laws, rules or regulations resulting
from Tenant's use of the Premises or any acts and/or omissions which Tenant, its
agents, employees, invitees or independent contractors initiate, Tenant's
failure to comply with this Section 9.04 or Tenant's failure to provide all
information, make all submissions and take all actions required by any Legal
Authority.
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(d) Tenant shall immediately provide Landlord and Landlord shall
immediately provide Tenant with copies of all correspondence, reports, notices,
orders, findings, declarations and other materials pertinent to Tenant's
compliance or Landlord's compliance hereunder or any other environmental
enforcement Legal Authority's requirements under any Environmental Laws as they
are issued or received by each party respectively. More specifically, but not
limiting the foregoing, each party shall promptly provide the other 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 or Landlord
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 & 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 Landlord or 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 or Landlord from any of said Authorities.
(e) In addition to any other remedies of Landlord pursuant to this
Article 9 and this Lease, Tenant's failure to abide by the terms of this Section
9.04 shall be restrainable by injunction. The provisions of this Section 9.04
shall survive the Expiration Date or earlier termination of the Term of this
Lease.
Section 9.05. Any work or installations made or performed by or on
behalf of Tenant or any person claiming through or under Tenant pursuant to this
Article 9 shall be made in conformity with, and subject to, the terms and
provisions of Article 5 hereof.
Section 9.06. Landlord hereby represents to Tenant that Landlord has
not, as of the date hereof, received any notice or communication from the City
stating that the Building does not comply with applicable City building code
requirements, rules and regulations.
Section 9.07. Landlord hereby agrees that, to the extent that the
health, safety, use, occupancy or enjoyment of the Premises by Tenant or any
Third Party Tenant is materially adversely affected, Landlord hereby agrees to
comply with all Environmental Laws affecting the Real Property, excluding,
however, to the Premises, these matters arising during the Term, but excepting
therefrom only the acts and/or omissions which Tenant, the Third Party Tenants
and their agents, employees, licensees and contractors initiate in that portion
of the Real Property consisting of the Premises. Landlord agrees to take all
other action promptly and at its sole cost and expense which may be required to
preserve the use of the Premises by Tenant in conformity with the Lease, and to
indemnify and hold harmless Tenant and any Third Party Tenant from any loss,
damage, cost or expense resulting from any violation of Environmental Laws at
the Retail Premises.
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ARTICLE 10
SUBORDINATION
-------------
Section 10.01.
(a) This Lease is subject and subordinate to each and every
Superior Lease and to each and every Mortgage. A list of all Mortgages and
Superior Leases existing as of the date of this Lease is annexed hereto as
Exhibit 6 and made a part hereof. Tenant acknowledges that it has reviewed each
Superior Lease and Mortgage and is familiar with the terms, provisions and
conditions thereof.
(b) The provisions of subsection 10.01(a) hereof shall be self-
operative and no further instrument of subordination shall be required,
provided, however, that Landlord shall have complied with the terms and
-------- -------
provisions of subsection 10.01(d) hereof. In confirmation of such
subordination, however, Tenant shall promptly execute, acknowledge and deliver,
any certificate that Landlord, the lessor under any such Superior Lease or the
holder of any such Mortgage may, at any time and from time to time, reasonably
request.
(c) The holder of any Mortgage may elect that this Lease shall have
priority over its Mortgage, and upon notification to Tenant by such party, this
Lease shall be deemed to have priority over such Mortgage, regardless of the
date of this Lease.
(d) (i) Notwithstanding the foregoing, Landlord agrees to obtain
on Tenant's behalf, as hereinafter provided, from holders and lessors of all
presently existing and all future Mortgages and Superior Leases, a
nondisturbance and attornment agreement in recordable form (the "Non-Disturbance
Agreement").
(ii) Each Non-Disturbance Agreement shall, if required by the
holder or lessor in question, be on the form approved by such holder or lessor,
and shall contain such holder's or lessor's agreement with Tenant, in substance,
that to the extent necessary or required by such Superior Lease or Mortgage,
such lessor or holder thereof, as the case may be consents to this Lease, and
that so long as Tenant shall not be in default in the performance or observance
of Tenant's obligations to be performed or observed hereunder beyond the
expiration of any applicable notice and grace periods provided for the cure of
such default, and Landlord would not at the time be entitled, if it so elects,
to give notice pursuant to Article 19 hereof of Landlord's intention to end the
Term of this Lease, (A) this Lease and the Term and estate hereby granted shall
not be terminated, and Tenant's possession of the Premises shall not be
interfered with, in any foreclosure or other action or proceeding instituted
under or in connection with such Mortgage or Superior Lease or by reason of any
sale pursuant to any such action or proceeding, and (B) further, that upon said
holder or lessor succeeding to the rights and interests of Landlord hereunder,
such "successor landlord" (as such term is hereinafter defined), in its capacity
as Landlord hereunder, shall recognize Tenant and all of Tenant's rights and
privileges hereunder, and shall be obligated to perform Landlord's obligations
under this Lease,
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arising after the date of such succession, subject, however, to the Tenant's
compliance with the terms and provisions of Section 10.04 hereof, and the
Tenant's agreement, as set forth in Section 10.04, as to the obligations and
liability to Tenant of any such successor landlord.
(e) (i) Landlord shall obtain and deliver to Tenant for Tenant's
signature on the Commencement Date, from the lessors of all presently existing
Superior Leases, the Non-Disturbance Agreement described in subsection 10.01(d)
above.
(ii) Landlord shall have a period of thirty (30) days from the
Commencement Date to obtain and deliver to Tenant for Tenant's signature, from
the holder of the existing Mortgage, the Non-Disturbance Agreement described in
subsection 10.01(d) above.
(iii) In the event that Landlord shall fail to comply with the
aforesaid terms and provisions of subsection 10.01(e), Tenant shall have the
right to terminate this Lease upon not less than fifteen (15) days written
notice to Landlord, in which event this Lease shall terminate as of the
termination date selected by Tenant, as if such date of termination were the
Expiration Date hereof, unless Landlord delivers such Nondisturbance and
Attornment Agreement required hereunder prior to the expiration of said fifteen
(15) day period. Upon the termination of this Lease as provided above, Landlord
and Tenant shall have no further rights or obligations hereunder. Further, at
the time of Lease termination, Landlord shall return the Letter of Credit and
shall agree that the Guarantor shall be released from all obligations accruing
from and after such termination date.
(iv) Tenant shall cooperate with Landlord's efforts to obtain
such Nondisturbance and Attornment Agreements from all lessors or holders of
Superior Leases and Mortgages, including the furnishing of such financial and
other information as such lessors and holders may reasonably request. Landlord
shall request such lessors or holders to maintain the confidentiality of such
information.
Section 10.02.
(a) Except as expressly provided herein, Tenant shall not do, or
permit to be done, or omit to do anything, that Tenant is obligated to do under
the terms of this Lease, so as to cause Landlord to be in default under any
Superior Lease or Mortgage, provided, however, that Tenant's financial or other
-------- -------
obligations under this Lease are not increased, or Tenant's rights under this
Lease are not impaired.
(b) If, in connection with any financing of the Real Property, or
any part thereof or interest therein, any lending institution shall request
reasonable modifications of this Lease that do not either increase the financial
or other obligations or adversely affect the rights of Tenant under this Lease
or diminish the obligations of Landlord hereunder to the detriment of Tenant,
Tenant covenants to promptly consent to such modifications and shall promptly
execute any lease amendments requested by Landlord and such lending institution
effecting such modifications.
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Section 10.03. In the event of any act or omission of Landlord which
would give Tenant the right, immediately or after lapse of a period of time, to
cancel or terminate this Lease, or to claim a partial or total eviction, Tenant
shall not exercise such right until it has given written notice of such act or
omission to each holder and lessor whose name and address shall previously have
been furnished to Tenant in writing (including the holder(s) and lessor(s) shown
on Exhibit 6), and 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 holder or lessor shall have become entitled under such Mortgage or
Superior Lease 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, however, that
--------- -------
such holder or lessor shall within ten (10) days following the expiration of any
applicable notice and grace period to remedy such act or omission as is
available to Landlord hereunder, give Tenant written notice of intention to, and
commence within a reasonable time thereafter, and with due diligence continue to
remedy such act or omission.
Section 10.04.
(a) If the lessor or holder or any designee or other person claiming
by, through or under a lessor or holder 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 (a "successor landlord") and upon such successor landlord's
written agreement to accept Tenant's attornment, Tenant shall be deemed to have
attorned to and recognized such successor landlord as Tenant's landlord under
this Lease.
(b) The foregoing provision shall be self-operative upon demand, and
no further instrument shall be required to give effect to said provisions;
provided, however, that Tenant shall promptly execute and deliver any instrument
-------- -------
that such successor landlord may reasonably request to evidence such attornment.
(c) Upon such attornment, this Lease shall continue in full force and
effect as, or as if it were, a direct lease between the successor landlord and
Tenant upon all of the terms, conditions and covenants as are set forth in this
Lease which shall be applicable after such attornment except that the successor
landlord shall not be:
(i) liable for any previous act or omission of Landlord (or its
predecessors in interest) under this Lease to which such successor landlord did
not previously consent; or
(ii) subject to any credits, claims, counterclaims, demands,
defenses or offsets, not expressly provided for in this Lease and asserted with
reasonable promptness, which Tenant may have or shall have theretofore accrued
to Tenant against Landlord; or
(iii) bound by any previous modification of this Lease, not
expressly provided for in this Lease, or by any
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previous prepayment to Landlord (or its predecessors in interest) of more than
one (1) month's installment of Fixed Rent and/or Additional Rent, unless such
modification or prepayment shall have been expressly approved in writing by the
successor landlord; or
(iv) obligated to perform any alteration of the Premises not
expressly required under this Lease; or
(v) responsible for any monies owing by Landlord to the credit
of Tenant; or
(vi) bound by any covenant to undertake or complete any
construction of the Premises or any portion thereof; or
(vii) bound by any obligation to make any payment to Tenant, or
grant or be subject to any credits, except for services, repairs, maintenance
and restoration provided for under this Lease to be performed after the date of
attornment and which landlords of like properties would ordinarily be expected
to perform at the landlord's expense, it being expressly understood, however,
that the successor landlord shall not be bound by an obligation to make payment
to Tenant with respect to construction performed by or on behalf of Tenant at
the Premises; or
(viii) required to remove any person occupying the Premises, or any
part thereof.
ARTICLE 11
RULES AND REGULATIONS
---------------------
Section 11.01. Tenant and Tenant's servants, employees and agents
shall observe and comply with the rules and regulations annexed hereto and made
a part hereof as Exhibit 7 (such rules and regulations are collectively called
"Rules and Regulations"); 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.
Section 11.02. Subject to the provisions of Article 39 hereof, no
sign, advertisement, object, notice or lettering shall be exhibited, inscribed,
painted or affixed by Tenant, in or on the windows or exterior doors, of the
Building or Premises or on any part of the outside of the Premises or the
Building, including, without limitation, the Building roof or at any point
inside the Premises where the same might be visible outside of the Premises,
without the prior written consent of Landlord in each instance, which consent
shall not be unreasonably withheld or delayed, provided such signage, lettering,
advertisement, object or notice shall be in conformity with the overall design
and appearance with the Project. Signs and lettering on all exterior doors
shall be of a size and color reasonably acceptable to Landlord.
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Section 11.03.
(a) 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, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors,
contractors, invitees or licensees.
(b) Landlord agrees that it shall not enforce the Rules and
Regulations in a manner which discriminates against Tenant or anyone claiming
through or under Tenant.
(c) Landlord shall consult from time to time with Tenant at Tenant's
written request with respect to the Rules and Regulations for the Building and,
to the extent Landlord has the right to do so pursuant to other tenants' leases,
shall make such reasonable changes in the Rules and Regulations for the Building
as Tenant may reasonably request.
ARTICLE 12
INSURANCE
---------
Section 12.01. Tenant shall obtain and keep in full force and effect
during the Term:
(a) a policy of comprehensive general public liability and property
damage (1973 occurrence form) insurance with a broad form liability endorsement
including a contractual liability endorsement and personal injury liability
coverage, protecting and naming Tenant, Landlord, Landlord's employees, managing
agent and agents, and any mortgagees or lessors having an interest in the Real
Property (including any parties required to be named as insured under those
instruments set forth in Exhibit 6), as additional insureds, against claims for
personal injury, death and/or property damage occurring in or about the Premises
or the Building, and under which the insurer agrees to indemnify and hold
Landlord harmless from and against, among other things, all cost, expense and/or
liability arising out of or based upon any and all claims, accidents, injuries
and damages, including, but not limited to, those mentioned in Article 36
hereof, and which policy shall contain a provision that no act or omission of
Tenant shall affect or limit the obligation of the insurance company to pay the
amount of any loss sustained, and the minimum limits of liability under such
policy shall be a combined single limit with respect to each occurrence in an
amount of not less than Ten Million ($10,000,000.00) Dollars for injury (or
death) and damage to property (or in any increased amount reasonably required by
Landlord);
(b) insurance against loss or damage by fire and such other risks and
hazards (including, during the period of construction of Tenant's Initial Work,
casualty insurance in the so-called "Builder's Risk Completed Value Non-
Reporting Form", burglary, theft, breakage of glass within the Premises and
Building, except for the Retail Premises and, if the Premises are located at or
below grade, broad form flood insurance) as are insurable under then available
standard forms of "all risk" insurance policies, to Tenant's Property,
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Tenant's Work and all of Tenant's improvements and betterments for the full
replacement cost value thereof (including an "agreed amount" endorsement),
protecting and naming Tenant, Landlord, Landlord's employees, managing agent
and agents, and any mortgagees or lessors having an interest in the Real
Property as additional insureds;
(c) steam boiler, pressure vessels, air conditioning, elevator
collision or machinery insurance, if there is a boiler or pressure object or
similar equipment in the Premises, protecting and naming Landlord, Landlord's
employees, managing agent and agents and any lessors and mortgagees having an
interest in the Real Property, as additional insureds, with limits of not less
than Five Million ($5,000,000.00) Dollars; and
(d) rental insurance in an amount equal to not less than one (1)
year's Fixed Rent and Additional Rent, which shall be automatically renewable
annually.
Section 12.02. Landlord, at Tenant's sole cost and expense, shall
obtain and keep in full force and effect during the Term:
(a) insurance on the Building and other improvements to the Real
Property, including, without limitation, infrastructure and landscaping, against
loss or damage by fire and such other risks or hazards as are insurable, from
time to time, under standard forms of "all risk" insurance policies with
extended coverage, to include, in particular, casualty insurance during the
period of the completion of any construction by Landlord of any Base Building
Work in the so-called "Builder's Risk Completed Value Non-Reporting Form", broad
form flood insurance to the extent available, in an amount equal to the full
replacement cost value thereof, from time to time (including an "agreed amount"
endorsement), but in no event less than Sixty Million Dollars ($60,000,000.00),
with a deductible not in excess of One Hundred Thousand Dollars ($100,000.00);
and
(b) comprehensive general public liability (primary and excess
coverages) and property damage insurance with a broad form contractual liability
endorsement against claims for personal injury, death and/or property damage
occurring in or about the Building with a combined single limit of Ten Million
Dollars ($10,000,000.00) with a deductible of no more than One Hundred Thousand
Dollars ($100,000.00);
(c) elevator collision insurance in the amount of $100,000.00; and
(d) scheduled plate glass insurance.
Landlord may, from time to time throughout the Term, increase the
amount, extent or modify the deductibles of insurance described in this Section
12.02 with the consent of Tenant, such consent not to be withheld or delayed if
such increase is commercially reasonable for a first class office building with
ground floor retail tenants in the New York-New Jersey metropolitan area, or if
required by a holder of a Mortgage or lessor under a Superior Lease. Landlord
shall, from time to time throughout the Term, increase the amount or extent of
insurance described in this Section 12.02 if reasonably required by Tenant.
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Notwithstanding anything to the contrary contained herein, Tenant may,
at its option following written notice to Landlord, obtain and pay directly for
the insurance coverage which Landlord is otherwise obligated hereunder to
maintain at Tenant's sole cost and expense, in which event Tenant shall furnish
Landlord with evidence of payment for the policies together with duplicate
original copies of such policies or certificates evidencing such insurance,
whereupon Tenant shall be relieved of its obligation to reimburse Landlord for
the cost of such insurance coverage. If Tenant shall so elect to directly
purchase such insurance coverage, Tenant shall provide to Landlord, not less
frequently than annually, a schedule setting forth in reasonable detail the
types, amounts (including the amounts of any deductibles, if any) and insurance
carriers with whom Tenant has, or from whom Tenant intends to provide such
insurance coverage, which coverage shall be subject to Landlord's approval,
which approval shall not be unreasonably withheld or delayed.
Section 12.03.
(a) On the Commencement Date and thereafter, at least thirty (30)
days prior to the expiration of any such policies, Tenant agrees to deliver to
Landlord evidence of payment for the policies together with policies or
certificates evidencing such insurance.
(b) All such policies shall contain endorsements stating that (i)
such insurance may not be modified or cancelled or allowed to lapse except upon
thirty (30) days' prior written notice to Landlord or Tenant, as the case may
be, given by the party carrying such insurance by certified mail, return receipt
requested, containing the policy number and the names of the insured and the
certificate holder, and (ii) Tenant shall be solely responsible for payment of
all premiums under such policies and that neither Landlord, Landlord's
employees, managing agent and agents nor any mortgagee or lessor having an
interest in the Real Property shall have any obligation for the payment thereof
notwithstanding that Landlord, Landlord's employees, managing agent and agents,
such lessor or mortgagee are or may be named as additional insureds.
(c) Tenant's failure to provide and keep in force the aforementioned
insurance shall be a material default hereunder, entitling Landlord to exercise
any or all of the remedies provided in this Lease in the event of Tenant's
default.
(d) All insurance required to be carried by Tenant pursuant to the
terms of this Lease shall be effected under valid and enforceable policies
issued by reputable and independent companies of recognized responsibility
licensed to do business in the State, and rated in Best's Insurance Reports, or
any successor thereto (or if there be none, an organization having a national
reputation) as having a general policy-holder rating of 1'A" or better or the
then equivalent of such rating and having a policy holder surplus of at least
One Hundred Million and 00/100 ($100,000,000.00) Dollars.
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Section 12.04.
(a) Landlord and Tenant shall each use reasonable efforts to procure
an appropriate clause in, or endorsement to, each of its insurance policies
(insuring the Building and Real Property, in the case of Landlord, and insuring
Tenant's Property, Tenant's Work and Tenant's improvements and betterments, in
the case of Tenant), pursuant to which each insurance company waives subrogation
or consent to a waiver of right of recovery by the insured prior to any loss.
The waiver of subrogation or permission for waiver of the right of recovery in
favor of Tenant shall also extend to all other persons or entities occupying or
using the Premises in accordance with the terms of this Lease.
(b) If the payment of an additional premium is required for the
inclusion of such waiver of subrogation provisions or consent to a waiver of
right of recovery, each party shall advise the other of the amount of any such
additional premium by written notice and the other party shall pay the same or
shall be deemed to have agreed that the party obtaining the insurance coverage
in question shall be free of any further obligations under the provisions hereof
relating to obtaining such waiver or consent.
(c) If such waiver of subrogation shall be unobtainable or
unenforceable, each party shall instead have included in each of its insurance
policies (i) an express agreement that such policy shall not be invalidated if
the assured waives the right of recovery against any party responsible for a
casualty covered by the policy before the casualty, or (ii) any other form of
permission for the release of the other party.
(d) If such waiver, agreement or permission shall not be, or shall
cease to be, obtainable from either party's then current insurance company, the
insured party shall so notify the other party promptly after learning thereof,
and shall use its best efforts to obtain the same from another insurance company
described in Section 12.03 hereof.
(e) Landlord will not carry insurance of any kind on Tenant's
Property, Tenant's Work or any of Tenant's betterments and improvements and
shall not be obligated to repair any damage to or replace Tenant's Property,
Tenant's Work or Tenant's betterments and improvements; provided, however, that
-------- -------
if Tenant shall fail to maintain such insurance, Landlord shall have the right
to obtain insurance on Tenant's Property, Tenant's Work and any of Tenant's
betterments and improvements and the cost thereof shall be payable by Tenant to
Landlord as Additional Rent on demand.
Section 12.05.
(a) Each party hereby releases the other (its servants, agents,
employees and invitees) with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damage or destruction with respect to its property by fire or other casualty
i.e., in the case of Landlord, as to the Building, and, in the case of Tenant,
---
as to Tenant's Property, Tenant's Work and any of Tenant's other improvements
and betterments (including rental value or business interruption, as the case
may be) occurring during the Term of this Lease.
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(b) Nothing contained in this Section 12.05 shall be deemed to
relieve Landlord or Tenant of any duty imposed elsewhere in this Lease to
repair, restore or rebuild or to nullify any abatement of rents provided for
elsewhere in this Lease.
Section 12.06.
(a) The proceeds of policies providing "all risk" property insurance
of Tenant's Property, Tenant's Work and any of Tenant's other improvements and
betterments shall be payable to Landlord, Tenant and each lessor and mortgagee
as their respective interests may appear.
(b) Tenant shall cooperate with Landlord in connection with the
collection of any insurance monies that may be due in the event of loss and
Tenant shall execute and deliver to Landlord such proofs of loss and other
instruments which may be required to recover any such insurance monies.
Section 12.07. Landlord may, at any time and from time to time during
the Term, require that the amount of the insurance to be maintained by Tenant
under this Article 12 be increased, so that the amount thereof adequately
protects Landlord's interest; provided, however, that the owners of properties
which are comparable to the Building have similarly increased the amount of
insurance required to be obtained by tenants under leases for such properties,
but in no event greater than the replacement cost of the Building (exclusive of
footings and foundation).
Section 12.08. Notwithstanding the foregoing provisions of this
Article 12, Landlord hereby agrees that Tenant shall have the right to provide
the insurance which is required hereunder as part of the so-called "blanket
insurance policies" which insure other properties of Tenant, provided, however
that such "blanket insurance" policies provide for an adequate reserve, in
Landlord's reasonable opinion, to cover any casualty, damage or injury at the
Building or Premises for which Tenant is required to obtain insurance coverage
hereunder.
ARTICLE 13
DESTRUCTION OF THE PREMISES; PROPERTY LOSS OR DAMAGE
----------------------------------------------------
Section 13.01.
