Exhibit 10.4
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AGREEMENT OF LEASE
between
NEWPORT L.G.-I, INC.,
Landlord
and
PENCOM SYSTEMS INCORPORATED,
Tenant
Newport Office Tower
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Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
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TABLE OF CONTENTS
Page
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DEFINITIONS .............................................................. 1
ARTICLE 1 - DEMISE, PREMISES, TERM, RENT ............................. 9
ARTICLE 2 - USE AND OCCUPANCY ........................................ 9
ARTICLE 3 - ALTERATIONS .............................................. 10
ARTICLE 4 - MAINTENANCE AND REPAIRS-FLOOR LOAD ....................... 15
ARTICLE 5 - WINDOW CLEANING .......................................... 17
ARTICLE 6 - REQUIREMENTS OF LAW ...................................... 17
ARTICLE 7 - SUBORDINATION ............................................ 19
ARTICLE 8 - RULES AND REGULATIONS .................................... 21
ARTICLE 9 - INSURANCE, PROPERTY LOSS OR DAMAGE;
REIMBURSEMENT ............................................ 21
ARTICLE 10 - DESTRUCTION-FIRE OR OTHER CAUSE .......................... 24
ARTICLE 11 - EMINENT DOMAIN ........................................... 27
ARTICLE 12 - ASSIGNMENT, SUBLETTING, MORTGAGE, ETC .................... 28
ARTICLE 13 - ELECTRICITY .............................................. 37
ARTICLE 14 - ACCESS TO PREMISES ....................................... 39
ARTICLE 15 - CERTIFICATE OF OCCUPANCY ................................. 41
ARTICLE 16 - DEFAULT .................................................. 41
ARTICLE 17 - REMEDIES AND DAMAGES ..................................... 44
ARTICLE 18 - LANDLORD FEES AND EXPENSES ............................... 46
ARTICLE 19 - NO REPRESENTATIONS BY LANDLORD ........................... 47
ARTICLE 20 - END OF TERM .............................................. 48
ARTICLE 21 - QUIET ENJOYMENT .......................................... 49
ARTICLE 22 - POSSESSION ............................................... 49
ARTICLE 23 - NO WAIVER ................................................ 49
ARTICLE 24 - WAIVER OF TRIAL BY JURY .................................. 50
ARTICLE 25 - INABILITY TO PERFORM ..................................... 50
ARTICLE 26 - BILLS AND NOTICES ........................................ 51
ARTICLE 27 - ESCALATION ............................................... 52
ARTICLE 28 - SERVICES ................................................. 59
ARTICLE 29 - PARTNERSHIP TENANT ....................................... 63
ARTICLE 30 - INTENTIONALLY OMITTED .................................... 63
ARTICLE 31 - SECURITY ................................................. 63
ARTICLE 32 - CAPTIONS ................................................. 64
ARTICLE 33 - PARTIES BOUND ............................................ 64
ARTICLE 34 - BROKER ................................................... 65
ARTICLE 35 - INDEMNITY ................................................ 65
ARTICLE 36 - INTENTIONALLY OMITTED .................................... ▇▇
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▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇▇ ............................................ 66
ARTICLE 38 - RENT CONTROL ............................................. 68
ARTICLE 39 - PARKING .................................................. 68
SCHEDULE A Rules and Regulations
SCHEDULE B Cleaning Specifications
SCHEDULE C VAC Specifications
SCHEDULE D Landlord's Work
EXHIBIT A Floor Plan
EXHIBIT B The Site
EXHIBIT C The Parking Garage
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AGREEMENT OF LEASE, made as of the 13th day of May, 1996, between Landlord
and Tenant.
WITNESSETH
The parties hereto, for themselves, their legal representatives,
successors and assigns, hereby covenant as follows.
DEFINITIONS
"Affiliate" shall mean a Person which shall (1) Control, (2) be under the
Control of, or (3) be under common Control with the Person in question.
"Alterations" shall mean alterations, installations, improvements,
additions or other physical changes, (other than decorations) in or about the
Premises.
"Applicable Rate" shall mean the lesser of (x) two (2) percentage points
above the then current Base Rate, and (y) the maximum rate permitted by
applicable law, from time to time.
"Assignment Proceeds" shall have the meaning set forth in Section 12.8
hereof.
"Bankruptcy Code" shall mean 11 U.S.C. Section 101 et seq., or any statute
of similar nature and purpose.
"Base Operation Expenses" shall mean the Operating Expenses for the Base
Operating Year.
"Base Operating Year" shall mean the calendar year 1996.
"Base Rate" shall mean the rate of interest publicly announced from time
to time by Citibank, N.A., or its successor, as its "prime lending rate" (or
such other term as may be used by Citibank, N.A., from time to time, for the
rate presently referred to as its "prime lending rate").
"Base Taxes" shall mean One Million Five Hundred Sixty-Four Thousand Five
Hundred One and 50/100 Dollars ($1,564,501.50).
"Broker" shall mean Broadwall Brokerage & Consulting, Inc. and The
Georgetown Company.
"Building" shall mean all the buildings, equipment and other improvements
and appurtenances of every kind and description now located or hereafter
erected, constructed or placed upon the land, including, without limitation, a
pedestrian bridge and/or walkway connecting to the Building if and to the extent
required to be maintained by Landlord and any and all alterations, and
replacements thereof, additions thereto and substitutions therefor, known as
Newport ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
"Building Systems" shall mean the mechanical, gas, electrical, sanitary,
heating, air conditioning, ventilating, elevator, plumbing, life-safety and
other service systems of the Building.
"Business Days" shall mean all days, excluding Saturdays, Sundays and
Holidays.
"Commencement Date" shall mean the date hereof.
"Control" or "control" shall mean ownership of more than fifty percent
(50%) of the outstanding voting stock of a corporation or other majority equity
and control interest if not a corporation and the possession of power to direct
or cause the direction of the management and policy of such corporation or other
entity, whether through the ownership of voting securities, by statute,
according to the provisions of a contract, or otherwise.
"Cost per Kilowatt Hour" shall mean the total cost for electricity
incurred by Landlord to service the Building during a particular time period
(including all applicable surcharges, demand charges, energy charges, fuel
adjustment charges, time-of-day charges, rate adjustment charges, taxes and
other factors used by the public utility in computing its charges to Landlord
and other sums payable in respect thereof) divided by the total kilowatt hours
consumed at the Building during such period. The Cost per Kilowatt Hour shall be
increased or decreased, as the case may be, to take into account any special
rate programs which are applicable specifically to Tenant or to other tenants in
the Building, as opposed to those rate programs which are applicable to tenants
in the Building, generally.
"Current Year" shall mean the Operating Year in which a demand is made
upon Tenant for payment of a Tentative Monthly Escalation Charge.
"Deficiency" shall have the meaning set forth in Section 17.2 hereof.
"Electricity Additional Rent" shall have the meaning set forth in Section
13.2 hereof.
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"Escalation Rent" shall mean, individually or collectively, the Tax
Payment and the Operating Payment.
"Event of Default" shall have the meaning set forth in Section 16.1
hereof.
"Expiration Date" shall mean the Fixed Expiration Date or such earlier or
later date on which the Term shall sooner or later end pursuant to any of the
terms, conditions or covenants of this Lease or pursuant to law.
"Fixed Expiration Date" shall mean the date immediately preceding the date
which is one (1) month following the fifth (5th) anniversary of the Rent
Commencement Date.
"Fixed Rent" shall have the meaning set forth in Section 1.1 hereof.
"Governmental Authority (Authorities)" shall mean the United States of
America, the State of New Jersey, the City of Jersey City, any political
subdivision thereof and any agency, department, commission, board, bureau or
instrumentality of any of the foregoing, or any quasi-governmental authority,
now existing or hereafter created, having jurisdiction over the Real Property or
any portion thereof.
"Ground Lease" shall have the meaning set forth in Section 7.6 hereof.
"Holidays" shall mean all days observed by either the State of New Jersey
or the Federal Government and by the labor unions servicing the Building as
legal holidays.
"Indemnitees" shall mean Landlord, the partners comprising Landlord and
its and their partners, shareholders, officers, directors, employees, agents and
contractors.
"Landlord", on the date as of which this Lease is made, shall mean Newport
L.G.-I, Inc., a Delaware corporation having an office c/o The Georgetown
Company, 667 Madison Avenue, New York, New York, but thereafter, "Landlord"
shall mean only the fee owner of the Real Property or if there shall exist a
Superior Lease, the tenant thereunder.
"Landlord's Work" shall have the meaning set forth in Section 3.5 hereof.
"Lease Year" shall mean the twelve (12) month period commencing on the
Commencement Date and each succeeding twelve (12) month period thereafter.
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"Lessor(s)" shall mean a lessor under a Superior Lease.
"Lighting Meters" shall mean the meters used to measure electricity for
lighting and ordinary office machinery use.
"LL Entity" shall have the meaning set forth in Section 12.4 hereof.
"Long Lead Work" shall mean any item which is not a stock item and must be
specially manufactured, fabricated or installed or is of such an unusual,
delicate or fragile nature that there is a substantial risk that
(i) there will be a delay in its manufacture, fabrication, delivery or
installation, or
(ii) after delivery, such item will need to be reshipped or redelivered or
repaired
so that the item in question would delay the completion of the standard items
even though the items of Long Lead Work in question are (1) ordered together
with the other items required, and (2) installed or performed (after the
manufacture or fabrication thereof) in the order and sequence that such Long
Lead Work and other items are normally installed or performed in accordance with
good construction practice.
"Meters" shall mean hard-wired check meters or other meters which are
acceptable to the public utility company furnishing electricity to the Building
which are placed within the electrical wires which supply electricity to the
Premises.
"Mortgage(s)" shall mean any trust indenture or mortgage which may now or
hereafter affect the Real Property, the Building or any Superior Lease and the
leasehold interest created thereby, and all renewals, extensions, supplements,
amendments, modifications, consolidations and replacements thereof or thereto,
substitutions therefor, and advances made thereunder.
"Mortgagee(s)" shall mean any trustee, mortgagee or holder of a Mortgage.
"NTURC" shall mean Newport Tower Urban Renewal Company, a New Jersey
limited partnership, having an office c/o The Limited, Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
"Occupancy Date" shall mean the date which is three (3) days after the
date Landlord notifies Tenant that Landlord's Work has been Substantially
Completed.
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"Operating Expenses" shall have the meaning set forth in Section 27.1
hereof.
"Operating payment" shall have the meaning set forth in Section 27.4
hereof.
"Operating Statement" shall have the meaning set forth in Section 27.1
hereof.
"Operating Year" shall have the meaning set forth in Section 27.1 hereof.
"Operation of the Property" shall mean the maintenance, repair, security
and management of the Real Property and the curbs, sidewalks and areas adjacent
thereto.
"Overtime Periods" shall have the meaning set forth in Section 28.3
hereof.
"Parking Garage" shall mean the parking garage (which garage may be in
part a public parking garage) located as shown on Exhibit C attached hereto and
made a part hereof.
"Parties" shall have the meaning set forth in Section 37.2 hereof.
"Partner" or "partner" shall mean any partner of Tenant, if Tenant is a
partnership, and any shareholder of Tenant if Tenant is a corporation.
"Partnership Tenant" shall have the meaning set forth in Article 29
hereof.
"Person(s) or person(s)" shall mean any natural person or persons, a
partnership, a corporation and any other form of business or legal association
or entity.
"Premises" shall mean, subject to the provisions of this Lease, the
portion of the sixteenth (16th) floor of the Building shown by hatching on the
floor plan attached hereto and made a part hereof as Exhibit A.
"Prevailing Rate" shall have the meaning set forth in Section 12.6 hereof.
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"Real Property" shall mean the Building, together with the plot of land
upon which it stands.
"Recapture Notice" shall have the meaning set forth in Section 12.6
hereof.
"Rental" shall mean and be deemed to include Fixed Rent, Escalation Rent,
Electricity Additional Rent, all additional rent and any other sums payable by
Tenant hereunder.
"Rent Commencement Date" shall mean the date which is six (6) months
following the Occupancy Date.
"Rent Per Square Foot" shall mean the sum of the then Fixed Rent and
Escalation Rent divided by the Space Factor.
"Requirements" shall mean all present and future laws, rules, orders,
ordinances, regulations, statutes, requirements, codes and executive orders,
extraordinary as well as ordinary, of all Governmental Authorities now existing
or hereafter created, and of any and all of their departments and bureaus, and
of any applicable fire rating bureau, or other body exercising similar
functions, affecting the Real Property or any portion thereof, or any street,
avenue or sidewalk comprising a part of or in front thereof, or requiring
removal of any encroachment, or affecting the maintenance, use or occupation of
the Real Property or any portion thereof. In furtherance and not in limitation
of the foregoing, Requirements shall include, without limitation, the Newport
City Urban Redevelopment Plan.
"Rules and Regulations" shall mean the rules and regulations annexed
hereto and made a part hereof as Schedule A, and such other and further rules
and regulations as Landlord or Landlord's agents may from time to time adopt on
such notice to be given as Landlord may elect, subject to Tenant's right to
dispute the reasonableness thereof as provided in Article 8 hereof.
"Site" shall mean the tract of land shown on Exhibit B attached hereto and
made a part hereof.
"Space Factor" shall mean three thousand seven hundred fifty-six (3,756),
as the same may be increased or decreased pursuant to the terms hereof.
"Specialty Alterations" shall mean Alterations consisting of kitchens,
executive bathrooms, raised computer floors, computer installations, vaults,
libraries, internal staircases, dumbwaiters, pneumatic tubes, vertical and
horizontal transportation systems, and other Alterations of a similar character.
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"Sublease" shall have the meaning set forth in Section 7.6 hereof.
"Sublease Expenses" shall mean: (i) in the event of a sale of Tenant's
Property, the then unamortized or undepreciated cost thereof determined on the
basis of Tenant's federal income tax returns, (ii) the reasonable out-of-pocket
costs and expenses of Tenant in making such sublease, such as brokers' fees,
attorneys' fees, and advertising fees paid to unrelated third parties, (iii) any
sums paid to Landlord pursuant to Section 12.2(B) hereof, (iv) the cost of
improvements or alterations made by Tenant expressly and solely for the purpose
of preparing that portion of the Premises for such subtenancy if not used by
Tenant subsequent to the expiration of the term of the sublease, and (v) the
unamortized or undepreciated cost of any Tenant's Property leased to and used by
such subtenant. In determining Sublease Rent, the costs set forth in clauses
(ii), (iii) and (iv) shall be amortized on a straight-line basis over the term
of such sublease and the costs set forth in clause (v) shall be amortized on a
straight line basis over the greater of the longest useful life of such
improvements, alterations or Property (as permitted pursuant to the Internal
Revenue Code of 1986, as amended) and the term of such sublease.
"Sublease Profit" shall mean the product of (x) the Sublease Rent Per
Square Foot less the Rent Per Square Foot, and (y) the number of rentable square
feet constituting the portion of the Premises sublet by Tenant.
"Sublease Rent" shall mean any rent or other consideration paid to Tenant
directly or indirectly by any subtenant or any other amount received by Tenant
from or in connection with any subletting (including, but not limited to, sums
paid for the sale or rental, or consideration received on account of any
contribution, of Tenant's Property or sums paid in connection with the supply of
electricity or VAC) less the Sublease Expenses.
"Sublease Rent Per Square Foot" shall mean the Sublease Rent divided by
the rentable square feet of the space demised under the sublease in question.
"Substantial Completion" or "Substantially Completed" or words of similar
import shall mean that Landlord's Work or Landlord's repairs have been
substantially completed, it being agreed that Landlord's Work or Landlord's
repairs shall be deemed to be substantially completed notwithstanding the fact
that (a) minor or insubstantial details of construction and/or mechanical
adjustment and/or decorative items remain to be performed, and (b) any Long Lead
Work remains to be performed.
"Superior Lease(s)" shall mean all ground or underlying leases of the Real
Property or the Building heretofore or hereafter made by Landlord and all
renewals, extensions, supplements, amendments and modifications thereof.
"Taxes" shall have the meaning set forth in Section 27.1 hereof.
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"Tax Agreement" shall mean the Financial Agreement Annual Service Charge
in Lieu of Taxes, dated April 18, 1988 between Newport Tower Urban Renewal
Company and the City of Jersey City, as the same may have been or may hereafter
be amended, entered into pursuant to the Urban Renewal Corporation and
Association Law of 1961 (N.J.S.A. 40:55C-40, et seq.)
"Tax Payment" shall have the meaning set forth in Section 27.2 hereof.
"Tax Statement" shall mean a statement in reasonable detail setting forth
a comparison of the Taxes for a Tax Year with the Base Taxes.
"Tax Year" shall mean the period January 1 through December 31 (or such
other period as hereinafter may be duly adopted by the Governmental Authority
then imposing taxes as its fiscal year for real estate tax purposes), any
portion of which occurs during the Term.
"Tenant" on the date as of which this Lease is made, shall mean Pencom
Systems Incorporated, a New York corporation, having an office at ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, but thereafter "Tenant" shall mean only the
tenant under this Lease at the time in question; provided, however, that the
originally named tenant and any assignee of this Lease shall not be released
from liability hereunder in the event of any assignment of this Lease.
"Tenant's Allocable Share" shall mean a fraction, expressed as a
percentage, the numerator of which shall be the Space Factor, expressed as a
square footage, and the denominator of which shall be the total rentable square
footage of the area serviced by the VAC unit serving the Premises.
"Tenant's Delay" shall have the meaning set forth in Section 3.5 hereof.
"Tenant's Property" shall mean Tenant's movable fixtures and movable
partitions, telephone and other equipment, furniture, furnishings, decorations
and other items of personal property.
"Tenant's Share" shall mean three thousand eight hundred six ten
thousandths percent (.3806%), as the same may be increased or decreased pursuant
to the terms hereof.
"Tenant Statement" shall have the meaning set forth in Section 12.6
hereof.
"Tenant's Tax Share" shall mean three thousand six hundred one ten
thousandths percent (.3601%), as the same may be increased or decreased pursuant
to the terms hereof.
"Tentative Monthly Escalation Charge" shall have the meaning set forth in
Section 27.4 hereof.
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"Term" shall mean a term which shall commence on the Commencement Date and
shall expire on the Expiration Date.
"Unavoidable Delays" shall have the meaning set forth in Article 25
hereof.
"VAC" shall mean heat, ventilation and air conditioning.
"VAC Meters" shall mean the meters used to measure electricity consumed by
the VAC unit serving the Premises.
"VAC Systems" shall mean the Building Systems providing VAC.
ARTICLE 1
DEMISE, PREMISES, TERM, RENT
Section 1.1 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Premises, for the Term, at an annual rent (the "Fixed Rent") of
Ninety-Three Thousand Nine Hundred Dollars ($93,900.00) for the period
commencing on the Rent Commencement Date and ending one (1) month prior to the
Fixed Expiration Date ($7,825.00 per month); which Tenant agrees to pay in
lawful money of the United States which shall be legal tender in payment of all
debts and dues, public and private, at the time of payment, in equal monthly
installments in advance, on the first (1st) day of each calendar month during
the Term commencing on the Rent Commencement Date, at the office of Landlord or
such other place as Landlord may designate, without any set-off, offset,
abatement or deduction whatsoever, except that Tenant shall pay the first full
monthly installment on the execution hereof.
Section 1.2 If the Rent Commencement Date shall occur on a date other than
the first (1st) day of any calendar month, then the payment of Fixed Rent due on
the first (1st) day of the calendar month following the Rent Commencement Date
shall be prorated based upon the number of days in the month in which the Rent
Commencement Date occurs which include or follow the Rent Commencement Date.
ARTICLE 2
USE AND OCCUPANCY
Section 2.1 Tenant shall use and occupy the Premises as general or
executive offices, uses incidental thereto and for no other purpose.
Section 2.2 (A) Tenant shall not use the Premises or any part thereof, or
permit the Premises or any part thereof to be used, (1) for the business of
photographic, multilith or
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multigraph reproductions or offset printing, except in connection with, either
directly or indirectly, Tenant's own business and/or activities, (2) for a
banking, trust company, depository, guarantee or safe deposit business, which,
in each case, is open to the general public for off-the-street transactions, (3)
as a savings bank, a savings and loan association, or as a loan company, which,
in each case, is open to the general public for off-the-street transactions, (4)
for the sale of travelers checks, money orders, drafts, foreign exchange or
letters of credit or for the receipt of money for transmission, if any of the
foregoing, in each case, is open to the general public for off-the-street
transactions, (5) as a stockbroker's or dealer's office or for the underwriting
or sale of securities, which is open to the general public for off-the-street
transactions, (6) by the United States government, Jersey City, the State of New
Jersey, any foreign government, the United Nations or any agency or department
of any of the foregoing or any other Person having sovereign or diplomatic
immunity, (7) as a restaurant or bar or for the sale of confectionery, soda or
other beverages, sandwiches, ice cream or baked goods or for the preparation,
dispensing or consumption of food or beverages in any manner whatsoever, except
for consumption by Tenant's officers, employees and business guests, (8) as an
employment agency, executive search firm or similar enterprise, labor union,
school, or vocational training center (except for the training of employees of
Tenant intended to be employed at the Premises), or (9) as a ▇▇▇▇▇▇ shop, beauty
salon or similar use.
(B) Tenant may install, at its sole cost and expense and subject to
and in compliance with the provisions of Articles 3 and 4 hereof, vending
machines for the exclusive use of the officers, employees and business guests of
Tenant, each of which vending machines (if it dispenses any beverages or other
liquids or refrigerates) shall have a waterproof pan located thereunder,
connected to a drain.
Section 2.3 Tenant's use and occupancy of the Premises shall be subject to
and in conformity with (i) the Newport Redevelopment Plan, dated February 1985,
as amended on July 12, 1988 and September 22, 1988, and as the same may be
amended or replaced from time to time, and (ii) the Contract for the Sale of
Land for Private Redevelopment, dated July 2, 1981, between Jersey City
Redevelopment Agency and The Glimcher Company, as amended on March 29, 1985, and
as the same may be amended or replaced from time to time.
ARTICLE 3
ALTERATIONS
Section 3.1 (A) Except to the extent provided in Section 3.4 hereof,
Tenant shall not make Alterations without Landlord's prior consent. Landlord
shall not unreasonably withhold or delay its consent to any proposed
nonstructural Alterations, provided that such Alterations (i) are not visible
from the outside of the Building, (ii) do not adversely affect any part of the
Building other than the Premises or require any alterations, installations,
improvements, additions or other physical changes to be performed in or made to
any portion of the Building or the Real Property other than the Premises, (iii)
do not adversely affect any
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service required to be furnished by Landlord to Tenant or to any other tenant or
occupant of the Building, (iv) do not adversely affect the proper functioning of
any Building System, (v) do not reduce the value or utility of the Building, and
(vi) do not adversely affect or violate the certificate of occupancy for the
Building or the Premises. Landlord shall not be deemed to be unreasonable with
respect to withholding its consent to any proposed nonstructural Alteration
which meets the criteria set forth in this Section 3.1(A) if the Lessor or
Mortgagee, as the case may be, shall withhold its consent.
(B) (1) Prior to making any Alterations, Tenant shall (i) submit to
Landlord detailed plans and specifications (including layout, architectural,
mechanical and structural drawings) for each proposed Alteration and shall not
commence any such Alteration without first obtaining Landlord's approval of such
plans and specifications (except with respect to any nonstructural Alteration
referred to in Section 3.4 hereof for which Landlord's approval is not
required), which, in the case of nonstructural Alterations which meet the
criteria set forth in Section 3.1(A) above, shall not be unreasonably withheld
or delayed, (ii) at Tenant's expense, obtain all permits, approvals and
certificates required by any Governmental Authorities, it being agreed that all
filings with Governmental Authorities to obtain such permits, approvals and
certificates shall be made, at Tenant's expense, by a Person approved by
Landlord, which approval shall not be unreasonably withheld or delayed, and
(iii) furnish to Landlord duplicate original policies or certificates thereof of
worker's compensation (covering all persons to be employed by Tenant, and
Tenant's contractors and subcontractors in connection with such Alteration) and
comprehensive public liability (including property damage coverage) insurance in
such form, with such companies, for such periods and in such amounts as Landlord
may reasonably approve, naming Landlord and its agents, any Lessor and any
Mortgagee, as additional insureds. Upon completion of such Alteration, Tenant,
at Tenant's expense, shall obtain a certificate of occupancy and any other
approvals with respect to such Alteration as shall be required by any
Governmental Authority and shall furnish Landlord with copies thereof, together
with the "as-built" plans and specifications (or marked shop drawings) for such
Alterations, it being agreed that all filings with Governmental Authorities to
obtain such permits, approvals and certificates shall be made, at Tenant's
expense, by a Person approved by Landlord, which approval shall not be
unreasonably withheld or delayed. All Alterations shall be made and performed
substantially in accordance with the plans and specifications therefor as
approved by Landlord, all Requirements, the Rules and Regulations, and all rules
and regulations relating to Alterations promulgated by Landlord in its
reasonable judgment. All materials and equipment to be incorporated in the
Premises as a result of any Alterations or a part thereof shall be first quality
and no such materials or equipment (other than Tenant's Property) shall be
subject to any lien, encumbrance, chattel mortgage or title retention or
security agreement. In addition, no Alteration at a cost for labor and materials
(as reasonably estimated by Landlord's architect, engineer or contractor) in
excess of Twenty-Five Thousand Dollars ($25,000), either individually or in the
aggregate with any other Alteration constructed in any twelve (12) month period,
shall be undertaken prior to Tenant's providing to Landlord such security as
shall be reasonably satisfactory to Landlord or required by any Mortgagee or
Lessor. If, as a result of any Alterations performed by Tenant, any alterations,
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installations, improvements, additions or other physical changes are required to
be performed in or made to any portion of the Building or the Real Property
other than the Premises in order to comply with any Requirement(s), which
alterations, installations, improvements, additions or other physical changes
would not otherwise have had to be performed or made pursuant to the applicable
Requirement(s) at such time, Landlord, at Tenant's sole cost and expense, may
perform or make such alterations, installations, improvements, additions or
other physical changes and take such actions as Landlord shall deem reasonably
necessary, and the amount of the security required pursuant to the preceding
sentence shall include, in addition to the amounts set forth in the preceding
sentence, an amount equal to the cost of such alterations, installations,
improvements, additions or other physical changes, as reasonably estimated by
Landlord's architect, engineer or contractor. All Alterations requiring the
consent of Landlord shall be performed only under the supervision of an
independent licensed architect approved by Landlord, which approval shall not be
unreasonably withheld or delayed.
