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Exhibit 10.2
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BLUE HILL PLAZA ASSOCIATES
Landlord,
and
LONG DISTANCE DIRECT, L.P.
Tenant.
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LEASE
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Premises in the Building at
Xxx Xxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxx
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TABLE OF CONTENTS
1 Definitions ................................................ 1
2 Demise, Term and Rent ...................................... 2
3 Preparation of Premises .................................... 2
4 Use ........................................................ 3
5 Subordination .............................................. 3
6 Assignment and Subletting .................................. 5
7 Estoppel Certificate; Memorandum ........................... 9
8 Requirements of Law ........................................ 9
9 Property Loss and Indemnification .......................... 10
10 Destruction - Fire and Other Casualty ...................... 11
11 Insurance .................................................. 11
12 Condemnation ............................................... 12
13 Repairs .................................................... 13
14 Services ................................................... 14
15 Alterations ................................................ 15
16 Escalations - Taxes, Operating Expenses .................... 16
17 Electric Energy ............................................ 21
18 Signs ...................................................... 24
19 Limitation of Landlord's Liability ......................... 24
20 Broker ..................................................... 24
21 Default - Conditions of Limitation ......................... 25
22 Re-Entry by Landlord ....................................... 26
23 Damages .................................................... 27
24 Surrender .................................................. 29
25 Access to Demised Premises ................................. 30
26 Waivers .................................................... 31
27 No Surrender, etc. ......................................... 31
28 Curing Tenant's Defaults ................................... 32
29 Notices .................................................... 32
30 Arbitration ................................................ 33
31 Relocation of Demised Premises ............................. 33
32 No Representations - Entire Agreement ...................... 34
33 Changes and Modifications .................................. 34
34 Successors and Assigns ..................................... 34
35 Inability to Perform ....................................... 34
36 Rules and Regulations ...................................... 35
37 Consents ................................................... 35
38 Partnership Tenant ......................................... 36
39 Quiet Enjoyment ............................................ 36
40 Security ................................................... 36
41 Late Charge ................................................ 37
42 Miscellaneous .............................................. 37
43 Common Areas and Parking ................................... 38
44 Fixed Rent ................................................. 40
45 Exhibit A - Floor Plan .................................... 43
46 Exhibit A - Plot Plan of Property ......................... 44
47 Exhibit B - Landlord's Work and Tenant's Work ............. 45
48 Exhibit C - Electricity Option ............................ 46
49 Exhibit D - Rules and Regulations ......................... 48
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LEASE dated the 15th day of March, 1993 between BLUE HILL PLAZA ASSOCIATES, a
New York limited partnership having its principal office at Xxx Xxxx Xxxx Xxxxx,
Xxxxx Xxxxx, XX 00000 (herein called "Landlord"), and LONG DISTANCE DIRECT,
L.P., a limited partnership, having an office at Xxx Xxxx Xxxx Xxxxx, Xxxxx
Xxxxx, Xxx Xxxx (herein called "Tenant").
WITNESSETH:
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
Definitions
1.01. As used in this Lease, the following terms shall have the meanings
set forth below:
Building: The office building premises known as and by street address
One Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000.
Buildings: The Building and any other office building on the Property.
Demised Premises: A portion of the fourteenth (14th) floor, specifically
Suite 1430 of the Building as outlined in red on the floor plan annexed hereto
as Exhibit A.
Landlord: Only the owner at the time in question of the Building or of a
lease of the Building, so that in the event of any transfer of title to the
Building or of Landlord's interest in a lease of the Building, the transferor
shall be and hereby is relieved and freed of all obligations of Landlord under
this Lease accruing after such transfer, and it shall be deemed without further
agreement that such transferee has assumed and agreed to perform and observe all
obligations of Landlord herein during the period it is the holder of Landlord's
interest under this Lease.
Landlord's Agents: The agents, contractors and employees of Landlord.
Managing Agent: Xxxxxxxx Management Corp., One Blue Hill Plaza, Pearl
River, New York, New York, or such other party as Landlord may hereafter
designate by notice to Tenant.
Property: All of the land and improvements thereon owned or groundleased
by Landlord and comprising the Blue Hill project as shown on the plot plan
attached hereto and made a part hereof as Exhibit A-1. The foregoing shall
include, in addition, any other parcels of land or improvements or any facility
serving the project and made available by easement, agreement or otherwise.
Landlord reserves the right to add or sever the ownership or right of use to any
portion of the Property at any time, whereupon the portion so added or severed
shall be included or excluded, as the case may be, from the Property for
purposes of this Lease.
Repair: The term "repair" shall be deemed to include restoration and
replacement as may be necessary to achieve and maintain good working order and
condition.
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Tenant's Property: The furniture and furnishing of Tenant and the
following which are furnished and installed by or for Tenant without expense to
Landlord and without any allowance or credit to Tenant; movable partitions,
chandeliers and other hanging, standing or projecting special lighting fixtures,
special cabinet work, other business and trade fixtures,business machines,
business equipment and communications equipment, whether or not attached to or
built into the Demised Premises and which can be removed without permanent
structural damage to, or permanent defacement of, the building.
ARTICLE 2
Demise, Term and Rent
2.01. Demise: Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, upon and subject to the terms, covenants, provisions and
conditions of this Lease, the Demised Premises.
2.02. Term: The term of this lease shall commence on March 20, 1993
(herein referred to as the "Commencement Date") and shall end on March 31, 1998
of the month in which occurs the fifth (5th) anniversary of the Commencement
Date, (such date on which the term of the lease expires is herein referred to as
the "Expiration Date") or until such term shall sooner cease and terminate as
herein provided.
2.03. Rent: The rents reserved under this Lease, which shall be payable
throughout the Term commencing with the Commencement Date, shall be and consist
of (a) fixed rent (herein called "Fixed Rent") in the amount of (1) ONE HUNDRED
ONE THOUSAND SIX HUNDRED FORTY AND 00/100 ($101,640.00) DOLLARS per year,
payable in equal monthly installments of $8,470.00 during the three (3) year
period commencing on the Commencement Date and ending on March 31, 1998 and (ii)
ONE HUNDRED THIRTEEN THOUSAND NINE HUNDRED SIXTY AND 00/100 ($113,960.00)
DOLLARS per year, payable in equal monthly installments of $9,496.67 during the
two (2) year period commencing on April 1, 1996 and ending on the Expiration
Date (except that Tenant shall pay, upon the execution and delivery of this
Lease by Tenant, the sum of $8,470.00, to be applied against the first
installment of Fixed Rent becoming due under this Lease), and (b) additional
rent (herein called "Additional Rent") consisting of all other sums of money as
shall become due from and payable by Tenant to Landlord hereunder for
non-payment of which Landlord shall have the same remedies as for a default in
the payment of Fixed Rent, all to be paid in lawful money of the United States
to Landlord at the office of the Managing Agent, or to such other person and/or
at such other place as Landlord may designate by notice to Tenant. (Fixed Rent
and Additional Rent are herein sometimes collectively called "Rent").
2.04. Rent Abatement: Notwithstanding anything in Section 2.03 of this
Article 2 to the contrary, Fixed Rent shall be partially abated; (i) during the
thirty (30) month period commencing on the Commencement Date and ending on Sept.
30, 1995 so that during this abatement period, Tenant shall pay to Landlord the
amount of $7,186.67 per month. There shall be no further rent abatements and
Fixed Rent shall be payable in accordance with Section 2.03 except as
specifically set forth in this Section 2.04.
2.05. No Setoff: Tenant shall pay Fixed Rent and Additional Rent
promptly when due without notice or demand therefor and without any abatement,
deduction or setoff for any reason whatsoever, except as may be expressly
provided in this Lease.
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ARTICLE 3
Preparation of Premises
3.01. Preparation of Premises:
Tenant has examined the Demised Premises and agrees to accept same in
its "as is" condition as of the date hereof and agrees that Landlord shall not
be obligated to perform any work, supply any materials or incur any cost or
expense to prepare same for Tenant's occupancy. Landlord shall, however, at
Tenant's sole cost and expense, which amount shall be $10,000 which shall be
paid by Tenant to Landlord upon execution of this Lease, paint the Demised
Premises and shampoo the carpeting.
