Development Services During the term of this Agreement, the Provider agrees to provide to or on behalf of the Port the professional services and related items described in Exhibit A (collectively, the “Development Services”) in accordance with the terms and conditions of this Agreement. The Provider specifically agrees to include at least one Port representative in any economic development negotiations or discussions in which the Provider is involved concerning (i) a port-related business prospect or (ii) a business transaction which will ultimately require Port involvement, financial or otherwise.
SERVICES AND EQUIPMENT 21.01. Landlord shall:
(a) Provide necessary passenger elevator facilities on Business Days from 8:00 A.M. to 6:00 P.M. and shall have at least one elevator subject to call at all other times. At Landlord's option, the elevators shall be operated by automatic control or by manual control, or by a combination of both of such methods. Tenant shall use passenger elevators solely for the transportation of its employees and invitees and not for freight handling, the delivery of packages requiring hand trucks or other similar items or the removal of refuse.
(b) Provide freight elevator service on Business Days from 9:00 A.M. to 12:00 Noon and 12:30 P.M. to 5:00 P.M. All deliveries to Tenant shall be made at freight docks located on the ground floor or at such other locations as Landlord may from time to time designate.
(c) Maintain and keep in good order and repair (i) the air conditioning, heating and ventilating unit existing on the date of this Lease in the Fourth Floor Space and (ii) the other base building structural systems in accordance with Section 7.01; it being understood that in no event shall Landlord be responsible for the maintenance or repair of any other air conditioning, heating or ventilating systems (on portions thereof) (whether installed by Landlord or Tenant), including, without limitation, systems that are installed to service Tenant's data processing, computer or telephone operations. Landlord shall provide reasonable amounts of condenser water to the Demised Premises from locations designated by Landlord 24 hours per day, 7 days per week. Tenant shall have the right to tap into the Building's condenser water riser via the tap currently located on the ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇; provided, that the performance of such work shall be performed in accordance with Article 6 and all other applicable provisions of this Lease. Tenant acknowledges that Tenant shall be responsible for installing, at its sole cost and expense, heating, ventilation and air conditioning equipment in the Demised Premises (other than the existing 4th floor unit). Landlord has informed Tenant that the windows of the Demised Premises and the Building are sealed, and that the Demised Premises may become uninhabitable and the air therein may become unbreathable without such equipment or during the hours or days when Landlord is not able to furnish condenser water to the Demised Premises. Any use or occupancy of the Demised Premises without such equipment or during such hours shall be at the sole risk, responsibility and hazard of Tenant, and Landlord shall have no responsibility or liability therefor. Such condition of the Demised Premises shall not constitute nor be deemed to be a breach or a violation of this Lease or of any provision thereof, nor shall it be deemed an actual or constructive eviction nor shall Tenant claim or be entitled to claim any abatement of rent nor make any claim for any damages or compensation by reason of such condition of the Demised Premises. Nothing contained herein shall be deemed to require Landlord to furnish at Landlord's expense such electric energy as is required to operate the air conditioning system serving the Demised Premises. Subject to the provisions of Article 4 hereof all such electric energy shall be furnished to Tenant at Tenant's cost and expense.
(d) Provide the cleaning and janitorial services described on Schedule E annexed hereto on Business Days. In the event Landlord's cost of providing such services to the Existing Buildings shall increase after the date hereof, Tenant agrees to pay to Landlord as additional rent on the first day of each and every month after such increase an amount equal to Tenant's Expense Share of the monthly increase of Landlord's cost of providing such services to the Existing Buildings. Landlord shall promptly notify Tenant of any such increase. Tenant shall employ Landlord to provide any cleaning and janitorial services in excess of those specified in Schedule E and Tenant shall deliver to Landlord a list setting forth in reasonable detail all such excess cleaning and janitorial services. Landlord, its cleaning contractor and their employees shall have access to the Demised Premises at all times after 5:30 P.M. and before 8:00 A.M. and shall have the right to use, without charge therefor, all light, power and water in the Demised Premises reasonably required to clean the Demised Premises as required under this Section 21.01. Tenant shall comply with any rules Landlord and/or its cleaning contractor and/or any consultant to Landlord may establish regarding the management and recycling of solid waste, as may be necessary for Landlord to comply with any Legal Requirements, including without limitation the New Jersey Department of Environmental Protection Rules on Coastal Resources and Development (N.J.A.C. 7:7E - 1.1).
(e) Furnish water for lavatory and drinking and office cleaning purposes. If Tenant requires, uses or consumes water for any other purposes, Tenant agrees that Landlord may install a meter or meters or other means to measure Tenant's water consumption, and Tenant further agrees to reimburse Landlord for the cost of the meter or meters and the installation thereof, and to pay for the maintenance of said meter equipment and/or to pay Landlord's cost of other means of measuring such water consumption by Tenant. Tenant shall reimburse Landlord for the cost of all water consumed in excess of that estimated to be consumed for lavatory, drinking and office cleaning purposes, as measured by said meter or meters or as otherwise measured, including sewer rents.
(f) Maintain the common areas of the Complex in good order and repair.