(2) If Landlord shall fail to disapprove Tenant's final plans
and specifications for any Alteration within twenty (20) Business Days, or
within ten (10) Business Days (with respect to any resubmission of disapproved
plans), after Landlord's receipt thereof (provided in each instance the same
shall be of a scope and scale reasonably susceptible of review in such periods),
Landlord shall be deemed to have approved such plans and specifications. Any
disapproval given by Landlord shall be accompanied by a statement of the reasons
for such disapproval. Landlord reserves the right to disapprove any plans and
specifications in part, to reserve approval of items shown thereon pending its
review and approval of other plans and specifications, and to condition its
approval upon Tenant making revisions to the plans and specifications or
supplying additional information. Any review or approval by Landlord of any
plans and/or specifications or any preparation or design of any plans by
Landlord's architect or engineer (or any architect or engineer designated by
Landlord) with respect to any Alteration is solely for Landlord's benefit, and
without any representation or warranty whatsoever to Tenant or any other Person
with respect to the compliance thereof with any Requirements, the adequacy,
correctness or efficiency thereof or otherwise. The granting by Landlord of its
consent to any Alterations shall not be deemed to imply that Landlord's estate
or interest in the Real Property and/or the Building may be subjected to any
lien by any contractor, subcontractor, mechanic, materialman, vendor or other
supplier engaged by Tenant, directly or indirectly, in connection with such
Alteration.
(C) Tenant shall be permitted to perform Alterations during the
hours of 8:00 A.M. to 6:00 P.M. on Business Days, provided that such work shall
not interfere with or interrupt the operation and maintenance of the Building or
unreasonably interfere with or interrupt the use and occupancy of the Building
by other tenants in the Building. Otherwise, Alterations shall be performed at
such times and in such manner as Landlord may from time to time reasonably
designate. All Tenant's Property installed by Tenant and all Alterations in and
to the Premises which may be made by Tenant at its own cost and expense prior to
and during the Term, shall remain the property of Tenant. Upon the Expiration
Date, Tenant shall remove Tenant's Property from the Premises and, at Tenant's
option, Tenant also may remove, at
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Tenant's cost and expense, all Alterations made by Tenant to the Premises,
provided, however, in any case, that Tenant shall repair and restore in a good
and workmanlike manner to good condition any damage to the Premises or the
Building caused by such removal. Notwithstanding the foregoing, however,
Landlord, upon notice given at least thirty (30) days prior to the Fixed
Expiration Date or upon such shorter notice as is reasonable under the
circumstances upon the earlier expiration of the Term, may require Tenant to
remove any Specialty Alterations, and to repair and restore in a good and
workmanlike manner to good condition any damage to the Premises or the Building
caused by such removal.
(D) All Alterations shall be performed, at Tenant's sole cost and
expense, by contractors, subcontractors or mechanics specified by Tenant from a
list prepared by Landlord and the Alteration shall, at Tenant's cost and
expense, be designed by an engineer designated by Landlord. The charge by the
engineer shall be competitive with charges of engineers for comparable services
in the New York/New Jersey metropolitan area.
(E) Any mechanic's lien filed against the Premises or the Real
Property for work claimed to have been done for, or materials claimed to have
been furnished to, Tenant shall be discharged by Tenant within thirty (30) days
after Tenant shall have received notice thereof (or such shorter period if
required by the terms of any Superior Lease or Mortgage), at Tenant's expense,
by payment or filing the bond required by law. 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 Alteration or otherwise, if such employment would interfere
or cause any conflict with other contractors, mechanics or laborers engaged in
the construction, maintenance or operation of the Building by Landlord, Tenant
or others, or of any adjacent property owned by Landlord. In the event of any
such interference or conflict, Tenant, upon demand of Landlord, shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately. Tenant shall at all times employ contractors,
mechanics and laborers who in each instance are members of the applicable trade
union.
Section 3.2 Tenant shall reimburse Landlord for all reasonable
out-of-pocket costs and expenses incurred by Landlord in connection with any
Alterations performed by Tenant. Tenant also shall pay any fee charged by any
Lessor or Mortgagee in reviewing the plans and specifications for such
Alterations or inspecting the progress of completion of the same.
Section 3.3 Upon the request of Tenant, Landlord, at Tenant's cost and
expense, shall join in any applications for any permits, approvals or
certificates required to be obtained by Tenant in connection with any permitted
Alteration (provided that the provisions of the applicable Requirement shall
require that Landlord join in such application) and shall otherwise cooperate
with Tenant in connection therewith, provided that Landlord shall not be
obligated to incur any cost or expense, including, without limitation,
attorneys' fees and disbursements, or suffer any liability in connection
therewith.
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Section 3.4 Anything contained in this Lease to the contrary
notwithstanding, Landlord's consent shall not be required with respect to any
nonstructural Alteration, provided that (a) consent for such Alteration is not
required under the terms of any Superior Lease or Mortgage, (b) such Alteration
meets the conditions set forth in clauses (i) through (vi) of Section 3.1(A)
hereof, and (c) the estimated cost of the labor and materials for which shall
not exceed Twenty Thousand Dollars ($20,000), either individually or in the
aggregate with other nonstructural Alterations constructed within any twelve
(12) month period; provided, however, that at least ten (10) days prior to
making any such nonstructural Alteration, Tenant shall submit to Landlord for
informational purposes only the detailed plans and specifications for such
Alteration, as required by Section 3.1(B)(1)(i) hereof, and any such Alteration
shall otherwise be performed in compliance with the provisions of this Article
3.
Section 3.5 (A) Landlord shall perform the work, and make the
installations, in the Premises as set forth on Schedule D annexed hereto and
made a part hereof ("Landlord's Work").
(B) If Landlord shall be delayed in Substantially Completing
Landlord's Work by reason of any of the following (individually a "Tenant's
Delay" and collectively referred to as "Tenant's Delays"):
(1) any request by Tenant that Landlord delay in
proceeding with any segment or part of Landlord's
Work;
(2) any subsequent changes or requests for changes to
Landlord's Work;
(3) any errors or omissions in the design of
Landlord's Work;
(4) any acts or omissions of Tenant or its agents,
employees or contractors;
(5) any necessary displacement of any of Landlord's
Work from its place in Landlord's construction
schedule resulting from any of the causes for
delay referred to in paragraphs 1 through 4 above,
inclusive; and
(6) any other item designated as a Tenant's Delay
pursuant to this Section 3.5;
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then the Occupancy Date shall be deemed to be the date upon which the Occupancy
Date would have occurred but for such Tenant's Delay. If Landlord becomes aware
of any Tenant's Delay or any condition which may give rise to a Tenant's Delay,
Landlord shall promptly notify Tenant of such Tenant's Delay or condition and
the anticipated length of time of such Tenant's Delay, provided, however,
Landlord shall suffer no liability for failure to notify Tenant as aforesaid if
the anticipated length of such Tenant's Delay as set forth in Landlord's
aforesaid notice shall be different than any actual Tenant's Delay, or in good
faith it was not possible to reasonably foresee that a Tenant's Delay would
arise.
(C) Tenant may request changes in Landlord's Work consisting of
additions, deletions or other changes. If Tenant desires to make a change, the
same shall be communicated to Landlord by a change order signed by Tenant. Upon
Landlord's receipt of such change order, and provided Landlord otherwise
approves such changes (which approval shall be based upon the criteria for
approval of Alterations as set forth in this Article 3), Landlord shall promptly
prepare and furnish to Tenant a statement, setting forth Landlord's good faith
estimate of the cost, if any, to Tenant resulting from the proposed change, as
well as Landlord's good faith estimate of any changes in the progress of
Landlord's Work which would result by reason of such change. If within five (5)
days of Tenant's receipt of said statement Tenant countersigns and redelivers a
copy of said statement to Landlord, such statement shall constitute a mutually
binding change order and such change order shall be included in Landlord's Work.
The failure of Tenant to so notify Landlord within said five (5) day period
shall be deemed a withdrawal by Tenant of the request for the change in
question. Any increase in the cost of Landlord's Work resulting from a change
order requested by Tenant shall be paid by Tenant. In addition, any delay
resulting from a change order requested by Tenant shall be deemed to constitute
a Tenant's Delay.
(D) If a delay or any portion of a delay in the Substantial
Completion of Landlord's Work is the result of a delay by reason of strikes or
labor troubles, or by any cause whatsoever beyond Landlord's control, including,
but not limited to, laws, governmental preemption in connection with any
national emergency or by reason of any Requirements or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency, and such delay would not have occurred but for a Tenant's Delay, such
delay shall be deemed to be a Tenant's Delay for the purposes hereof.
ARTICLE 4
MAINTENANCE AND REPAIRS-FLOOR LOAD
Section 4.1 Landlord shall operate, maintain and make all necessary
repairs (both structural and nonstructural) to the part of Building Systems
which provide service to the Premises but not to the distribution portions of
such Building Systems located within the Premises) and the public portions of
the Building, both exterior and interior, in conformance with standards
applicable to first class office buildings in Jersey City, New Jersey. Tenant,
at
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Tenant's sole cost and expense, shall take good care of the Premises and the
fixtures, furniture and equipment located therein and the distribution systems
and shall make all nonstructural repairs thereto, as and when needed to preserve
them in good working order and condition, except for reasonable wear and tear,
obsolescence and damage for which Tenant is not responsible pursuant to the
provisions of Article 10 hereof. Notwithstanding the foregoing, all damage or
injury to the Premises or to any other part of the Building and Building
Systems, or to fixtures, furniture and equipment whether requiring structural or
nonstructural repairs, caused by or resulting from carelessness, omission,
neglect or improper conduct of, or Alterations made by, Tenant, Tenant's agents,
employees, invitees or licensees, shall be repaired at Tenant's sole cost and
expense, by Tenant to the reasonable satisfaction of Landlord (if the required
repairs are nonstructural in nature and do not affect any Building System), or
by Landlord (if the required repairs are structural in nature or affect any
Building System). All of the aforesaid repairs shall be of first quality and of
a class consistent with first class office building work or construction and
shall be made in accordance with the provisions of Article 3 hereof. If Tenant
fails after ten (10) days' notice to proceed with due diligence to take such
steps as are necessary to make repairs required to be made by Tenant, the same
may be made by Landlord at the expense of Tenant, and the expenses thereof
incurred by Landlord, with interest thereon at the Applicable Rate, shall be
forthwith paid to Landlord as additional rent after rendition of a ▇▇▇▇ or
statement therefor. Tenant shall give Landlord prompt notice of any defective
condition in the Building or in any Building System, located in, servicing or
passing through the Premises.
Section 4.2 Tenant shall not place a load upon any floor of the Premises
exceeding fifty (50) pounds per square foot "live load", unless Tenant, in
compliance with all applicable Requirements and the provisions of Article 3
hereof, reinforces the floor in a manner reasonably satisfactory to Landlord.
Tenant shall not move any safe, heavy machinery, heavy equipment, freight, bulky
matter or fixtures into or out of the Building without Landlord's prior consent,
which consent shall not be unreasonably withheld, and shall make payment to
Landlord of Landlord's costs in connection therewith. If such safe, machinery,
equipment, freight, bulky matter or fixtures requires special handling, Tenant
shall employ only persons holding a Master Rigger's license to do said work. All
work in connection therewith shall comply with all Requirements and the Rules
and Regulations, and shall be done during such hours as Landlord may reasonably
designate. Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient in Landlord's
reasonable judgment to absorb and prevent vibration, noise and annoyance. Except
as expressly provided in this Lease, there shall be no allowance to Tenant for a
diminution of rental value and no liability on the part of Landlord 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 4.3 Landlord shall use its reasonable efforts to minimize
interference with Tenant's use and occupancy of the Premises in making any
repairs, alterations, additions
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or improvements; provided, however, that Landlord shall have no obligation to
employ contractors or labor at so-called overtime or other premium pay rates or
to incur any other overtime costs or expenses whatsoever, except that Landlord,
at its expense, but subject to recoupment pursuant to Article 27 hereof, shall
employ contractors or labor at so-called overtime or other premium pay rates if
necessary to make any repair required to be made by it hereunder to remedy any
condition that either (i) results in a denial of access to the Premises, (ii)
threatens the health or safety of any occupant of the Premises, or (iii) except
in the case of a fire or other casualty, materially interferes with Tenant's
ability to conduct its business in the Premises. In all other cases, at Tenant's
request, Landlord shall employ contractors or labor at so-called overtime or
other premium pay rates and incur any other overtime costs or expenses in making
any repairs, alterations, additions or improvements, and Tenant shall pay to
Landlord, as additional rent, within ten (10) Business Days after demand, an
amount equal to the difference between the overtime or other premium pay rates
and the regular pay rates for such labor and any other overtime costs or
expenses so incurred.
ARTICLE 5
WINDOW CLEANING
Tenant shall not clean, nor require, permit, suffer or allow any window in
the Premises to be cleaned from the outside in violation of any applicable
Requirements.
ARTICLE 6
REQUIREMENTS OF LAW
Section 6.1 (A) Tenant at its sole cost and expense, shall comply with all
Requirements applicable to the use and occupancy of the Premises, including,
without limitation, those applicable to the making of any Alterations therein or
the result of the making thereof and those applicable by reason of the nature or
type of business operated by Tenant in the Premises, except that (other than
with respect to the making of Alterations or the result of the making thereof)
Tenant shall not be under any obligation to make any Alteration in order to
comply with any Requirement applicable to the mere general "office" use (as
opposed to the manner of use) of the Premises, unless otherwise expressly
required herein. Tenant shall not do or permit to be done any act or thing upon
the Premises which will invalidate or be in conflict with a standard "all-risk"
insurance policy; 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 Jersey City Fire Department, the Jersey City Building Inspector
or other authority having jurisdiction and then only in such quantity and manner
of storage as not to increase the rate for fire insurance applicable to the
Building, or use the Premises in a manner (as opposed to mere use as general
"offices") which shall increase the rate of fire insurance on the Building or on
property located therein, over that in similar type buildings or in effect on
the Commencement Date. If by reason of Tenant's failure to comply with the
provisions of this Article, the fire
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insurance rate shall be higher than it otherwise would be, then Tenant shall
desist from doing or permitting to be done any such act or thing and shall
reimburse Landlord, as additional rent hereunder, for that part of all fire
insurance premiums thereafter paid by Landlord which shall have been charged
because of such failure by Tenant, and shall make such reimbursement upon demand
by Landlord. In any action or proceeding wherein Landlord and Tenant are
parties, a schedule or "make up" of rates for the Building or the Premises
issued by any fire rating bureau or organization having jurisdiction, or other
body fixing such fire insurance rates, shall be conclusive evidence of the facts
therein stated and of the several items and charges in the fire insurance rates
then applicable to the Building.
(B) Landlord, at its sole cost and expense (but subject to
recoupment as provided in Article 27 hereof), shall comply with all Requirements
applicable to the Premises and the Building other than those Requirements which
Tenant or other tenants or occupants of the Building shall be required to comply
with, subject to Landlord's right to contest the applicability or legality
thereof.
Section 6.2 Tenant, at its sole cost and expense and after notice to
Landlord, may contest by appropriate proceedings prosecuted diligently and in
good faith, the legality or applicability of any Requirement affecting the
Premises, provided that (a) Landlord (or any Indemnitee) shall not be subject to
imprisonment or to prosecution for a crime, nor shall the Real Property or any
part thereof be subject to being condemned or vacated, nor shall the
certificate of occupancy for the Premises or the Building be suspended or
threatened to be suspended by reason of noncompliance or by reason of such
contest; (b) before the commencement of such contest, if Landlord or any
Indemnitee may be subject to any civil fines or penalties or other criminal
penalties or if Landlord may be liable to any independent third party as a
result of such noncompliance, Tenant shall furnish to Landlord either (i) a bond
of a surety company satisfactory to Landlord, in form and substance reasonably
satisfactory to Landlord, and in an amount equal to one hundred twenty percent
(120%) of the sum of (A) the cost of such compliance, (B) the criminal or civil
penalties or fines that may accrue by reason of such non-compliance (as
reasonably estimated by Landlord), and (C) the amount of such liability to
independent third parties (as reasonably estimated by Landlord) (except that
Tenant shall not be required to furnish such bond to Landlord if it has
otherwise furnished any similar bond required by law to the appropriate
Governmental Authority and has named Landlord as a beneficiary thereunder) or
(ii) other security reasonably satisfactory in all respects to Landlord, and
shall indemnify Landlord (and any Indemnitee) against the cost of such
compliance and liability resulting from or incurred in connection with such
contest or non-compliance; (c) such non-compliance or contest shall not
constitute or result in a violation (either with the giving of notice or the
passage of time or both) of the terms of any Mortgage or Superior Lease, or if
such Superior Lease or Mortgage shall condition such non-compliance or contest
upon the taking of action or furnishing of security by Landlord, such action
shall be taken or such security shall be furnished at the expense of Tenant; and
(d) Tenant shall keep Landlord regularly advised as to the status of such
proceedings.
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ARTICLE 7
SUBORDINATION
Section 7.1 This Lease shall be subject and subordinate to each and every
Superior Lease and to each and every Mortgage. This clause shall be
self-operative and no further instrument of subordination shall be required from
Tenant to make the interest of any Lessor or Mortgagee superior to the interest
of Tenant hereunder; however, Tenant shall execute and deliver promptly any
instrument, in recordable form, that Landlord or any Mortgagee or Lessor may
request to evidence or confirm such subordination. If the date of expiration of
any Superior Lease shall be the same day as the Expiration Date, the Term shall
end and expire twelve (12) hours prior to the expiration of the Superior Lease.
Tenant shall not do anything that would constitute a default under any Superior
Lease or Mortgage, 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 thereunder. If,
in connection with the financing of the Real Property, the Building or the
interest of the lessee under any Superior Lease, or if in connection with the
entering into of a Superior Lease, any lending institution or Lessor shall
request reasonable modifications of this Lease that do not increase Tenant's
monetary obligations under this Lease, or materially adversely affect or
diminish the rights, or materially increase the other obligations of Tenant,
under this Lease, Tenant shall make such modifications.
Section 7.2 If at any time prior to the expiration of the Term, any
Superior Lease shall terminate or be terminated for any reason or any Mortgagee
comes into possession of the Real Property or the Building or the estate created
by any Superior Lease by receiver or otherwise, Tenant agrees, at the election
and upon demand of any owner of the Real Property or the Building, or of the
Lessor, or of any Mortgagee in possession of the Real Property or the Building,
to attorn, from time to time, to any such owner, Lessor or Mortgagee or any
person acquiring the interest of Landlord as a result of any such termination,
or as a result of a foreclosure of the Mortgage or the granting of a deed in
lieu of foreclosure, upon the then executory terms and conditions of this Lease,
subject to the provisions of Section 7.1 hereof, for the remainder of the Term,
provided that such owner, Lessor or Mortgagee, as the case may be, or receiver
caused to be appointed by any of the foregoing, shall then be entitled to
possession of the Premises. The provisions of this Section 7.2 shall enure to
the benefit of any such owner, Lessor or Mortgagee, shall apply notwithstanding
that, as a matter of law, this Lease may terminate upon the termination of any
Superior Lease, and shall be self-operative upon any such demand, and no further
instrument shall be required to give effect to said provisions. Tenant, however,
upon demand of any such owner, Lessor or Mortgagee, shall execute, from time to
time, instruments, in recordable form, in confirmation of the foregoing
provisions of this Section 7.2, satisfactory to any such owner, Lessor or
Mortgagee, acknowledging such attornment and setting forth the terms and
conditions of its tenancy.
Section 7.3 From time to time, within fourteen (14) days next following
request by Landlord, any Mortgagee or any Lessor, Tenant shall deliver to
Landlord, such Mortgagee or such Lessor a written statement executed by Tenant,
in form satisfactory to Landlord, such
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Mortgagee or such Lessor, (1) stating that this Lease is then in full force and
effect and has not been modified (or if modified, setting forth all
modifications), (2) setting forth the date to which the Fixed Rent, additional
rent and other items of Rental have been paid, (3) stating whether or not, to
the best knowledge of Tenant, Landlord is in default under this Lease, and, if
Landlord is in default, setting forth the specific nature of all such defaults,
and (4) as to any other matters reasonably requested by Landlord, such Mortgagee
or such Lessor. Tenant acknowledges that any statement delivered pursuant to
this Section 7.3 may be relied upon by any purchaser or owner of the Real
Property or the Building, or Landlord's interest in the Real Property or the
Building or any Superior Lease, or by any Mortgagee, or by an assignee of any
Mortgagee, or by any Lessor.
Section 7.4 From time to time, within fourteen (14) days next following
request by Tenant but not more frequently than twice in any twelve (12) month
period, Landlord shall deliver to Tenant a written statement executed by
Landlord (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, all additional rent and any
other items of Rental have been paid, (iii) stating whether or not, to the best
knowledge of Landlord, Tenant is in default under this Lease, and, if Tenant is
in default, setting forth the specific nature of all such defaults, and (iv) as
to any other matters reasonably requested by Tenant and related to this Lease.
Section 7.5 As long as any Superior Lease or Mortgage shall exist, Tenant
shall not seek to terminate this Lease by reason of any act or omission of
Landlord until Tenant shall have given written notice of such act or omission to
all Lessors and Mortgagees at such addresses as shall have been furnished to
Tenant by such Lessors and Mortgagees and, if any such Lessor or Mortgagee, as
the case may be, shall have notified Tenant within ten (10) Business Days
following receipt of such notice of its intention to remedy such act or
omission, until a reasonable period of time shall have elapsed following the
giving of such notice, during which period such Lessors and Mortgagees shall
have the right, but not the obligation, to remedy such act or omission.
Section 7.6 Landlord hereby represents to Tenant that (a) Landlord is both
(i) the fee owner of the Land, which Landlord's predecessor-in-interest leased
to NTURC, pursuant to a lease agreement (the "Ground Lease"), dated as of May
17, 1989, between Landlord's predecessor-in-interest and NTURC and (ii) the
tenant under a sublease agreement (the "Sublease"), dated as of May 17, 1989,
between NTURC, as sublandlord, and Landlord's predecessor-in-interest, as
subtenant, and (b) the Ground Lease and the Sublease are the only Superior
Leases affecting the Real Property or the Building on the date hereof. Landlord
further represents that neither the Ground Lease, the Sublease nor any other
underlying document or agreement shall impair Tenant's rights granted under this
Lease. Landlord and Tenant acknowledge and agree that during the term of the
Sublease this Lease shall be a lease from Landlord as subtenant under the
Sublease and that upon the expiration or earlier
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termination of the term of the Ground Lease, this Lease shall be a lease from
Landlord as the fee owner of the Real Property.
ARTICLE 8
RULES AND REGULATIONS
Tenant and Tenant's contractors, employees, agents, visitors, invitees and
licensees shall comply with the Rules and Regulations. Tenant shall have the
right to dispute the reasonableness of any additional Rule or Regulation
hereafter adopted by Landlord. If Tenant disputes the reasonableness of any
additional Rule or Regulation hereafter adopted by Landlord, the dispute shall
be determined by arbitration in Jersey City in accordance with the rules and
regulations then obtaining of the American Arbitration Association or its
successor. Any such determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice upon Landlord within thirty (30) days after
receipt by Tenant of notice of the adoption of any such additional Rule or
Regulation. Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or terms,
covenants or conditions in any other lease against any other tenant, and
Landlord shall not be liable to Tenant for violation of the same by any other
tenant, its employees, agents, visitors or licensees, except that Landlord shall
not enforce any Rule or Regulation against Tenant which Landlord shall not then
be enforcing against all other office tenants in the Building (other than
Landlord or its Affiliates).