3.02. Possession. If Landlord is unable to give possession of the
Demised Premises on the Commencement Date because of the holding-over or
retention of possession by any tenant, undertenant or occupant, or because of
the fact that a temporary or permanent Certificate of Occupancy has not been
procured, or for any other reason (including, but not limited to, the occurrence
of any of the events described in Section 35.01), Landlord shall not be subject
to any liability for failure to give possession on the Commencement Date and the
validity of this Lease shall not be impaired under such circumstances, nor shall
the same be construed in any way to extend the term of this Lease, but the Fixed
Rent and Additional Rent payable hereunder shall be abated (provided Tenant is
not responsible for the inability to obtain possession) until Landlord has given
notice to Tenant that the Demised Premises are ready for Tenant's occupancy.
Tenant hereby waives the provisions of Section 223-a of the Real Property Law of
the State of New York, and agrees that the provisions of this Article are
intended to constitute "an express provision to the contrary" within the meaning
of said Section 223-a.
ARTICLE 4
Use
4.01. Tenant's Business. Tenant shall use and occupy the Demised
Premises for general and executive offices, and for no other purpose.
4.02. Permits. If any governmental license or permit, other than a
Certificate of Occupancy, shall be required for the proper and lawful conduct of
Tenant's business in the Demised Premises, or any part thereof. Tenant, at its
expense, shall duly procure and thereafter maintain such license or permit and
submit the same to inspection of Landlord. Tenant shall at all times comply with
the terms and conditions of each such license or permit.
4.03. Restrictions. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy, the Demised Premises, or do anything
to be done in the Demised Premises, in any manner (a) which violates the
Certificate of Occupancy for the Demised Premises or for the Building; (b) which
causes or is liable to cause injury to the Building or any equipment, facilities
or systems therein; (c) which constitutes a violation of the laws and
requirements of any public authorities or the requirements of insurance bodies;
(d) which impairs or tends to impair the character, reputation or appearance of
the Building as a first-class office building; (e) which impairs or tends to
impair the proper and economic maintenance, operation and repair of the Building
and/or its equipment, facilities or systems; (f) which annoys or inconveniences
or tends to annoy or inconvenience other tenants or occupants of the Building;
or (g) which increases pedestrian traffic in and out of the Demised Premises or
the Building above a reasonable level.
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ARTICLE 5
Subordination
5.01. Superior Leases and Mortgages. This Lease, and all rights of
Tenant hereunder, are and shall be subject and subordinate to all ground leases,
overriding leases and underlying leases affecting the Building or the Property
now or hereafter existing and to all mortgages which may now or hereafter affect
the Building, the Property or any of such leases, whether or not such mortgages
shall also cover other lands, buildings or leases, to each and every advance
made or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such leases and such mortgages and
spreaders and consolidations of such mortgages. This Section shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute, acknowledge
and deliver any instrument that Landlord, the lessor under any such lease or the
holder of any such mortgage or any of their respective successors in interest
may reasonably request to evidence such subordination, and if Tenant fails to
execute, acknowledge or deliver any such instrument within ten (10) days after
request therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute and deliver any
such instrument for and on behalf of Tenant. Any lease to which this Lease is,
at the time referred to, subject and subordinate is herein called "Superior
Lease" and the lessor of a Superior Lease or its successor in interest is herein
called "Superior Lessor"; and any mortgage to which this Lease is, at the time
referred to, subject and subordinate is herein called "Superior Mortgage" and
the holder of a Superior Mortgage is herein called "Superior Mortgagee".
5.02. Notice. If any act or omission of Landlord would give Tenant the
right, immediately or after lapse of a period of time, to cancel or terminate
this Lease, or to claim a partial or total eviction, Tenant shall not exercise
such right (a) until it has given written notice of such act or omission to
Landlord and to any Superior Mortgagee or Superior Lessor whose names shall
previously have been furnished to Tenant, and (b) until a reasonable period for
remedying such act or omission shall have elapsed following the giving of such
notice and following the time when such Superior Mortgagee or Superior Lessor
shall have become entitled under such Superior Mortgage or Superior Lease, as
the case may be, to remedy the same (which reasonable period shall in no event
be less than the period to which Landlord would be entitled under this Lease or
otherwise, after similar notice, to effect such remedy), provided such Superior
Mortgagee or Superior Lessor shall with due diligence give Tenant notice of
intention to, and commence and continue to, remedy such act or omission.
5.03. Attornment. If any Superior Lessor or Superior Mortgagee shall
succeed to the rights of Landlord under this Lease, whether through possession
or foreclosure action or delivery of a new lease or deed, then at the request of
such party so succeeding to Landlord's rights (herein called "Successor
Landlord") and upon such Successor Landlord's written agreement to accept
Tenant's attornment, Tenant shall attorn to and recognize such Successor
Landlord as Tenant's landlord under this Lease and shall promptly execute and
deliver any instrument that such Successor Landlord may reasonably request to
evidence such attornment. Upon such attornment this Lease shall continue in full
force and effect as a direct lease between the Successor Landlord and Tenant
upon all of the terms, conditions and covenants as are set forth in this Lease,
except that the Successor Landlord shall not (a) be liable for any previous act
or omission of Landlord under this Lease; (b) be subject to any offset, not
expressly provided for in this Lease, which theretofore shall have accrued to
Tenant against Landlord; or (c) be bound by any previous modification of this
Lease or by any previous prepayment of more than one month's Fixed Rent, unless
such modification or repayment shall have been expressly
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approved in writing by the Successor Landlord (or predecessor in interest).
ARTICLE 6
Assignment and Subletting
6.01. Consent Required. Tenant covenants and agrees that neither this
Lease, nor the estate hereby granted, nor the interest of Tenant in any sublease
or the rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant, Tenant's legal representatives, or successors
in interest by operation of law or otherwise, and that neither the Demised
Premises nor any part thereof shall be encumbered in any manner by reason of any
act or omission on the part of Tenant, or shall be sublet or offered or
advertised for subletting, or be used or occupied or permitted to be used or
occupied or utilized for desk space, or for mailing privileges, by anyone other
than Tenant, except as and subject to the conditions expressly provided in the
following Sections of this Article or as expressly consented to in writing by
Landlord. A transfer of fifty (50%) percent or greater interest (whether stock,
partnership interest or otherwise) of Tenant shall be deemed to be an assignment
of this Lease, either in one transaction or in any series of transactions within
a twelve (12) month period.
6.02. Collection of Rent, etc. If this Lease be assigned, whether or not
in violation of the provisions of this Lease, Landlord may collect rent from the
assignee. If the Demised Premises or any part thereof be sublet or be used or
occupied by anyone other than Tenant whether or not in violation of this Lease,
Landlord may, after default by Tenant, collect Rent from the subtenant or
occupant. In either event, Landlord may apply the net amount collected to Rent,
but no such assignment, subletting; occupancy or collection shall be deemed a
waiver of any of the provisions of Section 6.01, or the acceptance of the
assignee, subtenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of Tenant's obligations under this Lease. The
consent by Landlord to an assignment, mortgaging, pledging, encumbering,
transfer, use, occupancy or subletting pursuant to any provision of this Lease
shall not in any way be considered to relieve Tenant from obtaining the express
consent of Landlord to any other or further assignment, mortgaging, pledging,
encumbering, transfer, use, occupancy or subletting. References in this Lease to
use or occupancy by anyone other than Tenant shall not be construed as limited
to subtenants and those claiming under or through subtenants but as including
also licensees or others claiming under or through Tenant, immediately or
remotely. The listing of any name other than that of Tenant on any door of the
Demised Premises or on any directory or in any elevator in the Building, or
otherwise, shall not operate to vest in the person so named any right or
interest in this Lease or in the Demised Premises, or be deemed to constitute,
or serve as a substitute for, or any waiver of, any prior consent of Landlord
required under this Article. Neither any assignment of Tenant's interest in this
Lease, nor any subletting, occupancy or use of the Demised Premises, or any part
thereof; by any person other than Tenant, nor any collection of rent by Landlord
from any person other than Tenant, as provided in this Article, nor any
application of any such rent, as provided in this Article shall, under any
circumstances, relieve Tenant of any of its obligations under this Lease. No
assignment of this Lease whether made with Landlord's consent or without
Landlord's consent as provided in Section 6.03 hereof shall be effective until
and unless the assignee shall execute an instrument in form and substance
reasonably satisfactory to Landlord or deliver to Landlord an agreement or
certificate of merger (to the same legal effect) whereby such assignee assumes
and agrees to perform all of the obligations, terms, provisions, covenants and
agreements contained in this Lease as though such assignee were the tenant named
herein, and a copy of such assignment and assumption is delivered to Landlord.