(g) Permit Tenant to use sufficient shaft space in Plaza III to accommodate three 4" diameter conduits for a telecommunication shaftway; provided, that all work required for Tenant to use such shaftway shall be subject to Landlord's prior approval and shall be performed at Tenant's expense in accordance with this Article 6 and the other applicable provisions of this Lease; provided, further, that Landlord makes no representation or warranty whatsoever concerning the suitability of such shaft space for such use by Tenant (Tenant hereby acknowledging that in order to obtain access to such shaft space Tenant will require access to the premises of other tenants in Plaza III and Tenant shall be solely responsible for negotiating for such right of access).
21.02. Landlord reserves the right without any liability whatsoever, or abatement of Basic Annual Rent or additional rent, to stop the heating, air conditioning, elevator, plumbing, electric and other systems when necessary by reason of accident or emergency or for repairs, alterations, replacements or improvements, provided that except in case of emergency, Landlord will notify Tenant in advance, if possible, of any such stoppage and, if ascertainable, its estimated duration, and will proceed diligently with the work necessary to resume such service as promptly as possible and in a manner so as to minimize interference with Tenant's use and enjoyment of the Demised Premises, but Landlord shall not be obligated to employ overtime or premium labor therefor.
21.03. It is expressly agreed that only Landlord or any one or more persons, firms or corporations authorized in writing by Landlord (which authorization shall be granted only if the employment of such person, firm or corporation would not result in jurisdictional disputes or strikes or cause disharmony with other workers or servicers employed at the Property or conflict with the terms of any contract with such workers or servicers) will be permitted to furnish laundry, drinking water, ice, food or beverages, cable television and other similar supplies and services to tenants and licensees in the Building. Landlord may fix, in its reasonable judgment, at any time and from time to time, the hours during which and the regulations under which such supplies and services are to be furnished. Landlord expressly reserves the right to act as or to designate, at any time and from time to time, an exclusive supplier of all or any one or more of the said supplies and services, provided that the quality thereof and the charges therefor are reasonably comparable to that of other suppliers. Landlord expressly reserves the right to exclude from the Building any messenger service. It is understood, however, that Tenant or regular office employees or guests of Tenant who are not employed by any supplier of such food or beverages or by any person, firm or corporation engaged in the business of purveying such food or beverages, may on an occasional or incidental basis (i) personally bring food or beverages into the Building for consumption within the Demised Premises by employees or guests of Tenant, or (ii) order food or beverages for delivery from take-out or catering establishments, provided that such deliveries do not materially cause elevator delays nor inconvenience the other tenants of the Building. No food or beverage may be brought into the Building for resale to or for consumption by any other tenant.
21.04. Landlord will not be required to furnish any other services, except as otherwise provided in this Lease.
Duties of Custodian with Respect to the Books of Account and Calculation of Net Asset Value and Net Income The Custodian shall cooperate with and supply necessary information to the entity or entities appointed by the applicable Board to keep the books of account of each Portfolio and/or compute the net asset value per Share of the outstanding Shares or, if directed in writing to do so by a Fund on behalf of a Portfolio, shall itself keep such books of account and/or compute such net asset value per Share. If so directed, the Custodian shall also calculate daily the net income of the Portfolio as described in the Prospectus and shall advise the Fund and the Transfer Agent daily of the total amounts of such net income and, if instructed in writing by an officer of the Fund to do so, shall advise the Transfer Agent periodically of the division of such net income among its various components. Each Fund acknowledges and agrees that, with respect to investments maintained with the Underlying Transfer Agent, the Underlying Transfer Agent is the sole source of information on the number of shares of a fund held by it on behalf of a Portfolio and that the Custodian has the right to rely on holdings information furnished by the Underlying Transfer Agent to the Custodian in performing its duties under this Agreement, including without limitation, the duties set forth in this Section 10 and in Section 11 hereof; provided, however, that the Custodian shall be obligated to reconcile information as to purchases and sales of Underlying Shares contained in trade instructions and confirmations received by the Custodian and to report promptly any discrepancies to the Underlying Transfer Agent. The calculations of the net asset value per Share and the daily income of each Portfolio shall be made at the time or times described from time to time in the Prospectus. Each Fund acknowledges that, in keeping the books of account of the Portfolio and/or making the calculations described herein with respect to Portfolio property released and delivered pursuant to Section 2.2(14), or purchased pursuant to Section 2.6(7) hereof, the Custodian is authorized and instructed to rely upon information provided to it by the Fund, the Fund’s counterparty(ies), or the agents of either of them.
Services and Duties of the Distributor A. The Distributor agrees to act as the principal underwriter of the Client for the distribution of the Shares of the Funds, upon the terms and at the current offering price (plus sales charge, if any) described in the Prospectus. As used in this Agreement, the term “Prospectus” shall mean the current prospectus, including the statement of additional information, as both may be amended or supplemented, relating to any of the Funds and included in the currently effective registration statement(s) or post-effective amendment(s) thereto (the “Registration Statement”) of the Client under the Securities Act of 1933, as amended (the “1933 Act”), and the 1940 Act.