(a) If the Building or the Premises shall be partially or totally
damaged or destroyed by fire or other cause, then, whether or not the damage or
destruction shall have resulted from the fault or neglect of Tenant, or its
subtenants or licensees, or its or their respective employees, agents or
visitors (and if this Lease shall not have been terminated as in this Article 13
hereinafter provided), Landlord shall proceed, with reasonable diligence after
having obtained knowledge of the same, to repair the damage and restore and
rebuild the Building and/or the Premises to substantially the same condition as
that in which same were in immediately prior to the damage or destruction,
subject, however, to Force Majeure; provided, however, that if the net insurance
-------- -------
proceeds available to Landlord for restoration, less the actual cost, fees and
expenses incurred in connection with
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the adjustment of the loss are insufficient (for any reason other than (i)
Landlord's failure to maintain the coverage required hereunder; or (ii) the
holder of any Mortgage shall not make such insurance proceeds available for such
restoration) to complete and pay for all such repairs and restoration, as
estimated by a reputable contractor, registered architect or licensed
professional engineer designated by Landlord, Landlord may elect to terminate
this Lease by giving Tenant notice to such effect within ten (10) days after
Landlord has determined that such insurance proceeds are insufficient, unless,
within fifteen (15) days after Landlord has delivered to Tenant such notice of
termination, Tenant shall have deposited with Landlord the amount of the
deficiency in the insurance proceeds necessary to restore and rebuild the
Building and/or the Premises, in which event Landlord shall proceed to so
restore and rebuild as provided hereinabove. In the event that Landlord elects
to terminate this Lease as aforesaid, this Lease shall terminate on the date set
forth in such notice as if such date were the Expiration Date set forth herein,
which termination date shall in no event be less than sixty (60) days after the
giving of Landlord's termination notice to Tenant, Tenant shall transfer,
promptly vacate and surrender the Premises to Landlord, and the Fixed Rent and
Additional Rent shall be apportioned appropriately and shall be paid up to and
including the date of such damage or destruction. Notwithstanding the foregoing,
if the net insurance proceeds available to Landlord are insufficient to complete
and pay for all such repairs and restoration required hereunder as a result of
the holder of any Mortgage not making available for restoration all or any
portion of such insurance proceeds, then in such event Landlord shall
nonetheless proceed to so restore and rebuild as provided above (but in no event
shall Landlord be required to repair or replace any of Tenant's Property,
Tenant's Work or Tenant's betterments or improvements) if and only if the
remaining Term hereof shall have not less than ten (10) years remaining therein.
If the remaining Term hereof shall have less than ten (10) years remaining
therein, Landlord shall have no such obligation to repair or restore and
Landlord shall have the right to cancel and terminate this Lease in accordance
with the terms of the second preceding sentence provided, however, that if
-------- -------
Tenant shall then have unexercised Renewal Option(s) such that the then
remaining Term, together with such renewal term(s), would total not less than
ten (10) years and Tenant shall, within sixty (60) days following Landlord's
notice of Landlord's cancellation of this Lease, give Landlord notice of
Tenant's exercise of such Renewal Option(s) as shall extend the remaining Term
to not less than ten (10) years, in which event Landlord's notice of
cancellation shall be deemed rescinded, and Landlord shall proceed to restore
and repair as hereinabove provided.
In connection with Tenant's exercise of any renewal option(s) pursuant to this
Article 13, (i) Landlord and Tenant expressly agree that such renewal option(s)
may be exercised at the times set forth in this Article 13, and not at the
time(s) set forth in Article 41, and (ii) the determination of the FMV (as
defined in Article 41 hereof) of the Premises for such renewal term(s) shall be
agreed between Landlord and Tenant within thirty (30) days following notice of
Tenant's exercise of such renewal option, and if Landlord and Tenant shall fail
to so agree on the FMV within such period, the determination of the FMV shall be
submitted to arbitration pursuant to Article 41,
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it being expressly understood and agreed that Tenant shall have no right to
revoke its exercise of such renewal option following the decision of such
arbitrator.
(b) Tenant shall repair, replace and restore Tenant's Property,
Tenant's Work and any Tenant improvements and betterments, including any plate
glass in the Premises promptly and with due diligence (the "Tenant's Restoration
Work"). Any such repair work by Tenant shall be deemed Alterations and shall be
performed in accordance with Article 5 hereof.
(c) The proceeds of policies providing coverage for Tenant's Property,
Tenant's Work and any Tenant improvements and betterments of less than $100,000
shall be paid to Tenant and proceeds in a greater amount shall be paid to
Landlord, or, at the election of Tenant, to a bank or trust company reasonably
acceptable to Landlord and Tenant having resources in excess of $100,000,000
which shall hold, apply and make available the proceeds of such insurance as
hereinafter provided; provided, however, such trust arrangement satisfies the
-------- -------
requirements of the Mortgages and Superior Leases. Concurrently with the
collection of any insurance proceeds attributable to the damage of Tenant's
Property, Tenant's Work and Tenant improvements and betterments, Tenant shall
pay to Landlord or such insurance trustee, if permitted, (i) the amount of any
deductible under the policy insuring Tenant's Property, Tenant's Work and any
Tenant improvements and betterments, and (ii) the amount, if any, by which the
cost of repairing and restoring Tenant Property, Tenant's Work and any Tenant
improvements and betterments as estimated by a reputable contractor designated
by Landlord exceeds the available insurance proceeds therefor. Provided this
Lease shall then be in full force and effect and Tenant shall not then be in
default in the observance or performance of any of the terms and provisions of
this Lease which are of a monetary nature and in connection with which default
Landlord shall have commenced legal action against Tenant, Landlord or the
insurance trustee as the case may be shall disburse such insurance proceeds to
Tenant from time to time (but in no event more frequently than once per month)
only if Tenant shall have submitted to Landlord or the insurance trustee as the
case may be with each request for disbursement:
(i) paid invoices covering Tenant's Restoration Work so
performed and cancelled checks and/or receipted bills evidencing the
expenditure of monies equal to the full amount requested;
(ii) a written certificate from Tenant's architect stating that:
(1) Tenant's Restoration Work described on such invoices has been
substantially completed substantially in accordance with the plans and
specifications approved by Landlord, to the extent such approvals are
necessary pursuant to Article 5 hereof; (2) such portion of Tenant's
Restoration Work has been paid for in full by Tenant; and (3) all
contractors, subcontractors and materialmen have delivered to Tenant
waivers of lien with respect to such Tenant's Restoration Work so
performed, copies of which shall have been delivered to Landlord, or, that
all contractors, subcontractors and materialmen have delivered to Tenant,
prior to the commencement of such Tenant's Restoration Work, agreements
whereby the contractors, subcontractors or materialmen agree that they
shall not file a notice of intention with respect thereto; and
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(iii) such other evidence as Landlord may reasonably require,
that such Tenant's Restoration Work described on such invoices has been
properly completed.
(d) The amounts due in accordance with subsections 13.0l(c)(i)and
(ii) first appearing above shall be payable by Tenant to Landlord upon demand
after collection of insurance proceeds as Additional Rent.
Section 13.02. Tenant shall not be entitled to terminate this Lease
due to, and no damages, compensation or claims shall be payable by Landlord in
connection with, any inconvenience, loss of business or annoyance arising from
any repair or restoration of any portion of the Premises or the Building
pursuant to this Article 13.
Section 13.03.
(a) The provisions of this Article 13 shall be considered an express
agreement governing any case of damage or destruction of the Premises by fire or
other casualty, and any law of the State providing for such a contingency in the
absence of an express agreement, and any other applicable law, ordinance or
regulation of like import, now or hereafter in force, shall have no application
in such case.
(b) Tenant hereby waives the benefit of N.J.S.A. Title 46, Chapter 8,
Sections 6 and 7.
Section 13.04.
(a) Tenant shall give notice to Landlord in case of fire or accident
in the Premises and/or in the Building, promptly after becoming aware of same.
(b) Landlord shall use all commercially reasonable efforts to make
any repair or restoration to the Premises promptly and in such manner as to not
unreasonably interfere with Tenant's use and occupancy of the Premises, but
Landlord shall not be required to do such repair or restoration work except
during Business Hours of Business Days unless requested by Tenant, in which
event Tenant shall pay, as Additional Rent, the additional cost of same in
excess of insurance proceeds made available to Landlord.
ARTICLE 14
EMINENT DOMAIN
--------------
Section 14.01. If the whole of the Real Property, the Building and/or
the Premises shall be acquired or condemned for any public or quasi-public use
or purpose (each such event is called a "Taking") this Lease and the Term shall
end as of the date of the vesting of title (the "Date of Taking") with the same
effect as if the Date of Taking were the Expiration Date, and the Fixed Rent and
Additional Rent payable hereunder shall be prorated and adjusted as of the Date
of Taking.
Section 14.02.
(a) If only a part of the Building or the Real Property shall be
subject to a Taking, then, except as hereinafter provided in this Article 14,
this Lease and the
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Term shall continue in full force and effect. If a part of the Premises shall
be subject to a Taking, and this Lease and the Term shall not be terminated
pursuant hereto, Landlord, at Landlord's expense, shall restore that part of the
Premises not subject to a Taking, so as to constitute tenantable Premises;
provided, however, that if the net available condemnation proceeds, less the
-------- -------
actual cost, fees and expenses incurred in connection with the collection of
such proceeds, are insufficient to complete and pay for all such restoration, as
estimated by a reputable contractor, registered architect or licensed
professional engineer designated by Landlord, Landlord may elect to terminate
this Lease by giving Tenant notice to such effect within ten (10) days after
Landlord has determined that such condemnation proceeds are insufficient,
unless, within fifteen (15) days after Landlord has delivered to Tenant such
notice of termination, Tenant shall have deposited with Landlord the amount of
the deficiency in the condemnation proceeds necessary to restore the Building
and/or the Premises, in which event Landlord shall proceed to so restore as
provided hereinabove. In the event that Landlord elects to terminate this Lease
as aforesaid, this Lease shall terminate on the date set forth in such notice as
if such date were the Expiration Date set forth herein, which termination date
shall in no event be less than thirty (30) days after the giving of Landlord's
termination notice to Tenant, Tenant shall transfer, promptly vacate and
surrender the Premises to Landlord, and the Fixed Rent and Additional Rent shall
be apportioned appropriately and shall be paid up to and including the date of
such Taking. Notwithstanding the foregoing, in no event shall Landlord be
required to repair, restore or replace any of Tenant's Property, Tenant's Work
or Tenant's betterments or improvements.
(b) If a part of the Premises is included in the part of the Real
Property subject to a Taking, from and after the Date of Taking, the Fixed Rent
and Tenant's Proportionate Share shall be reduced in the proportion which the
area of the part of the Premises so subject to such Taking bears to the total
area of the Premises immediately prior to such Taking.
Section 14.03.
(a) If more than fifty percent (50%) of the Building shall be subject
to a Taking, Landlord, at Landlord's sole option, may give to Tenant, within
sixty (60) days next following the date upon which Landlord shall have received
notice of the Date of Taking, not less than thirty (30) days' notice of
Landlord's termination of this Lease.
(b) If the part of the Real Property subject to a Taking shall
contain more than fifty percent (50%) of the total area of the Premises
immediately prior to such Taking, or if, by reason of such Taking, in the
reasonable good faith judgment of Tenant, Tenant may not continue feasible
operation of its business at the remaining portion of the Premises, or no longer
has reasonable means of access to the Premises, or if more than fifty percent
(50%) of the parking spaces available to Tenant hereunder such that there shall
thereafter be less than one (1) parking space per one thousand (1,000) square
feet of rentable space in the Premises after such Taking and said spaces remain
unavailable for more than six. (6) months, Tenant may give to Landlord, within
sixty (60) days next following the date upon which Tenant shall have received
notice of the Date of Taking, not less than thirty
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(30) days' notice of Tenant's termination of this Lease.
(c) If any such notice of termination given by Landlord or Tenant, as
the case may be, this Lease and the Term shall come to an end and expire upon
the date set forth in said notice, which termination date shall, in no event, be
less than thirty (30) days after the giving of such notice, with the same effect
as if said date were the Expiration Date.
(d) In the event of any termination of this Lease pursuant to this
Section 14.03, the Fixed Rent and Additional shall be prorated and adjusted
appropriately as of the Date of Taking and any prepaid portion of Fixed Rent or
Additional Rent for any period after the Date of Taking shall be refunded by
Landlord to Tenant.
Section 14.04.
(a) In the event of any Taking of all or any part of the Real
property, subject to the provisions of Section 14.06 hereof, Landlord shall be
entitled to receive the entire award for any such Taking. Tenant hereby agrees
that Tenant shall have no claim against Landlord or the condemning authority for
the value of any unexpired portion of the Term, and Tenant hereby expressly
waives any right to such claim and assigns to Landlord all of its right, title
and interest in and to any such award.
(b) Nothing contained in this Section 14.04 or Section 14.06 shall be
deemed to prevent Tenant from making a claim in any condemnation proceeding for
moving expenses or the then unamortized value of Tenant's Work in excess of the
amount of Landlord's Contribution, on the condition that any such award to
Tenant shall in no event reduce, affect or impair the amount of the award
otherwise payable to Landlord.
Section 14.05. The terms "Taking", "condemnation" and "acquisition"
as used herein shall include any agreement in lieu of, or in anticipation of the
exercise of the power of eminent domain between the lessor under a Superior
Lease or Landlord and any Legal Authority authorized to exercise such power of
eminent domain.
Section 14.06.
(a) If any portion of the Real Property shall be subject to a Taking
which results in a termination of this Lease, as provided in this Article, the
rights of Landlord and Tenant in and to the net award or awards (i.e., after
deducting reasonable fees and expenses of collection and the amount of the award
payable to the lessor of a Superior Lease, provided such Superior Lease was in
existence on the date the Taking or condemnation was initiated), shall be as
follows and in the following order of priority:
(i) there shall first be paid to the holder of any Mortgage to
which this Lease is or shall be subordinate, the unpaid balance of principal and
interest due on such Mortgage, provided such Mortgage was in existence on the
date the Taking or condemnation was initiated;
(ii) Landlord shall then be entitled to (A) the principal amount
of a mortgage, which Landlord could
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reasonably have obtained in an arms-length transaction as of the date
immediately prior to the Taking, assuming for such purpose that no Taking is
forthcoming (the "Maximum Mortgage Amount", which Maximum Mortgage Amount shall
be calculated as provided in subsection 14.06(c) herein), less (B) the amount
paid to the holder of any Mortgage pursuant to subsection 14.04(a)(i) above; and
(iii) the balance, if any, of said award shall be divided between
Landlord and Tenant in the same proportion that the value of the unexpired
portion of Landlord's interest under the "Ground Lease" (as such term is defined
herein) which is subject to the Taking, as reduced by amounts payable as
provided in subsections (i) and (ii) above, including, without limitation,
Landlord's entire interest as lessor under this Lease (the "Landlord's Leasehold
Estate"), bears to the value of the unexpired portion of Tenant's interest as
lessee under this Lease (the "Tenant's Leasehold Estate").
(b) If the value of Landlord's Leasehold Estate and/or the value of
Tenant's Leasehold Estate shall be determined in the proceeding pursuant to
which all or a portion of the Real Property shall have been taken, the values so
determined shall be conclusive upon Landlord and Tenant. If such values shall
not have been separately determined, such value shall be fixed by agreement
between Landlord and Tenant within forty-five (45) days after the date of the
final determination of the amount of the award, together with the amount, if
any, payable to Landlord pursuant to subsection (a) above. If such amounts are
not fixed by agreement between Landlord and Tenant within said forty-five (45)
day period, the amounts payable to Landlord and Tenant pursuant to subsections
14.06(a)(ii) and (iii) shall be determined by arbitration in the manner set
forth in Section 42.04, except that the matters to be submitted and resolved
shall be those in question under this Section 14.06.
(c) For purposes of this Section 14.06:
(i) "Maximum Mortgage Amount" shall be deemed to be equal to
eighty (80%) percent of the value of Landlord's Leasehold Estate, such value to
be determined by capitalizing the "Net Operating Income" (as such term is
hereinafter defined), with respect Landlord's Leasehold Estate for the twelve
month period prior to the date of the Taking at the then prevailing "cap rate"
generally utilized by institutional lenders with respect to first class office
properties in the "Gold Coast" area;
(ii) "Net Operating Income" for any period shall mean an amount
which shall be determined by subtracting "Operating Expenses" for such period
from "Gross Operating Income" (as such terms are hereinafter defined) for such
period;
(iii) "Operating Expenses" for any period shall mean all costs
and expenses incurred by Landlord for the operation, management, leasing and
maintenance with respect to Landlord's Leasehold Estate including, without
limitation, all costs and expenses for which Landlord is responsible under this
Lease and the Ground Lease and all costs and expenses incurred by Landlord with
respect to the Retail Premises, but excluding any capital expenses incurred by
Landlord in
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connection with Landlord's Leasehold Estate; and
(iv) "Gross Operating Income" for any period shall mean all
income, rentals, revenues and consideration of whatever form or nature, received
by or paid to or for the account or benefit of Landlord, derived from any
operations with respect to Landlord's Leasehold Estate for such period,
including, without limitation, rent and additional rent under this Lease and the
leases affecting the Retail Premises excluding, however, any additional rent
which represents reimbursement or direct payment of operating expenses by the
tenants under such leases.
Section 14.07.
(a) In the event of a Taking of the temporary use or occupancy of all
or any part of the Premises during the Term of this Lease, Tenant shall be
entitled, except as hereinafter set forth, to receive that portion of the award
for such Taking which represents compensation for the use and occupancy of the
Premises and, if so awarded, for the Taking of Tenant's Property and for moving
expenses.
(b) This Lease shall be and remain unaffected by such temporary
Taking and Tenant shall continue to be responsible for all of its obligations
hereunder insofar as such obligations are not affected by such temporary Taking
and shall continue to pay in full the Fixed Rent and Additional Rent when due.
(c) If the period of temporary Taking shall extend beyond the
Expiration Date, that part of the award which represents compensation for the
use or occupancy of the Premises, or a part thereof, shall be divided between
Landlord and Tenant so that Tenant shall receive so much thereof as represents
the period prior to and including the Expiration Date and Landlord shall receive
so much thereof as represents the period subsequent to the Expiration Date.
(d) All moneys received by Tenant as, or as part of, an award for a
temporary Taking for a period beyond the date to which the Fixed Rent and
Additional Rent hereunder have been paid by Tenant shall be received, held and
applied by Tenant as a trust fund for payment of the Fixed Rent and Additional
Rent due hereunder.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
-------------------------
Section 15.01.
(a) Subject to the terms and conditions of this Article 15, Tenant,
for itself, its heirs, distributees, executors, administrators, legal
representatives, officers, directors, shareholders, successors and assigns,
expressly covenants that it shall not assign, mortgage, pledge, encumber or
otherwise transfer this Lease, nor sublet, nor underlet, nor suffer, nor permit
the Premises, or any part thereof, to be used or occupied by others (whether for
desk space, mailing privileges or otherwise), without the prior written consent
of Landlord in each instance.
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(b) If this Lease shall be assigned, or if the Premises, or any part
thereof, shall be sublet or underlet or occupied by anybody other than Tenant,
or if this Lease or the Premises or Tenant's Property and Tenant's Work shall be
encumbered (whether by operation of law or otherwise) with or without Landlord's
consent, then Landlord may, after default by Tenant, collect rent from the
assignee, subtenant or occupant, and apply the net amount collected to the Fixed
Rent and Additional Rent herein reserved, but no assignment, subletting,
occupancy or collection shall be deemed a waiver of the provisions hereof, the
acceptance of the assignee, subtenant or occupant as tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained and Tenant shall remain fully liable for the performance and
due observance of all obligations of Tenant under this Lease, except as
expressly provided in Section 15.04 hereof.
(c) The consent by Landlord to an assignment or subletting shall not
in any way be construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or subletting (it being agreed
that any renewal of any sublease to the same subtenant and for the same use
shall not require Landlord's express consent thereto). In no event shall any
permitted subtenant assign or encumber its sublease or further sublet all or any
portion of its sublet space, or otherwise suffer or permit the sublet space or
any part thereof, to be used or occupied by others, without Tenant's first
complying with the provisions of this Article 15.
Section 15.02. If Tenant shall, at any time or from time to time
during the Term, desire to assign this Lease or sublet all or part of the
Premises, Tenant shall give notice thereof (the "Tenant's Notice") to Landlord,
which Tenant's Notice shall be accompanied by (i) a statement setting forth, in
reasonable detail, the identity of the proposed assignee or subtenant, the
nature of its business and its proposed use of the Premises, and (ii) in the
case of an assignment described in subsection 15.04(b) hereof, current financial
information with respect to the proposed assignee (including its most recent
financial report) sufficient to permit Landlord to make a reasoned judgment with
respect to such party's financial condition.
Section 15.03. (a) Provided that Tenant is not then in default of
any monetary or material obligation under this Lease, beyond any applicable
grace period herein provided for the curing of such default, as of the time of
Landlord's consent to the proposed assignment or sublease, Landlord's consent
(which must be in writing) to the proposed assignment or sublease shall not be
unreasonably withheld or delayed; provided, however, and upon condition that:
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(i) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business or activity, and the Premises, or the
relevant part thereof, will be used in a manner, which (A) is in keeping
with the then standards of the Building as a first class office building,
(B) is limited to the Permitted Uses of the Premises as set forth in this
Lease, and (C) does not violate the restrictions set forth in Article 3
hereof;
(ii) The proposed assignee or subtenant is a
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reputable person or entity of good character, whose occupancy in the
Building would not be detrimental to the character, peace or security of
the Building or the Project;
(iii) Except for any proposed assignment or subletting to a
"Japanese Company" (as hereinafter defined), the proposed assignee or
subtenant is not a person or entity (or affiliate of a person or entity)
with whom Landlord or Landlord's agent is then "actively negotiating to
rent reasonably comparable space in the Building or the Project" (as such
term is hereinafter defined) it being understood and agreed that Landlord
shall be deemed to be actively negotiating to rent reasonably comparable
space in the Building or the Project to a person or entity if (A) during
the first four (4) years of the Term, Landlord (or its designee) shall have
received a written proposal and shall be actively conducting meetings or
discussions with such person or entity (or its or their designee) during
the six (6) month period immediately preceding the giving of a Tenant's
Notice with respect to such party, or (B) from and after the first four (4)
years of the Term, Landlord (or its designee) shall have proceeded with
such ongoing negotiations to the point where a proposed lease agreement has
been actually furnished to such person or entity (or its or their designee)
during such six (6) month period immediately preceding the giving of such
Tenant's Notice and such negotiations shall be continuing;
(iv) Except for any subletting to a Japanese Company during the
first four (4) years of the Term, any subletting of premises in excess of
one (1) floor of the Building shall be at a net annual rental rate per
rentable square foot of space which is greater than the net annual rental
rate per rentable square foot of reasonably comparable space at which other
office premises at the Project are then being offered for lease by Landlord
for a reasonably comparable term (it being understood that the foregoing
shall not be applicable to proposed subleases of a full floor, or a portion
of a full floor of the Building);
(v) the proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in, and the jurisdiction of the courts
of, the State; and
(vi) The proposed use shall not be inconsistent with any
Environmental Laws or environmental related covenants set forth in this
Lease.