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6.03. Landlord's Options. If Tenant shall at any time or times during
the Term desire to assign this Lease or sublet all or part of the Demised
Premises, Tenant shall give notice thereof to Landlord, which notice shall be
accompanied by (a) a conformed or photostatic copy of the proposed assignment or
sublease, the effective or commencement date of which shall be at least sixty
(60) days after the giving of such notice, (b) a statement setting forth in
reasonable detail the identity of the proposed assignee or subtenant, the nature
of its business and its proposed use of the Demised Premises, and (c) current
financial information with respect to the proposed assignee or subtenant,
including without limitation, its most recent financial report. Such notice
shall be deemed an offer from Tenant to Landlord whereby Landlord may at its
option (i) terminate this Lease (if the proposed transaction is an assignment of
this Lease or a sublease of all or substantially all of the Demised Premises),
or (ii) terminate this Lease with respect to the space covered by the proposed
sublease (if the proposed transaction is a sublease of part of the Demised
Premises). Said options may be exercised by Landlord by notice to Tenant at any
time within sixty (60) days after such notice has been given by Tenant to
Landlord; and during such sixty (60) day period Tenant shall not assign this
Lease or sublet such space to any person.
6.04. Termination of Lease. If Landlord exercises its option to
terminate this Lease in the case where Tenant desires either to assign this
Lease or sublet all or substantially all of the Demised Premises, then, this
Lease shall end and expire on the date that such assignment or sublet was to be
effective or commence, as the case may be, and Fixed Rent and Additional Rent
shall be paid and apportioned to such date.
6.05. Partial Termination. If this Lease is terminated with respect to a
portion of the Demised Premises pursuant to Section 6.04, Landlord, at the cost
and expense of Tenant, shall make such alterations as may be required to
physically separate such terminated space from the remainder of the Demised
Premises and shall make such repairs and alterations as may be required to
restore to tenantable condition any part of the remainder of the Demised
Premises which is physically affected by such separation. Tenant shall afford
Landlord and its tenants, assignees or undertenants reasonably appropriate means
of ingress and egress to and from such terminated space, and Landlord and Tenant
shall execute and deliver a supplementary agreement modifying this Lease, as of
the day following such termination, by eliminating such terminated space from
the Demised Premises, reducing the Fixed Rent by the amount allocable to such
part of the Demised Premises and appropriately modifying the other terms and
provisions of this Lease to reflect the elimination of such terminated space
from the Demised Premises.
6.06. Consent Not Unreasonably Withheld. In the event Landlord does not
exercise any of its options pursuant to Section 6.03 or terminate this Lease in
whole or in part, and provided that Tenant is not in default of any of Tenant's
obligations under this Lease, then Landlord's consent (which must be in writing
and in form satisfactory to Landlord) to the proposed assignment or sublease
shall not be unreasonably withheld, provided that the following conditions are
complied with:
(a) In Landlord's judgment the proposed assignee or subtenant is
engaged in a business and the Demised Premises, or the relevant part
thereof, will be used in a manner which (i) is in keeping with the then
standards of the Building; (ii) is limited to the use expressly
permitted under Section 4.01 and (iii) will not cause an undue amount of
traffic in the Building or impose any additional burden upon Landlord in
the operation of the Building or providing services and utilities;
(b) The proposed assignee or subtenant is a reputable person of
good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable
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proof thereof;
(c) Neither (i) the proposed assignee or sublessee nor (ii) any
person which, directly or indirectly, controls, is controlled by, or is
under common control with, the proposed assignee or sublessee, is then
an occupant of any part of the Building or the Property;
(d) The proposed assignee or sublessee is not a person with whom
Landlord is then negotiating or has within the last six (6) months
negotiated to lease space in the Building or the Property, and Landlord
does not have any comparable space in the Building for rent:
(e) The form of the proposed sublease shall be satisfactory to
Landlord and shall comply with the applicable provisions of this
Article;
(f) There shall not be more than two (2) occupants (including
Landlord or its designee) of the Demised Premises as originally demised
hereunder;
(g) The amount of the aggregate rent to be paid by the proposed
subtenant is not less than the then current market rent per rentable
square foot for the Demised Premises as though the Demised Premises were
vacant, and the rental and other terms and conditions of the sublease
are the same as those contained in the proposed sublease furnished to
Landlord pursuant to Section 6.03: 6
(h) Tenant shall reimburse Landlord on demand for any costs that
may be incurred by Landlord in connection with said assignment or
sublease, including, without limitation, the cost of making
investigations as to the acceptability of the proposed assignee or
subtenant and reasonable legal fees incurred in connection with the
granting of any requested consent;
(i) Tenant shall not have (i) advertised or publicized in any way
the availability of the Demised Premises or any portion thereof without
prior notice to and approval by Landlord, nor shall any advertisement
state the proposed rental, (ii) listed the Demised Premises or any
portion thereof for subletting, whether through a broker, agent,
representative, or otherwise, at a rental rate less than the Fixed Rent
and Additional Rent at which Landlord is then offering to lease other
space in the Building; and
(j) The Managing Agent shall serve as Tenant's exclusive agent in
connection with the assignment or sublease transaction and Tenant shall
pay a commission to the Managing Agent in accordance with its then rates
provided same are competitive.
6.07. Tenant Remains Liable. Each subletting pursuant to this Article
shall be subject to all of the covenants, agreements, terms, provisions and
conditions contained in this Lease. Notwithstanding any such subletting and/or
acceptance of Rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of Fixed Rent and Additional Rent due and to become
due hereunder and for the performance of all the covenants, agreements, terms
provisions and conditions contained in this Lease on the part of Tenant to be
performed and all acts and omissions of any licensee or subtenant or anyone
claiming under or through any subtenant which shall be in violation of any of
the obligations of this Lease, shall be deemed to be a violation by Tenant.
Tenant further agrees that notwithstanding any such subletting, no other and
further subletting of the Demised Premises or any part thereof by Tenant or any
person claiming through or under Tenant shall or will be made except upon
compliance with
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and subject to the provisions of this Article.
6.08. Conditions of Subletting. With respect to each and every sublease
or subletting authorized by Landlord under the provisions of this Lease, it is
further agreed as follows:
(a) No subletting shall be for a term ending later than one day
prior to the Expiration Date;
(b) No sublease shall be valid, and no subtenant shall take
possession of the Demised Premises or any part thereof, until an
executed counterpart of such sublease in recordable form has been
delivered to Landlord; and
(c) Each sublease shall provide that it is subject and subordinate
to this Lease and to the matters to which this Lease is or shall be
subordinate, and that in the event of termination, re-entry or
dispossess by Landlord under this Lease, Landlord may, at its option,
terminate such sublease or take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to
the then executory provisions of such sublease, except that Landlord
shall not (i) be liable for any previous act or omission of Tenant under
such sublease, (ii) be subject to any offset, not expressly provided in
such sublease, which theretofore accrued to such subtenant against
Tenant, or (iii) be bound by any previous modification of such sublease
(unless consented to by Landlord) or by any previous prepayment of more
than one month's rent.
6.09. Consideration to Landlord. If Landlord shall give its consent to
any assignment of this Lease or to any sublease, Tenant shall, in consideration
therefor, pay to Landlord, as Additional Rent:
(a) In the case of an assignment, an amount equal to all sums and
other consideration paid to Tenant by an assignee for or by reason of or
in any way connected with such assignment (including, but not limited
to, sums paid for the sale or rental of Tenant's equipment, furniture,
furnishings or other personal property, less, in the case of a sale
thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax returns); and
(b) In the case of a sublease, any rent, additional charge or
other consideration payable under the sublease to Tenant by the
subtenant which is in excess of Fixed Rent and Additional Rent accruing
during the term of the sublease in respect of the subleased space (at
the rate per square foot payable by Tenant hereunder) pursuant to the
terms thereof (including but not limited to sums paid for the sale or
rental of Tenant's equipment, furniture or other personal property,
less, in the case of the sale thereof, the then net unamortized or
undepreciated cost thereof determined on the basis of Tenant's federal
income tax returns).
The sums payable under this section 6.09(b) shall be paid to Landlord as and
when payable by the subtenant to Tenant.