ARTICLE 9
INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
Section 9.1 (A) 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 its agents shall be
liable for any damage to property of Tenant or of others entrusted to employees
of the Building, nor for the loss of or damage to any property of Tenant by
theft or otherwise. Neither Landlord nor its agents shall be liable for any
injury (or death) to persons or damage to property, or interruption of Tenant's
business, resulting from fire or other casualty; nor shall Landlord or its
agents be liable for any such injury (or death) to persons or damage caused by
other tenants or persons in the Building or caused by construction of any
private, public or quasi-public work; nor shall Landlord be liable for any
injury (or death) to persons or damage to property or improvements, or
interruption of Tenant's business, resulting from any latent defect in the
Premises or in the Building (provided that the foregoing shall not relieve
Landlord from its obligations, if any, to repair such latent defect pursuant to
the provisions of Article 4 hereof or affect Tenant's right, if any, regarding
an abatement of the Fixed Rent and Escalation Rent as set forth in Section 14.2
hereof). Anything in this Article 9 to the contrary notwithstanding, except as
otherwise expressly
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provided in this Lease, Landlord shall not be relieved from responsibility
directly to Tenant for any loss or damage caused directly to Tenant wholly or in
part by the negligent acts or omissions of Landlord. Nothing in the foregoing
sentence shall affect any right of Landlord to the indemnity from Tenant to
which Landlord may be entitled under Article 35 hereof in order to recoup for
payments made to compensate for losses of third parties.
(B) If at any time any windows of the Premises are temporarily
closed, darkened or bricked-up due to any Requirement or by reason of repairs,
maintenance, alterations, or improvements to the Building, or any of such
windows are permanently closed, darkened or bricked-up due to any Requirement,
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor, nor abatement or
diminution of Fixed Rent or any other item of Rental, nor shall the same release
Tenant from its obligations hereunder, nor constitute an actual or constructive
eviction, in whole or in part, by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise, nor
impose any liability upon Landlord or its agents. If at any time the windows of
the Premises are temporarily closed, darkened or bricked-up, as aforesaid,
Landlord shall perform such repairs, maintenance, alterations or improvements
and comply with the applicable Requirements with reasonable diligence and
otherwise take such action as may be reasonably necessary to minimize the period
during which such windows are temporarily closed, darkened, or bricked-up.
(C) Tenant shall immediately notify Landlord of any fire or accident
in the Premises.
Section 9.2 Tenant shall obtain and keep in full force and effect (i) an
"all risk" insurance policy for Tenant's Specialty Alterations and Tenant's
Property at the Premises in an amount equal to one hundred percent (100%) of the
replacement value thereof, and (ii) a policy of commercial general liability and
property damage insurance on an occurrence basis, with a broad form contractual
liability endorsement. Such policies shall provide that Tenant is named as the
insured. Landlord, Landlord's managing agent, Landlord's agent and any Lessors
and any Mortgagees (whose names shall have been furnished to Tenant) shall be
added as additional insureds, as their respective interests may appear with
respect to the insurance required to be carried pursuant to clause (i) above,
and only to the extent of the named insured's negligence with respect to the
insurance required to be carried pursuant to clause (ii) above. Such policy
described in clause (ii) above shall include coverage for all cost, expense and
liability arising out of, or based upon, any and all claims, accidents, injuries
and damages mentioned in Article 35. In addition, the policy required to be
carried pursuant to clause (ii) above shall contain a provision that (a) no act
or omission of Tenant shall affect or limit the obligation of the insurer to pay
the amount of any loss sustained and (b) the policy shall be non-cancelable with
respect to Landlord, Landlord's managing agent, Landlord's agent and such
Lessors and Mortgagees (whose names and addresses shall have been furnished to
Tenant) unless thirty (30) days' prior written notice shall have been given to
Landlord by certified mail, return receipt requested, which notice shall contain
the policy number and the names of the insured and additional
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insureds. In addition, upon receipt by Tenant of any notice of cancellation or
any other notice from the insurance carrier which may adversely affect the
coverage of the insureds under such policy of insurance, Tenant shall
immediately deliver to Landlord and any other additional insured hereunder a
copy of such notice. The minimum amounts of liability under the policy of
insurance required to be carried pursuant to clause (ii) above shall be a
combined single limit with respect to each occurrence in an amount of $5,000,000
for injury (or death) to persons and damage to property, which amount shall be
increased from time to time to that amount of insurance which in Landlord's
reasonable judgment is then being customarily required by prudent landlords of
first class office buildings in the New York/New Jersey metropolitan area. 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 insurers permitted to do business in the State of New Jersey and
rated in Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation) as having a general policyholder
rating of "A" and a financial rating of at least "X".
Section 9.3 Landlord shall obtain and keep in full force and effect
insurance against loss or damage by fire and other casualty to the Building,
including Tenant's Alterations (exclusive of Specialty Alterations), as may be
insurable under then available standard forms of "all-risk" insurance policies,
in an amount equal to one hundred percent (100%) of the replacement value
thereof or in such lesser amount as will avoid co-insurance (including an
"agreed amount" endorsement). Notwithstanding the foregoing, Landlord shall not
be liable to Tenant for any failure to insure, replace or restore any
Alterations unless Tenant shall have notified Landlord of the completion of such
Alterations and of the cost thereof, and shall have maintained adequate records
with respect to such Alterations to facilitate the adjustment of any insurance
claims with respect thereto. Tenant shall cooperate with Landlord and Landlord's
insurance companies in the adjustment of any claims for any damage to the
Building or such Alterations.
Section 9.4 On or prior to the Commencement Date, each of Landlord and
Tenant shall deliver to the other appropriate certificates of insurance,
including evidence of waivers of subrogation required pursuant to Section 9.6
hereof, required to be carried by such party pursuant to this Article 9.
Evidence of each renewal or replacement of a policy shall be delivered by each
of Landlord and Tenant to the other at least twenty (20) days prior to the
expiration of such policy.
Section 9.5 Tenant acknowledges that Landlord shall not carry insurance
on, and shall not be responsible for damage to, Tenant's Property or Specialty
Alterations, and that Landlord shall not carry insurance against, or be
responsible for any loss suffered by Tenant due to, interruption of Tenant's
business; it being expressly understood and agreed that the foregoing shall not
affect Tenant's right, if any, regarding an abatement of the Fixed Rent and
Escalation Rent pursuant to Section 14.2 hereof.
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Section 9.6 The parties hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the Premises,
the Building and personal property, futures and equipment located thereon or
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery and having obtained such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, will not make any claim against or seek to recover from the other for
any loss or damage to its property or the property of others resulting from fire
or other hazards covered by such fire and extended coverage insurance, provided,
however, that the release, discharge, exoneration and covenant not to ▇▇▇ herein
contained shall be limited by and be coextensive with the terms and provisions
of the waiver of subrogation clause or endorsements or clauses or endorsements
consenting to a waiver of right of recovery. If the payment of an additional
premium is required for the inclusion of such waiver of subrogation provision,
each party shall advise the other of the amount of any such additional premiums
and the other party at its own election may, but shall not be obligated to, pay
the same. If such other party shall not elect to pay such additional premium,
the first party shall not be required to obtain such waiver of subrogation
provision. If either party shall be unable to obtain the inclusion of such
clause even with the payment of an additional premium, then such party shall
attempt to name the other party as an additional insured but not a loss payee)
under the policy. If the payment of an additional premium is required for naming
the other party as an additional insured (but not a loss payee), each party
shall advise the other of the amount of any such additional premium and the
other party at its own election may, (but shall not be obligated to, pay the
same. If such other party shall not elect to pay such additional premium or if
it shall not be possible to have the other party named as an additional insured
(but not loss payee), even with the payment of an additional premium, then (in
either event) such party shall so notify the first party and the first party
shall not have the obligation to name the other party as an additional insured.
ARTICLE 10
DESTRUCTION-FIRE OR OTHER CAUSE
Section 10.1 (A) If the Premises (including Alterations other than
Specialty Alterations) shall be damaged by fire or other casualty, and if Tenant
shall give prompt notice thereof to Landlord, the damage shall be diligently
repaired by and at the expense of Landlord to substantially the condition prior
to the damage, with such modifications as shall be required in order to comply
with Requirements, and until such repairs which are required to be performed by
Landlord (excluding Long Lead Work) shall be Substantially Completed (of which
Substantial Completion Landlord shall promptly notify Tenant) the Fixed Rent and
Space Factor shall be reduced in the proportion which the ratio between the area
of the part of the Premises which is not usable by Tenant, as determined by
Landlord in its reasonable discretion, bears to the total area of the Premises
immediately prior to such casualty and Tenant's Share shall be redetermined
based upon the proportion in which the ratio between the rentable area of the
Premises remaining after such casualty bears to the rentable area of the
Building, exclusive of the retail portions of the Building, remaining after such
casualty. Upon the Substantial Comple-
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tion of such repairs (excluding Long Lead Work), Landlord shall diligently
prosecute to completion any items of Long Lead Work remaining to be completed.
Landlord shall have no obligation to repair any damage to, or to replace, any
Specialty Alterations or Tenant's Property. In addition, Landlord shall not be
obligated to repair any damage to, or to replace, any Alterations unless Tenant
shall have notified Landlord of the completion of such Alterations and the cost
thereof, and shall have maintained adequate records with respect to such
Alterations. Landlord shall use its reasonable efforts to minimize interference
with Tenant's use and occupancy in making any repairs pursuant to this Section.
(B) Prior to the Substantial Completion of Landlord's repair
obligations set forth in Section 10.1(A) hereof, Landlord shall provide Tenant
and Tenant's contractor, subcontractors and materialmen access to the Premises
to perform Specialty Alterations (or Alterations, if Landlord is not obligated
to repair same pursuant to the provisions hereof), on the following terms and
conditions (but not to occupy the same for the conduct of business):
(1) Tenant shall not commence work in any portion of the
Premises until the date specified in a notice from Landlord to Tenant stating
that the repairs required to be made by Landlord have been or will be completed
to the extent reasonably necessary, in Landlord's discretion, to permit the
commencement of the Specialty Alterations (or Alterations, if Landlord is not
obligated to repair same pursuant to the provisions hereof) then prudent to be
performed in accordance with good construction practice in the portion of the
Premises in question without interference with, and consistent with the
performance of, the repairs remaining to be performed.
(2) Such access by Tenant shall be deemed to be subject
to all of the applicable provisions of this Lease, including, without
limitation, Tenant's obligation to pay to Landlord the Electricity Additional
Rent as more particularly set forth in Article 13 hereof, except that there
shall be no obligation on the part of Tenant solely because of such access to
pay any Fixed Rent or Escalation Rent with respect to the affected portion of
the Premises for any period prior to Substantial Completion of the repairs.
(3) It is expressly understood that if Landlord shall be
prevented from Substantially Completing the repairs due to any acts of Tenant,
its agents, servants, employees or contractors, including, without limitation,
by reason of the performance of any Specialty Alteration (or Alteration, if
Landlord is not obligated to repair same pursuant to the provisions hereof), by
reason of Tenant's failure or refusal to comply or to cause its architects,
engineers, designers and contractors to comply with any of Tenant's obligations
described or referred to in this Lease, or if such repairs are not Substantially
Completed because under good construction scheduling practice such repairs
should be performed after completion of any Specialty Alteration (or Alteration,
if Landlord is not obligated to repair same pursuant to the provisions hereof),
then such repairs shall be deemed Substantially Complete on the date when the
repairs would have been Substantially Complete but for such delay and the
expiration of the abatement of Tenant's obligations hereunder shall not be
postponed by reason
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of such delay. Any additional costs to Landlord to complete any repairs
occasioned by such delay shall be paid by Tenant to Landlord within ten (10)
days after demand, as additional rent.
Section 10.2 Anything contained in Section 10.1 hereof to the contrary
notwithstanding, if the Building shall be so damaged by fire or other casualty
that, in Landlord's opinion, substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or not the Premises
shall have been damaged or rendered untenantable), then Landlord, at Landlord's
option, may, not later than ninety (90) days following the damage, give Tenant a
notice in writing terminating this Lease, provided that if the Premises are not
substantially damaged or rendered substantially untenantable, Landlord may not
terminate this Lease unless it shall elect to terminate at least fifty percent
(50%) of the leases (including this Lease), affecting the Building. If Landlord
elects to terminate this Lease, the Term shall expire upon a date set by
Landlord, hut not sooner than the tenth (10th) day after such notice is given,
and Tenant shall vacate the Premises and surrender the same to Landlord in
accordance with the provisions of Article 20 hereof. Upon the termination of
this Lease under the conditions provided for in this Section 10.2, the Fixed
Rent and Escalation Rent shall be apportioned and any prepaid portion of Fixed
Rent and Escalation Rent for any period after such date shall be refunded by
Landlord to Tenant.
Section 10.3 (A) Within forty-five (45) days after notice to Landlord of
any damage described in Section 10.1 hereof, Landlord shall deliver to Tenant a
statement prepared by a reputable contractor setting forth such contractor's
estimate as to the time required to repair such damage, exclusive of time
required to repair any Specialty Alterations (which are Tenant's obligation to
repair) or to perform Long Lead Work. If the estimated time period exceeds
twelve (12) months from the date of such statement, Tenant may elect to
terminate this Lease by notice to Landlord not later than thirty (30) days
following receipt of such statement. If Tenant makes such election, the Term
shall expire upon the thirtieth (30th) day after notice of such election is
given by Tenant, and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 20 hereof. If Tenant shall
not have elected to terminate this Lease pursuant to this Article 10 (or is not
entitled to terminate this Lease pursuant to this Article 10), the damages shall
be diligently repaired by and at the expense of Landlord as set forth in Section
10.1 hereof unless Landlord shall elect to terminate this Lease pursuant to
Section 10.2 hereof. If Landlord cannot restore the Premises within twelve (12)
months from the date of such statement (as such period may be extended by any
Unavoidable Delays or Tenant delays), then Tenant may elect to terminate this
Lease by notice to Landlord not later than ten (10) Business Days following such
twelve (12) month period (as so extended). If Tenant makes such election, the
term shall expire upon the thirtieth (30th) day after notice of such election
given by Tenant, and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 20 hereof.
(B) Notwithstanding the foregoing, if the Premises shall be
substantially damaged during the last year of the Term, Landlord or Tenant may
elect by notice, given within thirty (30) days after the occurrence of such
damage, to terminate this Lease and if
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either party makes such election, the Term shall expire upon the thirtieth
(30th) day after notice of such election is given by such party and Tenant shall
vacate the Premises and surrender the same to Landlord in accordance with the
provisions of Article 20 hereof.
(C) Except as expressly set forth in this Section 10.3, Tenant shall
have no other options to cancel this Lease under this Article 10.
Section 10.4 This Article 10 constitutes an express agreement and
stipulation governing any case of damage or destruction of the Premises or the
Building by fire or other casualty, and the provisions of N.J.S.A. 46:84 and 7
which provide for such contingency in the absence of an express agreement or
stipulation, and any other law of like nature and purpose now or hereafter in
force shall have no application in any such case.
ARTICLE 11
EMINENT DOMAIN
Section 11.1 If the whole of the Real Property, the Building or the
Premises shall be acquired or condemned for any public or quasi-public use or
purpose, this Lease and the Term shall end as of the date of the vesting of
title with the same effect as if said date were the Expiration Date. If only a
part of the Real Property and not the entire Premises shall be so acquired or
condemned then, (1) except as hereinafter provided in this Section 11.1, this
Lease and the Term shall continue in force and effect, but, if a part of the
Premises is included in the part of the Real Property so acquired or condemned,
from and after the date of the vesting of title, the Fixed Rent and the Space
Factor shall be reduced in the proportion which the area of the part of the
Premises so acquired or condemned bears to the total area of the Premises
immediately prior to such acquisition or condemnation and Tenant's Share shall
be redetermined based upon the proportion in which the ratio between the
rentable area of the Premises remaining after such acquisition or condemnation
bears to the rentable area of the Building, exclusive of the retail portions
remaining after such acquisition or condemnation; (2) whether or not the
Premises shall be affected thereby, Landlord, at Landlord's option, may give to
Tenant, within sixty (60) days next following the date upon which Landlord shall
have received notice of vesting of title, a thirty (30) days' notice of
termination of this Lease if Landlord shall elect to terminate at least fifty
percent (50%) of the leases (including this Lease) affecting the Building; and
(3) if the part of the Real Property so acquired or condemned shall contain more
than fifteen percent (15%) of the total area of the Premises immediately prior
to such acquisition or condemnation, or if, by reason of such acquisition or
condemnation, Tenant no longer has reasonable means of access to the Premises,
Tenant, at Tenant's option, may give to Landlord, within sixty (60) days next
following the date upon which Tenant shall have received notice of vesting of
title, a thirty (30) days' notice of termination of this Lease. If any such
thirty (30) days' notice of termination is given by Landlord or Tenant, this
Lease and the Term shall come to an end and expire upon the expiration of said
thirty (30) days with the same effect as if the date of expiration of said
thirty (30) days were the Expiration Date. If a part of the
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Premises shall be so acquired or condemned and this Lease and the Term shall not
be terminated pursuant to the foregoing provisions of this Section 11.1,
Landlord, at Landlord's expense, shall restore that part of the Premises not so
acquired or condemned to a self-contained rental unit exclusive of Tenant's
Property and Specialty Alterations. Upon the termination of this Lease and the
Term pursuant to the provisions of this Section 11.1, the Fixed Rent and
Escalation Rent shall be apportioned and any prepaid portion of Fixed Rent and
Escalation Rent for any period after such date shall be refunded by Landlord to
Tenant.
Section 11.2 In the event of any such acquisition or condemnation of all
or any part of the Real Property, Landlord shall be entitled to receive the
entire award for any such acquisition or condemnation, 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 assigns to Landlord
all of its right in and to any such award. Nothing contained in this Section
11.2 shall be deemed to prevent Tenant from making a separate claim in any
condemnation proceedings for the then value of any Tenant's Property included in
such taking, and for any moving expenses, provided same does not reduce
Landlord's award.
Section 11.3 If the whole or any part of the Premises shall be acquired or
condemned temporarily during the Term for any public or quasi-public use or
purpose, Tenant shall give prompt notice thereof to Landlord and the Term shall
not be reduced or affected in any way; provided, however, that during the term
of such temporary acquisition or condemnation, the Fixed Rent and Escalation
Rent payable with respect to the Premises or portion thereof, as the case may
be, shall be abated or reduced, as the case may be, and Landlord shall be
entitled to receive for itself all awards and payments for (i) the use and
occupancy of the Premises, or portion thereof, as the case may be, and (ii) the
costs and expenses of restoration of the Premises.
ARTICLE 12
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.
Section 12.1 (A) Except to the extent provided in Section 12.4 hereof,
Tenant, without the prior consent of Landlord in each instance, may not (a)
assign its rights or delegate its duties under this Lease (whether by operation
of law, transfers of interests in Tenant or otherwise), mortgage or encumber its
interest in this Lease, in whole or in part, (b) sublet, or permit the
subletting of, the Premises or any part thereof, or (c) permit the Premises or
any part thereof to be occupied or used for desk space, mailing privileges or
otherwise, by any Person other than Tenant.
(B) If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code or any state insolvency related statute,
any and all monies or other consideration payable or otherwise to be delivered
in connection with such assignment shall be paid or delivered to Landlord, shall
be and remain the exclusive property of Landlord
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and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code or such state insolvency related statute. Any
and all monies or other consideration constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and shall be promptly paid to or turned over to
Landlord.
Section 12.2 (A) If Tenant's interest in this Lease is assigned in
violation of the provisions of this Article 12, such assignment shall be void
and of no force and effect against Landlord; provided, however, that Landlord
may collect an amount equal to the then Fixed Rent plus any other item of Rental
from the assignee as a fee for its use and occupancy, and shall apply the net
amount collected to the Fixed Rent and other items of Rental reserved in this
Lease. If the Premises or any part thereof are sublet to, or occupied by, or
used by, any Person other than Tenant, whether or not in violation of this
Article 12, Landlord, after default by Tenant under this Lease, including,
without limitation, a subletting or occupancy in violation of this Article 12,
may collect any item of Rental or other sums paid by the subtenant, user or
occupant as a fee for its use and occupancy, and shall apply the net amount
collected to the Fixed Rent and other items of Rental reserved in this Lease. No
such assignment, subletting, occupancy or use, whether with or without
Landlord's prior consent, nor any such collection or application of Rental or
fee for use and occupancy, shall be deemed a waiver by Landlord of any term,
covenant or condition of this Lease or the acceptance by Landlord of such
assignee, subtenant, occupant or user as tenant hereunder. The consent by
Landlord to any assignment, subletting, occupancy or use shall not relieve
Tenant from its obligation to obtain the express prior consent of Landlord to
any further assignment, subletting, occupancy or use.
(B) Tenant shall reimburse Landlord on demand for any out-of-pocket
costs that may be incurred by Landlord in connection with any proposed
assignment of Tenant's interest in this Lease (including, without limitation, a
change or conversion pursuant to Section 12.4(D) hereof) or any proposed
subletting of the Premises or any part thereof, including, without limitation,
attorneys' fees and disbursements and the costs of making investigations as to
the acceptability of the proposed subtenant or the proposed assignee.
(C) Neither an assignment of Tenant's interest in this Lease nor a
subletting, occupancy or use of the Premises or any part thereof by any Person
other than Tenant, nor any collection of Rental by Landlord from any Person
other than Tenant as provided in this Section 12.2, nor any application of any
such Rental as provided in this Section 12:2 shall, in any circumstances,
relieve Tenant of its obligations under this Lease on Tenant's part to be
observed and performed.
(D) Any Person to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code or any state insolvency related statute shall
be deemed without further act or deed to have assumed all of the obligations
arising under this Lease on and after the date of such assignment. Any such
assignee shall execute and deliver to Landlord upon demand an instrument
confirming such assumption. No assignment of this Lease shall
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relieve Tenant of its obligations hereunder and, subsequent to any assignment,
Tenant's liability hereunder shall continue notwithstanding any subsequent
modification or amendment hereof or the release of any subsequent tenant
hereunder from any liability, to all of which Tenant hereby consents in advance.
Section 12.3 (A) If Tenant assumes this Lease and proposes to assign the
same pursuant to the provisions of the Bankruptcy Code or any state insolvency
related statute to any Person who shall have made a bona fide offer to accept an
assignment of this Lease on terms acceptable to Tenant, then notice of such
proposed assignment shall be given to Landlord by Tenant no later than twenty
(20) days after receipt by Tenant, but in any event no later than ten (10) days
prior to the date that Tenant shall make application to a court of competent
jurisdiction for authority and approval to enter into such assignment and
assumption. Such notice shall set forth (a) the name and address of such Person,
(b) all of the terms and conditions of such offer, and (c) adequate assurance of
future performance by such Person under the Lease as set forth in Paragraph (B)
below, including, without limitation, the assurance referred to in Section
365(b)(3) of the Bankruptcy Code. Landlord shall have the prior right and
option, to be exercised by notice to Tenant given at any time prior to the
effective date of such proposed assignment, to accept an assignment of this
Lease upon the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such Person, less any brokerage commissions which
would otherwise be payable by Tenant out of the consideration to be paid by such
Person in connection with the assignment of this Lease.
(B) The term "adequate assurance of future performance" as used in
this Lease shall mean that any proposed assignee shall, among other things, (a)
deposit with Landlord on the assumption of this Lease the sum of the then Fixed
Rent as security for the faithful performance and observance by such assignee of
the terms and obligations of this Lease, which sum shall be held by Landlord,
(b) furnish Landlord with financial statements of such assignee for the prior
three (3) fiscal years, as finally determined after an audit and certified as
correct by a certified public accountant, which financial statements shall show
a net worth of at least six (6) times the then Fixed Rent for each of such three
(3) years, (c) grant to Landlord a security interest in such property of the
proposed assignee as Landlord shall deem necessary to secure such assignee's
future performance under this Lease, and (d) provide such other information or
take such action as Landlord, in its reasonable judgment shall determine is
necessary to provide adequate assurance of the performance by such assignee of
its obligations under the Lease.
Section 12.4 (A) Tenant shall have the right, subject to the terms and
conditions hereinafter set forth, without the consent of Landlord, to assign its
interest in this Lease to (i) any corporation which is a successor to Tenant
either by merger or consolidation, (ii) a purchaser of all or substantially all
of Tenant's assets (provided such purchaser shall have also assumed
substantially all of Tenant's liabilities) or (iii) an Affiliate of Tenant and
Tenant shall have the right, subject to the terms and conditions hereinafter set
forth, without the consent of Landlord, to sublease all or any portion of the
Premises to an Affiliate of Tenant. Any
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assignment or subletting described above may only be made upon the condition
that (a) any such assignee or subtenant shall continue to use the Premises for
the conduct of the same business as Tenant was conducting prior to such
assignment or sublease, (b) the principal purpose of such assignment or sublease
is not the acquisition of Tenant's interest in this Lease or to circumvent the
provisions of Section 12.1 of this Article, and (c) in the case of an
assignment, any such assignee shall have a net worth, annual income and cash
flow, determined in accordance with generally accepted accounting principles,
consistently applied, after giving effect to such assignment, equal to Tenant's
net worth, annual income and cash flow, as so determined, on the date
immediately preceding the date of such assignment. Tenant shall, within ten (10)
Business Days after execution thereof, deliver to Landlord either (x) a
duplicate original instrument of assignment in form and substance reasonably
satisfactory to Landlord, duly executed by Tenant, together with an instrument
in form and substance reasonably satisfactory to Landlord, duly executed by the
assignee, in which such assignee shall assume observance and performance of, and
agree to be personally bound by, all of the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed, or (y) a duplicate
original sublease in form and substance reasonably satisfactory to Landlord,
duly executed by Tenant and the subtenant.