(b) Landlord shall, within five (5) Business Days of request
therefor, deliver to Tenant a schedule of net annual rental rates then being
asked for reasonably comparable office space for a reasonably comparable term
elsewhere in the Building or the Project. Landlord shall grant or deny its
consent (together with specific reasons for such denial) to a proposed
assignment or sublease within ten (10) Business Days from the later of (i)
Tenant's request for such consent, and (ii) Tenant's delivery to Landlord of
such information reasonably requested by Landlord in connection with its review
of the standards set forth in Section 15.03(a) above. In the event Landlord
fails, within such period of ten (10) Business Days, to either (i) grant or
deny its consent, together with
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specific reasons for any such denial, or (ii) request additional information in
accordance with Section 15.03(a) above, then Landlord's approval of such
proposed assignment or sublease shall be deemed to have been given.
Section 15.04.
(a) Each sublease made pursuant to Section 15.03 hereof shall be
subject to all of the covenants, agreements, terms, provisions and conditions
contained in this Lease.
(b) Notwithstanding any such sublease or assignment and/or acceptance
of Rent by Landlord from any subtenant or assignee, Tenant shall and will remain
fully liable for the payment of the Fixed Rent and Additional Rent due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions and conditions contained in this Lease on Tenant's part to be
observed and performed and all acts and omissions of any licensee or subtenant
or assignee or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this Lease, and any such violation shall
be deemed to be a violation by Tenant, provided, however, that Tenant herein
-------- -------
named shall be released and relieved of and from all liabilities and obligations
under this Lease if and only if (i) Landlord shall give its consent to such
assignment pursuant to Section 15.03 hereof, (ii) the assignee shall deliver to
Landlord an agreement as described in Section 15.08 hereof, (iii) the holder of
any Mortgage(s) shall give its (their) consent to such release of Tenant
herefrom, and (iv) either (X) Guarantor shall confirm to Landlord in writing
that the Guaranty remains in full force and effect notwithstanding such
assignment and release of Tenant herein named, or (Y) the assignee shall have a
net worth (calculated in accordance with generally accepted accounting
principles consistently applied) equal to not less than eight (8) times the
aggregate of all remaining Fixed Rent obligations of Tenant for the balance of
the Term of this Lease.
Section 15.05. With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this Lease, it is further agreed
that:
(a) No sublease or subletting shall be for a term ending later than
one (1) day prior to the Expiration Date of this Lease;
(b) No sublease shall be delivered, and no subtenant shall take
possession of the Premises, or any part thereof, until an executed counterpart
of such sublease has been delivered to Landlord;
(c) Each sublease shall be subject and subordinate to this Lease and
to the matters to which this Lease is or shall be subordinate, and each
subtenant by entering into a Sublease is deemed to have agreed that in the event
of termination, re-entry or dispossession by Landlord under this Lease, Landlord
may, at its option, take over all of the right, title and interest of Tenant, as
sublandlord, under such sublease, and such subtenant shall, at Landlord's
option, attorn to Landlord pursuant to the then executory provisions of such
sublease, except that Landlord shall not be: (i) liable for any previous act or
omission of Tenant under such sublease; (ii) subject to any credit, demand,
claim, counter-
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claim, offset or defense, not expressly provided in such sublease, which
theretofore accrued to such subtenant against Tenant; (iii) bound by any
previous modification of such sub-lease, or by any previous prepayment of more
than one (1) month's Fixed Rent or Additional Rent; (iv) bound by any covenant
or obligation of Tenant to perform, undertake or complete any work in the
subleased space of the Building or to prepare it for occupancy beyond Landlord's
obligations there-for under this Lease; (v) required to account for any security
deposit of the subtenant other than any security deposit actually delivered to
Landlord by Tenant; (vi) bound by any obligation to make any payment to such
subtenant or grant any credits, except for services, repairs, maintenance and
restoration provided for under the sublease to be performed after the date of
such attornment; (vii) responsible for any monies owing by Landlord to the
credit of Tenant; and (viii) required to remove any person occupying the
Premises or any part thereof;
(d) Each subtenant shall execute and deliver to Landlord any
instruments Landlord may reasonably request to evidence and confirm the
aforedescribed attornment. Each subtenant or licensee of Tenant shall be deemed
automatically upon, and as a condition of, occupying or using the Premises or
any part thereof, to have given a waiver of the type described in and to the
extent and upon the conditions set forth in this Article 15. The provisions of
this Section 15.05 shall be self-operative and no further instrument shall be
required to give effect to this provision.
(e) (i) Notwithstanding anything to the contrary contained in this
Article 15, Landlord hereby agrees to and upon request of Tenant shall, confirm
in writing to each "Full Floor Subtenant" (as such term is hereinafter defined),
that with respect to each subtenant under any sublease which shall demise a
portion of the Premises consisting of not less than one (1) full floor of the
Building (each a "Full Floor Subtenant") and which shall contain the provisions
set forth in subsection 15.05(e)(ii) below, if this Lease shall be cancelled or
terminated prior to the Expiration Date hereof due to Tenant's default, Landlord
shall not cancel the sublease of such Full Floor Subtenant nor shall Landlord
otherwise name such Full Floor Subtenant in any action against Tenant, or
otherwise disturb such Full Floor Subtenant's quiet and peaceful possession of
the subleased premises if and on condition that: (i) such Full Floor Subtenant
shall not be in default under its sublease, beyond any applicable grace periods
provided therein for the curing of such default, and (ii) the Guarantor
hereunder shall confirm in writing to Landlord that the Guaranty shall continue
in full force and effect with respect to all of the obligations of such Full
Floor Subtenant to be performed or observed under such sublease (as same may be
modified pursuant hereto).
(ii) If this Lease shall be cancelled or terminated as aforesaid,
then, with respect to any Full Floor Subtenant, Landlord shall take over all of
the right, title and interest of Tenant, as sublandlord, under such sublease,
except that all of the limitations described in subsections (i) through (viii)
of subsection 15.05(c) hereof shall apply to Landlord. In addition, it shall be
expressly understood and agreed (and the non-disturbance agreement with respect
to any Full Floor Subtenant shall so provide) that notwithstanding anything to
the contrary contained in such sublease, Landlord shall have no obligation to
provide any maintenance, repairs or other services to such Full Floor
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Subtenant which shall be in excess of or in addition to the standard office
services provided by Landlord or its affiliates to tenants at other commercial
office buildings in the Project, and the Full Floor Subtenant shall pay to
Landlord, as Additional Rent during each year of the term of such sublease, to
the extent not otherwise required to be paid under such sublease (x) the cost of
all Real Estate Taxes and expenses of maintenance, repairs, providing services
and general operation and management of the Building, the Premises and the Real
Property, including all Operating Expenses and (y) any and all other charges
payable by Tenant to Landlord pursuant to the terms of this Lease, all such
amounts to be multiplied by a fraction, the numerator of which shall be the
number of rentable square feet in such subleased premises, and the denominator
of which shall be the number of rentable square feet in the Premises.
(iii) Any such Full Floor Subtenant shall execute and deliver to
Landlord any instruments (including, but not limited to, a new agreement of
lease) as Landlord may reasonably request to evidence the aforedescribed
attornment. Tenant shall reimburse Landlord as Additional Rent upon demand, for
all costs and expenses reasonably and actually incurred by Landlord in
connection with the preparation and review of Landlord's agreements not to
disturb Full Floor Subtenants and other correspondence and notices in connection
therewith, including, without limitation, reasonable legal costs actually
incurred in connection with each such agreement.
(iv) Landlord's obligation to execute and deliver a non-
disturbance and attornment agreement in favor of any Full Floor Subtenant shall
be further conditioned upon the following: (a) the fixed rent payable by such
Full Floor Subtenant per rentable square fact of its sublease shall be at an
annual rate not less than the Applicable Rental Rate hereunder and (b) either
(1) such Full Floor Subtenant shall, in Landlord's reasonable judgment, be
financially capable of meeting the obligations imposed under the sublease as the
same mature, or (2) such Full Floor Subtenant shall, either upon execution of
the sublease or as a condition to Landlord's obligations to recognize such
subtenant under the non-disturbance agreement, post a reasonable security
deposit to assure performance of its obligation under the sublease.
Section 15.06.
(a) If Tenant is a corporation, the provisions of subsection 15.01(a)
hereof shall apply to a transfer (by one or more transfers) of a majority of the
stock of Tenant which results in a change of control of Tenant as if such
transfer of stock of Tenant were an assignment of this Lease; but said
provisions shall not apply to Tenant if and so long as Tenant's shares are
publicly traded on a recognized national or international securities exchange,
or to transactions with a corporation into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are transferred;
provided, however, that in connection with any such merger, consolidation or
-------- -------
transfer of assets:
(i) the successor to Tenant is a reputable entity of good
character and has a net worth computed in accordance with generally accept
accounting principles
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consistently applied, at least equal to the greater of (A) the net worth of
Tenant herein named immediately prior to such merger, consolidation or transfer,
or (B) the net worth of Tenant herein named on the date of this Lease;
(ii) proof reasonably satisfactory to Landlord of such net worth
prior to the effective date of any such transaction shall have been delivered to
Landlord at least thirty (30) days prior to the effective date of any such
transaction;
(iii) a duplicate original instrument of assignment in form and
substance reasonably satisfactory to Landlord, duly executed by Tenant, shall
have been delivered to Landlord at least thirty (30) days prior to the effective
date of any such transaction; and
(iv) an instrument in form and substance satisfactory to
Landlord, duly executed by the assignee in which such assignee assumes (as of
the commencement date of such assignment instrument) observance and performance
of, and agrees to be personally bound by, all of the terms, covenants and
conditions of this Lease on Tenant's part to be performed and observed, shall
have been delivered to Landlord at least thirty (30) days prior to the effective
date of any such transaction.
(b) If Tenant is a partnership or joint venture, the provisions of
Section 15.01(a) hereof shall apply to a transfer (by one or more transfers) of
the equity and/or profit and loss interest and/or the interest in the
distributions of profits and losses of such partnership or joint venture which
results in a change of control of such partnership or joint venture as if such
transfer of an interest in the equity and/or profit or loss interest, and/or the
interest in the distributions of profits or losses or such partnership or joint
venture which results in a change of control of such partnership as joint
venture were an assignment of this Lease.
(c) If Tenant is a partnership or joint venture, or is comprised of
two (2) or more persons individually and/or as co-partners of a partnership or
joint venture, or if Tenant's interest in this Lease shall be assigned to a
partnership or joint venture, or to two (2) or more persons, individually and/or
as co-partners of a partnership or joint venture, pursuant to this Article 15
(any such partnership and such persons are collectively called a "Partnership
Tenant"), the following provisions of this Section shall apply to such
Partnership Tenant:
(i) the liability of each of the parties comprising Partnership
Tenant shall be joint and several;
(ii) each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by, any written instrument which
may hereafter be executed, changing, modifying or discharging this Lease, in
whole or in part, or surrendering all or any part of the Premises to Landlord or
renewing or extending this Lease and by any notices, demands, requests or other
communications which may hereafter be given, by Partnership Tenant or by any of
the parties comprising Partnership Tenant; and
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(iii) if a Partnership Tenant shall admit new partners, all of
such new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed;
(d) The limitations set forth in this Section 15.06 shall be deemed
to apply to subtenant(s), assignee(s) and guarantor(s) of this Lease, if any,
and any transfer by any such entity in violation of this Section 15.06 shall be
deemed to be a transfer in violation of Section 15.01 hereof.
Section 15.07. Tenant may, without Landlord's consent, permit any
corporations or other business entities or persons which control, are controlled
by, or are under common control with Tenant (individually and collectively, a
"related entity") to sublet all or part of the Premises for any Permitted Use,
subject however to compliance with Tenant's obligations under this Lease. Such
sublease shall not be deemed to vest in any such related entity any right or
interest in this Lease or the Premises nor shall it relieve, release, impair or
discharge any of Tenant's obligations hereunder.
Section 15.08. Any assignment or transfer, whether made with
Landlord's consent pursuant to Section 15.01 hereof or without Landlord's
consent to the extent permitted under this Lease, shall be made only if, and
shall not be effective until, the assignee shall execute, acknowledge and
deliver to Landlord an agreement in form and substance reasonably satisfactory
to Landlord whereby the assignee shall assume the obligations of this Lease on
the part of Tenant to be performed or observed and whereby the assignee shall
agree that the provisions of Section 15.01 hereof shall, notwithstanding such
assignment or transfer, continue to be binding upon it in respect of all future
assignments and transfers.
Section 15.09. The joint and several liability of Tenant and any
immediate or remote successor-in-interest of Tenant and the due performance of
the obligations of this Lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord, or any grantee or assignee of Landlord by way of
mortgage or otherwise, extending the time, or modifying any of the obligations,
of this Lease, or by any waiver or failure of Landlord, or any grantee or
assignee of Landlord by way of mortgage or otherwise, to enforce any of the
obligations of this Lease.
Section 15.10. The listing of any name other than that of Tenant,
whether on the doors of the Premises or the Building directory, or otherwise,
shall not, in and of itself, operate to vest any right or interest in this Lease
or in the 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 Premises or to
the use or occupancy thereof by others.
Section 15.11. For purposes of this Article 15, (i) the term
"control" shall mean, in the case of a corporation, ownership, directly or
indirectly, of at least fifty (50%) percent of all the voting stock, and in the
case of a joint venture or partnership or similar entity, ownership, directly or
indirectly, of at least fifty (50%) percent of all of the legal and equitable
interest therein; and (ii) the term
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"Japanese Company" shall mean any corporation, partnership or other business
entity which is organized and validly existing pursuant to the laws of the
nation of Japan, or any corporation, partnership or other business entity which
is controlled by or under common control with any such company.
Section 15.12. Tenant shall have the right, upon prior written notice
to Landlord but without Landlord's consent therefor, to mortgage all or any part
of Tenant's interest in this Lease to an institutional mortgagee (such leasehold
mortgage or any replacement thereof hereinafter called the "Leasehold
Mortgage"), including Tenant's Work, without any restriction except as set forth
in this Section 15.12 and Tenant may assign this lease as security for such
Leasehold Mortgage. With respect to the Leasehold Mortgage, Landlord agrees to
give a copy of any notice of any default under this Lease given to Tenant to the
holder of the Leasehold Mortgage (such holder, the "Leasehold Mortgagee") who
shall notify Landlord in writing of its interest in this Lease. From and after
the time Landlord is notified of the name and address of the Leasehold Mortgagee
and has provided Landlord with a true and corrected copy of such recorded
Leasehold Mortgage, the following provisions shall apply until the time, if any,
when the Leasehold Mortgagee shall notify Landlord in writing that said
Leasehold Mortgage has been satisfied in full:
(a) Except pursuant to the terms and provisions of this Lease, there
shall be no voluntary cancellation, surrender, acceptance of surrender or
material modification of this Lease without the prior consent in writing of any
such Leasehold Mortgagee and no such cancellation, surrender or modification
shall be effective without such consent.
(b) Upon serving upon Tenant any notice of default pursuant to the
terms of this Lease Landlord shall, at the same time and in the same manner,
serve a copy of such notice upon the Leasehold Mortgagee, and no notice by
Landlord to Tenant hereunder shall be deemed to have been duly given unless and
until a copy thereof has been so served. Such Leasehold Mortgagee shall
thereupon have the same period (plus the additional period hereinafter
provided), after service of such notice upon it, for remedying the default or
causing the same to be remedied, as is given Tenant after service of such notice
upon it.
(c) If Tenant shall be in default hereunder, the Leasehold Mortgagee
shall have the right to remedy such default, or cause the same to be remedied,
and Landlord shall accept such performance by or at the direction of such
Leasehold Mortgagee as if the same had been done by Tenant.
(d) For the purposes of this Section, no default on the part of Tenant
in the performance of work required to be performed or acts to be done, or
conditions to be remedied, shall be deemed to exist, if steps shall, in good
faith, have been commenced promptly by Tenant or by or at the direction of the
Leasehold Mortgagee to rectify the same and shall be prosecuted to completion
with diligence and continuity, provided that such completion occurs within
ninety (90) days of the date such work or acts were required to be performed or
done.
(e) In case of a default by Tenant other than in the payment of money
hereunder, Landlord will take no action to
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effect a termination of the Term of this Lease by the service of any notice
provided for in Article 18 hereof, or otherwise, without first giving to the
Leasehold Mortgagee reasonable time within which either to (i) obtain possession
of the Premises (including possession by a receiver) and cure such default in
the case of a default which is unsusceptible of being cured by the Leasehold
Mortgagee when the Leasehold Mortgagee has obtained possession, or (ii)
institute foreclosure proceedings and complete such foreclosure, or otherwise
acquire Tenant's interest in this Lease, with diligence and continuity and
thereafter cure such default in the case of a default which is not so
susceptible of being cured by the Leasehold Mortgagee provided (A) the Leasehold
Mortgagee assumes by a written instrument the obligations of Tenant under this
Lease, (B) the Leasehold Mortgagee or the Tenant pays all Fixed Rent and
Additional Rent and any other monetary obligations of Tenant under this Lease,
(C) the Premises are not endangered and (D) Landlord's interest under any
Superior Lease or Mortgage is not in danger of being foreclosed. Notwithstanding
the foregoing, the Leasehold Mortgagee shall not be required to continue such
possession or continue such foreclosure proceedings if the default which would
have been the reason for serving such a notice shall be cured, and provided that
nothing herein shall preclude Landlord from exercising any rights or remedies
under this Lease with respect to any other default by Tenant during any period
of such forbearance; and any default not susceptible of being cured by the
Leasehold Mortgagee shall, upon completion of foreclosure proceedings or
acquisition of Tenant's interest in the Lease, be and shall be deemed to have
been waived by Landlord.
(f) If this Lease shall terminate by reason of a default of Tenant,
Landlord, within thirty (30) days following the termination of this Lease based
on a default of Tenant, shall serve upon the Leasehold Mortgagee written notice
of such termination, together with a statement of any and all sums which are due
at the time to Landlord under this Lease but for such termination, and of all
other defaults, if any, then known to Landlord. Such Leasehold Mortgagee shall
thereupon have the option to obtain a new lease in accordance with and upon the
following terms and conditions:
In the case of a termination of this Lease based upon a default of
Tenant, then upon written request of the Leasehold Mortgagee, made within thirty
(30) days after the service by Landlord of the aforementioned notice, Landlord
shall enter into a new lease of the Premises with the Leasehold Mortgagee or
with its designee. Such new lease shall be effective as of the date of such
termination, shall be for the remainder of the Term of this Lease, and shall be
at the existing Fixed Rent and Additional Rent, and upon all the agreements,
terms, covenants and conditions hereof. The tenant named in such new lease
shall, at the time of the execution and delivery of such new lease, pay any and
all sums which would at such time be due under this Lease, but for its
termination as aforesaid, and pay all expenses, including reasonable counsel
fees, court costs and disbursements incurred by Landlord in connection with such
default and termination, the recovery of possession of the Premises, and the
preparation, execution and delivery of such new lease, and shall thereafter
diligently remedy any existing default under this Lease, provided, however, that
nothing herein contained shall require any Leasehold Mortgagee or its
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designee, as a condition to the exercise of its rights hereunder to obtain a new
lease or cure any default of Tenant not reasonably susceptible of being cured by
such Leasehold Mortgagee.
(g) So long as any Leasehold Mortgage is in existence, unless the
Leasehold Mortgagee shall otherwise expressly consent in writing, Landlord's
ground leasehold interest under the "Ground Lease" (as such term is hereinafter
defined) and the leasehold estate of Tenant herein created by this lease shall
not merge but shall retain separate and distinct, notwithstanding the
acquisition of said ground leasehold interest and said leasehold estate by
Landlord or by Tenant or by a third party, by purchase or otherwise.
(h) Landlord shall give the Leasehold Mortgagee prompt notice of any
legal proceedings between Landlord and Tenant relating to this Lease.
(i) Tenant shall pay any and all mortgage interest and amortization
under the Leasehold Mortgage at its own expense.
ARTICLE 16
ACCESS TO PREMISES
------------------
Section 16.01. Tenant shall permit Landlord, Landlord's agents and
any agents or employees of any public utility servicing the Building to erect,
use, maintain and replace ducts, pipes and conduits in and through the Premises;
provided, however, that (a) the usable area of the Premises utilized for office
-------- -------
purposes shall not be reduced thereby and the balance of the Premises shall not
be materially reduced thereby, and (b) any interruption of or interference with
Tenant's business at the Premises, which shall result from any of the foregoing
activities shall be kept to a minimum with Landlord providing, at its sole cost
and expense, any additional security personnel required for such activities.
Section 16.02. Landlord and Landlord's agents shall have the right to
enter the Premises at all reasonable times upon reasonable advance notice
(except in an emergency, in which case. no notice shall be required) and as
hereinafter provided in this Article 16, (a) for any of the purposes specified
in this Article 16, (b) to examine the same, (c) to exhibit them to prospective
purchasers, lessors or mortgagees of the Building or space therein, (d) to make
such repairs, alterations, improvements or additions as Landlord may be
permitted to perform in the Premises or to any other portion of the Building,
pursuant to, and in accordance with, any of the terms and provisions of this
Lease, following Tenant's default in the performance thereof, (e) to comply with
laws, regulations or other requirements of any Legal Authorities and Insurance
Bodies, (f) to take all material into and upon the Premises that reasonably may
be required therefor, and (g) to read any utility meters therein. Any such
entry by Landlord or Landlord's agents shall not constitute an eviction or
constructive eviction of Tenant, in whole or in part, and the Fixed Rent and
Additional Rent shall in no wise xxxxx while said exhibition, repairs,
alterations, improvements or additions are being made (except, however, that any
such repair, alteration or improvement work shall be performed by
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or on behalf of Landlord in accordance with the provisions of Section 16.06
hereof), by reason of loss or interruption of business of Tenant, or otherwise.
Section 16.03. During the two (2) years prior to the Expiration Date,
Landlord may exhibit the Premises to prospective tenants thereof upon the terms
set forth in Section 16.02 hereof.
Section 16.04. Subject to the provisions of Section 16.02 hereof, if
Tenant shall not be personally present to open and permit an entry into the
Premises, at any time and from time to time, when for any reason an entry
therein shall be necessary or permissible pursuant to the terms and pro-visions
of this Lease, Landlord and Landlord's agents may enter the public portions of
the Premises which are accessible without a key, and, in an emergency in which
(a) Tenant cannot be reached to open or permit entry to the Premises, or (b)
waiting for Tenant to open the Premises would result in material harm, Landlord
and Landlord's agents may forcibly enter the same, without rendering Landlord or
such agents, liable therefor (if during such entry Landlord and Landlord's
agents shall accord reasonable care to Tenant's property), and. without in any
manner affecting the obligations and covenants of this Lease.