6.10. Joint and Several Liability. The joint and several liability
hereunder of Tenant herein named, or any immediate or remote successor in
interest of said Tenant, as assignor, with each assignee subsequent to it for
the obligations of Tenant hereunder in each instance provided for in this
Article shall not be discharged, released or impaired in any respect by any
agreement or stipulation made between Landlord or any grantee or assignee by way
of mortgage, or
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otherwise, of Landlord and any such assignee, extending the time of, or
modifying, any of the obligations of this Lease, or by any waiver or failure of
Landlord to enforce any of the obligations of this Lease, or of the same as
affected by any such agreement or stipulation, but shall remain in full force
and effect, and Tenant herein named and its successors in interest preceding
such assignment shall continue liable hereunder until the expiration of the
Term. To charge Tenant herein named and Its successors in interest preceding any
such assignment no demand shall be required, nor shall there be required any
notice of any default with respect to any of the obligations of this Lease, or
of the same as affected by such agreement or stipulation, if any, said Tenant
and each of its said successors in interest hereby expressly waiving any such
demand or notice, except that if Tenant herein named or any such successor in
interest, at or about the time of making its assignment, or thereafter, gives
written notice to Landlord expressly referring to this Section and demanding
notice of default, Landlord shall give said Tenant or such successor in interest
the same or equivalent notice of default and opportunity to cure as the Tenant
in possession shall be entitled to receive under this Lease.
ARTICLE 7
Estoppel Certificate; Memorandum
7.01. Delivery of Certificate. Tenant shall, without charge at any time
and from time to time, within ten (10) days after request by Landlord, certify
by written instrument duly acknowledged and delivered to any proposed or actual
mortgagee, assignee of any mortgage or purchaser, or any other person, firm or
corporation specified by Landlord:
(a) That this Lease is unmodified and in full force and effect
(or, if there has been any modification, that the same is in full force
and effect as modified and stating the modification);
(b) Whether or not there are then existing any set-offs, or
defenses against the enforcement of any of the agreements, terms,
covenants or conditions hereof upon the part of Tenant to be performed
or complied with (and, if so specifying the same); and
(c) The dates, if any, to which the Rent has been paid in advance.
7.02. Memorandum of Lease. At the request of Landlord, Tenant shall
promptly execute, acknowledge and deliver a memorandum in form satisfactory to
Landlord with respect to this Lease, or any amendment of or other agreement
supplementary to this Lease, sufficient for recording.
ARTICLE 8
Requirements of Law
8.01. Compliance. Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
governmental authorities having jurisdiction and all orders, rules and
regulations of the New York Board of Fire Underwriters or any similar body which
shall impose any violation, order or duty (collectively, "Regulations") upon
Landlord or Tenant with respect to the Demised Premises or the use or occupancy
thereof, except that nothing herein shall require Tenant to make structural
repairs or alterations unless Tenant has by its manner of use of the Demised
Premises or method of operation therein violated any Regulations. Tenant may,
after securing Landlord to Landlord's satisfaction against all damages,
interest, penalties and expenses, including, but not
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limited to, attorney's fees, by cash deposit or by surety bond In an amount and
In a company satisfactory to Landlord, contest and appeal any such Regulations
provided same is done with all reasonable promptness and provided such appeal
shall not subject Landlord to prosecution for a criminal offense or constitute a
default under any lease or mortgage under which Landlord may be obligated, or
which may encumber the Demised Premises, the Building or the Property or cause
the Demised Premises, the Building or the Property to be condemned or vacated.
8.02. Prohibitions. Tenant shall not do or permit any act or thing to be
done in or to the Demised Premises which is contrary to law, or which will
invalidate or be in conflict with public liability, fire or other policies of
insurance at any time carried by or for the benefit of Landlord with respect to
the Demised Premises or the Building or which shall or might subject Landlord to
any liability or responsibility to any person or for property damage, nor shall
Tenant keep anything in the Demised Premises except as now or hereafter
permitted by the Fire Department, Board of Fire Underwriters, Fire Insurance
Rating Organization or other authority having jurisdiction, and then only in
such manner and such quantity so as not to increase the rate for fire insurance
applicable to the Building, nor use the Demised Premises in a wrongful manner
which will increase the insurance rate for the Building or any property located
therein over that in effect prior to the commencement of Tenant's occupancy. If
by reason of Tenant's failure to comply with the provisions of this Article the
fire insurance rate shall, be higher than it otherwise would be, then Tenant
shall reimburse Landlord, as Additional Rent hereunder, for that portion 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 the first day of the month following such outlay by Landlord.
8.03. Insurance Rates. In any action or proceeding wherein Landlord and
Tenant are parties, a schedule or "makeup" of rates for the Building or Demised
Premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to the Building or the Demised Premises, shall
be conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rate then applicable.
ARTICLE 9
Property Loss and Indemnification
9.01. Limitation of Liability. Landlord or Landlord's Agents shall not
be liable for any damage to property of Tenant or of others entrusted to
employees of the Building, nor for loss of or damage to any property of Tenant
by theft or otherwise, nor for injury or damage to persons or property resulting
from any cause of whatsoever nature, unless caused by or due to the negligence
of Landlord or Landlord's Agents, nor shall Landlord or Landlord's Agents be
liable for any such damage caused by other tenants or persons in, upon or about
the Building or caused by operations in construction of any private, public or
quasi-public work.
9.02. Tenant's Indemnification. Tenant shall indemnify and hold harmless
Landlord and Landlord's Agents from and against any and all claims arising from
or in connection with (a) the conduct or management of the Demised Premises or
of any business therein, or any work or thing whatsoever done, or any condition
created (other than by Landlord) in or about the Demised Premises during the
Term or during the period of time, if any, prior to the Commencement Date that
Tenant may have been given access to the Demised Premises: (b) any act, omission
or negligence of Tenant, Tenant's Agents or any subtenants or licensees or their
partners, officers, agents, employees or contractors: (c) any accident, injury
or damage whatsoever (unless caused solely by Landlord's negligence) occurring
in, at or upon the Demised Premises; and (d) any breach or default by Tenant in
the full
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and prompt payment and performance of Tenant's obligations under this Lease;
together with all costs, expenses and liabilities incurred in or in connection
with each such claim or action or proceeding brought thereon, including, without
limitation, all attorneys' fees and expenses. In case any action or proceeding
be brought against Landlord or Landlord's Agents by reason of any such claim,
Tenant,upon notice from Landlord, shall resist and defend such action or
proceeding (by counsel reasonably satisfactory to Landlord).
ARTICLE 10
Destruction - Fire and Other Casualty
10.01. Repairs. If the Demised Premises shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Landlord and this
Lease shall continue in full force and effect except as hereinafter set forth.
If the Demised Premises are rendered partially unusable by fire or other
casualty, the damage thereto shall be repaired by Landlord with reasonable
dispatch after collection of the insurance proceeds attributable to such damage,
subject to delays due to causes beyond Landlord's control, and Fixed Rent, until
such repairs shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the Demised Premises which is
unusable. Landlord, however, shall have no obligation to repair any damage to
Tenant's Property or Tenant's Work or any other property or effects of Tenant.
If the Demised Premises are totally damaged or rendered wholly unusable by fire
or other casualty then the Fixed Rent shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the Demised
Premises shall have been repaired and restored by Landlord, subject to
Landlord's right to elect not to restore the same as hereinafter provided.
10.02. Termination. If the Demised Premises are rendered wholly unusable
(whether or not the Demised Premises are damaged in whole or in part) or if the
Building shall be so damaged that Landlord shall decide to demolish it or not to
rebuild it, then, in either of such events, Landlord may elect to terminate this
Lease by written notice to Tenant given within one hundred eighty (180) days
after such fire or casualty. Such notice shall specify a date for the expiration
of this Lease, and upon the date specified the Term shall expire as fully and
completely as if such date were the date set forth above for the termination of
this Lease and Tenant shall forthwith quit, surrender and vacate the Demised
Premises, without prejudice however, to Landlord's rights and remedies against
Tenant under the Lease provisions in effect prior to such termination, and any
Rent owing shall be paid up to the date of termination and any payments of Rent
made by Tenant which were on account of any period subsequent to such date shall
be returned to Tenant. less Landlord shall serve a termination notice as
provided for herein, Landlord shall make repairs and restoration as herein set
forth with reasonable dispatch after collection of the insurance proceeds as
provided in Section 10.01.