(B) If Tenant is a partnership, the admission of new Partners, the
withdrawal, retirement, death, incompetency or bankruptcy of any Partner, or the
reallocation of partnership interests among the Partners shall not constitute an
assignment of this Lease, provided the principal purpose of any of the foregoing
is not to circumvent the restrictions on assignment set forth in the provisions
of this Article 12. The reorganization of Tenant from a professional corporation
into a partnership or the reorganization of a Tenant from a partnership into a
professional corporation, shall not constitute an assignment of this Lease,
provided that immediately following such reorganization the Partners of Tenant
shall be the same as the shareholders of Tenant existing immediately prior to
such reorganization, or the shareholders of Tenant shall be the same as the
Partners of Tenant existing immediately prior to such reorganization, as the
case may be. If Tenant shall become a professional corporation, each individual
shareholder in Tenant and each professional employee of a professional
corporation which is a shareholder in Tenant shall have the same personal
liability as such individual or professional employee would have under this
Lease if Tenant were a partnership and such individual or professional employee
were a Partner in Tenant. If any individual Partner in Tenant is or becomes a
professional employee of a professional corporation, such individual shall have
the same personal liability under this Lease as such individual would have if he
and not the professional corporation were a Partner of Tenant.
(C) Except as set forth above, either a transfer (including the
issuance of treasury stock or the creation and issuance of new stock or a new
class of stock) of a controlling interest in the shares of Tenant (if Tenant is
a corporation or trust) or a transfer of a majority of the total interest in
Tenant (if Tenant is a partnership or other entity) or a transfer of a
controlling interest in an entity that owns, directly or indirectly, a majority
interest in Tenant, at any one tune or over a period of time through a series of
transfers, shall be deemed an assignment of this Lease and shall be subject to
all of the provisions of this Article 12,
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including, without limitation, the requirement that Tenant obtain Landlord's
prior consent thereto. The transfer of shares of Tenant (if Tenant is a
corporation or trust) or of any parent corporation of Tenant for purposes of
this Section 12.4 shall not include the sale of shares by persons other than
those deemed "insiders" within the meaning of the Securities Exchange Act of
1934, as amended, which sale is effected through the "over-the-counter market"
or through any recognized stock exchange.
(D) Notwithstanding any other provision of this Article 12, if
Tenant is a Partnership Tenant, the change or conversion of Tenant to (i) a
limited liability company, (ii) a limited liability partnership, or (iii) any
other entity which possesses the characteristics of limited liability (each, an
"LL Entity"), shall be prohibited without the prior consent of Landlord, which
consent shall not be unreasonably withheld provided that:
(1) the LL Entity succeeds to all of Tenant's business and
assets;
(2) the LL Entity has a net worth, annual income and cash
flow, determined in accordance with generally accepted accounting principles,
consistently applied, equal to Tenant's net worth, annual income and cash flow,
as so determined, on the date immediately preceding the date of such change or
conversion;
(3) no monetary default or other Event of Default shall have
occurred and be continuing; and
(4) Tenant shall cause each general partner of Tenant to
execute and deliver to Landlord an agreement, in form and substance satisfactory
to Landlord, wherein each such general partner agrees to remain personally
liable for all of the terms, covenants and conditions of the Lease that are to
be observed and performed by the LL Entity.
Section 12.5 If, at any time after the originally named Tenant herein may
have assigned Tenant's interest in this Lease, this Lease shall be disaffirmed
or rejected in any proceeding of the types described in paragraph (D) of Section
16.1 hereof, or in any similar proceeding, or in the event of termination of
this Lease by reason of any such proceeding or by reason of lapse of time
following notice of termination given pursuant to said Article 16 based upon any
of the Events of Default set forth in such paragraph, any prior Tenant,
including, without limitation, the originally named Tenant, upon request of
Landlord given within thirty (30) days next following any 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 (1) pay to Landlord all Fixed Rent, Escalation Rent and other
items of Rental due and owing by the assignee to Landlord under this Lease to
and including the date of such disaffirmance, rejection or termination, and (2)
as "tenant", enter into a new lease 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
provided, at the same Fixed Rent and upon the then executory
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terms, covenants and conditions as are contained in this Lease, except that (a)
Tenant's rights under the new lease shall be subject to the possessory rights of
the assignee under this Lease and the possessory rights of any person claiming
through or under such assignee or by virtue of any statute or of any order of
any court, (b) such new lease shall require all defaults existing under this
Lease to be cured by Tenant with due diligence, and (c) such new lease shall
require Tenant to pay all Escalation Rent reserved in this Lease which, had this
Lease not been so disaffirmed, rejected or terminated, would have accrued under
the provisions of Article 27 hereof after the date of such disaffirmance,
rejection or termination with respect to any period prior thereto. If any such
prior Tenant shall default in its obligation to enter into said new lease for a
period of ten (10) days next following Landlord's request therefor, then, in
addition to all other rights and remedies by reason of such default, either at
law or in equity, Landlord shall have the same rights and remedies against such
Tenant as if such Tenant had entered into such new lease and such new lease had
thereafter been terminated as of the commencement date thereof by reason of such
Tenant's default thereunder.
Section 12.6 (A) Notwithstanding the provisions of Section 12.1 hereof,
Landlord shall not unreasonably withhold its consent to any subletting of the
Premises or any assignment of this Lease, provided that:
(1) the Premises shall not, without Landlord's prior consent,
be listed or otherwise have been listed or otherwise publicly advertised for
subletting at a rental rate less than the prevailing rental rate set by Landlord
for comparable space in the Building or if there is no comparable space the
prevailing rental rate reasonably determined by Landlord (the "Prevailing Rate")
nor shall Tenant advise any broker, agent, finder or prospective subtenant that
Tenant intends to sublet the Premises at a rate less than the Prevailing Rate;
(2) no monetary default or other Event of Default shall have
occurred and be continuing;
(3) upon the date Tenant delivers the Tenant Statement to
Landlord and upon the date immediately preceding the commencement date of any
sublease or the effective date of any assignment approved by Landlord, the
proposed subtenant or assignee, as the case may be, shall have a financial
standing (taking into consideration the obligations of the proposed subtenant or
assignee under the sublease or this Lease, as the case may be) reasonably
satisfactory to Landlord, be of a character and be engaged in a business in
keeping with the standards in such respects of the other tenancies in the
Building and propose to use the Premises in accordance with the provisions of
Article 2 of this Lease;
(4) if Landlord then has comparable space available in the
Building, the proposed subtenant or assignee shall not be a tenant of any space
in the Building, nor shall the proposed subtenant or assignee be a Person with
whom Landlord is negotiating or discussing to lease space in the Building at the
time of receipt of a Tenant Statement;
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(5) the character of the business to be conducted or the
proposed use of the Premises by the proposed subtenant or assignee shall not (a)
violate any provision or restrictions herein relating to the use or occupancy of
the Premises; (b) require any alterations, installations, improvements,
additions or other physical changes to be performed in or made to any portion of
the Building or the Real Property other than the Premises; or (c) violate any
provision or restrictions in any other lease for space in the Building or in any
Superior Lease or Mortgage;
(6) the subletting shall be expressly subject to all of the
terms, covenants, conditions and obligations on Tenant's part to be observed and
performed under this Lease and the further condition and restriction that the
sublease shall not be modified without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed, or assigned,
encumbered or otherwise transferred or the subleased premises further sublet by
the subtenant in whole or in part, or any part thereof suffered or permitted by
the subtenant to be used or occupied by others, without the prior written
consent of Landlord in each instance;
(7) the subletting shall end no later than one (1) day before
the Expiration Date;
(8) the assignee shall agree to assume all of the obligations
of Tenant under this Lease from and after the date of the assignment;
(9) such sublease shall expressly provide that in the event of
termination, re-entry or dispossess of Tenant by Landlord under this Lease,
Landlord may, at its option, take over all of the right, title and interest of
Tenant, as sublessor under such sublease, and such subtenant, at Landlord's
option, shall attorn to Landlord pursuant to the then executory provisions of
such sublease, except that Landlord shall not be:
(i) liable for any act or omission of Tenant under such
sublease, or
(ii) subject to any defense or offsets which such
subtenant may have against Tenant, or
(iii) bound by any previous payment which such subtenant
may have made to Tenant of more than thirty (30) days in advance of the date
upon which such payment was due, unless previously approved by Landlord, or
(iv) bound by any obligation to make any payment to or
on behalf of such subtenant, or
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(v) bound by any obligation to perform any work or to
make improvements to the Premises, or
(vi) bound by any amendment or modification of such
sublease made without its consent, or
(vii) bound to return such subtenant's security deposit,
if any, until such deposit has come into its actual possession and such
subtenant would be entitled to such security deposit pursuant to the terms of
such sublease; and
(10) no subletting shall be for less than the entire Premises.
(B) If Tenant desires to assign this Lease or sublet all or any
portion of the Premises, Tenant shall deliver to Landlord a notice (the
"Recapture Notice") offering such Lease or such portion of the Premises to
Landlord, and setting forth the date upon which such assignment or subletting
would be effective, which date shall not be less than ninety (90) days after
such Recapture Notice, and if applicable, the portion of the Premises so
offered. Within fifteen (15) Business Days after receipt of a Recapture Notice,
Landlord may elect to recapture the Premises or the portion thereof which Tenant
proposes to assign or sublet. If Landlord does not elect to recapture the
Premises or the portion of the Premises offered by Tenant or fails to respond
within such fifteen (15) Business Days following receipt of the Recapture
Notice, Landlord shall be deemed to have waived Landlord's right to recapture
such space and Tenant shall have the right to assign or sublet, subject to the
other provisions of this Article 12. If Tenant does not thereafter deliver to
Landlord a Tenant Statement within ninety (90) days after delivery of the
Recapture Notice, Tenant shall not assign or sublet without again complying with
the provisions of this Section 12.6(B). If Landlord elects to recapture the
Premises or the portion thereof which Tenant has offered in the Recapture
Notice, then on and as of the date set forth in the Recapture Notice, Tenant
shall surrender the Premises or the applicable portion thereof to Landlord and,
on such date, (i) the Premises, or the applicable portion thereof, shall be
delivered to Landlord in the manner and condition required by this Lease as if
such date were the Expiration Date with respect to the Premises or such
applicable portion thereof, and (ii) this Lease shall automatically terminate
with respect to the Premises or such applicable portion.
(C) At least fifteen (15) Business Days prior to any proposed
subletting of all or any portion of the Premises or any proposed assignment of
this Lease, Tenant shall submit a statement to Landlord (a "Tenant Statement")
containing the following information: (1) the name and address of the proposed
subtenant or assignee, as the case may be, (2) a description of the portion of
the Premises to be sublet, (3) the essential terms and conditions of the
proposed subletting or assignment, including, without limitation, the rent or
consideration payable and the value (including cost, overhead and supervision)
of any improvements (including any demolition to be performed) to the Premises
for occupancy by such subtenant or assignee, as the case may be, (4) the nature
and character of the business of the proposed
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subtenant or assignee, as the case may be, and (5) any other information that
Landlord may reasonably request, together with a statement specifically
directing Landlord's attention to the provisions of this Section 12.6(C)
requiring Landlord to respond to Tenant's request within fifteen (15) Business
Days after Landlord's receipt of the Tenant Statement. If Landlord shall fail to
notify Tenant within said fifteen (15) Business Day period of Landlord's consent
to or disapproval of the proposed subletting or assignment pursuant to the
Tenant Statement, as contemplated by Section 12.6(A) hereof, or if Landlord
shall have consented to such subletting or assignment as provided in Section
12.6(A) hereof, Tenant shall have the right to sublease that portion of the
Premises to such proposed subtenant or to assign its interest in this Lease on
the same terms and conditions set forth in the Tenant Statement, subject to the
terms and conditions of this Lease, including paragraph (A) of this Section
12.6. If Tenant shall not enter into such sublease or assignment, as the case
may be, within sixty (60) days after the delivery of the Tenant Statement to
Landlord, then the provisions of Section 12.1 hereof and this Section 12.6 shall
again be applicable to any other proposed subletting or assignment. If Tenant
shall enter into such sublease or assignment within sixty (60) days as
aforesaid, Tenant shall deliver a true, complete and fully executed counterpart
of (x) such sublease or (y) such assignment (which shall include an express
assumption by the assignee of the observance and performance of, and an
agreement to be personally bound by, all of the terms, covenants and conditions
of this Lease on Tenant's part to be performed) to Landlord within five (5) days
after execution thereof.
(D) The failure by Landlord to exercise its option under Section
12.6(B) with respect to any subletting shall not be deemed a waiver of such
option with respect to any extension of such subletting or any subsequent
subletting of the Premises affected thereby.
Section 12.7 (A) In connection with any subletting of all or any portion
of the Premises, Tenant shall pay to Landlord an amount equal to fifty percent
(50%) of any Sublease Profit derived therefrom. All sums payable hereunder by
Tenant shall be calculated on an annualized basis, but shall be paid to
Landlord, as additional rent, within ten (10) days after receipt thereof by
Tenant.
(B) Sublease Profit shall be recalculated from time to time to
reflect any corrections in the prior calculation thereof due to (i) subsequent
payments received or made by Tenant, (ii) the final adjustment of payments to be
made by or to Tenant, and (iii) mistake. Promptly after receipt or final
adjustment of any such payments or discovery of any such mistake, Tenant shall
submit to Landlord a recalculation of the Sublease Profit, and an adjustment
shall be made between Landlord and Tenant, on account of prior payments made or
credits received pursuant to this Section 12.7. In addition, if Sublease
Expenses utilized for the purpose of calculating Sublease Profit included an
amount attributable to the cost of the improvements made by Tenant expressly and
solely for the purpose of preparing the Premises or a portion thereof for the
occupancy of the subtenant and subsequent to the expiration of the sublease such
improvements and/or alterations were not demolished and/or removed, Sublease
Profits shall be recalculated as if the cost of such improvements and/or
alterations were not
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incurred by Tenant and Tenant promptly shall pay to Landlord fifty percent (50%)
of the additional amount of such Sublease Profit resulting from such
recalculation.
Section 12.8 Tenant shall pay to Landlord, upon receipt thereof, an amount
equal to fifty percent (50%) of all Assignment Proceeds. For purposes of Section
12.8, "Assignment Proceeds" shall mean all consideration payable to Tenant,
directly or indirectly, by any assignee, or any other amount received by Tenant
from or in connection with any assignment (including, but not limited to, sums
paid for the sale or rental, or consideration received on account of any
contribution, of Tenant's Property) after deducting therefrom: (i) in the event
of a sale (or contribution) of Tenant's Property, the then unamortized or
undepreciated cost thereof determined on the basis of Tenant's federal income
tax returns, (ii) the reasonable out-of-pocket costs and expenses of Tenant in
making such assignment, such as brokers' fees, reasonable attorneys' fees, and
advertising fees paid to unrelated third parties, (iii) any payments required to
be made by Tenant in connection with the assignment of its interest in this
Lease pursuant to any New Jersey statutes or any real property transfer tax of
the United States or the City of Jersey City or the State of New Jersey (other
than any income tax), (iv) any sums paid by Tenant to Landlord pursuant to
Section 12.2(B) hereof, (v) the cost of improvements or alterations made by
Tenant expressly and solely for the purpose of preparing the Premises for such
assignment, as determined by Tenant's federal income tax returns, (vi) the
unamortized or undepreciated cost of any of Tenant's Property leased to and used
by such assignee, and (vii) the then unamortized or undepreciated cost of the
Alterations determined on the basis of Tenant's federal income tax returns. If
the consideration paid to Tenant for any assignment shall be paid in
installments, then the expenses specified in this Section 12.8 shall be
amortized over the period during which such installments shall be payable. If
Landlord exercises its right to recapture this Lease or any portion of the
Premises pursuant to the provisions of Section 12.6(B) hereof, in no event shall
Tenant be entitled to any proceeds derived from or relating to (directly or
indirectly) any lease or sublease of the Premises by Landlord or further
assignment of the Lease.
ARTICLE 13
ELECTRICITY
Section 13.1 Tenant shall at all times comply with the rules, regulations,
terms and conditions applicable to service, equipment, wiring and requirements
of the public utility supplying electricity to the Building. The risers serving
the Premises shall be capable of supplying six (6) ▇▇▇▇▇ of electricity per
usable square foot of the Premises and Tenant shall not use any electrical
equipment which, in Landlord's reasonable judgment, would exceed such capacity
or interfere with the electrical service to other tenants of the Building. In
the event that, in Landlord's reasonable judgment, Tenant's electrical
requirements necessitate installation of an additional riser, risers or other
proper and necessary equipment, Landlord shall so notify Tenant of same. Within
five (5) Business Days after receipt of such notice, Tenant shall either cease
such use of such additional electricity or shall request that additional
electricity capacity
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(specifying the amount requested) be made available to Tenant. Landlord, in
Landlord's reasonable judgment (taking into consideration the potential needs of
present and future tenants of the Building and of the Building itself) shall
determine whether to make available such additional electricity capacity to
Tenant and the amount of such additional electricity capacity to be made
available. If Landlord shall agree to make available additional electrical
capacity and the same necessitates installation of an additional riser, risers
or other proper and necessary equipment, including, without limitation, any
switchgear, the same shall be installed by Landlord. Any such installation shall
be made at Tenant's sole cost and expense, and shall be chargeable and
collectible as additional rent and paid within ten (10) days after the rendition
of a ▇▇▇▇ to Tenant therefor. Landlord shall not be liable in any way to Tenant
for any failure or defect in the supply or character of electric service
furnished to the Premises by reason of any requirement, act or omission of the
utility serving the Building or for any other reason not attributable to the
gross negligence of Landlord, whether electricity is provided by public or
private utility or by any electricity generation system owned and operated by
Landlord.
Section 13.2 (A) Unless (1) Landlord is required to have Tenant, or (2)
Tenant elects to, obtain electricity from the public utility company furnishing
electricity to the Building pursuant to the provisions of Section 13.3 hereof,
electricity for lighting and ordinary office machinery use and for the VAC unit
serving the Premises shall be furnished by Landlord to the Premises and Tenant
shall pay to Landlord, as additional rent for such service, from and after the
Commencement Date, an amount (the "Electricity Additional Rent") equal to the
sum of (i) the product of (x) the Cost Per Kilowatt Hour, and (y) Tenant's
demand and consumption of electricity as determined by Lighting Meters
(installed by Landlord, at its cost, for the purpose of measuring such
consumption), (ii) the product of (x) Tenant's Allocable Share, (y) the Cost Per
Kilowatt Hour, and (z) the demand and consumption of electricity as determined
by the VAC Meters (installed by Landlord, at its cost), and (iii) an amount
equal to the out-of-pocket costs and expenses incurred by Landlord in connection
with furnishing such electricity and reading such Lighting Meters and VAC
Meters.
(B) Where more than one Meter measures the electricity supplied to
Tenant, the electricity rendered through each Meter may be computed and billed
separately in accordance with the provisions hereinabove setforth. Tenant
expressly acknowledges that the Meters have been installed so as to measure the
consumption of electricity on full floors of the Building. Bills for the
Electricity Additional Rent shall be rendered to Tenant monthly, and Tenant
shall pay the amount shown thereon to Landlord within ten (10) days after
receipt of such ▇▇▇▇.
(C) Landlord and Tenant expressly acknowledge and agree that the
Meters shall not measure, and Tenant shall not be obligated to pay (pursuant to
this Article 13) for, the electrical energy utilized by the baseboard heating
system servicing the Premises, it being expressly understood and agreed that the
cost of providing electrical energy to the baseboard heating system throughout
the Building shall be included in Operating Expenses.
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Section 13.3 If Landlord shall be required to discontinue furnishing
electricity to Tenant, or if Tenant shall elect to obtain electricity directly
from the public utility, this Lease shall continue in full force and effect and
shall be unaffected thereby, except only that from and after the effective date
of such discontinuance, Landlord shall not be obligated to furnish electricity
to Tenant and Tenant shall not be obligated to pay the Electricity Additional
Rent. If Landlord so discontinues furnishing electricity to Tenant, Tenant shall
use diligent efforts to obtain electric energy directly from the public utility
furnishing electric service to the Building. The costs of such service shall be
paid by Tenant directly to such public utility. Such electricity may be
furnished to Tenant by means of the existing electrical facilities serving the
Premises, at no charge, to the extent the same are available, suitable and safe
for such purposes as determired by Landlord. 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 Landlord at Tenant's
expense. Provided Tenant shall use and continue to use diligent efforts to
obtain electric energy directly from the public utility, Landlord, to the extent
permitted by applicable Requirements, shall not discontinue furnishing
electricity to the Premises until such installations have been made and Tenant
shall be able to obtain electricity directly from the public utility.
ARTICLE 14
ACCESS TO PREMISES
Section 14.1 (A) Tenant shall permit Landlord, Landlord's agents,
representatives, contractors and employees and the agents, representatives,
contractors and employees of public utilities and telecommunications companies
servicing the Building to erect, use and maintain concealed ducts, exhausts,
pipes, cables, risers and conduits in and through the Premises. Landlord,
Landlord's agents, representatives, contractors, and employees and the agents,
representatives, contractors, and employees of public utilities and
telecommunications companies servicing the Building shall have the right to
enter the Premises at all reasonable times upon reasonable prior notice (except
in the case of an emergency in which event Landlord and Landlord's agents,
representatives, contractors, and employees may enter without prior notice to
Tenant), which notice may be oral, to examine the same, to show them to
prospective purchasers, or prospective or existing Mortgagees or Lessors, and to
make such repairs, alterations, improvements, additions or restorations (i) as
Landlord may reasonably deem necessary to the Premises or to any other portion
of the Building, or (ii) which Landlord may elect to perform following ten (10)
days after notice, except in the case of an emergency (in which event Landlord
and Landlord's agents, representatives, contractors, and employees may enter
without prior notice to Tenant), following Tenant's failure to make repairs or
perform any work which Tenant is obligated to make or perform under this Lease,
or (iii) for the purpose of complying with any Requirements, a Superior Lease or
a Mortgage, and Landlord shall be allowed to take all material into and upon the
Premises that may be required therefor without the same constituting an eviction
or constructive eviction of Tenant in whole or in part and the Fixed Rent (and
any other item of Rental) shall not ▇▇▇▇▇ (except to the extent expressly set
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forth in Section 14.2 hereof) while said repairs, alterations, improvements,
additions or restorations are being made, by reason of loss or interruption of
business of Tenant, or otherwise.
(B) Any work performed or installations made pursuant to this
Article 14 shall be made with reasonable diligence and otherwise pursuant to the
provisions of Section 4.3 hereof.
(C) Except as hereinafter provided, any pipes, cables, ducts,
exhausts or conduits installed in or through the Premises pursuant to this
Article 14 shall be concealed behind, beneath or within partitioning, columns,
ceilings or floors located or to be located in the Premises. Notwithstanding the
foregoing, any such pipes, cables, ducts, exhausts or conduits may be furred at
points immediately adjacent to partitioning columns or ceilings located or to be
located in the Premises, provided that the same are completely furred and that
the installation of such pipes, cables, ducts, exhausts or conduits, when
completed, shall not reduce the usable area of the Premises beyond a de minimis
amount.
Section 14.2 If due to any work or installation performed by Landlord
hereunder or failure by Landlord to perform its obligations hereunder, (i)
Tenant shall be unable for at least ten (10) consecutive Business Days to
operate its business in the Premises in substantially the same manner as such
business was operated prior to the performance of such work or installation or
such failure, (ii) such interruption shall occur during business hours, and
(iii). Tenant shall have been unable, after using reasonable efforts, to
relocate its employees and property located in that portion of the Premises
which is the subject of such work or installation or such failure so as to have
been able to have continued so to operate its business, the Fixed Rent and the
Escalation Rent shall be reduced on a per diem basis in the proportion in which
the area of the portion of the Premises which is unusable bears to the total
area of the Premises for each day subsequent to the aforesaid ten (10) Business
Day period that such portion of the Premises remains unusable.
Section 14.3 During the twelve (12) month period prior to the Expiration
Date or the expiration of any renewal or extended term, Landlord may exhibit the
Premises to prospective tenants thereof, following reasonable telephonic notice
to Tenant.
Section 14.4 If Tenant shall not be present when for any reason entry into
the Premises shall be necessary or permissible, Landlord or Landlord's agents,
representatives, contractors or employees may enter the same without rendering
Landlord or such agents liable therefor if during such entry Landlord or
Landlord's agents shall accord reasonable care under the circumstances to
Tenant's Property, and without in any manner affecting this Lease. Nothing
herein contained, however, shall be deemed or construed to impose upon Landlord
any obligation, responsibility or liability whatsoever, for the care,
supervision or repair of the Building or any part thereof, other than as herein
provided.