Section 16.05.
(a) Tenant understands and agrees that any and all space in or
adjacent to the Premises used for shafts, stacks, stairways, chutes, pipes,
conduits, ducts, fan rooms, telephone rooms, heating, air cooling, plumbing and
other mechanical facilities, service closets, sinks and other Building
facilities, if and to the extent the same shall exclusively service the ground
floor portion of the Building not leased to Tenant, as well as the Building's
curtain wall facade are reserved to Landlord and persons authorized by Landlord,
and are not part of the Premises and Landlord and all persons authorized by
Landlord shall have the use thereof, as well as access thereto, through the
Premises, subject to the terms and conditions set forth in Section 16.01 hereof.
Tenant further understands and agrees that if any such space in or adjacent to
the Premises and other mechanical facilities, service closets, sinks and other
Building facilities service both the Premises and the ground floor portion of
the Building not leased to Tenant, Landlord as well as Tenant shall have use
thereof and access thereto, through the Premises, subject to the terms and
conditions set forth in Section 16.01 hereof. Tenant further acknowledges and
agrees that Tenant's access and use of the loading dock within the Building
shall be non-exclusive and that Landlord, for itself and all tenants of the
Retail Premises shall have access to and the right to use such loading dock,
subject to Tenant's reasonable security requirements, and provided that Landlord
shall reimburse Tenant for any additional costs and expenses of securing the
loading dock which would not otherwise be incurred by Tenant but for the use of
the loading dock by Landlord and/or the tenants of the Retail Premises. Tenant
further acknowledges and agrees that Landlord and all persons authorized by
Landlord shall have the use and access to the roof, in accordance with the
provisions of Article 43 herein.
(b) Landlord shall provide to Tenant, upon reasonable advance notice
from Tenant, reasonable access to
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all such spaces in the Building, as described in subsection 16.05(a), required
in connection with any work or other activity which Tenant desires or is
required to perform or undertake at the Premises, pursuant to this Lease.
Section 16.06. In the performance of any work in the Premises
referred to in this Article 16, Landlord shall use all reasonable efforts to
avoid or otherwise minimize interruption of or interference with Tenant's use of
the Premises, subject, however, to Force Majeure.
Section 16.07.
(a) Tenant shall permit any representative of fire, police, building,
sanitation or other department or instrumentality of any Legal Authority, entry
to the Premises.
(b) Tenant shall indemnify and hold Landlord harmless from and against
any liabilities, fees, costs and expenses arising or resulting from Tenant's
failure to provide the foregoing persons or entities with access to the
Premises, as aforesaid.
Section 16.08. Neither this Lease nor any use by Tenant of the
Premises shall give Tenant any easement or other right in, or to the use of, any
other portion of the Project, other than as expressly set forth in this Lease.
Section 16.09.
(a) Tenant shall share the use of the lobby area with Landlord in
order for Landlord to have access to the elevators and to exercise any rights of
access or entry as provided in this Lease.
(b) Landlord agrees and covenants that there shall be no retail
traffic permitted through the lobby area of the Building Premises including, but
not limited to, tenants of the Retail Premises or their employees or customers.
Without limiting the generality of the foregoing, there shall be no access from
the Retail Premises, except as may be required by Legal Authorities in the event
of emergency, as shown by the notation "Retail Secondary Access" on Exhibit 1-A
annexed hereto and made a part hereof. Landlord further agrees and covenants
that there shall be no delivery through the lobby area of any supplies,
inventory, merchandise or materials of any nature to the Retail Premises, but
that all such deliveries shall be made by way of private corridors having no
access to such lobby area.
(c) A portion of the Retail Premises may open out into the lobby area
as shown by the notation "Retail Access" on Exhibit 1-A annexed hereto and the
tenants at the Retail Premises and their employees and customers shall have non-
exclusive access with Tenant to the portion of the lobby indicated by cross-
hatching on Exhibit 1-A.
Section 16.10. Landlord shall make available to Tenant, without charge
therefor, an area to be selected by Landlord for Tenant's non-exclusive use with
Landlord for the purpose of housing gas meters for the Building and to satisfy
the requirements of the public utility with respect thereto. Landlord, at its
sole cost and expense, shall be responsible for causing gas service to be
brought to the Building.
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ARTICLE 17
NON-LIABILITY OF LANDLORD, LESSORS AND MORTGAGEES;
-------------------------------------------------
TENANT'S INDEMNIFICATION
------------------------
Section 17.01.
(a) The obligations of Landlord under this Lease shall not be binding
upon Landlord named herein after the sale, conveyance, assignment or transfer by
such Landlord (or upon any subsequent landlord after the sale, conveyance,
assignment or transfer by such subsequent landlord) of all its interest as
tenant under the ground leases of the Building and/or the Real Property, as the
case may be.
(b) In the event of any such sale, conveyance, assignment or transfer,
Landlord shall be and hereby is entirely freed and relieved of all existing and
future covenants, obligations and liabilities of Landlord hereunder (to the
extent of the interest transferred), and it shall be deemed and construed
without further agreement between the parties or their successors in interest or
the parties and the transferees of said property that such purchaser, grantee,
assignee or other transferee has assumed and agreed to carry out, undertake and
perform any and all covenants, obligations and liabilities of Landlord hereunder
(to the extent of the interest transferred).
Section 17.02.
(a) Neither the shareholders, principals, directors, officers, agents,
servants or employees of Landlord, if Landlord is a corporation, nor the
partners comprising Landlord (nor any of the shareholders, principals,
directors, officers, agents, servants or employees of such partners), if
Landlord is a partnership or joint venture, whether disclosed or undisclosed
(collectively, the "Parties"), shall be liable for the performance of Landlord's
obligations under this Lease. Tenant shall look solely to Landlord to enforce
Landlord's obligations hereunder and shall not seek any damages against any of
the Parties.
(b) The liability of Landlord for Landlord's obligations under this
Lease shall not exceed and shall be limited to, Landlord's estate and interest
as tenant under the ground leases of the Building and the Real Property as well
as the proceeds from any Taking and any insurance proceeds from a casualty, and
Tenant shall not look to any other property or assets of Landlord or the
property or assets of any of the Parties in seeking either to enforce Landlord's
obligations under this Lease or to satisfy or collect on a judgment for
Landlord's failure to perform such obligations. No other property or assets of
Landlord and/or the Parties shall be subject to levy, lien, execution,
attachment or other enforcement procedure.
Section 17.03.
(a) Neither Landlord, any lessor or any mortgagee, nor any of the
Parties of Landlord, any lessor or any mortgagee (in any case, whether disclosed
or undisclosed), shall be liable to Tenant for any loss, injury or damage to
Tenant or to any other person, or to its or their property, or
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for any interruption to tenants or any other persons or business irrespective of
the cause of such injury, damage or loss, including, but not limited to, injury,
damage or loss resulting from or connected with: (i) fire, explosion, falling
plaster, steam, gas, electricity, water, rain or snow or leaks from any part of
the Building or from the pipes, appliances or plumbing works or from the roof,
street or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature; (ii) any latent defect in the Premises or in the
Building (except, however, for those latent defects in the Base Building Work of
which Tenant has given Landlord notice and for which Landlord is obligated or
responsible to make repairs, as aforesaid); or (iii) any security system
implemented or installed by Landlord for or at Building, nor shall the aforesaid
entities and Parties be liable for any damage to property of Tenant or of others
entrusted to employees of Landlord nor for loss of or damage to any such
property by theft or otherwise except if and to the extent the same is caused by
or results from the negligence of Landlord, or any of the Parties in the
operation or maintenance of the Premises or the Building.
(b) Further, neither Landlord, any lessor, or any mortgagee, nor any
of the Parties shall be liable for any such damage caused by other tenants or
persons in, upon or about the Building, or caused by operations in construction
of any private, public or quasipublic work; or even if negligent, for
consequential damages arising out of any loss of use of the Premises or any
equipment or facilities therein by Tenant or any person claiming by, through or
under Tenant.
(c) Nothing in this Section 17.03 shall affect any right of Landlord
to the indemnity from Tenant to which Landlord may be entitled under this
Article 17 in order to recoup for payments made to compensate for losses of
third parties.
Section 17.04.
(a) Tenant shall indemnify and hold harmless Landlord and all lessors
and mortgagees and its and their respective Parties from and against any and all
claims arising from or in connection with the conduct or management of the
Premises or of any business therein, or any work or thing whatsoever done, or
any condition created (other than by Landlord) in or about the Premises during
the Term of this Lease or during the period of time, if any, prior to the
Commencement Date that Tenant may have been given access to the Premises; any
act, omission or negligence of Tenant or any of its subtenants or licensees or
its or their partners, directors, officers, agents, servants, employees or
contractors; any accident, injury or damage whatever (unless caused solely by
Landlord's negligence) occurring in, at or upon the Premises; and any breach or
default by Tenant in the full and prompt payment and performance of Tenant's
obligations under this Lease; together with all costs, expenses and liabilities
incurred in connection with each such claim or action or proceeding brought
thereon, including, without limitation, reasonable attorneys' fees, court costs
and expenses.
(b) In case any action or proceeding shall be brought against Landlord
and/or any lessor or mortgagee and/or its or their respective Parties by reason
of any such claim, Tenant, upon notice from Landlord or such lessor or
mortgagee,
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shall resist and defend such action or proceeding (by counsel reasonably
satisfactory to Landlord or such lessor or mortgagee).
Section 17.05. For purposes of this Article 17, any Building employee
to whom any property shall be entrusted by or on behalf of Tenant shall be
deemed to be acting as Tenant's agent with respect to such property and neither
Landlord nor any of the Parties shall be liable for any damage to the property
of Tenant or of others entrusted to Building employees, nor for the loss of or
damage to any property of Tenant by theft or otherwise except, however, if
caused solely by Landlord's negligence.
ARTICLE 18
CONDITIONS OF LIMITATION
------------------------
Section 18.0l. This Lease and the Term and estate hereby granted are
subject to the limitations that:
(a) if, Tenant shall default in the payment when due of any
installment of Fixed Rent and the Parking Fee or in the payment when due of any
Additional Rent, and such default shall continue for a period of ten (10) days
after notice by Landlord to Tenant of such default, provided, however, that
-------- -------
Landlord shall not be required to give such notice to Tenant of the occurrence
of such a default described in this subsection 18.01(a) more than two (2) times
in any calendar year during the Term; or
(b) if, Tenant shall, whether by action or inaction default in the
observance or performance of any term, covenant or condition of this Lease on
Tenant's part to be observed or performed (other than the covenants for the
payment of Fixed Rent, the Parking Fee and Additional Rent) and Tenant shall
fail to remedy such default within thirty (30) days after notice by Landlord to
Tenant of such default, or any shorter period if required or permitted by any
Legal Authority, or if such default is of such a nature that it cannot be
completely remedied within said thirty (30) days or shorter period and the
continuance of which for the period required for cure will not (i) subject
Landlord or any lessor or any mortgagee to prosecution for a crime or any other
fine or charge, (ii) subject the Premises, or any part thereof, or the Building
or Real Property, or any part thereof, to being condemned or vacated, (iii)
subject the Building or Real Property, or any part thereof, to any lien or
encumbrance, or (iv) result in the termination of any Superior Lease or
foreclosure of any Mortgage, if Tenant shall not (x) within said thirty (30)
days or shorter period advise Landlord of Tenant's intention to take all steps
necessary to remedy such default, (y) duly commence within said thirty (30) days
or shorter period, and thereafter diligently prosecute to completion all steps
necessary to remedy the default, and (z) complete such remedy within a
reasonable time after the date of said notice of Landlord; or
(c) if, the Premises shall become deserted or abandoned for a period
in excess of thirty (30) consecutive days (following Tenant's occupancy for the
conduct of its business thereat); or
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(d) if, Tenant's interest in this Lease shall devolve upon or pass to
any person, whether by operation of law or otherwise, except as may be expressly
permitted under Article 15 hereof; or
(e) if, Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt insolvent, or shall file any
petition or answer seeking any reorganization arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, or shall make an assignment for the
benefit of creditors, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all or
substantially all of Tenant's property; or
(f) if, within sixty (60) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or otherwise,
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
act or any other present or future applicable federal, state or other statute or
law, such proceeding shall not have been dismissed or stayed, or if, within
thirty (30) days after the appointment of any trustee, receiver or liquidator of
Tenant, or of all or substantially all of Tenant's property, without the consent
or acquiescence of Tenant, such appointment shall not have been vacated or
otherwise discharged or stayed, or if any lien, execution or attachment shall be
filed or issued against Tenant or any of Tenant's property pursuant to which the
Premises shall be taken or occupied by someone other than Tenant; or
(g) if, the Guaranty shall not be in full force and effect at any time
during the Term, or if Guarantor shall default in the due observance or
performance of any of the terms of the Guaranty, or if Guarantor shall repudiate
the Guaranty, or if the Guaranty shall terminate, or be terminated, for any
reason,
then, upon the occurrence, at any time prior to or during the Term, of
----
any one or more of such events, Landlord may, at any time thereafter, at
Landlord's sole option, give to Tenant a ten (10) days' notice of cancellation
of this Lease and, in such event, this Lease and the Term shall come to an end
and expire (whether or not the Term shall have commenced) upon the expiration of
said ten (10) day period with the same force and effect as if the date of
expiration of said ten (10) days were the Expiration Date stated herein and
Tenant shall then quit and surrender the Premises to Landlord, but Tenant shall
remain liable for damages as provided in Article 19 hereof.
Section 18.02.
(a) If, at any time (i) Tenant shall be comprised of two (2) or more
persons, or (ii) Tenant's obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
Lease shall have been assigned, the word "Tenant", as used in subsections
18.01(f) and (g) hereof shall be deemed to mean any one or more of the persons
primarily or secondarily liable for Tenant's obligations under this Lease.
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(b) Any monies received by Landlord from or on behalf of Tenant
during the pendency of any proceeding of the types referred to in said
subsections 18.01(e) and (f) shall be deemed paid as compensation for the use
and occupation of the Premises and the acceptance of any such compensation by
Landlord shall not be deemed an acceptance of Rent or a waiver on the part of
Landlord of any rights under Section 18.01 hereof.
Section 18.03.
(a) If, Tenant shall have assigned its interest in this Lease, and
this Lease shall thereafter be disaffirmed or rejected in any proceeding under
the United States Bankruptcy Code or under the provisions of any Federal, state
or foreign law of like import, or in the event of termination of this Lease by
reason of any such proceeding, then, unless the ___________ has been released
pursuant to this provision of Section 15.04 the assignor or any of its
predecessors in interest under this Lease, upon request of Landlord given within
thirty (30) days after such disaffirmance, rejection or termination (and actual
notice thereof to Landlord in the event of a disaffirmance or rejection or in
the event of termination other than by act of Landlord) shall (i) pay to
Landlord all Fixed Rent and Additional Rent then due and payable to Landlord
under this Lease to and including the date of such disaffirmance, rejection or
termination and (ii) enter into a new lease as lessee with Landlord of the
Premises for a term commencing on the effective date of such disaffirmance,
rejection or termination, and ending on the Expiration Date, unless sooner
terminated as in such lease.
(b) Such new lease shall be for the same Fixed Rent and Additional
Rent and upon the executory terms, covenants and conditions as are contained in
this Lease, except that (i) the rights of the lessee under the new lease, shall
be subject to any possessory rights of the assignee in question under this Lease
and any rights of persons claiming by, through or under such assignee, or by
virtue of any statute or any order of any court, (ii) such new lease shall
require all defaults existing under this Lease to be cured by the lessee with
reasonable diligence, and (iii) such new lease shall require the lessee to pay
all Fixed Rent and Additional Rent which, had this Lease not been disaffirmed,
rejected or terminated would have become due after the effective date of such
disaffirmance, rejection or termination with respect to any prior period.
(c) If the lessee shall fail or refuse to enter into the new lease
within five (5) days after Landlord's request to do so, then in addition to all
other rights and remedies by reason of such default, under this Lease either at
law or in equity, Landlord shall have the same rights and remedies against the
lessee as if the lessee had entered into such new lease and such new lease had
thereafter been terminated at the beginning of its term by reason of the default
of the lessee thereunder.
Section 18.04.
(a) If, pursuant to the Bankruptcy Code, Tenant is permitted to assign
this Lease in disregard of the restrictions contained in Article 15 hereof (or
if this Lease shall be assumed by a trustee), the trustee or assignee shall cure
any default under this Lease and shall provide adequate assurance of future
performance by the trustee or assignee
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including the source of payment of rent and performance of other obligations
under this Lease (for which adequate assurance shall mean the deposit of cash
security with Landlord in an amount equal to the sum of (i) one (1) year's Fixed
Rent then reserved hereunder plus (ii) an amount equal to all Additional Rent
payable hereunder for the calendar year preceding the year in which such
assignment is intended to become effective), which deposit shall be held by
Landlord, without interest, for the balance of the Term as security for the full
and faithful performance of all of the obligations under this Lease on the part
of Tenant yet to be performed.
(b) Any such assignee of this Lease shall have a net worth, exclusive
of good will, computed in accordance with generally accepted accounting
principles consistently applied, equal to at least eight (8) times the aggregate
of (i) the annual Fixed Rent reserved hereunder plus (ii) all Additional Rent
for the preceding calendar year as aforesaid and the use of the Premises shall
in no way diminish the reputation of the Building as a first-class
office/commercial building or impose any additional burden upon the Building or
increase the services to be provided by Landlord.
(c) If all defaults are not cured and such adequate assurance is not
provided within sixty (60) days after there has been an order for relief under
the Bankruptcy Code, then this Lease shall be deemed rejected, Tenant or any
other person in possession shall vacate the Premises, and Landlord shall be
entitled to retain any Rent or security deposit previously received from Tenant
and shall have no further liability to Tenant or any person claiming through
Tenant or any trustee.
ARTICLE 19
RE-ENTRY BY LANDLORD; REMEDIES
------------------------------
Section 19.01.
(a) If this Lease and the Term shall terminate and come to an end as
provided in Article 18 hereof:
(i) Landlord and its agents may immediately, or at any time
thereafter, re-enter the Premises or any part thereof, without notice, either by
summary proceedings, or by any other applicable action or proceeding, or by any
other lawful means (without being liable to indictment, prosecution or damages
therefor), and may repossess the Premises and dispossess Tenant and any other
persons from the Premises and remove any and all of their property and effects
from the Premises;
(ii) Landlord, at its option, may relet the whole or any part or
parts of the Premises, at any time or from time to time, either in the name of
Landlord or otherwise, to such tenant or tenants, for such term or terms ending
before, on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, may determine;
(iii) Landlord shall have no obligation to relet the Premises or
any part thereof and shall in no event be
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liable for refusal or failure to relet the Premises or any part thereof, or, in
the event of any such reletting, for refusal or failure to collect any rent due
upon any such reletting, and no such refusal or failure shall operate to relieve
Tenant of any liability under this Lease or otherwise to affect any such
liability;
(iv) Landlord, at its option, may make such repairs,
replacements, alterations, additions, improvements, decorations and other
physical changes in and to the Premises as Landlord, in its discretion,
considers advisable or necessary in connection with any such reletting or
proposed reletting, without relieving Tenant of any liability under this Lease
or otherwise affecting any such liability; and
(v) Notwithstanding the foregoing provisions of this Section
19.01, Tenant shall have the right to remove Tenant's Work from the Premises in
accordance with the provisions of subsection 5.03(a).
(b) (i) Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does further hereby
waive any and all rights which Tenant and all such persons might otherwise have
under any present or future law to (A) the service of any notice of intention to
re-enter or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law, except as otherwise
expressly provided in this Lease, (B) redeem the Premises, or re-enter or
repossess the Premises, and/or (C) restore the operation of this Lease, after
(1) Tenant shall have been dispossessed by a judgment or by warrant of any court
or judge, (2) any re-entry by Landlord, or (3) any expiration or termination of
this Lease and the Term, whether such dispossess, re-entry, expiration or
termination shall be by operation of law or pursuant to the provisions of this
Lease.
(ii) The words "re-enter", "re-entry" and "re-entered" as used
in this Article 19 shall not be deemed to be restricted to their technical legal
meanings, and the right to invoke the remedies hereinbefore set forth are
cumulative and shall not preclude Landlord from invoking any other remedy
allowed at law or in equity.
Section 19.02. In the event of any breach or threatened breach by
Tenant or any person claiming by, through or under Tenant, of any of the terms
of this Lease (whether or not the Term shall have commenced), Landlord shall be
entitled to enjoin such breach or threatened breach and shall have the right to
invoke any other remedy allowed at law or in equity, by statute or otherwise, as
if re-entry, summary proceedings or other specific remedies were not provided
for in this Lease.
Section 19.03.
(a) If this Lease and the Term shall expire and come to an end as
provided in Article 18 hereof, or by or under any summary proceeding or any
other action or proceeding by Landlord against Tenant or any person claiming by,
through or under Tenant, or if Landlord shall re-enter the Premises as provided
in this Article 19, or by or under any summary proceeding or any other action or
proceeding, then, in any of said events:
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(i) Tenant shall pay to Landlord all Rent and other charges
payable under this Lease by Tenant to Landlord to the date upon which this Lease
and the Term shall have expired or has been terminated and come to an end;
(ii) Landlord shall be entitled to retain all monies, if any,
paid by Tenant to Landlord, whether as advanced Rent, security deposit or
otherwise, but such monies shall be credited by Landlord against any damages
payable by Tenant to Landlord;
(iii) Tenant also shall be liable for and shall pay to Landlord,
as damages, any deficiency (the "Deficiency") between the Fixed Rent and
Additional Rent reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the Term including any renewal term
exercised by Tenant (conclusively presuming the Additional Rent to be the same
as was payable for the year immediately preceding such termination or re-entry)
and the net amount, if any, of rents collected under any reletting of all or
part of the Premises for any part of such period, first deducting from the rents
collected under any such reletting all of Landlord's expenses in connection with
the termination of this Lease, and Landlord's re-entry upon the Premises and
with such reletting, including, without limitation, all repossession costs,
brokerage commissions, legal expenses, reasonable attorneys' fees, court costs
and disbursements, alteration costs and other expenses of preparing the Premises
for such reletting; it being agreed and understood by Tenant that any such
Deficiency shall be paid in monthly installments by Tenant on the days specified
in this Lease for payment of installments of Rent, and that Landlord shall be
entitled to recover from Tenant each monthly Deficiency as the same shall arise,
and no suit to collect the amount of the Deficiency for any month shall
prejudice Landlord's right to collect the Deficiency for any subsequent month by
a similar proceeding; and
(iv) Whether or not Landlord shall have collected any monthly
Deficiencies as aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord, on demand, as Additional Rent in lieu of any
further Deficiencies, as and for liquidated and agreed final damages and not as
a penalty, a sum equal to the amount by which the sum of the Fixed Rent and
Additional Rent reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the Term, including any Renewal Term
exercised by Tenant prior to the expiration or termination of this Lease
pursuant to Article 18 hereof (conclusively presuming the Additional Rent to be
the same as payable for the year immediately preceding such termination or re-
entry) exceeds the then fair and reasonable rental value of the Premises for the
same period, discounted to the then present value of such sum at the rate of two
percent (2%) per annum below the then "Base Rate" of interest as established and
publicly announced by Manufacturers Hanover Trust Company in New York, New York,
or its successor, and less the aggregate amount of Deficiencies theretofore
collected by Landlord pursuant to the provisions of subdivision (iii) above, for
the same period; it being agreed and understood by Tenant that if before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the Premises, or any part thereof, shall have been relet in a bona-
fide arms-length transaction by Landlord for the period which otherwise
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would have constituted the unexpired portion of the Term, or any part thereof,
the amount of rent reserved upon such reletting shall be conclusively deemed,
prima facie, to be the fair and reasonable rental value for the part of the
----- -----
whole of the Premises so relet during the term of the reletting.