10.03. Tenant's Property. Tenant acknowledges that Landlord will not
carry insurance on Tenant's Property or on Tenant's business records or other
property of Tenant or Tenant's Agents, and Tenant agrees that Landlord will not
be obligated to repair any damage thereto or to replace the same.
10.04. Waiver. Tenant hereby waives the provisions of Section 227 of
the Real Property Law (and any successor law of like import) and agrees that the
provisions of this Article shall control in lieu thereof.
ARTICLE 11
Insurance
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11.01. Liability Insurance. Tenant shall provide after taking possession
of the Demised Premises and shall keep in force during the Term for the benefit
of Landlord and Tenant a comprehensive policy of liability insurance protecting
Landlord and Tenant against any liability whatsoever occasioned by accident on
or about the Demised Premises or appurtenances thereof. Such policy is to be
written by good and solvent insurance companies satisfactory to Landlord, and
the limits of liability thereunder shall not be less than One Million Dollars
($1,000,000) in respect of any one person, Three Million Dollars ($3,000,000) in
respect of any one accident, and One Million Dollars ($1,000,000) in respect of
property damage. Such insurance may be carried under a blanket policy covering
the Demised Premises and other locations of Tenant provided such blanket policy
complies with the above amounts of insurance for the Demised Premises and the
other requirements provided above. Prior to the time such insurance is first
required to be carried by Tenant, and thereafter, at least fifteen (15) days
prior to the expiration of any such policy Tenant agrees to deliver to Landlord
either a duplicate original of the aforesaid policy or a certificate evidencing
such insurance provided said certificate contains an endorsement that such
insurance is primary and not excess over or contributory with any other
insurance available to Landlord or its affiliated companies, and such insurance
may not be cancelled except upon ten (10) days' notice to Landlord, together
with evidence of payment of the premium therefor.
11.02. Waiver of Subrogation. Tenant shall secure an appropriate clause
in, or an endorsement upon, each insurance policy obtained by it and covering or
applicable to the Demised Premises or the personal property, fixtures and
equipment located therein or thereon, pursuant to which the insurance company
waives subrogation or permits the insured, prior to any loss, to agree with a
third party to waive any claim it might have against said third party without
invalidating the coverage under the insurance policy. The waiver of subrogation
or permission for waiver of any claim shall extend to Landlord and Landlord's
Agents. Tenant hereby releases Landlord and Landlord's Agents in respect of any
claim (including a claim for negligence) which it might otherwise have against
Landlord or Landlord's Agents for loss, damage or destruction with respect to
Tenant's Property by fire or other casualty (including rental value, or business
interest, as the case may be) occurring during the term of this Lease and
normally covered under a fire insurance policy with extended coverage
endorsement.
ARTICLE 12
Condemnation
12.01. Total Taking. If all or substantially all of the Building shall
be lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease shall cease and terminate as of the date of the vesting of title in
the condemnor.
12.02. Partial Taking. If less than all of the Building shall be so
condemned or taken, but if such taking shall substantially affect the Demised
Premises or the means of access thereto, or if such condemnation or taking shall
be of a substantial part of the Demised Premises, then Landlord shall have the
right to terminate this Lease and the term and estate hereby granted by the
delivery of written notice to Tenant within thirty (30) days following the date
of actual vesting of title in the condemnor. Such termination shall take effect
as of the date of actual vesting of title in the condemnor or thirty (30) days
after the giving of such notice of termination, whichever is later. If Landlord
shall not so elect to terminate, this Lease shall be and remain unaffected by
such condemnation or taking, except that, effective as of the date of the
vesting of title in the condemnor, Fixed Rent shall be reduced in the proportion
which the area of the part of the Demised Premises so condemned or taken bears
to the total area of the Demised Premises prior to such condemnation or taking.
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12.03. Award. In the event of the termination of this Lease in
accordance with this Article, Rent shall be prorated and paid to the effective
date of the termination. Tenant, whether or not this Lease be cancelled pursuant
to this Article, shall not be entitled to claim or receive any part of any award
or compensation which may be issued or rendered in any such condemnation
proceeding or as a result of such condemnation or taking, and shall not be
entitled to claim or receive any damages against Landlord, whether the same be
for the value of the unexpired term of this Lease or otherwise.
ARTICLE 13
Repairs
13.01. Tenant's Repairs. Tenant shall take good care of the Demised
Premises and the fixtures and appurtenances therein and, at Tenant's cost and
expense, make all non-structural repairs thereto as and when needed to preserve
them in good working order and condition, reasonable wear and tear, obsolescence
and damage from the elements, fire or other casualty excepted. Notwithstanding
the foregoing, all damage or injury to the Demised Premises or to any other part
of the Building, or to its fixtures, equipment and appurtenances, whether
requiring structural or non-structural repairs, caused by or resulting from the
following shall be repaired promptly by Tenant at its sole cost and expense:
(a) the performance or existence of Tenant's Work or
Alterations;
(b) the installation, use or operation of Tenant's Property
in the Demised Premises;
(c) the moving of Tenant's Property in or out of the
Building; or
(d) the act, omission, misuse or neglect of Tenant, Tenant's
Agents or any subtenant.
All the aforesaid repairs shall be of quality or class equal to the original
work or construction. If Tenant fails after ten (10) days' notice to proceed
with due diligence to make repairs required to be made by it, the same may be
made by Landlord at the expense of Tenant, and the expenses thereof incurred by
Landlord shall be collectible as Additional Rent after rendition of a xxxx or
statement therefor. Tenant shall give Landlord prompt notice of any defective
condition in any plumbing, heating system or electrical lines located in,
servicing or passing through the Demised Premises and following such notice,
Landlord shall remedy the condition with due diligence but at the expense of
Tenant if repairs are necessitated by damage or injury attributable to Tenant or
Tenant's Agents.
13.02. Abatement. Neither (i) the making by Landlord, Tenant or others
of any decorating, repairs, alterations, additions or improvements in or to the
Building or the Demised Premises, nor (ii) the failure of Landlord or others to
make any such decorations, repairs, alterations, additions or improvements, nor
(iii) any damage to the Demised Premises or to the property of Tenant, nor any
injury to any persons, caused by other tenants or persons in the Building, or by
operations in the construction of any private, public or quasi-public work, or
by any other cause, nor (iv) any latent defect in the Building or in the Demised
Premises, nor (v) any temporary or permanent closing, darkening or bricking up
of windows of the Demised Premises for any reason whatsoever including, but not
limited to, Landlord's own acts, nor (vi) any inconvenience or annoyance to
Tenant or injury to or interruption of Tenant's business by reason of any of the
events or occurrences referred to in the foregoing subdivisions (i) through (v),
shall constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or
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impose any liability upon Landlord, or Landlord's Agents or any Superior Lessor
or Superior Mortgagee other than such liability as may be imposed upon Landlord
by law for Landlord's negligence or the negligence of Landlord's Agents in the
operation or maintenance of the Building or for the breach by Landlord of any
express covenant of this Lease on Landlord's part to be performed.
The provisions of this Article with respect to the making of repairs
shall not apply in the case of fire or other casualty which are dealt with in
Article 10.
ARTICLE 14
Services
14.01. Building Services. As long as Tenant is not in default under any
of the covenants of this Lease, Landlord shall provide:
(a) necessary elevator facilities during "Business Hours" (defined
to mean from 8:00 a.m. to 6:00 p.m.) on "Business Days" (defined to mean
all days except Saturday, Sunday and days observed by the Federal or
State government as legal holidays), and have one elevator subject to
call at all other times;
(b) heat to the Demised Premises when and as required by law
during Business Hours on Business Days;
(c) water for ordinary lavatory purposes, but if Tenant uses or
consumes water for any other purpose or in unusual quantities (of which
fact Landlord shall be the sole judge), Landlord may install a water
meter at Tenant's expense, which meter Tenant shall thereafter maintain
at Tenant's expense in good working order and repair, to register such
water consumption, and Tenant shall pay for water consumed as shown on
said meter as Additional Rent as and when bills are rendered, and on
Tenant'S default in making such payment, Landlord may pay such charges
and collect the same from Tenant as Additional Rent. Such a meter shall
also be installed and maintained at Tenant's expense if required by law
or governmental order. Tenant, if a water meter is so installed, shall
pay its proportionate share of sewer rent and all other rents and
charges which are now or hereafter assessed, imposed or may become a
lien on the Building;
(d) cleaning service for the Demised Premises on Business Days
provided that the Demised Premises are kept in order by Tenant. Tenant
shall pay Landlord the cost of removal of any of Tenant's refuse and
rubbish and Tenant shall pay to Landlord on demand the costs incurred by
Landlord for extra cleaning work in the Demised Premises required
because of (i) misuse or neglect on the part of Tenant or its employees
or visitors, or (ii) use of portions of the Demised Premises for
preparation, serving or consumption of food or beverages, data
processing or reproducing operations, private lavatories or toilets or
other special purposes requiring greater or more difficult cleaning work
than office areas;
(e) air-conditioning/cooling from May 15th through September 30th
during Business Hours on Business Days; and
(f) ventilation during Business Hours on Business Days, except
when air-conditioning/cooling is being furnished as aforesaid.