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Section 14.5 Landlord also shall have the right at any time, without the
same constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor, to change the arrangement or location of entrances
or passageways, doors and doorways, and corridors, elevators, stairs, toilets,
or other public parts of the Building and to change the name, number or
designation by which the Building is commonly known, provided any such change
does not (a) unreasonably reduce, interfere with or deprive Tenant of access to
the Building or the Premises, or (b) reduce the rentable area (except by a de
minimis amount) of the Premises. All parts (except surfaces facing the interior
of the Premises) of all walls, windows and doors bounding the Premises
(including exterior Building walls, exterior core corridor walls, exterior doors
and entrances), all balconies, terraces and roofs adjacent to the Premises, all
space in or adjacent to the Premises used for shafts, stacks, stairways, chutes,
pipes, conduits, ducts, fan rooms, heating, air cooling, plumbing and other
mechanical facilities, service closets and other Building facilities are not
part of the Premises, and Landlord shall have the use thereof, as well as access
thereto through the Premises for the purposes of operation, maintenance,
alteration and repair.
ARTICLE 15
CERTIFICATE OF OCCUPANCY
Tenant shall not at any time use or occupy the Premises in violation of
any certificate of occupancy at such time issued for the Premises or for the
Building and in the event that any Governmental Authority shall hereafter
contend or declare by notice, violation, order or in any other manner whatsoever
that the Premises are used for a purpose which is a violation of such
certificate of occupancy, Tenant, upon five (5) Business Days' written notice
from Landlord or any Governmental Authority, shall immediately discontinue such
use of the Premises. Tenant shall obtain a temporary or permanent certificate of
occupancy covering the Premises permitting the Premises to be used as "offices"
and such temporary or permanent certificate of occupancy will be in force upon
the date upon which Tenant shall occupy all or any portion of the Premises for
the conduct of business, provided, however, neither such certificate, nor any
provision of this Lease, nor any act or omission of Landlord, shall be deemed to
constitute a representation or warranty that the Premises, or any part thereof,
lawfully may be used or occupied for any particular purpose or in any particular
manner, in contradistinction to mere "office" use.
ARTICLE 16
DEFAULT
Section 16.1 Each of the following events shall be an "Event of Default"
hereunder:
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(A) if Tenant shall default in the payment when due of any
installment of Fixed Rent or any other item of Rental and such default shall
continue for five (5) Business Days; or
(B) if the Premises shall become abandoned or be vacant for more
than thirty (30) days; or
(C) if Tenant's interest or any portion thereof in this Lease shall
devolve upon or pass to any person, whether by operation of law or otherwise,
except as expressly permitted under Article 12 hereof; or
(D) (1) if Tenant shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due; or
(2) if Tenant shall commence or institute any case, proceeding
or other action (A) seeking relief on its behalf as debtor, or to adjudicate it
a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or (B) seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part of its
property; or
(3) if Tenant shall make a general assignment for the benefit
of creditors; or
(4) if any case, proceeding or other action shall be commenced
or instituted against Tenant (A) seeking to have an order for relief entered
against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts under any existing
or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, or (B) seeking appointment of
a receiver, trustee, custodian or other similar official for it or for all or
any substantial part of its property, which in either of such cases (i) results
in any such entry of an order for relief, adjudication of bankruptcy or
insolvency or such an appointment or the issuance or entry of any other order
having a similar effect or (ii) remains undismissed for a period of ninety (90)
days; or
(5) if any case, proceeding or other action shall be commenced
or instituted against Tenant seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its property which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within ninety (90) days from the entry thereof; or
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(6) if Tenant shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clauses (2), (3), (4) or (5) above; or
(7) if a trustee, receiver or other custodian is appointed for
any substantial part of the assets of Tenant which appointment is not vacated or
stayed within seven (7) Business Days; or
(E) if this Lease is assigned (or all or a portion of the Premises
are subleased) to an Affiliate of Tenant and such entity shall no longer (i)
control, (ii) be under common control with, or (iii) be under the control of
Tenant (or any permitted successor by merger, consolidation or purchase as
provided herein); unless Tenant shall comply with the provisions of Article 12
of this Lease;
(F) if Tenant shall default in the observance or performance of any
other term, covenant or condition of this Lease on Tenant's part to be observed
or performed and Tenant shall fail to remedy such default within thirty (30)
days after notice by Landlord to Tenant of such default, or if such default is
of such a nature that it cannot with due diligence be completely remedied within
said period of thirty (30) days and Tenant shall not commence within said period
of thirty (30) days, or shall not thereafter diligently prosecute to completion,
all steps necessary to remedy such default.
Section 16.2 (A) If an Event of Default (i) described in Section 16.1(D)
hereof shall occur, or (ii) described in Sections 16.1(A), (B),(C), (E) or (F)
shall occur and Landlord, at any time thereafter, at its option gives written
notice to Tenant stating that this Lease and the Term shall expire and terminate
on the date Landlord shall give Tenant such notice, then this Lease and the Term
and all rights of Tenant under this Lease shall expire and terminate as if the
date on which the Event of Default described in clause (i) above occurred or the
date such notice is given to Tenant by Landlord, pursuant to clause (ii) above,
as the case may be, were the Fixed Expiration Date and Tenant immediately shall
quit and surrender the Premises, but Tenant shall nonetheless be liable for all
of its obligations hereunder, as provided for in Articles 17 and 18 hereof.
Anything contained herein to the contrary notwithstanding, if such termination
shall be stayed by order of any court having jurisdiction over any proceeding
described in Section 16.1(D) hereof, or by federal or state statute, then,
following the expiration of any such stay, or if the trustee appointed in any
such proceeding, Tenant or Tenant as debtor-in-possession shall fail to assume
Tenant's obligations under this Lease within the period prescribed therefor by
law or within one hundred twenty (120) days after entry of the order for relief
or as may be allowed by the court, or if said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of Landlord's
right, title and interest in and to the Premises or adequate assurance of the
complete and continuous future performance of Tenant's obligations under this
Lease as provided in Section 12.3(B), Landlord, to the extent permitted by law
or by leave of the court having jurisdiction over such proceeding, shall have
the right, at its election, to terminate this Lease on five (5) days' notice to
Tenant, Tenant as
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debtor-in-possession or said trustee and upon the expiration of said five (5)
day period this Lease shall cease and expire as aforesaid and Tenant, Tenant as
debtor-in-possession or said trustee shall immediately quit and surrender the
Premises as aforesaid.
(B) If an Event of Default described in Section 16.1(D) hereof shall
occur, or this Lease shall be terminated as provided in Section 16.2(A) hereof,
Landlord, without notice, may reenter and repossess the Premises using such
force for that purpose as may be necessary without being liable to indictment,
prosecution or damages therefor and may dispossess Tenant by summary proceedings
or otherwise.
Section 16.3 If at any time, (i) Tenant shall comprise 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 Section 16.1(D),
shall be deemed to mean any one or more of the persons primarily or secondarily
liable for Tenant's obligations under this Lease. Any monies received by
Landlord from or on behalf of Tenant during the pendency of any proceeding of
the types referred to in Section 16.1(D) 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 Rental or a waiver
on the part of Landlord of any rights under Section 16.2.
ARTICLE 17
REMEDIES AND DAMAGES
Section 17.1 (A) If there shall occur any Event of Default, and this Lease
and the Term shall expire and come to an end as provided in Article 16 hereof:
(1) Tenant shall quit and peacefully surrender the Premises to
Landlord, and Landlord and its agents may immediately, or at any time after such
default or after the date upon which this Lease and the Term shall expire and
come to an end, re-enter the Premises or any part thereof, without notice,
either by summary proceedings, or by any other applicable action or proceeding,
or by force or otherwise (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; and
(2) Landlord, at Landlord's option, may relet the whole or any
portion or portions of the Premises 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; provided, however, that
Landlord shall have no obligation to relet the Premises or any part thereof and
shall in no event be liable for refusal or failure to relet the Premises or any
part thereof, or, in the event of
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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 affect any such liability, and Landlord,
at Landlord's option, may make such repairs, replacements, alterations,
additions, improvements, decorations and other physical changes in and to the
Premises as Landlord, in its sole 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.
(B) Tenant hereby waives the service of any notice of intention to
reenter or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law. 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 redeem the
Premises, or to re-enter or repossess the Premises, or to restore the operation
of this Lease, after (a) Tenant shall have been dispossessed by a judgment or by
warrant of any court or judge, or (b) any re-entry by Landlord, or (c) 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. The words "re-enter," "re-entry" and "re-entered"
as used in this Lease shall not be deemed to be restricted to their technical
legal meanings. In the event of a breach or threatened breach by Tenant, or any
persons claiming through or under Tenant, of any term, covenant or condition of
this Lease, Landlord shall have the right to enjoin such breach and the right to
invoke any other remedy allowed by law or in equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for such
breach. 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 17.2 (A) If this Lease and the Term shall expire and come to an
end as provided in Article 16 hereof, or by or under any summary proceeding or
any other action or proceeding, or if Landlord shall re-enter the Premises as
provided in Section 17.1, or by or under any summary proceeding or any other
action or proceeding, then, in any of said events:
(1) Tenant shall pay to Landlord all Fixed Rent, Escalation
Rent and other items of Rental payable under this Lease by Tenant to Landlord to
the date upon which this Lease and the Term shall have expired and come to an
end or to the date of reentry upon the Premises by Landlord, as the case may be;
(2) Tenant also shall be liable for and shall pay to Landlord,
as damages, any deficiency ("Deficiency") between the Rental for the period
which otherwise would have constituted the unexpired portion of the Term and the
net amount, if any, of rents collected under any reletting effected pursuant to
the provisions of paragraph (2) of Section 17.1 (A) 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, Landlord's
re-entry
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upon the Premises and with such reletting, including, but not limited to, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees and
disbursements, alteration costs, contribution to work and other expenses of
preparing the Premises for such reletting); any such Deficiency shall be paid in
monthly installments by Tenant on the days specified in this Lease for payment
of installments of Fixed Rent, 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
(3) whether or not Landlord shall have collected any monthly
Deficiency as aforesaid, Landlord shall be entitled to recover from Tenant, and
Tenant shall pay to Landlord, on demand, in lieu of any further Deficiency as
and for liquidated and agreed final damages, a sum equal to the amount by which
the Rental for the period which otherwise would have constituted the unexpired
portion of the Term exceeds the then fair and reasonable rental value of the
Premises for the same period, both discounted to present worth at the Base Rate
less the aggregate amount of Deficiencies theretofore collected by Landlord
pursuant to the provisions of clause (A)(2) of this Section 17.2 for the same
period; 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 by Landlord for the period which otherwise would have constituted
the unexpired portion of the Term, or any part thereof, the amount of rent
reserved upon such reletting shall be deemed, prima facie, to be the fair and
reasonable rental value for the part or 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 this Section 17.2. Tenant shall in no event be entitled to
any rents collected or payable under any reletting, whether or not such rents
shall exceed the Fixed Rent reserved in this Lease. Solely for the purposes of
this Article 17, the term "Escalation Rent" as used in Section 17.2(A) shall
mean the Escalation Rent in effect immediately prior to the Expiration Date, or
the date of re-entry upon the Premises by Landlord, as the case may be, adjusted
to reflect any increase pursuant to the provisions of Article 27 hereof for the
Operating Year immediately preceding such event. Nothing contained in Article 16
hereof or this Article 17 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 this Section 17.2.
ARTICLE 18
LANDLORD FEES AND EXPENSES
Section 18.1 If Tenant shall be in default in the performance of any of
its obligations under this Lease, Landlord may (1) perform the same for the
account of Tenant, or
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(2) make any expenditure or incur any obligation for the payment of money,
including, without limitation, reasonable attorneys' fees and disbursements in
instituting, prosecuting or defending any action or proceeding, and the cost
thereof, with interest thereon at the Applicable Rate, shall be deemed to be
additional rent hereunder and shall be paid by Tenant to Landlord within ten
(10) days of rendition of any ▇▇▇▇ or statement to Tenant therefor and if the
term of this Lease shall have expired at the time of making of such expenditures
or incurring of such obligations, such sums shall be recoverable by Landlord as
damages.
Section 18.2 If Tenant shall fail to pay any installment of Fixed Rent,
Escalation Rent or any other item of Rental within five (5) days after such
amount is due, Tenant shall pay to Landlord, in addition to such installment of
Fixed Rent, Escalation Rent or other item of Rental, as the case may be, as a
late charge and as additional rent, a sum equal to interest at the Applicable
Rate on the amount unpaid, computed from the date such payment was due to and
including the date of payment.
ARTICLE 19
NO REPRESENTATIONS BY LANDLORD
Landlord and Landlord's agents and representatives have made no
representations or promises with respect to the Building, the Real Property, the
Premises or the Site, including, without limitation, any proposed further or
future development of the Site, or any portion thereof, except as herein
expressly set forth, and no rights, easements or licenses are acquired by Tenant
by implication or otherwise except as expressly set forth herein. Tenant shall
accept possession of the Premises in the condition which shall exist on the
Commencement Date "as is", and Landlord shall have no obligation to perform any
work or make any installations in order to prepare the Premises for Tenant's
occupancy, except for Landlord's Work. The taking of occupancy of the whole or
any part of the Premises by Tenant for the conduct of its business shall be
conclusive evidence, as against Tenant, that Tenant accepts possession of the
same "as is" and that the Premises so occupied and the Building were in good and
satisfactory condition at the time such occupancy was so taken, and that
Landlord's Work was Substantially Completed. Landlord has made no
representations as to the date on which Landlord's Work will be Substantially
Completed. Landlord shall have the right to enter the Premises for the purpose
of performing Landlord's Work and access by Landlord to complete such work shall
not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of Rental or relieve Tenant from
any other obligations under this Lease, or impose any liability on Landlord by
reason of inconvenience or annoyance to Tenant or injury to or interruption of
Tenant's business or otherwise. All references in this Lease to the consent or
approval of Landlord shall be deemed to mean the written consent or approval of
Landlord and no consent or approval of Landlord shall be effective for any
purpose unless such consent or approval is set forth in a written instrument
executed by Landlord.
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ARTICLE 20
END OF TERM
Upon the expiration or other termination of this Lease, Tenant shall quit
and surrender to Landlord the Premises, vacant, broom clean, in good order and
condition, ordinary wear and tear and damage for which Tenant is not responsible
under the terms of this Lease excepted, and otherwise in compliance with the
provisions of Article 3 hereof. Tenant expressly waives, for itself and for any
person claiming through or under Tenant, any rights which Tenant or any such
person may have under the provisions of any Requirements in connection with any
holdover summary proceedings which Landlord may institute to enforce the
foregoing provisions of this Article 20. Tenant acknowledges that possession of
the Premises must be surrendered to Landlord on the Expiration Date. Tenant
agrees to indemnify and save Landlord harmless from and against all claims,
losses, damages, liabilities, costs and expenses (including, without limitation,
attorneys' fees and disbursements) resulting from delay by Tenant in so
surrendering the Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay. 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 extremely substantial, will
exceed the amount of the monthly installments of the Fixed Rent and Rental
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord on the Expiration Date, in addition to any other rights or remedies
Landlord may have hereunder or at law, and without in any manner limiting
Landlord's right to demonstrate and collect any damages suffered by Landlord and
arising from Tenant's failure to surrender the Premises as provided herein,
Tenant shall pay to Landlord on account of use and occupancy of the Premises a
sum equal to one and one-half (1 1/2) times the aggregate of that portion of the
Fixed Rent, Escalation Rent and Rental which was payable under the Lease during
the last month of the Term for the first month or any portion thereof during
which Tenant holds over in the Premises after the Expiration Date, and a sum
equal to two (2) times the aggregate of that portion of the Fixed Rent,
Escalation Rent and Rental which was payable under this Lease during the last
month of the Term for each month (or portion of any month) thereafter during
which Tenant holds over in the Premises after the Expiration Date. Nothing
herein contained shall be deemed to permit Tenant to retain possession of the
Premises after the Expiration Date or to limit in any manner Landlord's right to
regain possession of the Premises through summary proceedings, or otherwise, and
no acceptance by Landlord of payments from Tenant after the Expiration Date
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 20. The provisions of this
Article 20 shall survive the Expiration Date.
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ARTICLE 21
QUIET ENJOYMENT
Provided no default has occurred and is continuing beyond any applicable
grace period, Tenant may peaceably and quietly enjoy the Premises subject,
nevertheless, to the terms and conditions of this Lease.
ARTICLE 22
POSSESSION
Landlord shall deliver possession of the Premises on the Occupancy Date.
ARTICLE 23
NO WAIVER
Section 23.1 No act or thing done by Landlord or Landlord's agents during
the Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such surrender shall be valid unless in writing signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys of the Premises prior to the termination of this Lease. The
delivery of keys to any employee of Landlord or of Landlord's agents shall not
operate as a termination of this Lease or a surrender of the Premises. In the
event Tenant at any time desires to have Landlord sublet the Premises for
Tenant's account, Landlord or Landlord's agents are authorized to receive said
keys for such purpose without releasing Tenant from any of the obligations under
this Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such subletting.
Section 23.2 The failure of Landlord to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease, or any of the Rules and Regulations set forth or hereafter adopted by
Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation of the provisions of this Lease, from having all of the
force and effect of an original violation of the provisions of this Lease. The
receipt by Landlord of Fixed Rent, Escalation Rent or any other item of Rental
with knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the Rules and
Regulations set forth, or hereafter adopted, against Tenant or any other tenant
in the Building shall not be deemed a waiver of any such Rules and Regulations.
No provision of this Lease shall be deemed to have been waived by Landlord,
unless such waiver be in writing signed by Landlord. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly Fixed Rent or other item
of Rental herein stipulated shall be deemed to be other than on account of the
earliest stipulated Fixed Rent or other item of Rental, or as Landlord may elect
to apply same, nor shall any endorsement or
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statement on any check or any letter accompanying any check or payment as Fixed
Rent or other item of Rental be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such Fixed Rent or other item of Rental or to pursue any
other remedy provided in this Lease. This Lease contains the entire agreement
between the parties and all prior negotiations and agreements are merged herein.
Any executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Lease in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
Section 23.3 The failure of Tenant to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
on Landlord's part to be performed, shall not be deemed a waiver of such breach
or prevent a subsequent act which would have originally constituted a violation
of the provisions of this Lease from having all of the force and effect of an
original violation of the provisions of this Lease. The payment by Tenant of
Fixed Rent, Escalation Rent or any other item of Rental or performance of any
obligation of Tenant hereunder with knowledge of any breach of any covenant of
this Lease shall not be deemed a waiver of such breach, and payment of the same
by Tenant shall be without prejudice to Tenant's right to pursue any remedy
against Landlord in this Lease provided.
ARTICLE 24
WAIVER OF TRIAL BY JURY
The respective parties hereto shall and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other (except for personal injury or property damage) 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,
or for the enforcement of any remedy under any statute, emergency or otherwise.
If Landlord commences any summary proceeding against Tenant, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding (unless failure to impose such counterclaim would preclude Tenant
from asserting in a separate action the claim which is the subject of such
counterclaim), and will not seek to consolidate such proceeding with any other
action which may have been or will be brought in any other court by Tenant.
ARTICLE 25
INABILITY TO PERFORM
Subject to the provisions of Section 14.2 hereof, this Lease and the
obligation of Tenant to pay Rental hereunder and perform all of the other
covenants and agreements
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hereunder on the part of Tenant to be performed shall not be affected, impaired
or excused because Landlord is unable to fulfill any of its obligations under
this Lease expressly or impliedly to be performed by Landlord or because
Landlord is unable to make, or is delayed in making any repairs, additions,
alterations, improvements or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures, if Landlord is prevented or delayed from so
doing by reason of strikes or labor troubles or by accident, or by any cause
whatsoever beyond Landlord's control, including, but not limited to, laws,
governmental preemption in connection with a national emergency or by reason of
any Requirements or by reason of failure of the VAC, electrical, plumbing, or
other Building Systems in the Building, or by reason of the conditions of supply
and demand which have been or are affected by war or other emergency
("Unavoidable Delays").
ARTICLE 26
BILLS AND NOTICES
Except as otherwise expressly provided in this Lease, any bills,
statements, consents, notices, demands, requests or other communications given
or required to be given under this Lease shall be in writing and shall be deemed
sufficiently given or rendered if delivered by hand (against a signed receipt)
or if sent by registered or certified mail (return receipt requested) addressed
if to Tenant (a) at Tenant's address set forth in this Lease, Attn.:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., if mailed prior to Tenant's taking possession of
the Premises, or (b) at the Building, Attn.: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., if
mailed subsequent to Tenant's taking possession of the Premises, or (c) 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, in each case with a copy to Squadron, Ellenoff,
Plesent & ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., or
if to Landlord do The Limited, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attn.: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, and with copies to
(x) The Limited, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attn.:
C. ▇▇▇▇▇ ▇▇▇▇, Esq., (y) The Georgetown Group, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn.: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and (z) each
Mortgagee and Lessor which shall have requested same, by notice given in
accordance with the provisions of this Article 26 at the address
designated by such Mortgagee or Lessor,
or to such other address(es) as Landlord, Tenant or any Mortgagee or Lessor may
designate as its new address(es) for such purpose by notice given to the other
in accordance with the provisions of this Article 26. Any such ▇▇▇▇, statement,
consent, notice, demand, request or other communication shall be deemed to have
been rendered or given on the date when it shall
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have been hand delivered or three (3) Business Days from when it shall have been
mailed as provided in this Article 26. Anything contained herein to the contrary
notwithstanding, any Operating Statement, Tax Statement or any other ▇▇▇▇,
statement, consent, notice, demand, request or other communication from Landlord
to Tenant with respect to any item of Rental (other than any "default notice" if
required hereunder) may be sent to Tenant by regular United States mail. A
notice may be given by a party hereto or on such party's behalf by its
attorneys.
ARTICLE 27
ESCALATION
Section 27.1 For the purposes of this Article 27, the following terms
shall have the meanings set forth below.
(A) (1) "Operating Expenses" shall mean the aggregate of those costs
and expenses (and taxes, if any, thereon, including without limitation, sales
and value added taxes) paid or incurred by or on behalf of Landlord (whether
directly or through independent contractors) in respect of (x) the Operation of
the Property which are properly chargeable to the Operation of the Property
under generally acceptable accounting procedures together with and including
(without limitation) the costs of gas, oil, steam, water, sewer rental,
electricity (for the portions of the Real Property not leased to and occupied by
tenants or available for occupancy, provided, however, that electricity used to
provide heat through the electrical baseboard heating units shall be included in
Operating Expenses for the entire Building, including those portions of the
Building which are available for leasing and occupancy by tenants and those
portions of the Building which are not leasable), VAC and other utilities
furnished to the Building and utility taxes, and the expenses incurred in
connection with the Operation of the Property such as insurance premiums,
attorneys' fees and disbursements (exclusive of any such fees and disbursements
incurred in applying for any reduction of Taxes) and auditing and other
professional fees and expenses, and (y) the maintenance and operation of areas
comprising portions of the Site which areas (1) are not exclusively reserved to
the use of individual owners, tenants or operators of projects within the Site,
and (2) Tenant and other occupants of the Building and their respective agents,
representatives, employees, invitees and customers shall have the right to use
or have the benefit of, in common with Landlord and others, but specifically
excluding:
(i) Taxes,
(ii) franchise or income taxes imposed upon Landlord,
(iii) debt service on Mortgages,
(iv) leasing commissions,
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(v) capital improvements (except as otherwise provided
herein),
(vi) the cost of electrical energy furnished directly to
Tenant and other tenants of the Building except for the cost of electrical
energy used to provide heat through the electrical baseboard heating units,
(vii) the cost of tenant installations incurred in connection
with preparing space for a new tenant,
(viii) salaries of personnel above the grade of building
manager,
(ix) rent paid under Superior Leases,
(x) any expense for which Landlord is otherwise compensated
through the proceeds of insurance or is otherwise compensated by any tenant
(including Tenant) of the Building for services in excess of the services
Landlord is obligated to furnish to Tenant hereunder,
(xi) legal fees incurred in connection with any negotiation
of, or disputes arising out of, any space lease in the Building,
(xii) depreciation, except as provided herein,
(xiii) Landlord's advertising and promotional costs for the
Building,
(xiv) any fee or expenditure paid (a) to any Affiliate of
Landlord, or (b) to any shareholder owning at least fifty (50%) percent of the
common stock, any general partner, any officer above the rank of vice president,
or member of any Board of Directors of Landlord or of any Person described in
this clause (xiv) or (c) to any person who is a relative by blood or marriage of
any such persons, in each case in excess of the amount which would be paid in
the absence of such relationship,
(xv) accounting fees and other expenses incurred in connection
with disputes with tenants or occupants of the Building or associated with the
enforcement of the terms of any leases with tenants or the defense of Landlord's
title to or interest in the Building,
(xvi) costs (including permits, licensing and inspection fees)
incurred in renovating or otherwise improving, decorating or altering space for
tenants or other occupants, or vacant space (excluding common areas) in the
Building, and
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(xvii) amortization payments on mortgages;
except, however, that if Landlord is not furnishing any particular work or
service (the cost of which if performed by Landlord would constitute an
Operating Expense) to a tenant who has undertaken to perform such work or
service in lieu of the performance thereof by Landlord, Operating Expenses shall
be deemed to be increased by an amount equal to the additional Operating
Expenses which reasonably would have been incurred during such period by
Landlord if it had at its own expense furnished such work or services to such
tenant. Any costs incurred in performing work or furnishing services for any
tenant (including Tenant), whether at such tenant's or Landlord's expense, to
the extent that such work or service is in excess of any work or service that
Landlord is obligated to furnish to Tenant at Landlord's expense shall be
deducted from Operating Expenses otherwise chargeable to the Operation of the
Property. Any insurance proceeds received with respect to any item previously
included as an Operating Expense shall be deducted from Operating Expenses for
the Operating Year in which such proceeds are received; provided, however, to
the extent any insurance proceeds are received by Landlord in any Operating Year
with respect to any item which was included in Operating Expenses during the
Base Operating Year, the amount of insurance proceeds so received shall be
deducted from Base Operating Expenses and (a) the Base Operating Expenses shall
be retroactively adjusted to reflect such deduction and (b) all retroactive
Operating Payments resulting from such retroactive adjustment shall be due and
payable when billed by Landlord.