(b) If the Premises, or any part thereof, shall be relet together with
other space in the Building, the rents collected or reserved under any such
reletting and the expenses of any such reletting shall be equitably apportioned
for the purposes of Section 19.03(a) hereof. In no event whatsoever, shall
Tenant be entitled to any rents collected or payable under any reletting,
whether or not such rents shall exceed the Fixed Rent and Additional Rent
reserved in this Lease. Nothing contained in Article 18 hereof or this Article
19 shall be deemed to limit or preclude the recovery by Landlord from Tenant of
the maximum amount allowed to be obtained as damages by any statute or rule of
law, or of any sums or damages to which Landlord may be entitled in addition to
the damages set forth in subsection 19.03(a) hereof.
ARTICLE 20
CURING DEFAULTS
---------------
Section 20.01.
(a) If Tenant shall default in the observance or performance of any
term, covenant or condition in this Lease on Tenant's part to be observed or
performed, Landlord may, without thereby waiving such default and without
liability to Tenant in connection therewith, remedy such default for the account
of Tenant (including, without limitation, the right to bond or insure over any
mechanics' liens required under Section 5.04 hereof), immediately and without
notice in the case of an emergency, or in any other case, if Tenant shall fail
to remedy such default within a reasonable period after notice by Landlord or
within any time period required by law, and such default causes or permits any
condition which interferes with the use by Landlord or any other tenant of any
space in the Building, or interferes with the proper and efficient operation of
the Building, or is in contravention of any other agreement of which Landlord is
a party or to which Landlord is otherwise subject (and of which other agreement
Tenant has been given notice).
(b) If Landlord makes any expenditures, incurs any obligations for the
payment of money in connection therewith, or sustains or incurs any damages or
fines, due to such nonobservance or non-performance by Tenant, including,
without limitation, reasonable attorneys' fees, court costs and disbursements in
instituting, prosecuting or defending any action or proceeding, such sums paid
or obligations incurred, together with interest at the Interest Rate and costs,
shall be paid by Tenant to Landlord, as Additional Rent, within five (5) days of
rendition of any xxxx or statement to Tenant therefor.
(c) Tenant hereby waives Tenant's right, if any, to designate the
items against which any payments made by Tenant to Landlord are to be credited
and Landlord may apply any such payments to any items Landlord sees fit.
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(d) For the purposes of this Section 20.01, a rent b111 sent by first
class mail, to the address to which notices to be given under this Lease, shall
be deemed a proper demand for the payment of the amounts set forth herein.
Section 20.02. If this Lease is terminated under the provisions of
Article 18 hereof, or if Landlord shall reenter the Premises under the
provisions of Article 19 hereof, Tenant agrees that:
(a) the Premises then shall be in the condition in which Tenant has
agreed to surrender the same to Landlord on the Expiration Date;
(b) Tenant shall have performed prior to any such termination any
covenant of Tenant contained in this Lease for the making of any Alterations or
Tenant's Work or for restoring or rebuilding the Premises or the Building, or
any part thereof; and
(c) for the breach of any covenant of Tenant set. forth above in this
Section 20.02, 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).
ARTICLE 21
NO REPRESENTATIONS BY LANDLORD; LANDLORD'S APPROVAL
---------------------------------------------------
Section 21.01.
(a) Tenant hereby expressly acknowledges and agrees that (i) except as
herein expressly set forth, Landlord or Landlord's agents have not made and are
not making and Tenant, in executing and delivering this Lease, is not relying
upon any warranties, representations, statements or promises with respect to the
Project, the Building, the Real Property, or the Premises, and (ii) Tenant is
acquiring no rights, easements or licenses hereunder by implication or
otherwise, other than as expressly set forth in this Lease.
(b) Except as set forth in subsection 21.01(a) above, all
understandings and agreements previously had between the parties hereto are
merged in this Lease, which alone fully and completely expresses their agreement
and the same is entered into after full investigation, neither party relying
upon any statement or representation made by the other not embodied in this
Lease.
Section 21.02. All references in this Lease to the consent or
approval of Landlord shall be deemed to mean the written consent or approval of
Landlord as set forth in a written instrument executed and delivered by
Landlord.
Section 21.03.
(a) Wherever in this Lease Landlord's consent or approval is required,
if Landlord shall fail or refuse to give such 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
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any money damages by way of set-off, counterclaim or defense) based upon any
claim or assertion by Tenant that Landlord unreasonably withheld or unreasonably
delayed its consent or approval unless Tenant is able to demonstrate by
reasonable evidence that Landlord willfully and in bad faith failed or refused
to give such consent or approval.
(b) Except as set forth in subsection 21.03(a) above, Tenant's sole
remedy in the case of the foregoing shall be an action or proceeding to enforce
any such provision, for specific performance, injunction or declaratory
judgment, and such remedy shall be available only in those cases where Landlord
has expressly agreed in writing not to unreasonably withhold or delay its
consent or where as a matter of law, Landlord may not unreasonably withhold or
delay its consent.
Section 21.04. Tenant and Landlord recognize and knowledge that the
operation of the Building equipment may cause vibration, noise, heat or cold
which may be transmitted throughout the Premises. Tenant hereby agrees that
Landlord shall have no obligation to correct or reduce such vibration, noise,
heat or cold, unless caused by defects in Landlord's Base Building Work for
which Landlord is responsible for under Article 2 hereof, and that, subject to
the provisions of Section 3.01(b) and the requirements of Section 6.01 of this
Lease, Tenant shall not be responsible or obligated to correct the same
notwithstanding the same affects any of those tenants leasing the Retail
Premises, unless same are caused by Tenant's Alterations.
Section 21.05. Landlord acknowledges that, from time to time, Tenant
may require certain consents or approvals from the lessors and holders of
Superior Leases and Mortgages, respectively, and Landlord agrees to cooperate
and to use its best efforts, at Tenant's sole cost and expense, and without any
fee, cost, expense or liability to Landlord, to obtain said approvals and
consents. Notwithstanding the foregoing, Landlord's best efforts shall not
include any obligation to bring any legal action to obtain said approvals and
consents. Tenant has the right to bring an action against such lessors and
holders in Landlord's name at Tenant's sole cost and expense, provided that the
bringing of such action shall not subject Landlord to any civil or criminal
liability, and as to which action Landlord agrees to provide its reasonable
cooperation.
ARTICLE 22
END OF TERM; HOLDOVER
---------------------
Section 22.01. Upon the expiration or other termination of the Term,
or re-entry by Landlord upon the Premises in accordance with the terms and
provisions of this Lease, Tenant shall quit and surrender to Landlord the
Premises, broom clean, in good order and condition, ordinary wear and tear,
depreciation, obsolescence and damage for which Tenant is not responsible under
the terms of this Lease excepted, and Tenant may remove Tenant's Property and
Tenant's Work to the extent permitted under and in accordance with Article 5
hereof. If the Expiration Date of the Term falls on a non-Business Day, this
Lease shall expire on the Business Day immediately preceding such last day of
the Term.
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Section 22.02.
(a) The parties recognize and agree that the damage to Landlord
resulting from any failure by Tenant to timely surrender possession of the
Premises as aforesaid will be substantial, will exceed the amount of the monthly
installments of the Rent theretofore payable hereunder, and will be impossible
to accurately measure.
(b) Tenant therefore agrees that if possession of the Premises is not
surrendered to Landlord within twenty-four (24) hours after the Expiration Date
or sooner termination of the Term, in addition to any other rights or remedies
Landlord may have hereunder or at law, Tenant shall pay to Landlord for each
month and for each portion of any month during which Tenant holds over in the
Premises after the Expiration Date or sooner termination of this Lease, a sum
equal to the greater of (i) one and one-half (1-1/2) times the aggregate amount
of that portion of the Fixed Rent and all Additional Rent which was payable
under this Lease for the last full calendar month of the Term, or (ii) the then
fair market rent value of the Premises, as reasonably determined by Landlord.
(c) Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the Expiration Date or sooner
termination of the Term of this Lease and no acceptance by Landlord of payments
from Tenant after the Expiration Date or sooner termination of the Term shall be
deemed to be other than on account of the amount to be paid by Tenant in
accordance with the provisions of this Article 22.
(d) Tenant's obligations under this Article 22 shall survive the
Expiration Date or earlier termination of the Term of this Lease.
Section 22.03. It is further stipulated and agreed that if Landlord
shall, at any time after the Expiration Date or earlier termination of the Term
proceed to remove Tenant from the Premises as a holdover, the Rent for the use
and occupancy of the Premises during any holdover period shall be calculated in
the manner as set forth above.
Section 22.04.
(a) Anything to the contrary set forth above notwithstanding, the
acceptance of any Rent paid by Tenant pursuant to this Article 22 shall not
preclude Landlord from commencing and prosecuting a holdover or summary eviction
proceeding.
(b) Tenant expressly waives, for itself and for any person claiming
by, through or under Tenant, any rights which Tenant or any such person may have
under the provisions of any law, ordinance or regulation of any Legal Authority
then in force permitting or mandating the issuance of a "stay" in connection
with any holdover summary proceedings which Landlord may institute to enforce
the foregoing provisions of this Article 22.
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Section 22.05.
(a) If Tenant shall holdover or remain in possession of any portion of
the Premises beyond the Expiration Date or earlier termination of the Term of
this Lease, Tenant shall be subject not only to summary proceedings and all
damages related thereto, but also to any losses and damages arising out of any
lost opportunities (and/or new leases) by Landlord to re-let the Premises, or
any part thereof.
(b) All damages to Landlord by reason of such holding over by Tenant
may be the subject of a separate action and need not be asserted by Landlord in
any summary proceedings against Tenant.
ARTICLE 23
QUIET ENJOYMENT
---------------
Section 23.01. Landlord covenants and agrees that upon Tenant paying
the Fixed Rent and Additional Rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed or performed, Tenant
may peaceably and quietly enjoy the Premises, subject, nevertheless, to (a) the
terms and conditions of this Lease, including, but not limited to, Article 16
hereof, and (b) all Superior Leases and Mortgages.
Section 23.02. The covenant set forth in Section 23.01 above shall be
construed as a covenant running with the Real Property, and is not, nor shall it
be construed as, a personal covenant of Landlord, except to the extent of
Landlord's interest, as tenant, under the ground lease of the Building or the
Real Property and only so long as such interest shall continue, and thereafter
Landlord shall be relieved of all liability hereunder and this covenant shall be
binding only upon subsequent successors in interest of Landlord's interest in
this Lease and, as tenant, under the ground lease of the Building or the Real
Property, to the extent of their respective interests, as and when they shall
acquire the same, and so long as they shall retain such interest.
ARTICLE 24
NO WAIVER
---------
Section 24.01.
(a) The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease
or Rule or Regulation, 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.
(b) No executory agreement hereafter made between Landlord and Tenant
shall be effective to change, modify, waive, release, discharge, terminate or
effect an abandonment of this Lease, in whole or in part, unless such executory
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agreement is in writing and is signed by the party against whom enforcement of
the change, modification, waiver, release, discharge or termination or
effectuation for the abandonment is sought.
Section 24.02. The following provisions of this Section shall not be
deemed to limit the generality of any of the foregoing provisions of this
Article 24:
(a) No agreement or act or thing done shall be deemed an acceptance of
surrender of all or any part of the premises unless in writing and signed by
Landlord; it being agreed and understood that the delivery of keys to an
employee of Landlord or of its agent shall not operate as a termination of this
Lease or a surrender of the Premises, and that if Tenant shall, at any time or
from time to time, request Landlord to sublet the Premises for Tenant's account,
Landlord or its agent is authorized to receive said 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
Tenant's property in connection with such subletting;
(b) The receipt by Landlord of Fixed Rent or Additional Rent with
knowledge of breach of any obligation of this Lease shall not be deemed a waiver
of such breach;
(c) No payment by Tenant or receipt by Landlord of a lesser amount
than the correct Fixed Rent or Additional Rent due hereunder 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; and
(d) The existence of a right of renewal or extension of this Lease, if
any, or the exercise of such right, shall not (i) limit Landlord's right to
terminate this Lease in accordance with the terms hereof, or (ii) create an
option for further extension or renewal of this Lease.
ARTICLE 25
WAIVER OF TRIAL BY JURY; NO COUNTERCLAIMS
-----------------------------------------
Section 25.01.
(a) Landlord and Tenant hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, and/or any claim of injury or damage, or for the enforcement of any
remedy under any statute, emergency or otherwise.
(b) It is further mutually agreed that in the event Landlord commences
any summary proceeding for non-payment of Fixed Rent or Additional Rent, or to
recover possession of the Premises, or for any holding over by Tenant following
the Expiration Date or earlier termination of the Term of this
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Lease, Tenant will not interpose (by consolidation of actions or otherwise) any
counterclaim of whatever nature or description in any such proceeding.
Notwithstanding the foregoing provisions of this subsection 25.01(b), Landlord
hereby agrees that Tenant shall not be prohibited from interposing a
counterclaim if its inability to do so would be waived as a result of Tenant's
failure to assert its claim in such proceeding.
(c) The provisions of this Article 25 shall survive the Expiration
Date or earlier termination of the Term of this lease.
ARTICLE 26
INABILITY TO PERFORM
--------------------
Section 26.01. Except as may be specifically provided to the contrary
in this Lease, this Lease and all of the obligations of Tenant hereunder
including, without limitation, the obligation to pay Rent hereunder and to
perform all of the other covenants and agreements hereunder on the part of
Tenant to be observed and performed, shall in no wise be affected, impaired or
excused, nor shall Landlord have any liability whatsoever to Tenant nor shall it
be deemed a constructive eviction because (a) Landlord is unable to fulfill or
is delayed in fulfilling any of its obligations under this Lease expressly or
impliedly to be performed by Landlord or is unable to supply, or is delayed in
supplying any equipment or fixtures required to be supplied by Landlord under
this Lease if Landlord is prevented or delayed from so doing by reason of Force
Majeure, or (b) of any failure or defect in the supply, quantity or character of
electricity or water furnished to the Premises, by reason of any act or omission
of the public utility companies or others serving the Building with electric
energy, steam, oil, gas or water, or for any other reason whether similar or
dissimilar, beyond Landlord's reasonable control.
ARTICLE 27
BILLS AND NOTICES
-----------------
Section 27.01. Except as otherwise expressly provided in this Lease,
any bills, statements, notices, demands, consents, approvals, requests or other
communications which may or are required to be given under this Lease, or by
law, rule or applicable governmental regulation of any Legal Authority
(collectively, the "notices"), shall be in writing (whether or not so stated
elsewhere in this Lease) and shall be deemed sufficiently given or rendered if
sent by registered or certified mail (return receipt requested) posted in a
United States post office station or letter box in the continental United
States, or by a reputable private overnight delivery service (provided a written
receipt therefor is obtained) addressed (a) to Tenant, Attention: Mr. Motoaki
Ibano, Exec. V.P., at the address set forth on page 1 of this Lease or at any
place where Tenant or any agent or employee of Tenant may be found if mailed
subsequent to Tenant's vacating, deserting, abandoning or surrendering the
Premises, unless Tenant has provided Landlord with another place to give
sufficient notice in accordance with the provisions of this Section 27.01, with
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a copy sent in the manner set forth above, to: Xxxx Xxxxx & Xxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxx, Esq. and Xxxxxx X.
Xxxxxxx, Esq., and (b) to Landlord at Landlord's address set forth in this
Lease, with-copies sent in the manner set forth above, to: Xxxxxxx X. XxXxxx,
Esq., at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and at 00-00 Xxxxxx
Xxxxxxxxx, Xxxx Xxxx, Xxx Xxxx 00000, and Xxxxxxx Xxxx & Xxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxx, Esq., or (c) to
such other address as either Landlord or Tenant may designate as its new address
for such purpose by notice given to the others in accordance with the provisions
of this Article 27.
Section 27.02. Any such notice shall be deemed to have been given
rendered or made one (1) day following the date when it shall have been mailed,
or upon the date delivered (if delivered personally as provided below or by
reputable private overnight delivery service), as provided in this Article 27.
Section 27.03. Notwithstanding the foregoing provisions of this
Article 27, with respect to an occurrence presenting imminent danger to the
health or safety of persons or damage to property in, on or about the Building
or Real Property or during a postal strike, notices may be hand delivered to a
party at the address to which notices to that party are to be sent, provided
that the same notice is also sent in the manner set forth above.
Section 27.04. Notices hereunder from Landlord may be given by
Landlord's managing agent, if one exists.
ARTICLE 28
ADDITIONAL PAYMENTS
-------------------
Section 28.01.
(a) In addition to the Fixed Rent set forth in Article 1 hereof,
Tenant shall also pay to Landlord, as Additional Rent, as and when herein set
forth, for any period, the sum of (i) all Operating Expenses set forth in
subsections 28.02(a)(ii), (iv) and (v), plus (ii) Tenant's Proportionate Share
of (A) the Real Estate Taxes and (B) the Operating Expenses set forth in
subsections 2B.02(a)(i) and (iii) for such period (such payments are
collectively called the "Tenant's Expense Payment"). Tenant's Expense Payment
shall be payable by Tenant from and after the Rent Commencement Date.
(b) (i) Prior to the beginning of each calendar year during the Term
(or for the calendar year in which the Term commences, prior to the Rent
Commencement Date), Landlord shall present to Tenant an estimate of Tenant's
Expense Payment for such calendar year (the "Tenant's Estimated Expense
Payment"). Tenant shall pay Tenant's Estimated Expense Payment for each
calendar year in twelve (12) equal monthly installments, in advance, on the Rent
Commencement Date and on the first day of each month thereafter (appropriately
prorated in the case of the first installment, if the Rent Commencement Date
is not the first day of a month); provided, however, with respect to Real
-------- -------
Estate Taxes, Tenant shall be obligated to pay its Proportional Share the same
(or installments thereof) no later than fifteen (15) days prior to the date(s)
upon which such Real Estate Taxes or
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installments thereof shall actually be due and payable to the respective Legal
Authority.
(ii) Tenant's Estimated Expense Payment for any calendar year,
and Tenant's monthly installments, may be adjusted from time to time at
reasonable intervals during such year by notice from Landlord to Tenant, which
notice shall specify Landlord's reasons for such adjustments.
(c) (i) (A) As soon as reasonably practicable after the end of the
calendar year in which the Term begins and of each calendar year thereafter,
Landlord shall provide Tenant with a statement (the "Expense Statement") showing
the Operating Expenses and Real Estate Taxes for such calendar year, and a
statement prepared by Landlord, comparing Tenant's Estimated Expense Payment
with Tenant's Expense Payment.
(B) Notwithstanding the foregoing, Landlord shall make
available to Tenant as promptly as possible prior to the date on which any Real
Estate Taxes or installments thereof shall actually be due and payable (but in
no event, however, later than fifteen (15) days prior to such date(s)) a copy of
the tax xxxx (either actual or estimated) received by Landlord from the
respective Legal Authority regarding the Real Estate Tax payment in question.
(ii) If Tenant's Estimated Expense Payment exceeds Tenant's
Expense Payment for such calendar year, Landlord shall pay to Tenant (in the
form of a credit against the Additional Rent next due) an amount equal to such
excess, unless the Term has come to an end, in which event the payment shall be
in the form of Landlord's check made payable to the order of Tenant.
(iii) If Tenant's Expense Payment exceeds Tenant's Estimated
Expense Payment for such calendar year, Tenant shall pay to Landlord, on or
before the date (the "Expense Payment Date") which is thirty (30) days after
receipt of the Expense Statement, an amount equal to such excess.
(iv) If Real Estate Taxes for any calendar year or part thereof
shall be reduced after a payment shall have been made in respect of such
calendar year, Landlord shall at Landlord's option, either refund to Tenant an
amount equal to the amount by which the amount otherwise payable for such
calendar year by Tenant would have been less if such reduction in Real Estate
Taxes had occurred during such calendar year, or credit such amount against
Tenant's payment of Real Estate Taxes for and during subsequent calendar years.
(d) (i) If Tenant shall dispute the inclusion of any item shown on
an Expense Statement by notice to Landlord delivered on or before the date which
is sixty (60) days after Tenant's receipt of such Expense Statement and Landlord
and Tenant are unable to resolve such dispute within thirty (30) days after such
date, the matter shall be determined by arbitration in the manner provided in
Article 38 hereof; provided, however, that Tenant shall pay the amount, if any,
-------- -------
maintained by Landlord to be due on or prior to the related Expense Payment
Date; provided further, that the unsuccessful party in such arbitration
-------- -------
proceeding shall pay all costs thereof.
(ii) If the disputed amount, as determined by arbitration, shall
be different from the amount specified on the Expense Statement, then an
adjustment required to correct
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any sum previously overpaid by Tenant shall be made by Landlord's credit to
Tenant of the amount of such excess payment against Additional Rent next due.
(e) In the event that the Commencement Date shall be a day other than
a January 1, or the Expiration Date shall be a day other than a December 31, or
in the event of any abatement of the Rent pursuant to the express provision of
this Lease, if any, or of any decrease in the rentable area of the Premises
(pursuant to the provisions of this Lease) or of any increase or decrease in
the rentable area occupied in the Building, then in such event, in applying the
provisions of this Section with respect to any calendar year or portion thereof,
appropriate adjustments shall be made to reflect the result of such event on a
basis consistent with the principles underlying the provisions of this Section,
taking into consideration (i) the number of days in such year which shall have
elapsed prior to or after such event, (ii) the rentable area of the Premises
affected thereby, and (iii) the duration of such event.