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14.02. After Hours. If Tenant requires heat, air-conditioning/cooling or
ventilation at times other than during Business Hours on Business Days, Landlord
will furnish the same upon not less than forty-eight (48) hours advance
notice,and Tenant shall pay to Landlord upon demand Landlord's then established
charges therefor as Additional Rent.
14.03. Limitation of Liability. Landlord shall have no responsibility or
liability for failure to supply the services agreed to herein. Landlord reserves
the right to stop the services of the heating, elevators, plumbing,
air-conditioning, power systems or cleaning or other services, if any, when
necessary by reason of accident or for repairs, alterations, replacements or
improvements necessary or desirable in the judgment of Landlord for as long as
may be reasonably required by reason thereof or by reason of any of the events
described in Section 35.01.
ARTICLE 15
Alterations
15.01. Requirements. Tenant may from time to time, at its expense, make
such alterations (herein called "Alterations") in and to the Demised Premises,
excluding structural changes, as Tenant may reasonably consider necessary for
the conduct of its business in the Demised Premises, provided and upon condition
that:
(a) the outside appearance of the Building shall not be affected;
(b) the Alterations are to the interior of the Demised Premises
and no part of the Building outside of the Demised Premises shall be
affected;
(c) the proper functioning of the mechanical, electrical, sanitary
and other service systems of the Building shall not be adversely
affected and the usage of such systems by Tenant shall not be increased;
(d) before proceeding with any Alteration, Tenant shall submit to
Landlord for Landlord's approval plans and specifications for the work
to be done, and Tenant shall not proceed with such work until it obtains
Landlord's approval;
(e) Tenant shall pay to Landlord upon demand the reasonable cost
and expense of Landlord in (i) reviewing said plans and specifications
and (ii) inspecting the Alterations to determine whether the same are
being performed in accordance with the approved plans and specifications
and all laws and requirements of public authorities, including, without
limitation, the fees of any architect or engineer employed by Landlord
for such purpose;
(f) before proceeding with any Alteration Tenant shall obtain and
deliver to Landlord either (i) a performance bond and a labor and
materials payment bond (issued by a corporate surety licensed to do
business in New York), each in an amount equal to one hundred twenty
five (125%) percent of the cost of the Alteration as estimated by a
reputable contractor designated by Landlord and in form satisfactory to
Landlord, or (ii) such other security as shall be satisfactory to
Landlord;
(g) Tenant shall fully and promptly comply with and observe the
rules and regulations of Landlord then in force with respect to the
making of Alterations; and
(h) with respect to Alteration or improvement work costing more
than $5,000, Tenant agrees to pay to Landlord or Landlord's managing
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agent, as Additional Rent, promptly upon being billed therefor, a sum
equal to fifteen (15%) percent of the cost of such work or Alteration,
for Landlord's indirect costs, field supervision and coordination in
connection with such work.
Tenant agrees that any review or approval by Landlord of any plans and/or
specifications with respect to any Alteration and any inspection thereof are
solely for Landlord's benefit, and without any representation or warranty
whatsoever to Tenant with respect to the adequacy, correctness or efficiency
thereof or otherwise.
15.02. Permits. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Alterations and for final approval thereof upon completion, and shall cause
Alterations to be performed in a good and workmanlike manner, using new
materials and equipment at least equal in class to the better of (i) the
original installations of the Building, or (ii) the then standards for the
Building established by Landlord. Alterations shall be performed by contractors
first approved by Landlord provided, however, that any Alterations in or to the
mechanical, electrical, sanitary, heating, ventilating, air-conditioning or
other systems of the Building shall be performed only by the contractor(s)
designated by Landlord. Alterations shall be performed in such manner as not to
unreasonably interfere with or delay and as not to impose any additional expense
upon Landlord in the maintenance, repair or operation of the Building; and if
any such additional expense shall be incurred by Landlord as a result of
Tenant's performance of any Alterations, Tenant shall pay such additional
expense upon demand. Throughout the performance of Alterations, Tenant, at its
expense, shall carry, or cause to be carried, workmen's compensation insurance
in statutory limits and general liability insurance, with completed operation
endorsement, for any occurrence in or about the Building, under which Landlord
shall be named an insured, in such limits as Landlord may reasonably require,
with insurers reasonably satisfactory to Landlord. Tenant shall furnish Landlord
with reasonably satisfactory evidence that such insurance is in effect at or
before the commencement of Alterations and, on request, at reasonable intervals
thereafter during the continuance of Alterations. If any Alterations shall
involve the removal of any fixtures, equipment or other property in the Demised
Premises which are not Tenant's Property, such fixtures, equipment or other
property shall be promptly replaced at Tenant's expense with new fixtures,
equipment or other property of like utility and at least equal value unless
Landlord shall otherwise expressly consent.
15.03. Violations. Tenant, at its expense, and with diligence and
dispatch, shall procure the cancellation or discharge of all notices of
violation arising from or otherwise connected with Alterations, or any other
work, labor, services or materials done for or supplied to Tenant, or any person
claiming through or under Tenant,which shall be issued by public authority
having or asserting jurisdiction. Tenant shall defend, indemnify and save
harmless Landlord from and against any and all mechanics' and other liens and
encumbrances filed in connection with Alterations, or any other work, labor,
services or materials done for or supplied to Tenant, or any person claiming
through or under Tenant, including without limitation, security interests in any
materials, fixtures or articles so installed in and constituting part of the
Demised Premises and against all costs, expenses and liabilities incurred in
connection with any such lien or encumbrance or any action or proceeding brought
thereon. Tenant, at its expense, shall procure the satisfaction or discharge of
record of all such liens and encumbrances within fifteen (15) days after the
filing thereof. Notice is hereby given that Landlord shall not be liable for any
work performed or to be performed at the Demised Premises for Tenant or for any
subtenant, or for any materials furnished or to be furnished at the Demised
Premises for Tenant or any subtenant, upon credit, and that no mechanic's or
other lien for such work or materials shall attach to or affect the estate or
interest of Landlord in and to the Demised Premises.
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15.04. Labor Strife. 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 Demised Premises, whether in connection
with any Alterations or otherwise, if such employment will 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. 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,
ARTICLE 16
Escalations - Taxes, Operating Expenses
16.01. Definitions. As used in this Article 16 the following definitions
shall apply:
(a) "Tax Year" shall mean each period of twelve months commencing
January 1st in which occurs any part of the Term or such other period of
twelve months occurring during the Term as hereafter may be adopted as
the fiscal year for real estate tax purposes by the Town taxing
authority having jurisdiction over the Property.
(b) "Operating Year" shall mean each calendar year, subsequent to
the calendar year 1993, in which occurs any part of the Term.
(c) "Tenant's Proportionate Share" shall mean .56 percent (subject
to adjustment in the event of changes to the Buildings pursuant to
Section 1.01).
(d) "Real Estate Taxes" shall mean the taxes and assessments
(including special or extraordinary assessments) imposed upon the
Property, including without limitation the School Tax and the State,
County, Town Tax. If, due to a future change in the method of taxation,
any franchise, income, profit or other tax, however designated, shall be
levied against Landlord in substitution, in whole or in part, for or in
lieu of any tax which would otherwise constitute a Real Estate Tax, such
franchise, income, profit or other tax shall be deemed to be a Real
Estate Tax for the purposes hereof and shall be deemed to be included in
the term "Real Estate Taxes".