(2) In determining the amount of Operating Expenses for any
Operating Year, if less than ninety-five percent (95%) of the Building rentable
area shall have been occupied by tenant(s) at any time during any such Operating
Year, Operating Expenses shall be determined for such Operating Year to be an
amount equal to the like expenses which would normally be expected to be
incurred if ninety-five percent (95%) of the Building rentable area been
occupied throughout such Operating Year.
(3) (a) If any capital improvement is made during any
Operating Year to comply with a Requirement, whether or not such Requirement is
valid, or in lieu of a repair, then the cost of such improvement shall be
included in Operating Expenses for the Operating Year in which such improvement
was made; provided, however, to the extent the cost of such improvement is
required to be capitalized under generally accepted accounting principles for
federal income tax purposes, such cost shall be amortized over the useful
economic life of such improvement as reasonably estimated by Landlord and the
annual amortization, together with interest thereon at the then Base Rate, of
such improvement shall be deemed an Operating Expense in each of the Operating
Years during which such cost of the improvement is amortized.
(b) If any capital improvement is made during any
Operating Year for the purpose of saving or reducing Operating Expenses (as, for
example, a labor-saving improvement), then the cost of such improvement shall be
included in Operating Expenses for the Operating Year in which such improvement
was made; provided, however,
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such cost shall be amortized over such period of time as Landlord reasonably
estimates such savings or reduction in Operating Expenses will equal the cost of
such improvement and the annual amortization, together with interest thereon at
the then Base Rate, of such improvement shall be deemed an Operating Expense in
each of the Operating Years during which such cost of the improvement is
amortized.
(B) "Operating Statement" shall mean a statement in reasonable
detail setting forth (1) a comparison of the Operating Expenses for an Operating
Year with the Base Operating Expenses and (2) the Operating Payment with respect
to the preceding Operating Year pursuant to the provisions of this Article 27.
(C) "Operating Year" shall mean the calendar year within which the
Commencement Date occurs and each subsequent calendar year for any part or all
of which Escalation Rent shall be payable pursuant to this Article 27.
(D) "Taxes" shall mean the aggregate amount of real estate taxes and
any general or special assessments (exclusive of penalties and interest thereon)
imposed upon the Real Property (including, without limitation, (i) assessments
made upon or with respect to any "air" and "development" rights now or hereafter
appurtenant to or affecting the Real Property, and (ii) any taxes or assessments
levied after the date of this Lease in whole or in part for public benefits to
the Real Property or the Building) without taking into account any discount that
Landlord may receive by virtue of any early payment of Taxes; provided, that if
because of any change in the taxation of real estate, any other tax or
assessment, however denominated (including, without limitation, any franchise,
income, profit, sales, use, occupancy, gross receipts or rental tax) is imposed
upon Landlord or the owner of the Real Property or the Building, or the
occupancy, rents or income therefrom, in substitution for any of the foregoing
Taxes, such other tax or assessment shall be deemed part of Taxes computed as if
Landlord's sole asset were the Real Property. With respect to any Tax Year, all
expenses, including attorneys' fees and disbursements, experts' and other
witnesses' fees, incurred in contesting the validity or amount of any Taxes or
in obtaining a refund of Taxes shall be considered as part of the Taxes for such
Tax Year. Anything contained herein to the contrary notwithstanding, Taxes shall
not be deemed to include (w) any taxes on Landlord's income, (x) franchise
taxes, (y) estate or inheritance taxes or (z) any similar taxes, imposed on
Landlord, unless such taxes are levied, assessed or imposed in lieu of or as a
substitute for the whole or any part of the taxes, assessments, levies,
impositions which now constitute Taxes.
Section 27.2 (A) Notwithstanding the definition of Taxes set forth in
Section 27.1(D) hereof, Tenant expressly acknowledges that the Real Property is
currently subject to the provisions of the Tax Agreement. Accordingly, Landlord
and Tenant hereby agree that for as long as the Tax Agreement shall be and
remain in full force and effect, Taxes shall mean the aggregate of the payments
which are obligated to be made to the City of Jersey City or any other
appropriate taxing authority pursuant to the Tax Agreement. If, at any time, the
Tax
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Agreement shall cease to be in full force and effect with respect to the Real
Property, the definition of Taxes set forth in Section 27.1(D) shall
automatically become effective.
(B) (1) Tenant shall pay as additional rent an amount equal to
Tenant's Tax Share of the difference, if any, between current Taxes and Base
Taxes (the "Tax Payment"). Notwithstanding the foregoing, so long as the Tax
Agreement shall be in force, the Tax Payment for the period commencing on (i)
the Commencement Date and ending on March 31, 1998, shall be an amount equal to
$0; (ii) April 1, 1998 and ending March 31, 2003, shall be an amount equal to
the product of (a) the Space Factor and (b) $.45; and (iii) April 1, 2003 and
ending on March 31, 2008, shall be an amount equal to the product of (a) the
Space Factor and (b) $.90. Tenant shall pay one-twelfth (1/12) of the Tax
Payment to Landlord on the first day of each month.
(2) At any time during or after the Term, Landlord may render to
Tenant a Tax Statement showing (i) a comparison of the Taxes for the Tax Year
with the Base Taxes, and (ii) the amount of the Tax Payment resulting from such
comparison. On the first day of the month following the furnishing to Tenant of
a Tax Statement, Tenant shall pay to Landlord a sum equal to one-twelfth
(1/12th) of the Tax Payment shown thereon to be due for such Tax Year multiplied
by the number of months (and any fraction thereof) of the Term then elapsed
since the commencement of such Tax Year. If Landlord furnishes a Tax Statement
for a Tax Year subsequent to the commencement thereof, until the first day of
the month following the month in which the Tax Statement is furnished to Tenant,
(x) Tenant shall continue to pay to Landlord on the first day of each month an
amount equal to the monthly sum payable by Tenant to Landlord with respect to
the next previous Tax Year; (y) promptly after the Tax Statement is furnished to
Tenant, Landlord shall give notice to Tenant stating whether the amount
previously paid by Tenant to Landlord for the current Tax Year was greater or
less than the installments of the Tax Payment to be paid for the current Tax
Year in accordance with the Tax Statement, and (a) if there shall be a
deficiency, Tenant shall pay the amount thereof within ten (10) days after
demand therefor, or (b) if there shall have been an overpayment, Landlord shall
credit the amount thereof against the next monthly installments of the Fixed
Rent payable under this Lease; and (z) on the first day of the month following
the month on which the Tax Statement is furnished to Tenant, and monthly
thereafter throughout the remainder of the current Tax Year, Tenant shall pay to
Landlord an amount equal to one-twelfth (1/12th) of the Tax Payment shown on the
Tax Statement. Tax Payments shall be collectible by Landlord in the same manner
as Fixed Rent. Landlord's failure to render a Tax Statement shall not prejudice
Landlord's right to render a Tax Statement during or with respect to any
subsequent Tax Year, and shall not eliminate or reduce Tenant's obligation to
make a Tax Payment for such Tax Year.
Section 27.3 Only Landlord shall be eligible to institute tax reduction or
other proceedings to reduce the Taxes; provided, however, that during the period
after the expiration or earlier termination of the Tax Agreement, upon request
of tenants occupying more than forty (40%) of the rentable area of the Building,
and to the extent permitted pursuant to applicable
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Requirements, Landlord shall commence and in good faith prosecute (which shall
include the right of Landlord to settle any such proceeding) proceedings to
reduce the Taxes. In the event that, after a Tax Statement has been sent to
Tenant, the Taxes set forth in the Tax Statement for such Tax Year are reduced
(as a result of settlement, final determination of legal proceedings or
otherwise), and as a result thereof a refund of Taxes is actually received by or
on behalf of Landlord, then, promptly after receipt of such refund, Landlord
shall send Tenant a Tax Statement adjusting the Taxes for such Tax Year (taking
into account the expenses mentioned in Section 27.1(D) hereof) and setting forth
Tenant's Tax Share of such refund and Tenant shall be entitled to receive such
share either by way of a credit against the Fixed Rent next becoming due after
the sending of such Tax Statement or by a refund to the extent no further Fixed
Rent is due; provided, however, that Tenant's Tax Share of such refund shall be
limited to the portion of the Tax Payment, if any, which Tenant had theretofore
paid to Landlord attributable to Taxes for the Tax Year to which the refund is
applicable on the basis of the Taxes before they had been reduced.
Section 27.4 (A) If the Operating Expenses for any Operating Year shall be
greater than the Base Operating Expenses, then Tenant shall pay as additional
rent for each Operating Year (any part or all of which falls within the Term),
Tenant's Share of such increase (the "Operating Payment") as hereinafter
provided.
(B) At any time during or after the Term, Landlord may render to
Tenant an Operating Statement or Operating Statements showing (i) a comparison
of the Operating Expenses for the Operating Year in question with the Base
Operating Expenses, and (ii) the amount of the Operating Payment resulting from
such comparison. Landlord's failure to render an Operating Statement during or
with respect to any Operating Year in question shall not prejudice Landlord's
right to render an Operating Statement during or with respect to any subsequent
Operating Year, and shall not eliminate or reduce Tenant's obligation to make
payments of the Operating Payment pursuant to this Article 27 for such Operating
Year.
(C) On the first day of the month following the furnishing to Tenant
of an Operating Statement, Tenant shall pay to Landlord a sum equal to
one-twelfth (1/12th) of the Operating Payment shown thereon to be due for the
preceding Operating Year multiplied by the number of months (and any fraction
thereof) of the Term then elapsed since the commencement of such Operating Year
in which such Operating Statement is delivered, less Operating Payments
theretofore made by Tenant for such Operating Year and thereafter, commencing
with the then current monthly installment of Fixed Rent and continuing monthly
thereafter until rendition of the next succeeding Operating Statement, Tenant
shall pay on account of the Operating Payment for such Year an amount equal to
one-twelfth (1/12th) of the Operating Payment shown thereon to be due for the
preceding Operating Year. Any Operating Payment shall be collectible by Landlord
in the same manner as Fixed Rent.
(D) (1) As used in this Section 27.4, (i) "Tentative Monthly
Escalation Charge" shall mean a sum equal to one-twelfth (1/12th) of the product
of (a)
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Tenant's Share, and (b) the amount by which (x) Landlord's estimate of Operating
Expenses for the Current Year exceeds (y) the Base Operating Expenses.
(2) At any time in any Operating Year, Landlord, at its
option, in lieu of the payments required under Section 27.4(C) hereof, may
demand and collect from Tenant, as additional rent, a sum equal to the Tentative
Monthly Escalation Charge multiplied by the number of months in said Operating
Year preceding the demand and reduced by the sum of all payments theretofore
made under Section 27.4(C) with respect to said Operating Year, and thereafter,
commencing with the month in which the demand is made and continuing thereafter
for each month remaining in said Operating Year, the monthly installments of
Fixed Rent shall be deemed increased by the Tentative Monthly Escalation Charge.
Any amount due to Landlord under this Section 27.4(D) may be included by
Landlord in any Operating Statement rendered to Tenant as provided in Section
27.4(B) hereof.
(E) (1) After the end of the Current Year and at any time that
Landlord renders an Operating Statement or Operating Statements to Tenant as
provided in Section 27.4(B) hereof with respect to the Operating Expenses for
said Operating Year or Current Year, as the case may be, the amounts, if any,
collected by Landlord from Tenant under Section 27.4(C) or (D) on account of the
Operating Payment or the Tentative Monthly Escalation Charge, as the case may
be, shall be adjusted, and, if the amount so collected is less than or exceeds
the amount actually due under said Operating Statement for the Operating Year, a
reconciliation shall be made as follows: Tenant shall be debited with any
Operating Payment shown on such Operating Statement and credited with the
amounts, if any, paid by Tenant on account in accordance with the provisions of
subsection (C) and subsection (D)(2) of this Section 27.4 for the Operating
Year in question. Tenant shall pay any net debit balance to Landlord within
fifteen (15) days next following rendition by Landlord of an invoice for such
net debit balance; any net credit balance shall be applied against the next
accruing monthly installments of Fixed Rent, or repaid by Landlord to Tenant at
the end of the Term.
(2) If the sum of the Tentative Monthly Escalation Charges and
payments made by Tenant in accordance with subsection (C) of this Section 27.4
for any Operating Year shall have exceeded the Operating Payment for such
Operating Year by more than ten percent (10%), interest at the Applicable Rate
on the portion of the overpayment that exceeds the applicable Operating Payment
by more than ten percent (10%) determined as of the respective dates of such
payments by Tenant and calculated from such respective dates to the dates on
which such amounts are credited against the monthly installments of Fixed Rent,
shall be so credited. Any amount owing to Tenant subsequent to the Term shall be
paid to Tenant within ten (10) Business Days after a final determination has
been made of the amount due to Tenant.
Section 27.5 Any Operating Statement sent to Tenant shall be conclusively
binding upon Tenant unless, within thirty (30) days after such Operating
Statement is sent, Tenant shall send a written notice to Landlord objecting to
such Operating Statement and
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specifying the respects in which such Operating Statement is disputed. If such
notice is sent, Tenant (together with its independent certified public
accountants, provided they are reputable and are Tenant's regular accounting
firm) may examine Landlord's books and records relating to the Operation of the
Property to determine the accuracy of the Operating Statement. Tenant recognizes
the confidential nature of such books and records and agrees to maintain the
information obtained from such examination in strict confidence. If after such
examination, Tenant still disputes such Operating Statement, either party may
refer the decision of the issues raised to a reputable independent firm of
certified public accountants, selected by Landlord and approved by Tenant, which
approval shall not be unreasonably withheld or delayed as long as such certified
public accounting firm is one of the so-called "big-six" public accounting
firms, and the decision of such accountants shall be conclusively binding upon
the parties. The fees and expenses involved in such decision shall be borne by
the unsuccessful party (and if both parties are partially successful, such fees
and expenses shall be apportioned between Landlord and Tenant in inverse
proportion to the amount by which such decision is favorable to each party).
Notwithstanding the giving of such notice by Tenant, and pending the resolution
of any such dispute, Tenant shall pay to Landlord when due the amount shown on
any such Operating Statement, as provided in Section 27.4 hereof. Following the
resolution of such dispute, Tenant shall pay any amount which it is found to owe
to Landlord within fifteen (15) days of such finding, and any amount which
Tenant is found to have overpaid shall be credited against the next accruing
installments of Fixed Rent.
Section 27.6 The expiration or termination of this Lease during any
Operating Year or Tax Year shall not affect the rights or obligations of the
parties hereto respecting any payments of Operating Payments for such Operating
Year and any payments of Tax Payments for such Tax Year, and any Operating
Statement relating to such Operating Payment and any Tax Statement relating to
such Tax Payment, may be sent to Tenant subsequent to, and all such rights and
obligations shall survive, any such expiration or termination. In determining
the amount of the Operating Payment for the Operating Year or the Tax Payment
for the Tax Year in which the Term shall expire, the payment of the Operating
Payment for such Operating Year or the Tax Payment for the Tax Year shall be
prorated based on the number of days of the Term which fall within such
Operating Year or Tax Year, as the case may be. Any payments due under such
Operating Statement or Tax Statement shall be payable within twenty (20) days
after such Operating Statement or Tax Statement, as the case may be, is sent to
Tenant.
ARTICLE 28
SERVICES
Section 28.1 (A) Landlord shall provide passenger elevator service to the
Premises on Business Days from 8:00 A.M. to 6:00 P.M. and have an elevator
subject to call at all other times.
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(B) There shall be two (2) freight elevators serving the Premises
and the entire Building on call on a "first come, first served" basis on
Business Days from 8:00 A.M. to 5:00 P.M. (less one (1) hour for lunch), and on
a reservation, "first come, first served" basis from 5:00 P.M. to 8:00 A.M. on
Business Days and at any time on days other than Business Days. If Tenant shall
use the freight elevators serving the Premises between 5:00 P.M. and 8:00 A.M.
on Business Days or at any time on any other days, Tenant shall pay Landlord, as
additional rent for such use, the standard rates then fixed by Landlord for the
Building, or if no such rates are then fixed, at reasonable rates.
(C) Landlord shall not be required to furnish any freight elevator
services during the hours from 5:00 P.M. to 8:00 A.M. on Business Days and at
any time on days other than Business Days unless Landlord has received advance
notice from Tenant requesting such services prior to 2:00 P.M. of the day upon
which such service is requested or by 2:00 P.M. of the last preceding Business
Day if such periods are to occur on a day other than a Business Day.
Section 28.2 Landlord, at Landlord's expense, (but subject to recoupment
pursuant to Article 27 hereof) shall furnish and distribute to the Premises
through the VAC System, when required for the comfortable occupancy of the
Premises, VAC in accordance with the specifications set forth in Schedule C
annexed hereto and made a part hereof, on a year-round basis from 7:00 A.M. to
9:00 P.M. on Business Days and from 7:00 A.M. to 5:00 P.M. on Saturdays which
are not Holidays. Landlord, throughout the Term, shall have free access to any
and all mechanical installations of Landlord, including, but not limited to,
air-cooling, fan, ventilating and machine rooms and electrical closets; Tenant
shall not construct partitions or other obstructions which may interfere with
Landlord's free access thereto, or interfere with the moving of Landlord's
equipment to and from the enclosures containing said installations. Neither
Tenant, nor its agents, employees or contractors shall at any time enter the
said enclosures or tamper with, adjust or touch or otherwise in any manner
affect said mechanical installations. Tenant shall draw and close the draperies
or blinds for the windows of the Premises whenever the VAC System is in
operation and the position of the sun so requires and shall at all times
cooperate fully with Landlord and abide by all of the regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of the VAC System.
Section 28.3 If Landlord shall furnish VAC to the Premises at the request
of Tenant during periods other than the hours and days set forth above
("Overtime Periods"), Tenant shall pay Landlord additional rent for such
services at the stand rates then fixed by Landlord for the Building, or if no
such rates are then fixed, at reasonable rates. It is understood and agreed that
the VAC System servicing the Premises services the entire floor of the Building
of which the Premises form a part and, accordingly, if Tenant shall be the only
tenant using overtime VAC, Tenant shall pay the entire amount of the overtime
VAC additional rent. Landlord shall not be required to furnish any such services
during any Overtime Periods unless Landlord has received advance notice from
Tenant requesting such services prior to 2:00
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P.M. of the day upon which such services are requested or by 2:00 P.M. of the
last preceding Business Day if such Overtime Periods are to occur on a day other
than a Business Day. If Tenant fails to give Landlord such advance notice, then,
failure by Landlord to furnish or distribute any such services during such
Overtime Periods shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of Rental, 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. If more
than one tenant utilizing the same system as Tenant requests the same Overtime
Periods for the same services as Tenant, the charge to Tenant shall be adjusted
pro rata.
Section 28.4 Landlord, at Landlord's expense, shall cause the Premises,
excluding any portions thereof used for the storage, preparation, service or
consumption of food or beverages, to be cleaned, substantially in accordance
with the standards set forth in Schedule B annexed hereto and made a part
hereof. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish from the Premises and the Building to the extent that the
same exceeds the refuse and rubbish usually attendant upon the use of such
Premises as offices. Bills for the same shall be rendered by Landlord to Tenant
at such time as Landlord may elect and shall be due and payable when rendered as
additional rent. Tenant, at Tenant's sole cost and expense, shall cause all
portions of the Premises used for the storage, preparation, service or
consumption of food or beverages to be cleaned daily in a manner satisfactory to
Landlord, and to be exterminated against infestation by vermin, rodents or
roaches regularly and, in addition, whenever there shall be evidence of any
infestation. Any such exterminating shall be done at Tenant's sole cost and
expense, in a manner satisfactory to Landlord, and by Persons approved by
Landlord. If Tenant shall perform any cleaning services in addition to the
services provided by Landlord as aforesaid, Tenant shall employ the cleaning
contractor providing cleaning services to the Building on behalf of Landlord or
such other cleaning contractor as shall be approved by Landlord. Tenant shall
comply with any recycling program and/or refuse disposal program (including,
without limitation, any program related to the recycling, separation or other
disposal of paper, glass or metals) which Landlord shall impose or which shall
be required pursuant to any Requirements.
Section 28.5 If any fire rating bureau or organization or any Governmental
Authority, including, without limitation, any department or official of the
state or city government 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, or other contents of the Premises, Landlord, at
Tenant's cost and expense, shall promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.
Section 28.6 Landlord shall provide to the Premises hot and cold water for
ordinary drinking, cleaning and lavatory purposes and for use in connection with
"▇▇▇▇▇" or similar units. If Tenant requires, uses or consumes water for any
purpose in addition to
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ordinary drinking, cleaning or lavatory purposes or for use in connection with
"▇▇▇▇▇" or similar units, Landlord may install a water meter and thereby measure
Tenant's water consumption for all such additional purposes. In such event (1)
Tenant shall pay Landlord for the cost of the meter and the cost of the
installation thereof and through the duration of Tenant's occupancy Tenant shall
keep said meter and equipment in good working order and repair at Tenant's own
cost and expense; (2) Tenant shall pay for water consumed as shown on said
meter, as additional rent, and on default in making such payment Landlord may
pay such charges and collect the same from Tenant; and (3) Tenant shall pay the
sewer rent, charge or any other tax, rent, levy or charge which now or hereafter
is assessed, imposed or shall become a lien upon the Premises or the Real
Property of which they are a part pursuant to any Requirement made or issued in
connection with any such metered use, consumption, maintenance or supply of
water, water system, or sewage or sewage connection or system. The ▇▇▇▇ rendered
by Landlord for the above shall be based upon Tenant's consumption and shall be
payable by Tenant as additional rent within ten (10) days after rendition.
Section 28.7 Landlord reserves the right to stop service of the VAC System
or the elevator, electrical, plumbing or other Building Systems when necessary,
by reason of accident or emergency, or for repairs, additions, alterations,
replacements or improvements in the judgment of Landlord desirable or necessary
to be made, until said repairs, alterations, replacements or improvements shall
have been completed (which repairs, additions, alterations, replacements and
improvements shall be performed in accordance with Section 4.3 hereof). Subject
to Section 14.2 hereof, Landlord shall have no responsibility or liability for
interruption, curtailment or failure to supply VAC, elevator, electrical,
plumbing or other Building Systems when prevented by Unavoidable Delays or by
any Requirement of any Governmental Authority or due to the exercise of its
right to stop service as provided in this Article 28. The exercise of such right
or such failure by Landlord shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any compensation or to any
abatement or diminution of Rental, 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.
Section 28.8 Landlord shall make available to Tenant the computerized
directory in the lobby of the Building for up to fifteen (15) listings. The
initial programming shall be without charge to Tenant. From time to time, but
not more frequently than once every three (3) months, Landlord shall reprogram
the computerized direction to reflect such changes in the listings therein as
Tenant shall request, and Tenant promptly after request shall pay to Landlord a
reasonable reprogramming charge for each reprogramming Tenant requests. If
Landlord replaces the computerized directory with a standard directory, Tenant
shall be entitled to Tenant's Share of listings on the directory in the
Building.
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ARTICLE 29
PARTNERSHIP TENANT
If Tenant is a partnership or a professional corporation (or is comprised
of two (2) or more Persons, individually or as co-partners of a partnership or
shareholders of a professional corporation) or if Tenant's interest in this
Lease shall be assigned to a partnership or a professional corporation (or to
two (2) or more Persons, individually or as co-partners of a partnership or
shareholders of a professional corporation) pursuant to Article 12 hereof (any
such partnership, professional corporation and such Persons are refereed to in
this Article 29 as "Partnership Tenant"), the following provisions shall apply
to such Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant shall be joint and several; (b) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by (x) any written instrument which may hereafter be executed by
Partnership Tenant or any successor entity, changing, modifying, extending or
discharging this Lease, in whole or in part, or surrendering all or any part of
the Premises to Landlord, and (y) any notices, demands, requests or other
communications which may hereafter be given by Partnership Tenant or by any of
the parties comprising Partnership Tenant; (c) any bills, statements, notices,
demands, requests or other communications given or rendered to Partnership
Tenant or to any of such parties shall be binding upon Partnership Tenant and
all such parties; (d) if Partnership Tenant shall admit new partners or
shareholders, as the case may be, all of such new partners or shareholders, as
the case may be, shall, by their admission to Partnership Tenant, be deemed to
have assumed joint and several liability for the performance of all of the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed; and (e) Partnership Tenant shall give prompt notice to Landlord
of the admission of any such new partners or shareholders, as the case may be,
and upon demand of Landlord, shall cause each such new partner or shareholder,
as the case may be, to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new partner or shareholder, as the
case may be, shall assume joint and several liability for the observance and
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 or shareholder, as the
case may be, to execute or deliver any such agreement to Landlord shall vitiate
the provisions of clause (d) of this Article 29).