Section 28.02.
(a) For purposes of this Lease, the term "Operating Expenses" shall
mean (i) all costs and expenses incurred in the maintenance, operation,
replacement, repair and security of the plazas, sidewalks and curbs at and
adjacent to the Real Property including, without limitation, snow and ice
removal, (ii) the cost of painting and/or decorating and/or other maintenance of
the public or common areas of the Real Property, (iii) the cost of all exterior
gardening and landscaping at the Real Property and all temporary exhibitions
located thereat; (iv) the cost of maintenance, repair and/or replacement of the
curtain wall facade and (v) the cost of the insurance obtained by Landlord
pursuant to Section 12.02 hereof or otherwise at the request of Tenant.
(b) Notwithstanding the provisions of the preceding section, the term
"Operating Expenses" shall not include (i) Real Estate Taxes, franchise,
transfer, inheritance or capital stock taxes or taxes imposed upon or measured
by the income or profits of Landlord, (ii) the cost of the Base Building Work
(inclusive of the cost of remedying defects or making replacements therein);
(iii) any cost to the extent that Landlord is reimbursed for the same out of
insurance proceeds or otherwise, (iv) ground rent under any Superior Lease and
principal, interest and other payments in connection with any Mortgage or
working capital loan affecting the Real Property, and (v) any amount payable to
any entity or person directly or indirectly related to Landlord or any partner,
shareholder or employee of Landlord to the extent such amount is in excess of
amounts which would have been paid absent such relationship.
Section 28.03.
(a) For purposes of this Lease, the term "Real Estate Taxes" shall
mean the taxes and assessments (special or otherwise), sewer and water rents,
rates and charges and any other governmental levies, impositions or charges,
whether general, special, ordinary, extraordinary, foreseen or unforeseen, which
may be assumed, levied or imposed upon all or any part of the Real Property
(other than any interest or penalties imposed in connection therewith or any
additional tax or assessment imposed solely by reason of any improvement made or
action taken by or on behalf of any particular tenant), and
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all expenses, including fees and disbursements of attorneys, experts,
consultants and witnesses reasonably incurred by, or reimbursable by, Landlord
in connection with the assessment process or any application for a reduction in
the assessed valuation for the Real Property or for a judicial review thereof
(collectively, the "Tax Reduction Expenses").
(b) It is understood, however, that except with regard to Tax
-------
Reduction Expenses incurred at the written request or with the written
permission of Tenant (which permission shall not be unreasonably withheld or
delayed), Real Estate Taxes for any given year shall include Tax Reduction
Expenses only to the extent that they are offset by actual reductions in Real
Estate Taxes payable for said year.
(c) In the event that any amounts falling within the definition of
Real Estate Taxes hereunder may be paid in installments, Landlord shall pay such
amounts in the maximum number of installments permitted and Tenant's payments of
Real Estate Taxes shall be deemed to be due and payable in such installments.
(d) Real Estate Taxes shall be calculated so as to take into account
any abatements or other special reductions therein now or hereafter during the
Term affecting the Real Property and so as to include any alternative or
substitute charges, including any so-called "service charge", resulting
therefrom. Tenant acknowledges that Tenant's Work may increase the Real Estate
Taxes and any so-called service charge payable pursuant to the "Financial
Agreement" (as such term is hereinafter defined). In such event, Tenant shall
pay the amount of such Real Estate Tax increase as part of its payment of Real
Estate Taxes hereunder.
(e) If due to a future change in the method of taxation any franchise,
income (other than an income or inheritance tax which is applicable to other
parties in addition to owners of real property), profit or other tax shall be
levied against Landlord in substitution in whole or in part for or in lieu of
any tax which would otherwise constitute a Real Estate Tax, or a tax or excise
shall be imposed upon or measured by rents, such franchise, income, profit or
other tax, or tax or excise imposed upon or measured by rents, shall be deemed
to be a Real Estate Tax for the purposes hereof.
(f) Landlord hereby agrees that Tenant shall have the right, at
Tenant's sole cost and expense, to apply to the appropriate Legal Authority for
a reduction in the assessed valuation of the Real Property or for a judicial
review thereof; provided, however, that Landlord and any Superior Lessor and
-------- -------
Mortgagee shall have the right to participate with Tenant in such application
and any subsequent hearings and proceedings regarding such tax reduction matter.
(g) Landlord and Tenant acknowledges that on August 25, 1987, Mid
Xxxxxx Urban Renewal Company (a/k/a/Co.) ("Mid Xxxxxx"), a general partnership
which is under common control with Landlord, and the City entered into a certain
financial agreement (the "Financial Agreement"). In the event that, as the
direct result of (i) the failure of Mid Xxxxxx or its successors or assigns to
file annual reports, as required under the Financial Agreement; (ii) a
prohibited transfer by Mid Xxxxxx or its successors or assigns (as set forth in
Paragraph 15 of the Financial Agreement); (iii) the default by
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Xxx Xxxxxx or its successors or assigns in the making of any payments due under
the Financial Agreement after any applicable notice and grace period; (iv) the
filing of materially false and misleading information by Mid Xxxxxx or Landlord
in connection with its application and ancillary filings to obtain the Financial
Agreement; or (v) any breach by Landlord ___________________ of the obligations
to be observed or performed thereunder, the "Annual Service Charge" (as such
term is used in the Financial Agreement) is either terminated or is not put into
effect, then, from and after the first day of the month following the issuance
of a Certificate of Occupancy for the Building and until the end of the period
described in Paragraph 3 of the Financial Agreement, Real Estate Taxes shall be
computed as if (i) the Building was exempt from taxation and (ii) the Annual
Service Charge was in effect, computed in accordance with the Financial
Agreement. During the term of the Financial Agreement, Tenant shall neither
perform any act ___________________________ nor fail to perform any act which
will invalidate the Financial Agreement in whole or part.
Section 28.04.
(a) In addition to Tenant's obligation to pay Additional Rent on
account of the Operating Expenses and Real Estate Taxes as described in this
Article 28, Tenant shall also pay to Landlord, as Additional Rent, from and
after the Rent Commencement Date "Tenant's Project Maintenance Fee" (as such
term is defined in subsection 28.04(c) below).
(b) For the purposes of this Lease, the terms "Landlord's Project
Maintenance Fee" or the "Project Maintenance Fee" shall mean all costs and
expenses incurred by or on behalf of Landlord, or contributed to such firm,
person or entity as shall own, or otherwise be responsible for, the operation,
management, lighting, repairing, replacing and otherwise maintaining the public
areas of the Project and maintaining security therein.
(c) For purposes of this Lease, the term "Tenant's Project Maintenance
Fee" shall mean Tenant's annual payment to Landlord for Tenant's portion of the
Project Maintenance Fee.
(d) (i) The annual amount of the Tenant's Project Maintenance Fee
(prorated for any portion of a year) shall be equal to (A) twenty-five ($.25)
cents, as such figure may be adjusted pursuant to Section 28.04(f) hereof (as so
adjusted, the "Per Square Foot Maintenance Fee"), multiplied by (B) the number
of rentable square feet in the Premises.
(ii) The initial annual amount of Tenant's Project Maintenance
Fee shall be $113,750.00, which has been calculated in accordance with the
formula set forth in subsection 28.04(d)(i) above.
(e) Tenant shall pay to Landlord, as Additional Rent, the annual
amount of Tenant's Project Maintenance Fee in equal monthly installments, in
advance on the first (1st) day of each calendar month during the Term,
concurrently with Tenant's payment to Landlord of monthly installments of Fixed
Rent.
(f) (i) Effective on the first (1st) anniversary of the Rent
Commencement Date (or the first (1st) day of the month thereafter if such
anniversary date is not the first
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properties in the New Jersey-New York metropolitan area, or may enter into a
management agreement with a reputable management company experienced in the
operation and maintenance of first class office/retail buildings and properties
in the New Jersey-New York metropolitan area.
(ii) Tenant shall not, at any time prior to or during the Term,
directly or indirectly employ, or permit the employment of a party or parties to
manage and/or operate the Real Property, the Premises and the Building if, in
Landlord's sole judgment, exercised in good faith, such employment will or is
likely to cause any union labor conflict with any other union labor engaged in
the management or operation of any portion(s) of the Project. Furthermore,
Tenant hereby agrees that Landlord shall have the right to designate the union
local from which all building service employees and other building laborers
?????????? are obtained, provided that such services are obtainable at a
comparable rate to that paid by Landlord for performance of similar services,
taking into account that Landlord, because if its utilization of services for
properties of greater aggregate size than the Building, may have obtained a more
favorable rate than Tenant.
(b) (i) Tenant hereby agrees to pay any and all fees, costs,
expenses and amounts incurred in connection with the management and operation of
the Real Property, the Premises and the Building.
(ii) Tenant hereby acknowledges that its payment to Landlord of
Fixed Rent hereunder does not include any fees, costs, expenses and amounts to
be incurred by Tenant in connection with the management and operation of the
Real property, the Premises and the Building.
(c) Tenant hereby agrees to operate and maintain the Real Property,
the Premises and Building in a manner consistent with the operation and
maintenance of a first-class office/retail building in the New Jersey-New York
metropolitan area.
(d) Except as expressly set forth in this Lease, Landlord shall be
under no obligation to furnish or perform any services to or for Tenant or any
Third Party Tenants, nor shall Landlord be responsible for the proper operation
of any Building facilities providing such services.
(e) In the event that Tenant shall fail to operate and maintain the
Real Property and/or provide the minimum services set forth in this Article 29,
Tenant shall be liable to Landlord for its failure to so comply with the terms
and provisions of this Article 29, and shall indemnify and hold Landlord
harmless from and against any and all fees, costs, expenses and liability
resulting or arising from such inability or failure, except to the extent such
failure is the result of Force Majeure.
(f) Tenant may not enter into any agreements or contracts with respect
to the, management, operation and/or maintenance of the Real Property, the
Building or the Premises which may extend beyond the Term without Landlord's
prior written approval, unless, upon thirty (30) days prior notice, such
agreement or contract is terminable by Tenant, and, upon the expiration or
earlier termination of this Lease, is terminable by Landlord or any successor
landlord.
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Section 29.02.
Tenant shall perform or furnish to Tenant and Third ______ Tenants
Building services in a manner and to the extent _______ is consistent with the
services provided to tenants in ________ first-class office buildings located in
the New York _____ ropolitan area or the so-called "Gold Coast" area of the
______ which services shall include, but shall not be limited _______ those
services set forth below:
(a) (i) Heat shall be provided to the Premises when _________ as
required by the laws and requirements of Legal Authorities.
(ii) Landlord does not represent the adequacy of, nor is
Landlord responsible for, Tenant's heat distribution system within the Premises,
or the design or capacity of such system. Tenant shall design and install such
heat distribution system at Tenant's sole cost and expense.
(b) (i) Landlord shall make available to Tenant, for Tenant's use,
the air-conditioning units installed at the Premises as described in Section 1
of Exhibit 4 annexed hereto, and Tenant shall be responsible (A) to pay for all
electricity (or other requisite power service), water and refrigerants used in
connection with such units, and (B) for making, or causing to be made all
repairs, replacements and alterations required to maintain such units in good
working order. Landlord, however, makes no representations or warranties as to
the operation, capacity nor the adequacy of such air-cooling units, subject,
however, to such warranties and guarantees which Tenant is entitled to under
Article 4 of this Lease.
(ii) Tenant covenants that its use of such air-cooling units at
all times shall be in compliance with all applicable orders, rules or
regulations of all Legal Authorities having jurisdiction over the same.
(iii) Tenant shall be responsible for the cost of providing water
for the operation of the air-cooling units servicing the Premises (i.e., the
costs of operating any chillers and the Building cooling tower utilized in
connection therewith, including without limitation, the costs of electric, water
and all repairs to and replacement of such chillers and cooling tower and all
equipment related thereto).
(c) Tenant shall arrange for the cleaning of the interior and
exterior of the Building, except for the Retail Premises, in a manner consistent
with that of a first class office building in the New Jersey-New York
metropolitan area.
(d) Tenant shall pay for its use or consumption of Water in the
Premises. Landlord shall install a water meter in the Building which shall
measure Tenant's water consumption for all purposes. Tenant shall (A) pay
Landlord for the cost Of the meter and its installation thereof, as Additional
Rent, upon demand, (B) keep said meter and installation equipment in good
working order and repair, at Tenant's sole cost and expense, in default of which
Landlord may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant, as Additional Rent, upon demand and (C)
Pay to the appropriate Legal Authority, on or prior to the due date imposed by
the Legal Authority, for all water consumed,
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as well as all sewer rents, charges or any other taxes, rents, levies or charges
which now or hereafter are assessed, imposed or which shall become a lien upon
the Premises or the Real Property pursuant to law, order or regulation made or
issued by any Legal Authority in connection with any such metered use,
consumption, maintenance or supply of water, water system or sewage or sewage
connection or system. If Tenant shall default in making such payment(s)
Landlord may pay such charges and collect the same from Tenant, together with
interest thereon at the Interest Rate, all as Additional Rent.
(e) Landlord reserves the right to require Tenant to stop, interrupt
or reduce the service or operation of the heating, ventilation or air-cooling
systems, elevator, electrical energy or plumbing or any other service or systems
when necessary by reason of any law, rule, regulation or order of any Legal
Authority having jurisdiction over the Building.
(f) The exercise of such right in subsection (e) above by Landlord
shall not (i) constitute an actual or constructive eviction, in whole or in
part, (ii) entitle Tenant to any compensation or to any abatement or diminution
in the payment of Rent, (iii) relieve Tenant from any of its obligations under
this Lease, or (iv) impose any responsibility or liability upon Landlord or its
agents by reason of inconvenience or annoyance to Tenant or any Third Party
Tenants or injury to or interruption of Tenant's or any Third Party Tenant's
business, or otherwise.
ARTICLE 30
ELECTRICITY
-----------
Section 30.01.
(a) (i) Tenant, at Tenant's sole cost and expense, shall arrange to
obtain electricity directly from the public utility or other company servicing
the Building. Tenant acknowledges that, for so long as Tenant and its Third
Party Tenants are in occupancy of the entire Building, other than that portion
of the ground floor which has not been leased to Tenant under this Lease, such
electricity shall service all of the Real Property and the Building, including
the lobby area, all public and common areas and all Building systems, services
and facilities, exclusive, however, of the Retail Premises.
(ii) Landlord represents and warrants to Tenant that the Retail
Premises shall receive electricity service directly from the public utility
providing the same to the Building (i.e., such portion of the Building shall not
---
receive electricity service through facilities providing electricity to Tenant
at the Premises). Notwithstanding the foregoing, in the event Tenant elects to
become a "primary service user" by the public utility servicing the Building and
is thereby required to purchase electrical energy for the entire Building,
including the Retail Premises, Tenant shall, at its expense, redistribute or
furnish electrical energy to or for the use of all tenants in the Retail
Premises. Tenant shall, at its expense, install sub-meters to measure such
tenants' consumption of electrical energy, and such tenants shall pay to Tenant
(or Landlord shall pay to Tenant on behalf thereof),
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on demand, from time to time, but no more frequently than monthly, for
consumption of electrical energy at a rate which Tenant actually pays for such
electrical energy to the public utility company servicing the Building, on the
basis of all of the electricity actually purchased by Tenant for the entire
Building. The rate to be paid by the tenants in the Retail Premises for sub-
metered electrical energy shall include any taxes or other charges in connection
therewith. If any tenant of Retail Premises fails to pay for such electrical
energy furnished to it by Tenant in a timely manner, Tenant shall give notice to
Landlord of such failure to pay, and an opportunity to cure such tenant's
failure within a reasonable time. If such retail tenant (or the Landlord, on
such retail tenant's behalf) shall fail to make payment within a reasonable time
thereafter, Tenant may exercise any and all legal remedies available to it
against such retail tenant.
(b) The cost of such utility service shall be paid by Tenant directly
to such utility company. Such electricity may be furnished to Tenant by means
of the then existing electrical facilities serving the Building and the Premises
to the extent that the same are available, suitable and safe for such purposes.
All meters and all additional panel boards, feeders, risers, wiring and other
conductors and equipment which may be required to obtain electricity shall be
installed by Tenant, at Tenant's sole cost and expense, in a manner reasonably
satisfactory to Landlord.
(c) Tenant shall be obligated, at Tenant's sole cost and expense, to
arrange or to make arrangements with Landlord for the connection of its
electrical system servicing the Premises and the Building (except for the Retail
Premises) to the base Building electrical equipment and system installed by
Landlord in the Building.
Section 30.02.
(a) Any additional feeders or risers to be installed to supply
Tenant's additional electrical requirements, and all other equipment proper and
necessary in connection with such feeders or risers, shall be installed by
Tenant at its sole cost and expense; provided, however, that the installation of
-------- -------
such additional feeders or risers will not violate any applicable laws and
regulations of any Legal Authority and Insurance Body and/or will not cause
permanent damage or injury to the Building or the Premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable alterations
or unreasonably interfere with or disturb other tenants or occupants of the
Building, including any Third Party Tenants.
(b) Tenant covenants that at no time shall the use of electrical
energy in the Premises exceed the capacity of the existing feeders to the
Building or the risers or wiring installations then serving the Premises and
Tenant shall not use any electrical equipment which, in Landlord's reasonable
judgment, will overload such installations.
(c) Any electrical Alterations, additions or consents by Landlord
thereto shall be subject to the provisions of this subsection, as well as to
other provisions of this Lease including, without limitation, the provisions of
Article 5 hereof.
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(d) 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 (A) interruption, curtailment or failure (whether or not temporary) or (B)
defect in the supply, character, quantity, availability or suitability of
electricity furnished to the Premises by reason of any requirement, act or
omission of Landlord or of any public utility or 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 negligence or willful misconduct of
Landlord or its agents. Landlord hereby agrees that if Tenant shall provide
electricity to tenants of the Retail Premises pursuant to subsection
30.04(a)(ii) hereof, Landlord shall thereafter endeavor to insert a clause in
each retail lease of the Retail Premises providing for substantially similar
provisions to those set forth in this subsection 30.02(d) with respect to
Tenant's obligation to provide electrical services to such retail tenants, and
Landlord shall not assert any claim against Tenant for any loss, damage or
expense which the retail tenants may sustain or incur as a result of any failure
of Tenant to provide electricity service, except to the extent expressly set
forth in this subsection 30.02(d).
(e) Tenant shall at all times comply with the rules and regulations
applicable to the service, equipment, wiring and requirements of the utility
company supplying electricity to the Building.
(f) If either the quantity or character of electrical service is
changed by the public utility or other company supplying electrical service 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 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.
ARTICLE 31
STATUS OF TENANT, TENANT'S AGREEMENTS AND COVENANTS
---------------------------------------------------
Section 31.01. If Tenant, or a permitted assignee of this Lease
pursuant to Article 15 hereof, is a Partnership Tenant then: (a) the liability
of each of the parties comprising such Partnership Tenant shall be joint and
several, (b) each of the parties comprising such Partnership Tenant hereby
consents in advance to, and agrees to be bound by, any written instrument which
may hereafter be executed, changing, modifying or discharging this Lease, in
whole or in part, or surrendering all or any part of the Premises to Landlord,
(c) any bills, statements, notices, demands, requests or other communications
given or rendered by or to such Partnership Tenant and/or any of the parties
comprising such Partnership Tenant shall be binding upon all of the parties
comprising such Partnership Tenant, (d) if such Partnership Tenant shall admit
new partners, each such new partner shall, by his or her admission to such
Partnership Tenant, be deemed to have
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assumed performance of all of the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed, and (e) such 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 an agreement in form and content satisfactory to Landlord,
wherein each such new partner shall assume performance of all the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
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 subsection (d) of this Section 31.01).
Section 31.02. 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 foreign) corporation and is
authorized to do business in the State (a copy of evidence thereof shall be
supplied to Landlord upon execution of this Lease) and that each person
executing this Lease on behalf of Tenant is an officer of Tenant and that he is
duly authorized to execute, acknowledge and deliver this Lease to Landlord (a
copy of a resolution to that effect shall be supplied to Landlord upon execution
of this Lease).
Section 31.03. Tenant hereby represents and warrants that:
(a) there are no actions, suits or proceedings pending, or, to the
knowledge of Tenant, threatened against or affecting Tenant, at law or in equity
or before any Legal Authorities which would impair Tenant's ability to perform
its obligations under this Lease;
(b) this Lease has been duly authorized, executed and delivered by
Tenant and constitutes the legal, valid and binding obligation of Tenant; and
(c) the consummation of the transactions hereby contemplated and the
performance of this Lease will not result in any breach or violation of, or
constitute a default under, any lease, bank loan or credit agreement, to which
Tenant is a party.
Section 31.04. Tenant hereby agrees to give notice to Landlord
promptly after becoming aware of (a) any occurrence in or about the Premises for
which Landlord might be liable, (b) any fire or other casualty in the Premises,
and (c) any damage to or defect in the Premises, including the fixtures,
equipment and appurtenances thereof, for the repair of which Landlord might be
responsible.
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ARTICLE 32
CAPTIONS
--------
Section 32.01. The captions are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Lease or the intent of any provision thereof.
ARTICLE 33
CONSTRUCTION OF LEASE
---------------------
Section 33.01.
(a) The term "office" or "offices", wherever used in this Lease, shall
not be construed to mean premises used as a store or stores, for the sale or
display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, shoeshine or other stand, xxxxxx shop, or for other
similar purposes or for manufacturing.
(b) The words "reenter" and "reentry" as used in this Lease are not
restricted to their technical legal meaning.
(c) The term "person" when used in this Lease shall mean a natural
person or persons, a corporation, a partnership, an association, a joint
venture, an estate, a trust or any other legal entity.
(d) The terms "herein," "hereof" and "hereunder," and words of similar
import, shall be construed to refer to this Lease as a whole, and not to any
particular article or section, unless expressly so stated.
(e) The term "and/or" when applied to one or more matters or things
shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(f) The terms "Landlord shall have no liability to Tenant" or "the
same shall be without liability to Landlord" or "without incurring any liability
to Tenant therefore," shall mean that Tenant is not entitled to terminate this
Lease, or to claim actual or constructive eviction, partial or total, or to
receive any abatement or diminution in the payment of Rent, or to be relieved in
any manner of any of its other obligations hereunder, or to be compensated for
loss or injury suffered or to enforce any other right or kind of liability
whatsoever against Landlord, under or with respect to this Lease or with respect
to Tenant's use or occupancy of the Premises.