(e) "Real Estate Tax Base" shall mean the sum of (i) one half of
the sum of (a) the School Tax with respect to the Property for the
period commencing July 1, 1992 and ending June 30, 1993 and (b) the
School Tax with respect to the Property for the period commencing July
1, 1993 and ending June 30, 1994, and (ii) the State, County and Town
Tax with respect to the Property for the period commencing January 1,
1993 and ending December 31, 1993 (as same may be reduced by appropriate
proceeding).
(f) "Escalation Statement" shall mean a statement in writing
signed by Landlord setting forth the amount payable by Tenant for a
specified Tax year or Operating Year (as the case may be) pursuant to
this Article 16.
16.02. Tax Escalation. If the Real Estate Taxes for any Tax Year shall
be greater than the Real Estate Tax Base, then Tenant shall pay to Landlord as
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Additional Rent an amount equal to Tenant's Proportionate Share of such excess
(herein called the "Tax Payment").
16.03. Tax Payments. Before or after the start of each Tax Year Landlord
shall furnish to Tenant an Escalation Statement setting forth Landlord's
estimate of the Tax Payment with respect to such Tax Year. Real Estate Taxes are
currently due on January 1 (Town Tax) and September 1 (School Tax) of each Tax
Year. In order to provide for tax escalation payments on account of and to be
applied towards the Tax Payment required to be made to Landlord pursuant to
Section 16.02 hereof, Tenant shall make payments on account of the Tax Payments,
in accordance with such Escalation Statement, for each Tax year in twelve
monthly installments beginning six months prior to such Tax Year each in an
amount equal to one-twelfth of the Tax Payment provided, however, the
installments to be paid for the months of December preceding each Tax Year and
August of each Tax Year shall be adjusted to reflect the Real Estate Taxes
payable by Landlord as of January 1 and September 1 of such Tax Year. The
installment for each calendar month shall be due in advance on the first day of
each month. After the expiration of each Tax Year, Landlord shall furnish to
Tenant a statement with respect to the Real Estate Taxes paid by Landlord for
such Tax Year. If the Tax Payment to be made by Tenant pursuant to Section 16.02
hereof shall be greater than (resulting in an underpayment) or less than
(resulting in an overpayment) the aggregate of all the installments paid on
account to Landlord by Tenant for such Tax Year, then promptly after the receipt
of the statement submitted by Landlord after such Tax Year, Tenant shall in the
case of underpayment pay to Landlord an amount equal to such underpayment or
Landlord shall in the case of an overpayment either (i) pay to Tenant an amount
equal to such overpayment, or (ii) credit against the next installments of
Additional Rent due from Tenant pursuant to this Article 16 an amount equal to
such overpayment. If an Escalation Statement is furnished to Tenant after the
commencement of the twelve month period in respect of which such Escalation
Statement is rendered, Tenant shall, within fifteen (15) days thereafter pay to
Landlord an amount equal to those installments of the Tax Payment payable as
provided in this Section 16.03 during the period prior to the first day of the
month next succeeding the month in which the applicable statement has been
furnished. If during the term of this Lease, Taxes are required to be paid
(either to the appropriate taxing authorities or as tax escrow payments to a
superior mortgagee) in full or in monthly, quarterly, or other installments, on
any other date or dates than as presently required (or additional or substitute
impositions, levies or charges constituting Taxes are required to be paid), then
at Landlord's option, Tenant's Tax Payments shall be correspondingly accelerated
or revised so that said Tenant's Tax Payments are due at least thirty (30) days
prior to the date payments are due to the taxing authorities or the superior
mortgagee. The benefit of any discount for any early payment or prepayment of
Taxes shall accrue solely to the benefit of Landlord and such discount shall not
be subtracted from Taxes.
If the real estate tax fiscal year of the relevant taxing
authorities shall be changed during the term of this Lease, any Taxes for such
fiscal year, a part of which is included within a particular Tax Year and a part
of which is not so included, shall be apportioned on the basis of the number of
days in such fiscal year included in the particular Tax Year for the purpose of
making the computations under this Section 16.03.
16.04. Survival. Payments shall be made pursuant to this Article 16
notwithstanding the fact that an Escalation Statement is furnished to Tenant
after the Expiration Date.
16.05. Reduction of Tax Base. If the Real Estate Tax Base is reduced as
a result of an appropriate proceeding or otherwise, Landlord shall give notice
to Tenant of the amount by which the Tax Payments previously made were less
than the Tax Payments required to be made under this Article, and Tenant shall
pay the
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amount of the deficiency within ten (10) days after demand therefor.
16.06. Tax Refunds, Reductions.
(a) If Landlord shall receive a refund of Real Estate Taxes for
any Tax Year, Landlord shall either pay to Tenant, or permit Tenant to credit
against subsequent payments under this Article, Tenant's Proportionate Share of
the net refund (after deducting from such total refund the costs and expenses,
including, but not limited to, appraisal, accounting and legal fees of obtaining
the same); provided, however, such payment or credit to Tenant shall in no event
exceed Tenant's Tax Payment paid for such Tax Year.
(b) In case the Real Estate Taxes for any Tax Year or part
thereof shall be reduced before Tenant shall have paid Tenant's Proportionate
Share of any excess thereof in respect of such Tax Year pursuant to Section
16.03(a) hereof, the Real Estate Taxes for such Tax Year shall be deemed to
include any expenses, including counsel fees, incurred by Landlord in connection
with obtaining such reduction.
16.07. Tax Proration. If a Tax Year ends after the Expiration Date or
other termination of this Lease, the Tax Payment therefor shall be prorated to
correspond to that portion of such Tax Year occurring within the Term.
16.08. Operating Expenses. (a) For the purpose of paragraph (a) through
(f) of this Section 16.08:
(1) "Operating Expenses" shall mean the total of all the costs and
expenses incurred or borne by Landlord in connection with the operation
and maintenance of the Property, the curbs, sidewalks and plazas
adjoining the same and the services provided tenants therein, including
all expenses incurred as a result of Landlord's compliance with any of
its obligations hereunder. Operating Expenses shall include, without
being limited to, the following: (i) salaries, wages, medical, surgical,
union and general welfare benefits (including, without limitation, group
life insurance) and pension payments of employees of the Managing Agent
or Landlord engaged in the repair, operation and maintenance of the
Property; (ii) payroll taxes, workmen's compensation, uniforms, dry
cleaning and related expenses for the employees referred to in
subdivision (i); (iii) the cost of all charges for gas, steam, heat,
ventilation, air-conditioning and water (including sewer rental) and
other utilities furnished to the Property (including, without
limitation, the common areas thereof), together with any taxes on any
such utilities; (iv) the cost of all charges for rent, casualty, war
risk (if obtainable from the United States government) and liability and
fidelity insurance with regard to the Property and the maintenance
and/or operation thereof; (v) the cost or rentals of all building and
cleaning supplies, tools, materials and equipment, and sales and other
taxes thereon and charges for telephone for the Property; (vi) the cost
of all charges for management, window and other cleaning and janitorial
services for the Property; (vii) the cost of electric current for the
Buildings (for the purposes of this subparagraph (vii), the cost of
electric current for the Buildings shall be deemed to mean the cost of
all electricity purchased, including any taxes thereon or fuel or other
adjustments in connection therewith, for use in the Buildings other than
that which is furnished to the demised space of tenants in the
Buildings, the parties agreeing that fifty (50%) percent of the
Buildings' payments to the public utility for the purchase of
electricity (subject to adjustment in accordance with the last paragraph
of this subsection 16.08(a)) shall be deemed to be payment for electric
current for the Buildings); (viii) the cost relating to the elevators
and escalators; (ix) the cost relating to protection and security; (x)
the
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cost relating to lobby decorations and interior and exterior landscape
maintenance; (xi) repairs, replacements and improvements which are
appropriate for the continued operation of the Property as a first class
office complex with parking; (xii) painting of non-tenanted areas;
(xiii) professional and consulting fees; (xiv) association fees or dues;
(xv) charges of independent contractors; (xvi) repairs and replacements
made by Landlord at its expense; (xvii) rents and additional rents
(other than Taxes) under Superior Leases; (xviii) alterations and
improvements to the Property made by reason of the laws and requirements
of any public authorities or the requirements of insurance bodies; (xix)
management fees or, if no managing agent is employed by Landlord, a sum
in lieu thereof which is not in excess of the then prevailing rates for
management fees of other first class office buildings in Rockland
County; (xx) reasonable legal, accounting and other professional fees
incurred in connection with the operation, maintenance and management of
the Property and (xxi) all other charges properly allocable to the
repair, operation and maintenance of the Property in accordance with
generally accepted accounting principles.