ARTICLE 30
INTENTIONALLY OMITTED
ARTICLE 31
SECURITY
Tenant shall deposit with Landlord on the signing of this Lease the sum of
Seven Thousand Eight Hundred Twenty-Five Dollars ($7,825.00), as security for
the faithful
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performance and observance by Tenant of the terms, covenants, conditions and
provisions of this Lease, including, without limitation, the surrender of
possession of the Premises to Landlord as herein provided. If an Event of
Default shall occur and be continuing, Landlord may apply or retain the whole or
any part of the security so deposited, (i) for the payment of any Fixed Rent,
Escalation Rent or any other item of Rental as to which Tenant is in default,
(ii) for any sum which Landlord may expend or be required to expend by reason of
Tenant's default in respect of any of the terms, covenants and conditions of
this Lease, including, without limitation, any damage, expense (including,
without limitation, attorneys' fees and disbursements) or liability incurred or
suffered by Landlord, and (iii) against any damages or deficiency which Landlord
may suffer or incur in the reletting of the Premises, whether such damages or
deficiency accrue or accrues before or after summary proceedings or other
re-entry by Landlord. If Landlord applies or retains any part of the security so
deposited, Tenant, upon demand, shall deposit with Landlord the amount so
applied or retained so that Landlord shall have the full deposit on hand at all
times during the Term. If Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this Lease, the security
shall be returned to Tenant after the Expiration Date and after delivery of
possession of the Premises to Landlord. In the event of a sale or leasing of the
Real Property or the Building, Landlord shall have the right to transfer the
security to the vendee or lessee and Landlord shall thereupon be released by
Tenant from all liability for the return of such security. Tenant shall look
solely to the new landlord for the return of the security. The provisions hereof
shall apply to every transfer or assignment of the security made to a new
landlord. Tenant shall not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and neither Landlord nor its successors
or assigns shall be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance.
ARTICLE 32
CAPTIONS
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 nor
the intent of any provision thereof.
ARTICLE 33
PARTIES BOUND
The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and their respective legal
representatives, successors, and, except as otherwise provided in this Lease,
their assigns.
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ARTICLE 34
BROKER
Each party represents and warrants to the other that it has not dealt with
any broker or Person in connection with this Lease other than the Broker. The
execution and delivery of this Lease by each party shall be conclusive evidence
that such party has relied upon the foregoing representation and warranty.
Tenant shall indemnify and hold Landlord harmless from and against any and all
claims for commission, fee or other compensation by any Person (other than
Broker) who shall claim to have dealt with Tenant in connection with this Lease
and for any and all costs incurred by Landlord in connection with such claims,
including, without limitation, reasonable attorneys' fees and disbursements.
Landlord shall indemnify and hold Tenant harmless from and against any and all
claims for commission, fee or other compensation by the Broker and any Person
who shall claim to have dealt with Landlord in connection with this Lease and
for any and all costs incurred by Tenant in connection with such claims,
including, without limitation, reasonable attorneys' fees and disbursements. The
provisions of this Article 34 shall survive the Expiration Date.
ARTICLE 35
INDEMNITY
Section 35.1 (A) Tenant shall not do or permit any act or thing to be done
upon the Premises which may subject Landlord to any liability or responsibility
for injury, damages to persons or property or to any liability by reason of any
violation of any Requirement, and shall exercise such control over the Premises
as to fully protect Landlord against any such liability. Tenant shall indemnify
and save the Indemnitees harmless from and against (a) all claims of whatever
nature against the Indeninitees arising from any act, omission or negligence of
Tenant, its contractors, licensees, agents, servants, employees, invitees or
visitors, (b) all claims against the Indemnitees arising from any accident,
injury or damage whatsoever caused to any person or to the property of any
person and occurring during the Term in or about the Premises, (c) all claims
against the Indemnitees arising from any accident, injury or damage occurring
outside of the Premises but anywhere within or about the Real Property, where
such accident, injury or damage results or is claimed to have resulted from an
act, omission or negligence of Tenant or Tenant's contractors, liceneees,
agents, servants, employees, invitees or visitors, and (d) any breach, violation
or non-performance of any covenant, condition or agreement in this Lease set
forth and contained on the part of Tenant to be fulfilled, kept, observed and
performed. This indemnity and hold harmless agreement shall include indemnity
from and against any and all liability, fines, suits, demands, costs and
expenses of any kind or nature (including, without limitation, reasonable
attorneys' fees and disbursements) incurred in or in connection with any such
claim or proceeding brought thereon, and the defense thereof but except with
respect to claims with respect to bodily injury or death, shall be limited to
the extent any insurance proceeds collectible by Landlord under policies owned
by Landlord or such injured party with respect to such damage or injury are
insufficient to satisfy same. Tenant
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shall have no liability for any consequential damages suffered either by
Landlord or by any party claiming through Landlord.
(B) Except as otherwise expressly provided in this Lease, Landlord
shall indemnify and save Tenant, its shareholders, directors, officers,
Partners, employees and agents harmless from and against all claims against
Tenant arising from any direct damage to the Premises and any bodily injury to
Tenant's employees, agents or invitees resulting from the acts, omissions or
negligence of Landlord or its agents. This indemnity and hold harmless agreement
shall include indemnity from and against any and all liability, fines, suits,
demands, costs and expenses of any kind or nature (including, without
limitation, reasonable attorneys' fees and disbursements) incurred in or in
connection with any such claim or proceeding brought thereon, but shall be
limited to the extent any insurance proceeds collectible by Tenant or such
injured party with respect to such damage or injury are insufficient to satisfy
same. Landlord shall have no liability for any consequential damages suffered
either by Tenant or by any party claiming through Tenant.
Section 35.2 If any claim, action or proceeding is made or brought against
either party, which claim, action or proceeding the other party shall be
obligated to indemnify such first party against pursuant to the terms of this
Lease, then, upon demand by the indemnified party, the indemnifying party, at
its sole cost and expense, shall resist or defend such claim, action or
proceeding in the indemnified party's name, if necessary, by such attorneys as
the indemnified party shall approve, which approval shall not be unreasonably
withheld. Attorneys for the indemnifying party's insurer are hereby deemed
approved for purposes of this Section 35.2. The provisions of this Article 35
shall survive the expiration or earlier termination of this Lease.
ARTICLE 36
INTENTIONALLY OMITTED
ARTICLE 37
MISCELLANEOUS
Section 37.1 This Lease is offered for signature by Tenant and it is
understood that this Lease shall not be binding upon Landlord or Tenant unless
and until Landlord and Tenant shall have executed and unconditionally delivered
a fully executed copy of this Lease to each other.
Section 37.2 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 its interest
in the Building or the Real Property, as the case may
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be, and in the event of any such sale, conveyance, assignment or transfer,
Landlord shall be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder. The partners, shareholders, directors,
officers and principals, direct and indirect, of Landlord (collectively, the
"Parties") shall not 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.
The liability of Landlord for Landlord's obligations under this Lease shall be
limited to Landlord's interest in the Real Property and the current proceeds
thereof, 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 a judgment for Landlord's
failure to perform such obligations.
Section 37.3 Notwithstanding anything contained in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated Fixed Rent, Escalation Rent
additional rent or Rental, shall constitute rent for the purposes of Section
502(b)(7) of the Bankruptcy Code.
Section 37.4 Tenant's liability for all items of Rental shall survive the
Expiration Date.
Section 37.5 Tenant hereby waives any claim against Landlord which Tenant
may have based upon any assertion that Landlord has unreasonably withheld or
unreasonably delayed any consent or approval requested by Tenant, and Tenant
agrees that its sole remedy shall be an action or proceeding to enforce any
related provision or for specific performance, injunction or declaratory
judgment. In the event of a determination that such consent or approval has been
unreasonably withheld or delayed, the requested consent or approval shall be
deemed to have been granted; however, Landlord shall have no liability to Tenant
for its refusal or failure to give such consent or approval. Tenant's sole
remedy for Landlord's unreasonably withholding or delaying consent or approval
shall be as provided in this Section 37.5.
Section 37.6 This Lease contains the entire agreement between the parties
and supersedes all prior understandings, if any, with respect thereto. This
Lease shall not be modified, changed, or supplemented, except by a written
instrument executed by both parties.
Section 37.7 The terms and provisions of this Lease shall be governed by
and construed and interpreted in accordance with the laws of the State of New
Jersey. Notwithstanding anything to the contrary contained herein, if the
Occupancy Date does not occur within twenty-one (21) years after the date
hereof, then this Lease shall be rendered void and of no further force or
effect.
Section 37.8 (A) All of the Schedules and Exhibits attached hereto are
incorporated in and made a part of this Lease, but, in the event of any
inconsistency between the terms and provisions of this Lease and the terms and
provisions of the Schedules and
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Exhibits hereto, the terms and provisions of this Lease shall control. Wherever
appropriate in this Lease, personal pronouns shall be deemed to include the
other genders and the singular to include the plural. All Article and Section
references set forth herein shall, unless the context otherwise specifically
requires, be deemed references to the Articles and Sections of this Lease.
(B) If any term, covenant, condition or provision of this Lease, or
the application thereof to any person or circumstance, shall ever be held to be
invalid or unenforceable, then in each such event the remainder of this Lease or
the application of such term, covenant, condition or provision to any other
Person or any other circumstance (other than those as to which it shall be
invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
ARTICLE 38
RENT CONTROL
If at the commencement of, or at any time or times during the Term of this
Lease, the Rental reserved in this Lease shall not be fully collectible by
reason of any Requirement, Tenant shall enter into such agreements and take such
other steps (without additional expense to Tenant) as Landlord may request and
as may be legally permissible to permit Landlord to collect the maximum rents
which may from time to time during the continuance of such legal rent
restriction be legally permissible (and not in excess of the amounts reserved
therefor under this Lease). Upon the termination of such legal rent restriction
prior to the expiration of the Term, (a) the Rental shall become and thereafter
be payable hereunder in accordance with the amounts reserved in this Lease for
the periods following such termination, and (b) Tenant shall pay to Landlord, if
legally permissible, an amount equal to (i) the items of Rental which would have
been paid pursuant to this Lease but for such legal rent restriction less (ii)
the rents paid by Tenant to Landlord during the period or periods such legal
rent restriction was in effect.
ARTICLE 39
PARKING
Section 39.1 On the Commencement Date, Landlord shall make available or
cause to be made available to Tenant one (1) parking space which Landlord is
entitled to use in the Parking Garage. All parking spaces which are made
available to Tenant shall be solely for automobiles. Tenant shall pay, to
Landlord, as additional rent, a monthly rental charge equal to One Hundred Fifty
Dollars ($150.00) per parking space which is made available to Tenant pursuant
hereto. If at any time after the Commencement Date, the prevailing market rate
for monthly rental parking spaces shall increase, the monthly rental charge set
forth herein shall be increased to the prevailing rate for monthly rental of
parking spaces established by Landlord
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generally for tenants of the Building. At the option of the operator of the
Parking Garage, the parking spaces shall be assigned or unassigned.
Section 39.2 Landlord shall have no responsibility with respect to any
matter arising in connection with the furnishing of parking spaces to Tenant and
Tenant's employees, including, without limitation, any damage to the automobiles
of Tenant and Tenant's employees. Tenant shall have no right to charge any
person any fee or other consideration for the use of any of the parking spaces
and only those persons designated by Tenant may use the parking spaces.
Section 39.3 Notwithstanding anything in this Lease or this Article 39 to
the contrary, Tenant's obligations under this Lease shall not be in any way
affected by Landlord's inability to make available or cause to be made available
any or all of the parking spaces to Tenant or Tenant's employees by reason of
(i) Unavoidable Delays with respect to any further construction of, or
modification to, the Parking Garage, (ii) damage to the Parking Garage, (iii)
subject to the provisions of Section 11.1 hereof, the whole or any part of the
Parking Garage being acquired or condemned for any public or quasi-public use or
purpose, or (iv) any other reason beyond Landlord's reasonable control.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
NEWPORT L.G.-I, INC., Landlord
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Authorized Signatory
PENCOM SYSTEMS INCORPORATED,
Tenant
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Fed. Id. No. ▇▇-▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
I CERTIFY that on May 8, 1996, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ personally came before me
and this person acknowledged under oath, to my satisfaction, that:
(a) this person signed, sealed and delivered the attached document as
President of the corporation named in this document;
(b) the proper corporate seal was affixed; and
(c) this document was signed and made by the corporation as its voluntary
act and deed by virtue of authority from its Board of Directors.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
A Notary Public of the State of New York
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public State of New York
No.01K14974996
Qualified in Queens County
Commission Expires November 26, 1996
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SCHEDULE A
RULES AND REGULATIONS
(If any provision of this Schedule A conflicts with any other provision of
the Lease to which this Schedule A is attached, such other provisions of the
Lease shall govern)
1. The sidewalks, driveways, entrances, passages, courts, lobbies,
esplanade areas, atrium, plazas, elevators, escalators, stairways, vestibules,
corridors, halls and other public portions of the Building ("Public Areas")
shall not be obstructed or encumbered by any tenant or used for any purpose
other than ingress and egress to and from the Premises, and no tenant shall
permit any of its employees, agents, licensees or invitees to congregate or
loiter in any of the Public Areas. No tenant shall invite to, or permit to
visit, its premises persons in such numbers or under such conditions as may
interfere with the use and enjoyment by others of the Public Areas. Fire exits
and stairways are for emergency use only, and they shall not be used for any
other purposes by any tenant, or the employees, agents, licensees or invitees of
any tenant. Landlord reserves the right to control and operate, and to restrict
and regulate the use of, the Public Areas and the public facilities, as well as
facilities furnished for the common use of the tenants, in such manner as it
deems best for the benefit of the tenants generally, including the right to
allocate certain elevators for delivery service, and the right to designate
which Building entrances shall be used by persons making deliveries in the
Building. No doormat of any kind whatsoever shall be placed or left in any
public hall or outside any entry door of the Premises.
2. No awnings or other projections shall be attached to the outside
wall of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of the Premises
without the consent of Landlord. Such curtains, blinds, shades or screens must
be of a quality, type, design and color, and attached in the manner, approved by
Landlord. In order that the Building can and will maintain a uniform appearance
to those persons outside of the Building, each tenant occupying the perimeter
areas of the Building shall (a) use only building standard lighting in areas
where lighting is visible from the outside of the Building and (b) use only
building standard blinds in window areas which are visible from the outside of
the Building.
3. No sign, insignia, advertisement, lettering, notice or other
object shall be exhibited, inscribed, painted or affixed by any tenant on any
part of the outside or inside of the Premises or the Building or on corridor
walls without the prior consent of Landlord. Signs on each entrance door of the
Premises shall confirm to building standard signs, samples of which are on
display in Landlord's rental office. Such signs shall, at the expense of Tenant,
be inscribed, painted or affixed by signmakers approved by Landlord. In the
event of the violation of the foregoing by any tenant, Landlord may remove the
same without any liability, and may charge the expense incurred in such removal
to the tenant or tenants violating this rule. Interior signs, elevator cab
designations, if any, and lettering on doors and the Building directory shall,
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if and when approved by Landlord, be inscribed, painted or affixed for each
tenant by Landlord, at the expense of such tenant, and shall be of a size, color
and style acceptable to Landlord. Only Tenant named in the Lease shall be
entitled to appear on the directory tablet. Additional names may be added in
Landlord's sole discretion under such terms and conditions as the Landlord may
approve.
4. Neither the sashes, sash doors, skylights or windows that
reflect or admit light and air into the halls, passageways or other public
places in the Building nor the heating, ventilating and air conditioning
vents and doors shall be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window ▇▇▇▇▇ or on the
peripheral heating enclosures, Tenant agrees to draw the shades, blinds or
other window coverings, as reasonably required because of the position of the
sun. Tenant shall have no right to remove or change shades, blinds or other
window coverings within the Premises without Landlord's consent.
5. No showcases or other articles shall be put by Tenant in front of
or affixed to any part of the exterior of the Building, nor placed in the Public
Areas.
6. No acids, vapors or other harmful materials shall be discharged,
or permitted to be discharged, into the waste lines, vents or flues of the
Building. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or other foreign substances
shall be thrown or deposited therein. Nothing shall be swept or thrown into the
Public Areas or other areas of the Building, or into or upon any heating or
ventilating vents or registers or plumbing apparatus in the Building, or upon
adjoining buildings or land or the street. The cost of repairing any damage
resulting from any misuse of such fixtures, vents, registers and apparatus and
the cost of repairing any damage to the Building, or to any facilities of the
Building, or to any adjoining building or property, caused by any tenant, or the
employees, agents, licensees or invitees of such tenant, shall be paid by such
tenant. Any cuspidors or similar containers or receptacles shall be emptied,
cared for and cleaned by and at the expense of such tenant.
7. No tenant shall ▇▇▇▇, paint, drill into, or in any way deface,
any part of the Premises or the Building. No boring, cutting or stringing of
wires shall be permitted, except with the prior written consent of, and as
directed by, Landlord. No telephone, telegraph or other wires or instruments
shall be introduced into the Building by any tenant except in a manner approved
by Landlord. No tenant shall lay linoleum, or other similar floor covering, so
that the same shall come in direct contact with the floor of its premises, and,
if linoleum or other similar floor covering is desired to be used, an
interlining of building's deadening felt shall be first affixed to the floor, by
a paste or other material, soluble in water, the use of cement or other similar
adhesive material being expressly prohibited.
A-2
8. No bicycles, vehicles, animals (except seeing eye dogs), fish, or
birds of any kind shall be brought into, or kept in or about, the Premises.
9. No noise, including, but not limited to, music, the playing of
musical instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted by any tenant which
would impair or interfere with the use or enjoyment by any other tenant of any
other space in the Building.
10. Nothing shall be done or permitted in the Premises, and nothing
shall be brought into, or kept in or about the Premises, which would impair or
interfere with any of the Building Equipment or the services of the Building or
the proper and economic heating, ventilating, air conditioning, cleaning or
other services of the Building or the Premises, nor shall there be installed by
any tenant any ventilating, air conditioning, electrical or other equipment of
any kind which, in the judgment of Landlord, might cause any such impairment or
interference. No tenant, nor the employees, agents, licensees or invitees of any
tenant, shall at any time bring or keep upon its premises any inflammable,
combustible or explosive fluid, chemical or substance.
11. 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
locks or the mechanism thereof. Duplicate keys for the Premises and toilet rooms
shall be procured only from Landlord, and Landlord may make a reasonable charge
therefor. Each tenant shall, upon the expiration or sooner termination of the
Lease of which these Rules and Regulations are a part, turn over to Landlord all
keys to stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such tenant, and in the event of the loss of any keys furnished by
Landlord, such tenant shall pay to Landlord the cost of replacement locks.
Notwithstanding the foregoing, Tenant may, with Landlord's prior consent,
install a security system in the Premises which uses master codes or cards
instead of keys provided that Tenant shall provide Landlord with the master code
or card for such system.
12. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description shall take place only during such hours and in such elevators as
Landlord may from time to time determine, which may involve overtime work for
Landlord's employees. Tenant shall reimburse Landlord for extra costs incurred
by Landlord including but not limited to the cost of such overtime work.
Landlord reserves the right to inspect all objects and matter to be brought into
the Building and to exclude from the Building all objects and matter which
violate any of the Rules and Regulations or the Lease of which these Rules and
Regulations are a part. Landlord may require any person leaving the Building
with any package or other object or matter to submit a pass, listing such
package or object or matter, from the tenant from whose premises the package or
object or matter is being removed, but the establishment and enforcement of such
requirements shall not impose any responsibility on Landlord for the protection
of any tenant
A-3
against the removal of property from the premises of such tenant. Landlord shall
in no way be liable to any tenant for damages or loss arising from the
admission, exclusion or ejection of any person to or from the Premises or the
Building under the provisions of this Rule 12 or of Rule 15 hereof.
13. No tenant shall use or occupy, or permit any portion of its
premises to be used or occupied, as an office for a public stenographer or
public typist, or for the possession, storage, manufacture or sale of narcotics
or dope or as a ▇▇▇▇▇▇, beauty or manicure shop, telephone or telegraph agency,
telephone or secretarial service, messenger service, travel or tourist agency,
retail, wholesale or discount shop for sale of merchandise, retail service shop,
labor union, classroom, company engaged in the business of renting office or
desk space, or for a public finance (personal loan) business, or as a hiring
employment agency. No tenant shall engage or pay any employee on its premises,
except those actually working for such tenant on its premises, nor advertise for
laborers giving an address at the Building. No tenant shall use its premises or
any part thereof, or permit the Premises or any part thereof to be used, as a
restaurant, shop, booth or other stand, or for the conduct of any business or
occupation which predominantly involves direct patronage of the general public,
or for manufacturing, or for the sale at retail or auction of merchandise, goods
or property of any kind.
14. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in the judgment of Landlord, tends to
impair the appearance or reputation of the Building or the desirability of the
Building as a building for offices, and upon written notice from Landlord, such
tenant shall refrain from and discontinue such advertising or identifying sign.
15. Landlord reserves the right to exclude from the Building all
employees of any tenant who do not present a pass to the Building signed by such
tenant. Landlord or its agent will furnish passes to persons for whom any tenant
requests same in writing. Landlord reserves the right to require all other
persons entering the Building to sign a register, to be announced to the tenant
such person is visiting, and to be accepted as a visitor by such tenant or to be
otherwise properly identified (and, if not so accepted or identified, reserves
the right to exclude such persons from the Building) and to require persons
leaving the Building to sign a register or to surrender a pass given to such
person by the tenant visited. Each tenant shall be responsible for all persons
for which it requests any such pass or any person who such tenant so accepts,
and such tenant shall be liable to Landlord for all acts or omissions of such
persons. Any person whose presence in the Building at any time shall, in the
judgment of Landlord, be prejudicial to the safety, character, security,
reputation or interests of the Building or the tenants of the Building may be
denied access to the Building or may be ejected from the Building. In the event
of invasion, riot, public excitement or other commotion, Landlord may prevent
all access to the Building during the continuance of the same by closing the
doors or otherwise, for the safety of tenants and the protection of property in
the Building.
A-4
16. All entrance doors in the Premises shall be kept locked by each
tenant when its premises are not in use. Entrance doors shall not be left open
at any time.
17. Each tenant shall, at the expense of such tenant, provide light,
power and water for the employees of Landlord, and the agents, contractors and
employees of Landlord, while doing janitor service or other cleaning in the
Premises demised to such tenant and while making repairs or alterations in its
premises.
18. The Premises shall not be used for lodging or sleeping or for
any immoral or illegal purpose.
19. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
20. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
21. The employees, agents, licensees and invitees of any tenant
shall not loiter around the Public Areas or the front, roof or any part of the
Building used in common by other occupants of the Building.
22. There shall not be used in any space, or in the Public Areas,
either by any tenant or by others, in the moving or delivery or receipt of
safes, freight, furniture, packages, boxes, crates, paper, office material or
any other matter or thing, any hand trucks except those equipped with rubber
tires, side guards and such other safeguards as Landlord shall require. No hand
trucks shall be used in passenger elevators.
23. No tenant shall cause or permit any odors of cooking or other
processes, or any unusual or objectionable odors, to emanate from its premises
which would annoy other tenants or create a public or private nuisance. No
cooking shall be done in the Premises except as is expressly permitted in the
Lease of which these Rules and Regulations are a part.
24. All paneling, doors, trim or other wood products not considered
furniture shall be of fire-retardant materials. Before installation of any such
materials, certification of the materials' fire-retardant characteristics shall
be submitted to and approved by Landlord, and installed in a manner approved by
Landlord.
25. Whenever any tenant shall submit to Landlord any plan, agreement
or other document for the consent or approval of Landlord, such tenant shall pay
to Landlord, on demand, a processing fee in the amount of the fees for the
review thereof, including the service of any architect, engineer or attorney
employed by Landlord to review such plan.
A-5
26. Landlord reserves the right to rescind, alter, waive or add, as
to one or more or all tenants, any rule or regulation at any time prescribed for
the Building when, in the judgment of Landlord, Landlord deems it necessary or
desirable for the reputation, safety, character, security, care, appearance or
interests of the Building, or the preservation of good order therein, or the
operation or maintenance of the Building, or the equipment thereof, or the
comfort of tenants or others in the Building. No rescission, alteration, waiver
or addition of any rule or regulation in respect of one tenant shall operate as
a rescission, alteration or waiver in respect of any other tenant.
27. Anything to the contrary contained in this Lease
notwithstanding, any Improvements to, or visible from, any elevator lobby shall
be subject to the prior approval of Landlord.
A-6
SCHEDULE B
JANITORIAL AND RELATED SERVICES
CONTRACTOR will furnish cleaning services to Park Tower Management as Agent for
NEWPORT L.G.-I, INC., hereinafter called the Owner, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, in accordance with the following terms:
GENERAL
CONTRACTOR shall employ an adequate competent supervisor with proven performance
in a building of similar size and operation. References, if requested by Owner,
shall be submitted by CONTRACTOR prior to assigning him/her to the building.