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ARTICLE 34
PARTIES BOUND
-------------
Section 34.01. The terms, covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant and their respective heirs, distributees, executors, administrators,
successors and, except as otherwise provided in this Lease, their assigns.
ARTICLE 35
BROKERS
-------
Section 35.01.
(a) Landlord and Tenant each represent and warrant to the other that
it has dealt directly with (and only with) the Brokers named herein as the
brokers in connection with this Lease, and that no broker, other than the
Brokers, negotiated this Lease or is entitled to any fee or brokerage commission
in connection herewith.
(b) The execution and delivery of this Lease by Landlord shall be
conclusive evidence that Landlord has relied upon the foregoing representation
and warranty.
Section 35.02.
(a) The parties shall make payments to the Brokers connection with the
Lease pursuant to separate agreement if a Landlord and Tenant shall each
indemnify, defend, save and hold the other harmless from and against all claims
for fees or brokerage commissions, and for all fees, costs and expenses,
including reasonable attorney's fees, court costs and expenses related thereto
from anyone other than the Brokers with whom Landlord and Tenant have dealt,
respectively, in connection with the Premises or this Lease.
(b) Landlord shall have no liability for fees or brokerage commissions
arising out of an assignment of this Lease or a sublease of all or a portion of
the Premises by Tenant and Tenant shall indemnify, defend and save Landlord
harmless from and against all liability for fees or brokerage commissions and
for all fees, costs and expenses, including attorney's fees, court costs and
expenses arising out of any such assignment or sublease.
Section 35.03.
(a) The covenants, representations and agreements of Landlord and
Tenant set forth in this Article 35 shall survive the Expiration Date or earlier
termination of the Term of this Lease.
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ARTICLE 36
ADJACENT EXCAVATION; SHORING; DARKENING OF WINDOWS
--------------------------------------------------
Section 36.01.
(a) If an excavation or bulkhead work or other substructure work
shall be made upon land adjacent to the Real Property, or shall be authorized to
be made, Tenant shall afford to the person causing or authorized to cause such
excavation or other substructure work, license to enter upon the Premises and
the Building for the purpose of doing such work as said person shall deem
necessary to preserve the wall or foundation or structural elements of the
Building from injury or damage and to support the same by proper foundations
without any claim for damages, liability or indemnity against Landlord, or
diminution or abatement of Fixed Rent or Additional Rent, and without
constituting an eviction. Any interruption of or interference with Tenant's
business and the Premises which shall result from the foregoing shall be kept to
a minimum. Furthermore, to the extent such work is completely within the
control of Landlord or someone claiming by or through Landlord, Landlord shall
use its best efforts to avoid any interruption of or interference with Tenant's
business and the Premises.
(b) If, at any time or from time to time, during the Term, any windows
of the Premises are temporarily closed for a period of no greater than sixty
(60) days, darkened or covered as a result of any applicable law, ordinance or
regulation of any Legal Authority, Landlord shall not be liable for any damage
Tenant may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement of Fixed Rent or Additional Rent, nor shall the same
release Tenant from any of its obligations hereunder nor shall the same
constitute an eviction.
ARTICLE 37
MISCELLANEOUS
-------------
Section 37.01. This Lease is submitted to Tenant on the understanding
that it shall not be considered an offer and shall not bind Landlord or Tenant
in any way whatsoever until (a) Tenant has duly executed and delivered
duplicate originals to Landlord, and (b) Landlord has executed and delivered one
(1) of said fully executed originals to Tenant.
Section 37.02. If more than one person executes this Lease as Tenant,
each of them understands and hereby agrees that the obligations of each of them
under this Lease are and shall be joint and several, that the term "Tenant" as
used in this Lease shall mean and include each of them jointly and severally and
that the act of or notice from, or notice or refund to, or the signature of, any
one or more of them, with respect to the tenancy and/or this Lease, including,
but not limited to, any renewal, extension, expiration, termination or
modification of this Lease, shall be binding upon each and all of the persons
executing this Lease as Tenant with the same force and effect as if each and all
of them had so acted or so given or received such notice or refund or so signed.
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Section 37.03. All Exhibits to this Lease and any and all Rider
provisions attached to this Lease are hereby incorporated into this Lease. If
any provision contained in any Exhibit hereto is inconsistent or in conflict
with any printed provision of this Lease, the provision contained in such
Exhibit shall supercede said printed provision and shall control.
Section 37.04.
(a) From time to time, within ten (10) days next following either
party's request, Landlord and Tenant agree that each shall deliver to the other
a written statement executed and acknowledged by the other, in form reasonably
satisfactory to the requesting party, (i) stating that this Lease is then in
full force and effect and has not been modified (or if modified, setting forth
all modifications), (ii) setting forth the date to which the Fixed Rent,
Additional Rent and other charges hereunder have been paid, together with the
amount of fixed base monthly Rent then payable, (iii) stating whether or not, to
the best of its knowledge, the other party is in default under this Lease, and,
if the other party is in default, setting forth the specific nature of all such
defaults, (iv) stating the amount of the security deposit, if any, under this
Lease, (v) stating whether there are any subleases affecting the Premises, (vi)
stating the address to which all notices and communications to such party under
the Lease shall be sent, (vii) stating the Commencement Date, Rent Commencement
Date and the Expiration Date, as the case may be, and (viii) specifying as to
any other matters requested.
(b) Landlord and Tenant acknowledge that any statement delivered
pursuant to this Section 37.04 may be relied upon by any purchaser or owner of
the Real Property or the Building, or Landlord's interest as tenant under the
ground lease of the Building and the Real Property or any Superior Lease, or by
any mortgagee of a Mortgage, or by any assignee of any mortgagee of a Mortgage,
or by any lessor under any Superior Lease or any prospective assignee of
Tenant's interest in the Premises or subtenant at the Premises.
Section 37.05. This Lease shall be governed by and construed in
accordance with the laws of the State, without giving effect to the principles
of conflicts of laws.
Section 37.06. In no event may Tenant record this Lease; provided,
--------
however, that Landlord and Tenant will, upon the request of the other and at the
-------
sole cost and expense of the requesting party, join in the execution of a
memorandum of lease in proper form for recordation.
Section 37.07. This Lease may not be modified or changed in whole or
in part in any manner other than by an instrument in writing duly signed by both
parties hereto.
Section 37.08. The parties hereto acknowledge that simultaneously
with the execution and delivery of this Lease, Tenant has caused the execution
and delivery to Landlord of the Guaranty. The parties further acknowledge that
Landlord would not have entered into this Lease but for the delivery to Landlord
of such Guaranty.
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ARTICLE 38
ARBITRATION
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Section 38.01.
(a) If any provision of this Lease expressly provides that a matter
shall be determined by arbitration in accordance with this Article, then either
party may request the other party in writing that such matter be so determined
by such arbitration, and
(i) each party shall, within ten (10) days thereafter, appoint
one competent and impartial arbitrator and such party shall notify the other
party in writing of the name and address of the arbitrator so appointed;
(ii) if either party shall fail to make such appointment and to
serve notice thereof within the time prescribed as aforesaid, then the
appointment of a competent and impartial arbitrator on behalf of such party
shall be made by the arbitrator already appointed;
(iii) such arbitrators so appointed shall meet within ten (10)
days after the second arbitrator is appointed and shall, if possible, determine
such matter within thirty (30) days after the second arbitrator is appointed,
and their determination under oath shall be binding and conclusive on the
parties;
(iv) if for any reason such two arbitrators fail to agree on
such matter within said period of thirty (30) days, they shall appoint a third
competent and impartial arbitrator, and in the event of their failure to agree
upon such third arbitrator within ten (10) days after the time aforesaid, either
party on behalf of both may request such appointment by the Superior Court in
the County of Xxxxxx for the appointment of such third arbitrator, and the other
party shall not raise any question as to the Court's full power and jurisdiction
to entertain the application and make the appointment; and
(v) the determination of such matter under oath of any two of
such three arbitrators shall be given within a period of thirty (30) days (or
such longer period as may be reasonable in light of the circumstances) after the
appointment of the third arbitrator and shall in all cases be binding and
conclusive upon the parties hereto.
(b) Each arbitrator shall be duly sworn to determine such matter
fairly and impartially. If any arbitrator shall die, be disqualified or
incapacitated, or shall fail or refuse to act, before such matter shall have
been determined, then, in place of such arbitrator, a competent and impartial
arbitrator shall promptly be appointed in the same manner as the arbitrator who
shall have died, become disqualified or incapacitated, or who shall have failed
or refused to act, as the case may be, as aforesaid.
(c) Each arbitrator shall have at least ten (10) years' experience
with the subject matter under dispute in the particular context of urban high-
rise office buildings with premises.
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(d) (i) The arbitrator shall set forth findings of fact and
conclusions of law.
(ii) The arbitrator's conclusions of law shall conform to the
laws of the State.
(iii) The arbitrator may interpret and apply the terms of this
Lease but shall not change any of the terms of this Lease.
(e) The decision of the arbitrator shall be binding on the parties,
and either party shall have the right to enter the decision of such arbitration
as a judgment in any court of competent jurisdiction in the State.
(f) Except as otherwise provided in this Lease, each shall pay the
fees and expenses of the arbitrator appointed by or on behalf of such party and
the arbitrators shall allocate the fees and expenses of the third arbitrator on
the basis of the relative success of the parties in such arbitration.
ARTICLE 39
SIGNAGE; BUILDING NAME
----------------------
Section 39.01.
(a) Tenant shall have the right, at Tenant's sole cost and expense, to
install, maintain and replace, from time to time, upon the facade of the
Building no less than two (2) signs and logos which identify Tenant or Tenant's
parent or affiliate, provided such parent or affiliate is conducting business at
the Premises (but in no event Tenant's subtenants or other occupants of the
Premises). Such signs shall be tasteful and dignified, and of a size, design,
character, construction and materials as shall first be approved in writing by
Landlord, which approval shall not be unreasonably withheld or delayed,
provided, however, that such signs or logos shall (A) be in conformity with
overall design and appearance criteria for the Project in effect on the date of
the installation thereof, and (B) be shall be installed in a manner and at a
particular place or places as shall be selected by Tenant, with Landlord's prior
written consent, which consent shall not be unreasonably withheld or delayed;
provided, however, in no event whatsoever shall any such sign puncture the
-------- -------
facade of the Building. No neon, flashing or other lighted signs, logos or
displays shall be permitted on the Building, within any windows or otherwise
visible from outside of the Building.
(b) Tenant shall, at its sole cost and expense, maintain and repair
any such signs, and shall be responsible for all costs and expenses in
connection with complying with any and all laws, ordinances or regulations of
any Legal Authority with respect thereto.
(c) Landlord shall reasonably cooperate, at Tenant's sole cost and
expense, and without any cost, fee, expense or liability to Landlord, with
Tenant's efforts to obtain or file
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any and all permits or other documents and renewals thereof that may be
necessary to install and maintain said signs.
(d) Upon the Expiration Date or earlier termination of the Term of
this Lease, upon Landlord's request, Tenant, at Tenant's sole cost and expense,
shall remove all such signs, lettering and logos installed by Tenant on or at
the Building or Real Property, and shall repair any damage to, or restore the
facade of the Building or any portion of the Building and Real Property, caused
by such removal.
Section 39.02.
(a) Landlord shall, at Tenant's option, name the Building "The Recruit
Building" or such other name that Tenant may designate, from time to time,
subject to Landlord's prior written approval, which approval shall not be
unreasonably withheld or delayed, provided, however, that such other name (i)
would not adversely affect the reputation of the Building as a first class
office/retail building, (ii) will not conflict with the naming of any other
building in the Project and (iii) contains the name of the Tenant herein named.
Tenant may include the word "Newport" in its name for the Building.
(b) Upon prior written notice to Tenant, Landlord reserves the right
to change the number or address of the Building at any time that such change is
required by any Legal Authority or any law, rule, notice or regulation issued
thereby.
Section 39.03.
(a) Tenant acknowledges that the Retail Premises of the Building not
leased to Tenant is intended by Landlord to be leased to retail stores or other
service establishments offering a variety of goods, merchandise and services for
sale, at retail, to the general public.
(b) Landlord hereby agrees that the uses of the retail or service
establishment tenant(s) at the Retail Premises shall be consistent with the uses
of other ground floor premises in first class office buildings in the New York
metropolitan area or the "Gold Coast" area of the City and the signage of such
tenant(s) shall be in conformity with the overall design and appearance criteria
for the Project.
(c) The foregoing shall not be deemed to give Tenant any right of
approval as to the identity of the tenants or uses to whom or which Landlord
shall lease the Retail Premises, or the signage therefor which is approved by
Landlord.
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ARTICLE 40
PARKING
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Section 40.01.
(a) (i) Landlord hereby agrees to provide or cause to be provided
to Tenant both initial and subsequent parking facilities (which may be a parking
lot or parking garage or a combination of both) in an area or areas located at
the Project (collectively, the "Parking Facilities").
(ii) The initial Parking Facilities which are called the
"Initial Parking Facilities" and the subsequent Parking Facilities which are
called the "Subsequent Parking Facilities" are more particularly described
below.
(iii) The Subsequent Parking Facilities shall be comprised of the
"Interim Parking Facilities" and the "Permanent Parking Facilities." The Interim
Parking Facilities and the Permanent Parking Facilities are more particularly
described below.
(iv) All Parking Facilities shall be located within six hundred
fifty (650) feet from the Building and shall be in the locations of the type
designated by Landlord, as hereinafter provided. The Interim Parking Facilities
and the Permanent Parking Facilities shall be located within the area indicated
on Exhibit 8 annexed hereto and made a part hereof.
(b) The provision of the Parking Facilities to Tenant shall be subject
to all of the terms, provisions and conditions set forth in Article 44 of the
Superior Lease between Newport Associates Development Company, as lessor, and
Landlord, as lessee, as amended, which Superior Lease is more particularly
described in paragraphs 2, 3, 4 and 5, under the heading of "Mortgages and
Superior Leases" on Exhibit 6 hereof (a copy of which Superior Lease Tenant
acknowledges it has received and reviewed).
Section 40.02.
(a) (i) Upon the Commencement Date and through and including the
date which is eighteen (18) months thereafter (the "Construction/Move-In
Period"), as same may be extended as the result of Landlord's Delay, Landlord
shall provide or cause to be provided to Tenant, and Tenant's contractors,
subcontractors and workers engaged in the performance of Tenant's Initial Work,
on a monthly basis, during such performance of Tenant's Initial Work and
Tenant's move-in into the Premises, initial parking facilities containing such
parking spaces as shall then be reasonably required by Tenant and its
contractors, subcontractors and workers for each month during the
Construction/Move-In Period (the "Initial Parking Facilities"). For a reasonable
time after the Construction/Move-In Period, upon the written request of Tenant,
Landlord shall use reasonable efforts to continue to provide Initial Parking
Facilities at no cost to Tenant, provided that Landlord shall not be required to
incur any expense or liability in connection therewith.
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(ii) Tenant shall provide a written notice to Landlord on the
Commencement Date and at least ten (10) days prior to each monthly period
thereafter for which Tenant shall require Initial Parking Facilities, setting
forth the number of parking spaces which Tenant shall require at the
Initial Parking Facilities during such month, and Landlord shall use all
reasonable efforts to accommodate Tenant with regard to such parking during such
monthly period.
(iii) The Initial Parking Facilities shall be made available to
Tenant and Tenant's contractors, subcontractors and workers twenty-four (24)
hours per day, seven (7) days per week.
(iv) Tenant shall promptly furnish to Landlord notice of the
date upon which Tenant shall require Subsequent Parking Facilities, which date
shall be no earlier than March 1, 1989, and upon a date determined by Landlord
no later than thirty (30) days after receipt of such notice (the "Subsequent
Parking Commencement Date"), Landlord shall be obligated to furnish to Tenant
Subsequent Parking Facilities, and shall have no obligation to continue to
furnish Initial Parking Facilities to Tenant from and after the date same are
made available to Tenant.
(b) (i) Upon and after the Subsequent Parking Commencement Date,
Landlord hereby agrees to make available to Tenant the use of one (1) parking
space per one thousand (1000) rentable square feet in the Premises, equal to
four hundred fifty-five (455) spaces in the Subsequent Parking Facilities (the
"Allocated Spaces") as provided below.
(ii) In order to provide Tenant with the Allocated Spaces in
Subsequent Parking Facilities, Landlord, with reasonable diligence, shall
construct, or cause to be constructed, a permanent, multi-level parking garage
at the Project for the non-exclusive use of Tenant, its employees and licensees
(the "Permanent Parking Facilities").
(iii) If, prior to the Subsequent Parking Commencement Date,
Landlord has not provided Tenant with Permanent Parking Facilities, Landlord
will temporarily make available to Tenant, until the Permanent Parking
Facilities are available, the non-exclusive use of a parking lot, which lot
shall be semi-attended, striped, lighted, fenced and paved (the "Interim Parking
Facilities").
(iv) Tenant shall be required to pay for all Allocated Spaces at
all times during the Term of the Lease (whether or not such spaces are actually
utilized by Tenant), at the rate set forth in Section 40.04 hereof; provided,
--------
however, that prior to the Rent Commencement Date, Tenant shall only be required
-------
to pay for those Allocated Spaces which Tenant has requested by written notice
to Landlord delivered on or prior to the Subsequent Parking Commencement Date,
and Landlord has made available to Tenant, at the rate set forth in Section
40.04 hereof.
Section 40.03.
(a) Landlord or its parking operator (the "Parking Operator"), as the
case may be, shall, at their option, make available any such parking
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at the Parking Facilities on an unassigned, unreserved basis, or shall designate
specific parking spaces for Tenant in such Parking Facility, as the case may be,
provided, however, that Landlord or the Parking Operator shall have the right to
change the assignment of such designated parking spaces at any time and from
time to time during the Term. Notwithstanding the foregoing, Landlord or the
Parking Operator, as the case may be, shall at all times during the Term
designate at least thirty (30) specific parking spaces for Tenant, subject to
Landlord's or the Parking Operator's right to change such designations, provided
that such parking spaces shall be located as close to the main entrance of the
Building as practicable. Any Parking Facilities described herein may be attended
or unattended, as the Landlord or Parking Operator may determine from time to
time, or except as is otherwise set forth herein.
(b) Tenant, in its use of any Parking Facilities, shall at all times
observe the rules and regulations reasonably promulgated by Landlord or the
Parking Operator with respect to the use thereof, and Tenant and its employees
and agents shall refrain from parking in spaces and areas which Landlord has
designated as restricted. Landlord hereby agrees that neither Landlord nor the
Parking Operator, as the case may be, will enforce said rules and regulations in
a manner which discriminates against Tenant or anyone claiming through or under
Tenant. If any of said rules and regulations promulgated by Landlord conflict
with the terms and provisions of this Lease, the terms and provisions of this
Lease shall prevail.
(c) If Tenant, its agents, employees or visitors shall fail to observe
such rules and regulations, or shall use any restricted spaces or areas,
Landlord or the Parking Operator shall have the right and option, in addition to
any other remedy they may have, to tow away such non-observing vehicles, at the
sole cost and expense of the owner of such vehicle.
(d) (i) If any of the Parking Facilities shall become unavailable
for any reason whatsoever, provided Landlord complies with the provisions of
subsection 40.03(d)(ii) below, Tenant's inability to use the same or the parking
spaces therein shall not relieve Tenant of any of its obligations under this
Lease, including the payment of Rent and this Lease shall remain in full force
and effect in accordance with its terms; provided, however, that Landlord shall
use all reasonable efforts to cause the restoration of such unavailable Parking
Facility with all reasonable dispatch.
(ii) Following the occurrence of such unavailability, Landlord
shall provide alternate and comparable parking facilities within six hundred
fifty (650) feet from the Building for the use of Tenant, and Third Party
Tenants and the agents, employees and visitors, and during any use of such
alternate interim parking facilities, Tenant shall pay a monthly charge for each
space, at the same rate as would be payable by Tenant for the unavailable
Parking Facility, as hereinafter set forth.
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Section 40.04.
(a) (i) Tenant shall pay to Landlord, or if directed by Landlord to
the Parking Operator, on account of parking spaces (A) in the Interim Parking
Facilities the amount per space per month as is hereinafter set forth in
subsection 40.04(b) below, and (B) in the Permanent Parking Facilities the
initial amount of Dollars per space per month, adjusted on an annual basis
pursuant to the provisions of subsection 40.04(b) below (collectively, the
"Parking Fee").
(ii) Landlord hereby agrees that Tenant shall have no obligation
or requirement to pay to Landlord any Parking Fee for its use of the Initial
Parking Facilities.
(iii) The Parking Fee shall be paid on the first (1st) day of
each month during the Term. The Parking Fee for both of the Interim Parking
Facilities and the Permanent Parking Facilities, subject, however, to the
provisions of subsection 40.02.(b)(iv) hereof, shall be payable by Tenant
commencing upon the date Landlord has made available to Tenant for Tenant's use,
each of such Parking Facilities, but in no event later than the Rent
Commencement Date.
(b) (i) Tenant shall pay Landlord, on a monthly basis on account of
each parking space provided to Tenant in the Interim Parking Facilities, the
"Gross Interim Parking Expenses", which term shall mean and shall be comprised
of all costs of operating and maintaining the Interim Parking Facilities
(including, without limitation, the cost of personnel, lighting and repairs)
allocated monthly on an accrual basis and the costs of the initial construction
of the Interim Parking Facilities and capital improvements thereto, such costs
to be amortized on a straight line basis month to month over the period during
which Landlord provides Tenant with the use of the Interim Parking Facilities,
which monthly fee shall in no event exceed Ninety-Five and No/100 ($95.00)
dollars (collectively, the "Actual Monthly Interim Parking Expenses").
(ii) On the first (1st) day of the month following the
Construction/Move-In Period in which Landlord shall make the Interim Parking
Facilities available to Tenant, and on the first (1st) day of each month
thereafter until Landlord has made available the Permanent Parking Facilities
(at which time the Parking Fee set forth in subsection 40.04(a)(i) shall be
payable), Tenant shall pay Landlord an amount which Landlord estimates, in its
reasonable judgment, to be the Actual Monthly Interim Parking Expenses.
Landlord may adjust the monthly amount billed to Tenant on account of the Gross
Interim Parking Expenses from time to time during the period the Interim Parking
Facilities are made available to Tenant.
(iii) Promptly after Landlord makes the Permanent Parking
Facility available to Tenant, Landlord shall forward to Tenant an itemized
statement setting forth Landlord's final computation of the Gross Interim
Parking Expenses and the actual costs and expenses comprising said Gross Interim
Parking Expenses, and Landlord or Tenant, as the case may be, promptly shall
make appropriate payment to the other (without
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interest) of any amount overpaid by Tenant or owing to Landlord based on the
amount due pursuant to such statement and the amount theretofore paid by Tenant
for the Gross Interim Parking Expenses.