B. During the continuous public offering of Shares of the Funds, the Distributor shall use commercially reasonable efforts to distribute the Shares. All orders for Shares shall be made through financial intermediaries or submitted directly to the applicable Fund or its designated agent. Such purchase orders shall be deemed effective at the time and in the manner set forth in the Prospectus. The Client or its designated agent will confirm orders and subscriptions upon receipt, will make appropriate book entries and, upon receipt of payment therefor, will issue the appropriate number of Shares in uncertificated form.
C. The Distributor shall maintain membership with the National Securities Clearing Corporation (“NSCC”) and any other similar successor organization to sponsor a participant number for the Funds so as to enable the Shares to be traded through NSCC’s Fund/SERV System (“FundSERV”). The Client acknowledges and agrees that the Distributor shall not be responsible for any operational matters associated with FundSERV or Networking transactions, including but not limited to taking orders from financial intermediaries.
D. The Distributor acknowledges and agrees that it is not authorized to provide any information or make any representations regarding the Funds other than as contained in the Prospectus and any marketing materials specifically approved by the Client or the investment adviser to the Fund(s).
E. The Distributor agrees to review all proposed marketing materials provided by the Client for compliance with applicable Securities and Exchange Commission (“SEC”) and FINRA advertising rules and regulations, and shall file with FINRA those marketing materials it believes are in compliance with such applicable laws and regulations. The Distributor agrees to furnish to the Client any comments provided by regulators with respect to such marketing materials.
F. At the request of the Client, the Distributor shall enter into the Standard Dealer Agreement (as defined below), and may, in its discretion, enter into non-standard dealer agreements with financial intermediaries as the Client may select, in order that such broker-dealers and other intermediaries may sell Shares of the Funds. The Fund’s form of dealer agreement and/or selling agreement shall in a form similar to that attached at Exhibit C and shall be approved by the Client’s Board (“Standard Dealer Agreement”).
G. The Client acknowledges and agrees that the Distributor shall not be obligated to make any payments to any broker-dealers, other financial intermediaries or other third parties, unless (i) the Distributor has received an authorized corresponding payment from the applicable Fund’s plan of distribution adopted pursuant to Rule 12b-1 under the 1940 Act (“Plan”) and (ii) such Plan been approved by the Client’s Board.
H. The Distributor shall not be obligated to sell any certain number of Shares.
I. The Distributor shall prepare reports for the Board regarding its activities under this Agreement as from time to time shall be reasonably requested by the Board, including reports regarding the use of 12b-1 payments received by the Distributor, if any.
J. The Distributor may enter into agreements (“Subcontracts”) with qualified third parties to carry out some or all of the Distributor’s obligations under this Agreement, with the prior written consent of the Client, such consent not to be unreasonably withheld; provided that execution of a Subcontract shall not relieve the Distributor of any of its responsibilities hereunder.
K. The services furnished by the Distributor hereunder are not to be deemed exclusive and the Distributor shall be free to furnish similar services to others so long as its services under this Agreement are not impaired thereby.
L. Notwithstanding anything herein to the contrary, the Distributor shall not be required to register as a broker or dealer in any specific jurisdiction or to maintain its registration in any jurisdiction in which it is now registered.
M. The Distributor undertakes to perform such duties and only such duties as are expressly set forth herein, or expressly incorporated herein by reference, and no implied covenants or obligations shall be read into this Agreement against the Distributor.
Operating Procedures Company shall observe and comply with the Operating Procedures. Company shall ensure that Company's Stores personnel are trained regarding the Operating Procedures and shall ensure their compliance with them. The Operating Procedures may be supplemented, amended or modified by Bank from time to time in its reasonable discretion; provided, however, a copy of any such supplement, amendment or modification shall be provided to Company at least ninety (90) days before its effective date (the "Notice Date") unless otherwise required by Applicable Law, and for those changes required by Applicable Law, notice shall be given as soon as practicable. For changes that are (A) required by Applicable Law, or (B) determined by Bank in good faith to be necessary from the standpoint of safe and sound banking practices (both (A) and (B) being referred to herein as the "Required Changes"), where Bank implements such Required Changes with all of its other clients that are also affected by such change in Applicable Law or operate in circumstances similarly requiring changes from the standpoint of safe and sound banking practices, Bank shall identify the changes as Required Changes in the notice to Company. Unless such change is a Required Change, Company shall have the right within thirty (30) days after the Notice Date to object to such change and the parties' representatives will promptly thereafter meet to discuss such change in good faith in order to agree upon such change or a mutually agreeable alternative to such change. In the event the parties are unable to agree upon such change or an alternative within sixty (60) days after the Notice Date, then a senior executive from both Company and Bank shall meet to negotiate in good faith in order to agree upon such change or a mutually agreeable alternative to such change. If the parties' senior executives are unable to mutually agree within ninety (90) days after the Notice Date, then Bank shall have the right to implement the initially proposed change so long as (i) Bank implements such change with all or substantially all of its other similar clients, (ii) such change does not change the chargebacks section of the Operating Procedures, and (iii) such change does not impose a material adverse financial or operational burden on Company.