Furnish proper cleaning materials, implements, machinery and supplies for the
performance of all the services required.
CONTRACTOR'S personnel shall be members in good standing of the various Building
Services Unions, A.F.L.-C.I.O.
CONTRACTOR'S personnel shall be carefully interviewed, screened, reference
checked. They shall be properly uniformed, neat and clean in appearance.
CONTRACTOR agrees to give prior written notification and submit for AGENT'S
approval, any and all supervisory and/or key personnel changes.
All uniforms shall be furnished by CONTRACTOR in accordance with AGENT'S
specifications. Night personnel shall be provided with two changes per week and
day personnel shall receive three changes per week.
CONTRACTOR shall have the uniforms laundered, or dry cleaned, regularly and kept
in good repair.
CONTRACTOR shall furnish the necessary, appropriate, tested and approved
implements, machinery and cleaning supplies for the satisfactory performance of
all services, including exchanging light bulbs in atrium/lobby, and other areas
of interior and exterior.
A log book shall be kept in a place on the premises, to be made promptly
of any occurrences requiring the attention of the AGENT.
Sufficient space in the building shall be given to CONTRACTOR for:
1. Storage of cleaning materials, implements and machinery;
B-1
2. Locker space for CONTRACTOR'S employees, and space for supervisory
personnel.
CONTRACTOR shall insure that all of its employees and/or agents shall abide by
all safety rules and regulations which may be promulgated from time to time by
either party as they pertain to the CONTRACTOR'S operations.
CONTRACTOR'S personnel shall not disturb papers on desks, tables, cabinets.
Inspections shall be made quarterly by a senior officer of CONTRACTOR and
reviewed with AGENT'S designate.
CONTRACTOR shall execute Owner's standard form of Hold Harmless and
Indemnification Agreement and furnish Public Liability Insurance covering bodily
injury and property damage, along with contractual liability insurance with
minimum limits, and such other insurance as is customarily required by AGENT,
and furnish Workmen's Compensation and Unemployment Insurance as required by
law.
CONTRACTOR shall furnish Public Liability and Property Damage insurance covering
all of its operations in said building in limits of at least
$1,000,000/$500,000,000 for liability and in limits of at least $1,000,000 for
property damage, certificates of which shall be forwarded to the AGENT.
INDEMNITY AND INSURANCE
Contractor agrees to indemnify and save harmless the OWNER and its AGENTS
against all loss and expense, by reason of liability imposed by law upon the
OWNER or its agent for damages (1) because of bodily injuries, including death
at any time resulting therefrom, sustained by any employee of the CONTRACTOR
while at the premises where service under this contract is being conducted, or
elsewhere, while engaged in the performance of work under this contract,
however, such injuries may be caused, including, but not limited to, such
injuries as are caused by the sole or concurrent negligence of the OWNER or its
Agent, whether attributable to a breach of statutory duty or administrative
regulation or otherwise, and such injuries for which liability is imputed to the
OWNER or its agent, and (2) because of bodily injuries including death at any
time resulting therefrom, sustained by any person, or persons, other than
employees of the CONTRACTOR while on or about the premises of AGENT caused by
the acts or omissions of CONTRACTOR, or (3) because of injury or destruction of
property caused or occasioned directly or indirectly by the CONTRACTOR, or its
servants, agents or employees. The CONTRACTOR agrees to defend promptly and
diligently, at its sole cost and expense, any claim, action or preceding brought
against the OWNER and/or agent or against the OWNER and agent and the CONTRACTOR
jointly or severally (a) arising out of or based upon by law, regulation,
requirement, contact or award relating to the hours of employment, working
conditions and/or wages or compensations of any such employees. It is expressly
understood and agreed that the foregoing provisions shall survive the
termination of the Agreement.
B-2
The CONTRACTOR shall maintain Workmen's Compensation Insurance covering
employees as required by law. The CONTRACTOR shall also maintain Contractual
Liability Insurance to insure the indemnifying portions of this contract, such
insurance to include both Bodily Injury Liability and Property Damage Liability.
Before commencing the work, the CONTRACTOR shall furnish a certificate from its
insurance carrier showing that it has complied with the foregoing provisions of
this article, and providing that the said insurance policies will not be changed
or cancelled during their term until after at least ten (10) days prior notice
by registered mail to the OWNER and AGENT.
CONTRACTOR shall pay payroll and other taxes levied against payrolls by city,
state and federal agencies.
CONTRACTOR shall comply with all union requirements and make proper payments to
union pension and welfare funds as prescribed in union contracts.
CONTRACTOR shall make reasonable and prompt restitution, by cash, replacement or
repairs, subject to the approval of the AGENT for any damage for which the
contractor is liable.
CONTRACTOR shall purchase the necessary time clocks and lockers for all its
personnel.
Upon completion of the work, all lights shall be extinguished, all windows
closed, all office doors closed and entrance doors locked, Venetian blinds shall
be lowered and tiled to keep out the sun, all slop sinks, locker areas, etc.,
shall be cleaned thoroughly and cleaning equipment stored in a proper location.
All tenant spaces will be locked during cleaning operation and work will be
performed behind locked doors.
AREAS TO BE COVERED
CONTRACTOR shall perform the following throughout the entire premises, including
all office space, first floor and above, entrance lobby, sidewalks, all basement
areas, tenant areas (including all levels below first floor, if applicable),
public halls and/or building corridors, stairways, loading freight area, fire
towers, lavatories, passageways, and elevator cabs, and shall render normal
cleaning of tenant internal lunch areas, if applicable, and include planters
located in interior public areas whether artificial or natural. Service utility
and mechanical areas shall be covered as required and at the direction of the
Building Manager. Where terms "as needed" or "as necessary" are used, the agent
shall be the sole judge.
GENERAL CLEANING
Nightly
Nightly services shall be rendered five (5) nights each week, Monday through
Friday, excluding only such holidays upon which the building is closed, OWNER
being the sole judge.
B-3
Sweep floors as needed to maintain in clean condition throughout the building,
including tenant spaces, entrance foyers and vestibules and all public areas,
including building corridors, all stone, ceramic tile, marble, terrazzo, asphalt
tile, linoleum, rubber, vinyl and other type of flooring to insure dust-free
floors with special attention to hard-to-reach areas.
Carpet sweep nightly and vacuum weekly all carpeted areas and rugs, moving light
furniture other than desks, file cabinets, etc. Spot clean for spillage.
Empty and clean all wastepaper baskets and disposal receptacles, wash ash trays,
sanitary cans, wastepaper towel cans and any other receptacles. Damp dust as
necessary. Install liners, if provided by tenant.
Empty and clean all cigarette urns and ashtrays. Replace sand or water in
cigarette urns. Material to be furnished by CONTRACTOR.
Collect and remove daily from building, wastepaper, cardboard boxes (which
CONTRACTOR will flatten) waste materials and all rubbish from normal operation
of building at CONTRACTOR'S expense. Waste and/or rubbish bags shall be
furnished by CONTRACTOR. AGENT shall have the right to approve trash removal
containers and janitorial carts.
Move and dust under all desk equipment, ash trays, telephones and other similar
equipment, replacing and dusting said equipment. Papers and documents will not
be moved.
Sweep building stairways, wash as necessary. Vacuum carpeted inter-connecting
tenant stairways, dust handrails, balustrades and stringers as necessary. Wash
inter-connecting tenant stairways nightly.
Dust and wipe clean all furniture, fixtures, shelving, desk equipment,
telephones, cabinets, window ▇▇▇▇▇, door casings, blackboards and clean all
furniture with impregnated cloths, as needed.
Dust and clean all chair rails, panelling, trim, door and other architectural
louvers, lattices and ornamental work, grilles, pictures, vinyl or fabric of
chairs and settees, ventilating louvers, charts and baseboards.
Vacuum ceilings, as necessary to remove all dust around and on grilles.
Remove all finger marks, smudges, scuff marks, gum or foreign matter from glass
directory boards, metal partitions and other marks from walls, window sill
frames and other similar surfaces, and glass table cabinets, as necessary.
Clean and remove fingermarks and smudges from glass entry doors and side panels.
B-4
Scour, wash and clean all water fountains and coolers, emptying waste water, as
needed.
Wash window ▇▇▇▇▇ and remove all ink stains and smudges, as necessary.
Keep locker and slop sink rooms in clean and orderly condition.
Dust and wash all closet and coat room shelving, coat racks and flooring.
Wipe clean all brass, stainless steel, metal and other brightwork.
Wipe clean all metal door knobs, kick plates, directional signs, door saddles
and all metals.
Nightly cleaning operations will be scheduled to commence after 5:30 p.m.
insofar as practical and possible.
CONTRACTOR agrees to perform all cleaning services as may be necessary by tenant
traffic and building use on holidays at an additional charge.
Lights shall be used only in areas where cleaning operations are being performed
and then turned off upon completion.
Lavatories & Rest Rooms
Sweep scrub and/or wash and dry all flooring with approved germicidal detergent
solution to remove all spills, smears, scuff marks and foot tracks throughout.
Wash and polish all mirrors, powder shelves, brightwork, enamel surfaces
including flushometers, piping, toilet seat hinges and all metal.
CONTRACTOR shall use only non-abrasive material to avoid damage and
deterioration to chrome fixtures.
Scour, wash and disinfect all basins, bowls and urinals with approved germicidal
detergent solution, including tile walls near urinals.
Wash both sides of all toilet seats with approved germicidal detergent solution.
Disinfect and damp wipe all partitions, enamel surfaces, tile walls, dispensers,
door and receptacles. Remove graffiti on sight, if unable to remove, tenant will
be notified immediately.
Empty and clean paper towel and sanitary disposal receptacles.
B-5
Remove wastepaper and refuse, including soiled sanitary napkins, to a designated
area in the premises and dispose of same at CONTRACTOR'S expense. All wastepaper
receptacles to be thoroughly cleaned and washed.
If applicable, wash and wax all resilient tile floors in toilet powder rooms, or
vacuum if carpeted. Spot-clean and shampoo, as needed.
Fill and maintain mechanical operations of all toilet tissue holders, soap
dispensers, towel dispensers and sanitary napkin vending dispensers. Materials,
as approved by AGENT, to be furnished by CONTRACTOR. The filling of such
receptacles to be in such quantity as to last the entire business day wherever
possible and refilled daily as set forth in other parts of this specification.
Remove stains as necessary, clean underside of rims of urinals and bowls.
Wash down ceilings (including washable acoustical tile) and walls in washrooms
and stalls from ceiling to floor as often as necessary, but at least once every
thirty (30) days. Scrub floors as needed, but not less than once a month.
It is the intention to keep lavatories thoroughly clean and not to use a
disinfectant to mask odors. If disinfectants are necessary, an odorless
disinfectant shall be used.
CONTRACTOR shall use only non-abrasive material to avoid damage and
deterioration to chrome fixtures.
Entrance Vestibules, Main Lobby, Public Areas, Sidewalks & Elevator Lobbies -
Nightly
It is the intent of this agreement and CONTRACTOR agrees to keep
entrance ways, outer vestibules and lobby properly maintained, clean and
presentable at all times, commensurate with first-class office buildings.
Sweep and wash flooring. Clean and buff all surfaces of resilient tile to
maintain a highly clean and polished surface at all times. Strip and renew as
needed.
All carpeted corridors to be vacuumed nightly and as needed daily, spot cleaned
and/or shampooed as required.
Dust public corridors and walls.
Sweep, vacuum, spot clean and shampoo all weather mats, if carpeted. Scrub and
clean all weather mats, if rubber.
Clean all cigarette urns and replace sand or water, as necessary. Material to be
furnished by CONTRACTOR.
B-6
Maintain floors in elevator cabs as needed and clean thoroughly. If carpeted,
remove soluble spots which safely respond to standard spotting procedure without
risk of injury to color or fabric. Cabs to be vacuumed and shampooed, as
required.
If there are resilient tile floors in elevator cabs, wash, buff wax and polish
nightly. Strip and rewax, as necessary.
Wash flooring, including mats, of main floor area.
Pick up and put out rain mats, when necessary, making sure they are clean at all
times.
Clean entrance floor glass.
Dust and rub down elevator doors, mail depository and walls, metal work and
saddles in elevator cabs. All elevator corridors, car door tracks and thresholds
and saddles are to be cleaned and polished to remove all stains, dirt, paper
clips, cigarette butts and all debris.
Maintain metal work throughout, including elevator cabs, by cleaning as
necessary.
Clean exterior of mail chute, mail depository, lobby directories and director's
panel station, including glass, if applicable.
Vacuum sidewalks with powered equipment daily. Clean curb area 18" into street.
Clean telephone booths and storage rooms.
Treat and polish wood and synthetic panelling in the elevator cabs as necessary.
PERIODIC CLEANING
Lavatories & Rest Rooms
Machine scrub floor as necessary, with approved germicidal detergent solution.
Scrub, wash and polish all partitions, tile walls and enamel surfaces from
ceiling to floor as necessary, but not less than once every month, using proper
disinfectant.
Wash all lighting fixtures as necessary (but not less than once a year).
Do all high dusting approximately once a month.
Wash all painted wall surfaces as needed, but not less than once every two (2)
months.
Clean and disinfect all equipment drains. No acid permitted unless instructed by
AGENT.
B-7
Wash all ceilings including washable acoustical tile, as necessary.
Vacuum ceilings, as needed.
Clean urinals and bowls with scale-solvent as needed, but not less than once a
week.
Entrance Lobby/Public Areas/Elevator Landings/Sidewalks
Machine scrub flooring and seal, as necessary (but not less than once a month).
Clean lights, globes, diffusers and fixtures as often as necessary and keep
light fixtures properly lamped, as required. Lamps supplied by CONTRACTOR.
Dust down entrance, elevator, public corridor, lobby and stairway walls, floor
to ceiling, as necessary, but not less than once per month.
Shampoo carpets in elevator cabs, including spare carpets if made available for
replacement, as needed. Shampoo lobby and corridor carpet, as needed. Remove as
necessary soluble spots which safely respond to standard spotting procedure
without risk of injury to color or fabric.
High Dusting - Office Area
Do all high dusting every three months, unless otherwise specified, including
the following:
Vacuum and dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning. Damp dust, as required.
Vacuum and/or dust all vertical surfaces such as walls, partitions, doors, bucks
and ventilating louvers, grilles, high moldings and other surfaces not reached
in nightly cleaning.
Dust all overhead pipes, sprinklers, ventilating and air-conditioning louvers,
ducts, high molding and other areas not reached in nightly cleaning.
Dust all window frames.
Dust all lighting fixtures.
Vacuum and dust ceiling tiles around ventilators.
MISCELLANEOUS - OFFICE AREAS & BUILDING CORRIDORS AND BATHROOMS
(To be performed as needed, but not less than once each week unless otherwise
specified)
Sweep all building stairways, dust rails and fire equipment monthly and mop
monthly.
B-8
Wipe clean all aluminum, chrome, stainless steel, brass and other metal work,
including trim and hardware, as necessary.
Elevator, stairways, office and utility doors on all floors to be checked for
general cleanliness, as necessary, removing finger prints, smudges and other
marks. Clean exterior of all building elevator doors, as necessary.
If carpeted, remove spots and thoroughly clean all carpets in public corridors
as needed. Public corridors and lobbies will be placed on a shampoo schedule to
be kept on file in building office.
In addition to daily maintenance, steel wool, dry buff or damp mop or wet mop
and wax, as needed, removing all ground in heel marks scuffs and gum, any
asphalt, rubber, linoleum and vinyl flooring throughout public corridors.
Clean all vacant areas, at least once per month.
Clean glass entrance doors, as needed.
Clean all Venetian blinds throughout the building at least once a year.
Once a week, dust and wash all door louvers and other ventilating louvers within
reach.
Wash and remove all finger marks, ink stains, smudges, scuff marks and other
marks from metal partitions, ▇▇▇▇▇, all vertical surfaces (doors, walls, window
▇▇▇▇▇) including elevator doors and other surfaces, as necessary. All marble
walls, elevator, stairway, office and utility doors to be washed as necessary
using clear water or approved cleanser.
Wash and clean electrical fixtures, all baseboards walls and any other fixtures
or fittings in public corridors, as necessary.
Vacuum, clean and polish car and corridor saddles of elevator doors on all
floors, as needed.
Clean interior and exterior of mail depository as required, making arrangements
with postal authorities for interior cleaning.
DAY SERVICE
Day services shall be rendered five (5) days each week, Monday through Friday,
excluding only such holidays upon which the building is closed.
CONTRACTOR agrees to furnish sufficient day porters, one of whom shall be a
working supervisor, to perform the following duties and any additional duties
which may be directed by the AGENT.
B-9
A ▇▇▇▇▇▇ shall be assigned to premises on Saturday while the building is open.
CONTRACTOR also agrees to provide sufficient ▇▇▇▇▇▇ for tenant work, which in no
way will delete from building staff, unless approved by AGENT.
Duties of Day Porters and Day Matron
A sufficient ▇▇▇▇▇▇ staff shall be assigned to perform the following services
and any additional chores as directed by building management:
Police lobby area and sidewalk, picking up all foreign matter on sight.
Operate service elevator, as directed.
Police and maintain elevator cabs, including floors, as required. If carpeted
floors in elevators, cabs are to be vacuumed at least twice a day and spots are
to be removed, as required. If floors are of a resilient tile, clean, buff and
wax as required.
Police all lavatories a minimum of twice a day, morning and afternoon. Wipe
clean all sinks, glass, and powder shelves.
Check and fill, as necessary, in all lavatories, toilet tissue, soap, towel and
sanitary dispensers; materials to be furnished by CONTRACTOR. Monies from same
collected by CONTRACTOR.
Clean basement, including all levels below first floor, corridors and utility
areas. Police employee's locker rooms so they are kept in a clean condition at
all times.
Sweep, vacuum, remove gum and hose building entrance sidewalks and all sidewalk
areas daily before 8:00 a.m. All equipment, including vacuum and washing
equipment to clean sidewalks, shall be provided by CONTRACTOR and such equipment
to be of a type and manufacturer as approved by the AGENT.
Set out weather mats in inclement weather and keep in clean condition.
Police roof and set backs daily. Clean as necessary.
Keep entrance door glass and frames in clean condition.
Clean and polish standpipes and sprinkler siamese connections, as necessary.
Wipe down outside tenant signage daily.
Properly maintain exterior of the building at ground level, including all metal
work and signs, and store fronts, if required to be maintained by AGENT.
B-10
All planted areas shall be policed and debris removed.
Loading dock and truck area shall be cleaned daily and scrubbed as needed.
Sweep and dust stairways and fire tower. Dust handrails, firehose cabinets and
extinguishers, newels and stair stringers. Wash stairs, as necessary. Report any
discrepancies to building office.
All public areas, including building entrance and sidewalks, are to be kept
clean, clear and free from snow. Snow will be removed daily and before 8:00 a.m.
Urea or similar material will be used instead of rock-salt. Materials to be
supplied by CONTRACTOR at no cost to AGENT.
All materials and equipment, including snow removal equipment, to be furnished
by CONTRACTOR and such equipment to be of a type and manufacture as approved by
AGENT.
As directed by AGENT, equipment rooms, fan rooms and other utility rooms, shall
be swept and damp mopped regularly.
WINDOW CLEANING - General
Window cleaning contractor shall log in and out with the Building before any
services are performed.
Any materials used for the washing of windows or metal surfaces shall be
approved by the AGENT.
CONTRACTOR shall provide adequate protection to the exterior of the building,
during window washing operation.
An additional interior cleaning prior to move-in of new tenants, shall be
provided for by the CONTRACTOR upon instructions from the AGENT at no charge.
Wash and clean all windows, four (4) times a year, inside and outside, including
all adjacent metal surfaces, which shall be wiped clean during the window
cleaning operation including grade level windows where applicable, as determined
by the AGENT. Wipe all interior metal window frames, mullions, terrace doors, if
any, and other unpainted interior metal surfaces of the perimeter walls of the
buildings at the same time that the interior of the windows are washed.
Building entrance doors and director glass shall be cleaned daily and kept in
clean condition at all times during the day. All lobby exterior glass shall be
washed and cleaned once a week and all lobby interior glass, once a month.
Mail chute glass shall be kept in a clean condition at all times.
B-11
CONTRACTOR shall provide all labor, materials, tools, equipment and perform all
operations necessary to carry out the apparent intent thereof, for the window
washing operation. CONTRACTOR further agrees to maintain all such equipment
provided at its sole cost and expense including the building supplied scaffold.
INITIAL CLEANING
In addition to all other services specified herein. Prior to tenant occupancy,
the CONTRACTOR, shall, at no additional cost to AGENT, render a thorough initial
cleaning of all newly rented space.
This includes dusting, sweeping, polishing of interior metal window frames,
▇▇▇▇▇ and mullion, window washing, cleaning and vacuuming of perimeter H.V.A.C.
metal enclosures including the removal of all debris, so that the premises shall
be in clean and proper condition. The CONTRACTOR shall also provide complete
floor maintenance and initial waxing prior to move-in of all new tenants at no
charge to AGENT or tenant.
PEST CONTROL
The CONTRACTOR shall render pest control services throughout the basement and
first floor premises once each month. Public areas above the first floor shall
be serviced monthly. Services shall be performed by thoroughly trained
operators, licensed, if required. Evidence of such service call shall be
presented to AGENT.
Special emergency calls shall be made on request at no additional charge.
Service shall be rendered at such hours as will not interfere with normal
business.
FREIGHT ELEVATOR
A. Service elevator shall be operated by ▇▇▇▇▇▇/operator, as directed
by AGENT.
B. All personnel provided by CONTRACTOR shall be adequately trained and
supervised to perform any duties assigned. All personnel are subject
to approval by AGENT.
▇▇▇▇▇▇▇
The CONTRACTOR agrees at its cost to furnish and install replacement electric
light bulbs, tubes, ballasts and starters as required for public interior and
exterior building areas, including fan and mechanical equipment room. Work shall
be performed by thoroughly trained and qualified personnel who shall be members
of union having jurisdiction.
SPECIAL SERVICES
B-12
It is agreed that CONTRACTOR may perform special additional services to tenants
in the building from time to time. Such special day or night services shall be
billed directly to the tenants.
SCHEDULE
Each month CONTRACTOR is to supply AGENT a schedule of periodic cleaning items
to be completed for the coming month giving exact dates corridor floors are to
be waxed or carpets cleaned, rest rooms scrubbed, windows washed, drapes cleaned
and any other major item to be done. In the event work is not done at time
scheduled, AGENT is to be informed by the following work day and given a date
when work will be completed.
CONTRACTOR agrees to give AGENT full credit for vacant space and space not
cleaned. The credit for vacant space shall be in accordance with a formula to be
developed and accepted by the parties. CONTRACTOR shall submit unit cost of
cleaning windows not cleaned because of inclement weather or otherwise. Formulas
for vacant space and window cleaning to be separately designated on CONTRACTOR'S
proposal.
Specify staff intended to be used to comply with this specification.
B-13
SCHEDULE C
VAC SPECIFICATIONS
The VAC System shall be capable of maintaining 72 degrees Fahrenheit (no
humidity control) when outdoor conditions are 6 degrees Fahrenheit. The VAC
System shall be capable of maintaining 75 degrees Fahrenheit (average
temperature throughout the Building) when outdoor conditions are 95 degrees
Fahrenheit dry bulb and 75 degrees Fahrenheit wet bulb. The VAC System is
designed based upon (i) occupancy rate of one (1) person per net usable 100
square feet, (ii) four (4) ▇▇▇▇▇ per net usable square foot, (iii) .15 cfm per
net usable square foot, and (iv) insulated glass windows with venetian blinds
drawn.
C-1
SCHEDULE D
LANDLORD'S WORK
D-1
[LETTERHEAD OF DESCON]
April 16, 1996
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
The Georgetown Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Re: Pencom
Newport Tower - 16th Floor Area "A"
Dear ▇▇▇▇:
As per attached sketch #SP-1 dated 4/2/96 the following is the scope of work
required for the above project:
I. Construction
a. Erect new partition to subdivide room #1607 into (2) offices.
b. Install new door, frame and hardware in new office to match
existing.
II. Electrical
a. Install new switch in new office and recircuit lights as required.
b. Install throughout space as shown a total of:
(5) duplex electrical outlets.
(5) voice/data outlets.
III. Finishes
a. Paint throughout to match existing.
b. Existing carpet, base, wallcovering and VCT to remain; clean as
required.
Please contact me if you have any questions.
Sincerely,
DESCON INTERIORS INCORPORATED
/s/▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Project Director
AR/rr
cc: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(Pen NT 1)
descon interiors incorporated/149 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇/
(▇▇▇)▇▇▇ ▇▇▇▇
[FLOOR PLAN]
EXHIBIT A
FLOOR PLAN
[16TH FLOOR PLAN]
Newport Office Tower
Jersey City, New Jersey
EXHIBIT B
THE SITE
Layout
[SITE PLAN]
NEWPORT
EXHIBIT C
THE PARKING GARAGE
Layout
[SITE PLAN]
NEWPORT