(c) Effective on the first (1st) anniversary of the date on which
Landlord has made available for Tenant's use the Permanent Parking Facilities
(or the first (1st) day of the month thereafter if such anniversary date is not
the first (1st) day of a month) and on each subsequent anniversary date
thereafter during the Term (the "Parking Increase Effective Date") the Parking
Fee then in effect shall be increased by the percentage increase, if any, in (x)
the average of the monthly posted rates at parking garages located at the
Project [and those certain other "Gold Coast" projects, namely, Evertrust Plaza,
Harborside and Exchange Place] as of the date immediately preceding the Parking
Increase Effective Date above (y) the average of the monthly posted rates at
such parking garages as of the date immediately preceding the prior Parking
Increase Effective Date.
It is agreed and understood by Tenant that in no event shall the
adjusted monthly Parking Fee be less than the monthly Parking Fee in effect
during the immediately preceding year.
(d) Landlord, no later than thirty (30) days prior to a Parking
Increase Effective Date, shall notify Tenant in writing of Landlord's
determination or estimate (the "Parking Estimate") of the adjusted or increased
amount of the Parking Fee for the month in which the Parking Increase Effective
Date shall occur, and promptly after each Parking Increase Effective Date, the
parties hereto shall make an appropriate adjustment if the Parking Estimate is
less or greater than the actual Parking Fee, as calculated pursuant to section
40.04(b) above, and shall execute an agreement in form and substance
satisfactory to Landlord setting forth the new Parking Fee.
Section 40.05.
(a) Tenant shall use all parking spaces provided to Tenant pursuant to
this Article 40 for the sole and exclusive use of Tenant and its Third Party
Tenants or their employees and visitors, and in no event may Tenant sublicense
its use of, or accept any fee, charge or other payment from any other party for
or regarding the temporary or permanent use of any the Parking Facilities
without first obtaining Landlord's prior written consent.
(b) Any violation of the foregoing shall constitute a default under
this Lease, permitting Landlord to exercise all of its rights and remedies
hereunder.
(c) Tenant shall, in the event of any sublicense of its parking spaces
to its subtenants, remain liable for payment to Landlord of any Parking Fee for
such Parking Facilities so sublicensed to a subtenant of Tenant.
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Section 40.06.
(a) Tenant hereby agrees for itself that Tenant's use of the Parking
Facilities shall be at Tenant's risk, and Landlord shall have no liability to
Tenant with regard to Tenant's use of the Parking Facilities (or any alternate
Interim Parking Facilities as above described), nor shall Landlord be liable for
any damage or injury to Tenant, or its agents, employees or visitors, or the
property of any of the same, if any automobile or the contents thereof shall be
damaged, lost or stolen while in the Parking Facilities (or such alternate
Interim Parking Facilities) unless caused solely by the negligence of Landlord
or its agents.
(b) Tenant's use of the Parking Facilities, as herein set forth, shall
be in common with other tenants of the Building, other tenants at other
buildings located at the Project, and any other parties permitted by Landlord
and the Parking Operator to use such Parking Facilities.
Section 40.07.
(a) Tenant shall provide Landlord or the Parking Operator with a list
of those persons to whom Tenant shall have given parking permits issued to
Tenant and the cars used by such persons and shall provide Landlord with the
changes thereto from time to time, but in no event less than once per month
during the Term.
(b) Upon the expiration of this Lease, Tenant shall assign and deliver
to Landlord any parking permits which Tenant shall have received from Landlord
or the Parking Operator. Tenant expressly assumes the responsibility for the
return of any such parking permits in its possession.
ARTICLE 41
RENEWAL OPTIONS
---------------
Section 41.01.
(a) Provided this Lease shall then be in full force and effect and
Tenant shall not then be in default in the observance or performance of any of
the terms of this Lease which are of a monetary nature and in connection with
which default Landlord shall have commenced a legal action against Tenant,
Tenant may elect, at its option, to extend the Term of this Lease, for an
initial renewal period of five (5) years (the "First Renewal Term"). The First
Renewal Term shall commence on the date immediately following the Expiration
Date (the "First Renewal Term Commencement Date") and shall terminate on the
fifth (5th) anniversary of the Expiration Date (the "First Renewal Term
Expiration Date").
(b) Tenant shall exercise the option described herein by giving
Landlord written notice of such election to extend the initial Term of this
Lease not later than twenty-four (24) months prior to the Expiration Date, and
upon the giving of such notice, but subject to Tenant's right to revoke
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its election pursuant to subsection 41.01(d)(iii)(C), and provided that this
Lease shall then be in full force and effect at the time of the exercise of such
option and on the Expiration Date, the initial Term of this Lease shall
thereupon be deemed renewed for the First Renewal Term upon all the covenants,
agreements, terms, provisions and conditions contained herein, except such
covenants, agreements, terms, provisions and conditions of this Lease as shall
be inapplicable or irrelevant and except as otherwise set forth in this Section
41.01, and with the same force and effect as if the First Renewal Term had
originally been included in the initial Term of this Lease.
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Section 41.02.
(a) Provided Tenant shall have exercised its option to renew this
Lease for the First Renewal Term, and provided further that this Lease shall
then be in full force and effect and Tenant shall not then be in default in the
observance or performance of any of the terms of this Lease which are of a
monetary nature and in connection with which default Landlord shall have
commenced a legal action against Tenant, Tenant, at Tenant's option, shall have
the right to extend the Term of this Lease for a second five (5) year period
(the "Second Renewal Term"). The Second Renewal Term shall commence on the date
immediately following the First Renewal Term Expiration Date (the "Second
Renewal Term Commencement Date") and shall terminate on the fifth (5th)
anniversary of the First Renewal Term Expiration Date (the "Second Renewal Term
Expiration Date").
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Section 41.03.
(a) Provided Tenant shall have exercised its option to renew this
Lease for the Second Renewal Term, and provided further that this Lease shall
then be in full force and effect and Tenant shall not then be in default in the
observance or performance of any of the terms of this Lease which are of a
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_________ nature and in connection with which default Landlord ______ have
commenced a legal action against Tenant, Tenant, at ______ option, shall have
the right to extend the Term of _____ Lease for a third five (5) year period
(the "Third ____________ Term"). The Third Renewal Term shall commence on the
_______ immediately following the Second Renewal Term Expiration __________ the
"Third Renewal Term Commencement Date") and shall _________ on the fifth (5th)
anniversary of the Second Renewal Expiration Date (the "Third Renewal Term
Expiration
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Section 41.04.
(a) Provided Tenant shall have exercised its option to renew this
Lease for the Third Renewal Term, and provided further that this Lease shall
then be in full force and effect and Tenant shall not then be in default in the
observance or performance of any of the terms of this Lease which are of a
monetary nature and in connection with which default Landlord shall have
commenced a legal action against Tenant, Tenant, at Tenant's option, shall have
the right to extend the Term of this Lease for a fourth five (5) year period
(the "Fourth Renewal Term"). The Fourth Renewal Term shall commence on the date
immediately following the Third Renewal Term Expiration Date (the "Fourth
Renewal Term Commencement Date") and shall terminate on the fifth (5th)
anniversary of the Third Renewal Term Expiration Date (the "Fourth Renewal Term
Expiration Date").
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Commencement Date" and "the First Renewal Term" shall mean the Fourth Renewal
Commencement Date" and "the Fourth Renewal Term", respectively, as the case may
be.
(d) Notwithstanding the foregoing provisions of Section 41.04, Tenant
may elect to renew the Term of this Lease for the Fourth Renewal Term
simultaneously with its election to renew the Term of this Lease for the Third
Renewal Term pursuant to provisions of Section 41.03. If Tenant so elects to
renew the Third Renewal Term and the Fourth Renewal Term concurrently, the
annual Fixed Rent during the Fourth Renewal Term shall be as set forth in
subsection 41.04(c) above, utilizing, however, in such calculation the
??? in connection with the determination of the annual Fixed Rent for the Third
Renewal Term pursuant to the provisions of Section 41.03.
Section 41.05.
(a) Provided Tenant shall have exercised its option to renew this
Lease for the Fourth Renewal Term, and provided further that this Lease shall
then be in full force and effect and Tenant shall not then be in default in the
observance or performance of any of the terms of this Lease which are of a
monetary nature and in connection with which default Landlord shall have
commenced a legal action against Tenant, Tenant, at Tenant's option, shall have
the right to extend the Term of this Lease for a fifth five (5) year period (the
"Fifth Renewal Term"). The Fifth Renewal shall commence on the date immediately
following the Fourth Renewal Term Expiration Date (the "Fifth Renewal Term
Commencement Date") and shall terminate on the fifth (5th) anniversary of the
Fourth Renewal Term Expiration Date (the "Fifth Renewal Term Expiration Date").
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TENANT'S PURCHASE OPTION
------------------------
Section 42.01. Provided that (i) Tenant is not then in default in the
observance or performance of any of the terms of this Lease which are of a
monetary nature and in connection with which default Landlord has commenced a
legal action and this Lease shall then be in full force and effect, and (ii)
Tenant shall have exercised its option to renew this Lease for all of the
Premises for the First Renewal Term, as provided in this
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Section 42.12. Tenant shall not be permitted to assign its rights
under this Article 42 with respect to the Purchase Option independently of its
rights to assign this Lease as set forth in Article 15 of this Lease.
ARTICLE 43
TENANT'S ROOF AND UNDERGROUND INSTALLATIONS
-------------------------------------------
Section 43.01.
Tenant shall have the right, with no increase in Tenant's payment of
Fixed Rent or Additional Rent hereunder, to install and maintain on the roof of
the Building, at Tenant's sole cost and expense, (i) any and all data processing
or communications equipment, dishes or antennae and connecting cables and
associated equipment, (ii) emergency generators with suitable enclosures and
(iii) air conditioning cooling towers (collectively, the "Tenant's Roof
Installations") necessary or desirable for the conduct of Tenant's business in
the Premises. Tenant shall further have the right, with no increase in Tenant's
payment of Fixed Rent or Additional Rent hereunder, to install and maintain, in
an underground location at the Real Property selected by Landlord and Tenant, at
Tenant's sole cost and expense, up to a 15,000 gallon fuel tank to service the
emergency generators (the "Tank"). Notwithstanding the foregoing provisions of
this subsection 43.01(a), if the installation, operation or maintenance of such
Tenant's Roof Installations or the Tank shall result in an increase in the
assessment of the Building or the Real Property for tax purposes or if any
similar or additional tax or other charge shall be imposed upon Landlord or the
Building or the Real Property as a result thereof, then Tenant shall reimburse
Landlord for such increase within thirty (30) days after written demand
therefor, provided such date is not earlier than fifteen (15) days prior to the
due date of such taxes.
Section 43.02.
(a) Tenant shall install the Tenant's Roof Installations and the Tank
in a good and workmanlike manner and, in installing Tenant's Roof Installations
shall adhere to the procedures reasonably prescribed by Landlord so as not to
invalidate any warranties running to Landlord with respect to the work
previously performed or materials utilized to install the roof. Tenant's
insurance coverage for Tenant's Work obtained pursuant to the provisions of
Article 12 shall include coverage of Tenant's Roof Installations and the Tank.
(b) Tenant's Roof Installations and the Tank shall (i) be in a
location reasonably satisfactory to Landlord, (ii) be installed, repaired and
maintained in accordance with all of the terms, covenants and conditions of this
Lease (including, without limitation, those contained in Articles 3, 5, 7, 9 and
29 hereof) and upon such other reasonable terms, covenants and conditions as
Landlord may impose in connection therewith, and (iii) in Landlord's reasonable
judgment, meet Landlord's reasonable aesthetic guidelines (in terms of their
appearance from street level) so as to not materially adversely affect the
appearance of the Building as a first class office building with ground floor
retail tenants.
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(c) Landlord shall provide Tenant with access to that portion of the
Real Property where the Tank shall be located in order to permit Tenant to
install, maintain, repair and, if necessary, replace the Tank; provided,
--------
however, that Tenant shall be obligated, at Tenant's sole cost and expense, to
-------
repair any and all damage to the Real Property, including the plantings,
shrubbery, lawn, sidewalks and curbs, occasioned by Tenant's installation,
repair, maintenance and replacement, if necessary, of the Tank and to minimize
interference with the tenants of the Retail Premises.
(d) Tenant's Roof Installations and the Tank shall at all times be the
property of Tenant, provided that, at the expiration or sooner termination of
the Term, Tenant restores and repairs the Building to its condition prior to the
installation of the Tenant's Roof Installations and restores the Real Property
to its condition prior to the installation of the Tank.
Section 43.03.
Tenant shall maintain the Tenant's Roof Installations and the Tank, at
Tenant's sole cost and expense, and shall indemnify and hold the Landlord
harmless from and against any violation of any Environmental Law or requirement
of any Legal Authority, or any claim or action for any damage or injury to
person or property caused by the installation, maintenance or use of the
Tenant's Roof Installations and the Tank, unless such damage or injury is caused
solely by an act or omission of Landlord, its agents, contractors, employees,
servants, or any other person for whom it is legally responsible. Landlord
shall assist Tenant in obtaining any and all required permits in connection with
such Tenant's Roof Installations provided, however, that Landlord shall incur no
liability, fee, cost or expense in connection with rendering such assistance.
Landlord and Tenant acknowledge that Landlord shall be required to obtain site
plan modification and a waterfront development permit to the extent legally
required in connection with the installation of the Tank at no cost to Tenant.
Landlord further agrees to excavate for purposes of installing the Tank and
complete any remedial compliance, if any, required for such excavation, also at
no cost to Tenant. Tenant shall bear the cost of obtaining and maintaining all
other permits required for the Tank and the cost of a concrete pad for the Tank,
which pad shall be installed by Landlord as directed by Tenant. Landlord and
Tenant each agree to cooperate with the other in connection with the foregoing,
provided, however, that Landlord shall incur no liability, fee, cost or expense
other than as set forth herein.
Section 43.04.
Tenant acknowledges that the rights given to Tenant pursuant to this
Article 43 are non-exclusive, and that Landlord may, for itself and third
parties, install and maintain on the roof of the Building data processing or
communications equipment, dishes or antennae and connecting cables and
associated equipment (collectively, "Landlord's Roof Installations") to the
extent the same are reasonably available and not inconsistent with or materially
adverse to Tenant's use of Tenant's Roof Installations. Tenant shall
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provide Landlord with access to the Building roof to allow Landlord to install,
maintain, repair and replace Landlord's Roof Installations and the electrical
risers and cables therefor. Tenant shall not be responsible for any additional
taxes or charges imposed upon Landlord or the Building as a result of the
installation, operation or maintenance of Landlord's Roof Installations.
Section 43.05.
Landlord and Tenant each agree that its respective Roof Installations
shall not interfere with the installation, use and maintenance of the other's
Roof Installations and Landlord and Tenant shall each cooperate with the other
with respect to insuring that interference from each other's Roof Installations
is kept to a minimum, it being understood and agreed, that in the event of any
such interference, Tenants' rights to such Roof Installations shall be
paramount.
ARTICLE 44
SECURITY DEPOSIT (LETTER OF CREDIT)
-----------------------------------
Section 44.01.
Tenant shall deposit with Landlord on the signing of this Lease the
amount of Nineteen Million One Hundred Ten Thousand and No/100 ($19,110,000.00)
Dollars in cash (the "Security Deposit"), as security for the faithful
performance and observance by Tenant of the terms, conditions and provisions of
this Lease, including without limitation, the surrender of possession of the
Premises to Landlord as herein provided.
Section 44.02.
(a) In lieu of a cash deposit, Tenant may deliver to Landlord a clean,
irrevocable, non-documentary and unconditional letter of credit issued by and
drawn upon any commercial bank (the "Issuing Bank") with offices for banking
purposes in The City of New York and having a net worth of not less than One
Hundred Million and 00/100 ($100,000,000.00) Dollars (the "Letter of Credit"),
which Letter of Credit shall have a term of not less than one (1) year, be in
form and content satisfactory to Landlord, be for the account of Landlord, be in
the amount of the Security Deposit and be fully transferable by Landlord without
any fees or charges therefore. Landlord and Tenant shall equally share the fees
charged by the Issuing Bank to obtain and maintain the Letter of Credit;
provided, however, in no event shall Landlord's annual share of such fees exceed
-------- -------
the lesser of (i) 15/100 of one percent (.15%), or (ii) one-half (1/2) of the
annual fee actually charged to Tenant by the Issuing Bank.
(b) The Letter of Credit shall provide that it shall be deemed
automatically renewed, without amendment, for consecutive periods of one (1)
year each thereafter during the Term of this Lease, unless the Issuing Bank
sends notice (the "Non-Renewal Notice") to Landlord by certified mail, return
receipt requested, not less than thirty (30) days next preceding the then
expiration date of the Letter of Credit that it elects not
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to have such Letter of Credit renewed. Additionally, the parties hereto agree
that under this Lease Landlord shall have the right at any time after receipt of
the Non-Renewal Notice, by sight draft on the Issuing Bank, to receive the
monies represented-by the existing Letter of Credit and to hold such proceeds
pursuant to the terms of this Article 44 as a cash security pending the
replacement of such Letter of Credit and the Letter of Credit shall confirm the
foregoing rights. It is agreed that in the event Tenant defaults in respect of
any of the terms, provisions and conditions of this Lease, including, but not
limited to, the payment of Fixed Rent and Additional Rent, Landlord may apply or
retain the whole or any part of the cash security so deposited or may notify the
Issuing Bank and thereupon receive all the monies represented by the Letter of
Credit and use, apply, or retain the whole or any part of such proceeds, as the
case may be to the extent required for the payment of any Fixed Rent and
Additional Rent or any other sum 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 the terms, covenants and conditions of this Lease,
including but not limited to, any damages or deficiency in the reletting of the
Premises, whether such damages or deficiency accrue or accrues before or after
summary proceedings or other reentry by Landlord.
(c) If Landlord applies or retains any part of the cash security or
proceeds of the Letter of Credit, as the case may be, Tenant, upon demand, shall
deposit with Landlord the amount so applied or retained so that Landlord shall
have the full amount of the Security Deposit on hand and available for its
utilization, as provided herein, at all times during the Term of this Lease.
(d) If Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Lease, the cash security or Letter
of Credit, as the case may be, shall be returned to Tenant after the Expiration
Date and after delivery of the entire possession of the Premises to Landlord.
In the event of a sale of the Real Property or the Building or leasing of the
Building, Landlord shall transfer the cash security to the vendee or lessee and
with respect to the Letter of Credit, within thirty (30) days of notice of such
sale or leasing, Tenant, at Landlord's sole cost and expense, shall arrange for
the transfer of the Letter of Credit to the new landlord who shall acknowledge
receipt therefor, as designated by Landlord in the foregoing notice, or have the
Letter of Credit reissued in the name of the new landlord, as the case may be,
and Landlord shall obtain a written assumption of this Lease from the new
landlord and shall thereupon be released by Tenant from all liability for the
return of the Security Deposit.
(e) Landlord shall also have the right to transfer the cash security
or Letter of Credit to a successor landlord who has succeeded to the rights of
Landlord under this Lease, at Landlord's sole cost and expense.
(f) Provided Landlord has complied with the provisions of Section
44.02(d) or Section 44.02(e) above, as the case may be, Tenant agrees to look
solely to the new landlord or successor landlord, as the case may be, for the
return of such cash security or Letter of Credit and it is agreed that the
provisions hereof shall apply to every transfer or assignment
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made of the security to a new landlord. Tenant further covenants that it will
not assign or encumber or attempt to assign or encumber the monies or Letter of
Credit deposited herein as security and that neither Landlord nor its successors
or assigns shall be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance.
ARTICLE 45
LANDLORD'S REPRESENTATIONS AND
WARRANTIES
------------------------------
Section 45.01. Landlord hereby represents and warrants as follows:
(a) there are, as of the date hereof, no actions, suits or proceedings
pending, or, to the best knowledge of Landlord, threatened against or affecting
Landlord at law or in equity or before any Legal Authorities which would impair
Landlord's ability to perform its obligations under this Lease;
(b) this Lease has been duly authorized and executed by Landlord and
constitutes the legal, valid and binding obligation of Landlord;
(c) the consummation of the transactions hereby contemplated and the
performance of this Lease will not result in any breach or violation of, or
constitute a default under, any lease, bank loan or credit agreement to which
Landlord is a party;
(d) as of the date hereof, Landlord has not received any written
notice of and, to the best knowledge of Landlord, Landlord is not in default
under any Superior Lease, Mortgage and/or any other instrument of record beyond
the expiration of any applicable notice and grace periods provided for the same
in such documents affecting the Premises as of the date hereof;
(e) as of the date hereof, Landlord has not received any written
notice from any Legal Authority regarding violations of law or municipal or
zoning ordinances or requirements affecting the Premises as of the date hereof;
(f) for so long as all highways, streets and roads at the Project have
not been dedicated to the public, Landlord shall enforce all of its access
rights thereto so that such access rights shall be made available to Tenant and
cause all highways, streets and roads located within the Project to be
maintained in a manner comparable to that of other first class office
developments located in Xxxxxx County, New Jersey;
(g) Landlord is the beneficiary of easements and other agreements of
record which provide for unrestricted, non-exclusive access to and from any
present and future location of the parking facility or facilities serving the
Premises;
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(h) as of the date hereof, Landlord has received no written notice of
any pending or contemplated condemnation proceedings affecting the Premises or
any part thereof;
(i) During the term of the Financial Agreement, Landlord will not
through any action breach the Financial Agreement so as to cause Mid Xxxxxx to
lose its status as an "urban renewal association" as such term is used in the
statutory act pursuant to which a Xxxx Xxxxx tax abatement has been granted with
respect to the Real Property and will not relinquish any rights to the tax
exemption provided in the Financial Agreement;
(j) Landlord has received no written notice of the termination of the
Financial Agreement; and
(k) Landlord represents and warrants that, prior to the time Tenant is
ready to use and occupy the Premises, Landlord will secure, to the extent then
required for such occupancy of Tenant, all permits which are prerequisites to
obtaining a Certificate of Occupancy, including the so-called " wet sewer
permit", subject, however, to completion of all Tenant's Work as may also be
required in order to obtain such Certificate of Occupancy.
LANDLORD:
NEWPORT OFFICE CENTER I CO., a
New Jersey general partnership
By: LEFRAK NEWPORT REALTY CORP.,
a general partner
By: [SIGNATURE ILLEGIBLE]
---------------------------
President
TENANT:
RECRUIT U.S.A., INC.
By: [SIGNATURE ILLEGIBLE]
--------------------------------
President
Tenant's Federal Tax Identification
Number Applied For
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