(2) "Operational Year" shall mean each calendar year after the
Base Year as hereinafter defined.
(3) "Base Year" shall be the calendar year 1993.
(4) "Tenant's Proportionate Share of Increase" shall mean the
percentage set forth in Section 16.01(c) multiplied by the increase in
Operating Expenses for an Operational Year over Operating Expenses for
the Base Year.
(5) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase for the prior Operational Year and the
reasonably estimated increase in costs for the current Operational Year
divided by twelve (12) and payable monthly by Tenant to Landlord as
Additional Rent.
If Landlord shall purchase any item of capital equipment or make any
capital expenditure designed to result in savings or reductions in Operating
Expenses, then the coast thereof shall be included in Operating Expenses. The
costs of capital equipment or capital expenditures are so to be included in
Operating Expenses for the Operational Year in which the costs are incurred and
subsequent Operational Years on a straight line basis to the extent that such
items are amortized over such period of time as reasonably can be estimated as
the time in which such savings or reductions in Operating Expenses are expected
to equal Landlord's costs for such capital equipment or capital expenditure,
with an interest factor equal to the prime rate of the Chemical Bank of New York
at the time of Landlord's having incurred said costs. If Landlord shall lease
any such item of capital equipment designed to result in savings or reductions
in Operating Expenses, then the rental and other cost paid or incurred in
connection with such leasing shall be included in Operating Expense for the
Operational Year in which they were incurred.
If during all or part of an Operational Year, Landlord shall not furnish
any particular items(s) of work or service (which would constitute an Operating
Expense hereunder) to portions of the Building (including without limitation the
Demised Premises) due to the fact that such portions are not occupied or leased,
or because such item or work or service is not required or desired by the tenant
(including without limitations Tenant) of such portion, or such tenant is itself
obtaining and providing such item of work or service, or for any other reason,
then, for the purposes of computing the Additional Rent payable pursuant to
paragraphs
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(b) and (c) hereof, the amount of the expenses for such items(s) for such period
shall be deemed to be increased by an amount equal to the additional operating
and maintenance expenses which would reasonably have been incurred during such
period by Landlord if it had at its own expense furnished such items(s) or work
or services to such portions of the Building.
(b) After the expiration of the Base Year and any Operational Year,
Landlord shall furnish Tenant a written detailed statement of the Operating
Expenses incurred for such Base Year or Operational Year. Within thirty (30)
days after receipt of such statement for any Operational Year, setting forth
Tenant's Proportionate Share of Increase, Tenant shall pay same to Landlord as
Additional Rent. The statement of Operating Expenses required to be furnished
under this paragraph (b) shall be certified by an officer of Landlord or the
Managing Agent.
(c) Commencing with the first Operational Year after Landlord shall be
entitled to receive Tenant's Proportionate Share of Increase, Tenant shall pay
to Landlord as Additional Rent for the then Operational Year Tenant's Projected
Share of Increase. If the statement furnished by Landlord to Tenant pursuant to
paragraph (b) of this Section 16.08 at the end of the then Operational Year
shall indicate that Tenant's Projected Share of Increase exceeded Tenant's
Proportionate Share of Increase, Landlord shall forthwith either (i) pay the
amount of excess directly to Tenant concurrently with the notice or (ii) permit
Tenant to credit the amount of such excess against the subsequent payment of
Rent due hereunder. If such statement furnished by Landlord to Tenant hereunder
shall indicate that Tenant's Proportionate Share of Increase exceeded Tenant's
Projected Share of Increase for the then Operational Year, Tenant shall
forthwith pay the amount of such excess to Landlord.
(d) Every statement given by Landlord pursuant to paragraph (b) of this
Section shall be conclusive and binding upon Tenant unless (i) within sixty (60)
days after the receipt of such statement Tenant shall notify Landlord that it
disputes the correctness thereof, specifying the particular respects in which
the statement is claimed to be incorrect, and (ii) if such dispute shall not
have been settled by agreement, Tenant shall submit the dispute to arbitration
within ninety (90) days after receipt of the statement. Pending the
determination of such dispute by agreement or arbitration as aforesaid, Tenant
shall, within thirty (30) days after receipt of such statement, pay Additional
Rent in accordance with Landlord's statement and such payment shall be without
prejudice to Tenant's position. If the dispute shall be determined in Tenant's
favor, Landlord shall forthwith pay Tenant the amount of Tenant's overpayment of
Additional Rent resulting from compliance with Landlord's statement.
(e) In the event (i) that the Expiration Date or other termination of
this Lease shall be a day other than the last day of an Operational Year, or
(ii) of any increase or decrease in the space comprising the Demised Premises
(as may be provided herein), then in each such event in applying the provisions
of this Section with respect to any Operational Year in which such event shall
have occurred, adjustments shall be made to reflect the occurrence of such event
on a basis consistent with the principles underlying the provisions of this
Section taking into consideration (y) the portion of such Operational Year which
shall have elapsed prior to the date of such expiration or termination date or,
(z) in the case of any such increase or decrease, the portion of the Demised
Premises to which the same relates.
(f) Payments shall be made pursuant to this Section notwithstanding the
fact that a statement pursuant to paragraph (b) is furnished to Tenant after the
expiration of the Term.
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ARTICLE 17
Electric Energy
17.01. Electric Inclusion. Landlord shall furnish to Tenant as an
additional service included in the Fixed Rent payable hereunder, the electric
energy which Tenant requires in the Demised Premises on a "rent inclusion"
basis, through the presently installed electrical facilities for Tenant's
reasonable use in the Demised Premises for lighting, light office equipment and
the usual small business machines, including small copying machines. Landlord
shall not in anywise be liable or responsible to Tenant for any loss or damage
or expense which Tenant may sustain or incur if either the quantity or character
of electric service is changed or is no longer available or suitable for
Tenant's requirements.
17.02. (a) Tenant acknowledges and agrees (i) that the Fixed Rent
hereinabove set forth in this lease includes an Electricity Rent Inclusion
Factor (as hereinafter defined), of $9,240.00 to compensate Landlord for the
electrical wiring and other installations necessary for, and for its obtaining
and redistribution of, electric current as an additional service; and (ii) that
said Electricity Rent Inclusion Factor (hereinafter called "ERIF"), which shall
be subject to periodic adjustments as herein provided, has been partially based
upon Tenant's estimated connected electrical load and hours of use thereof for
ordinary lighting and light office equipment, during ordinary business hours.
The "Electricity Rent Inclusion Factor" shall mean the amount determined by
applying the estimated connected electrical load and usage thereof in the
Demised Premises (as determined by the electrical consultant as hereinafter
provided) to the rate charged for such load and usage in the service
classification in effect on September 1, 1991 pursuant to which Landlord then
purchased electric current for the entire Building from the public utility
corporation, which, as set forth in this Section 17.02, Landlord and Tenant
initially agree is $9,240.00. If the cost to Landlord of electricity shall have
been, or shall be, increased subsequent to September 1, 1991 (whether such
increase occurs prior to or during the term of this Lease), by change in
Landlord's electric rates, charges, fuel adjustment, or service classifications,
or by taxes or charges of any kind imposed thereon, or for any other such
reason, then the aforesaid ERIF portion of the Fixed Rent shall be increased in
the same percentage.
(b) Any such percentage increase in Landlord's cost due to a change in
Landlord's electric rate charges, etc., shall be computed by the application of
the average consumption (energy and demand) of electricity for the entire
Building for the twelve (12) full months immediately prior to the rate change,
other change in cost, or any changed methods of or rules on billing for same, on
a consistent basis to the new rate and/or service classifications and the
immediately prior existing rate and/or service classifications. If the average
consumption of electricity for the entire Building for said prior twelve (12)
full months cannot reasonably be applied and used with respect to changed
methods of or rules on billing, then the percentage increase shall be computed
by the use of the average consumption (energy and demand) for the entire
Building for the first three (3) months under such changed methods of or rules
on billing, projected to a full twelve (12) months; and that same consumption,
so projected, shall be applied to the rate and/or service classifications which
existed immediately prior to the changed methods of or rules on billing. The
parties acknowledge that they understand that it is anticipated that existing
electric rates, charges, etc., may be changed by virtue of time-of-day rates or
other methods of or rules on billing, and that the foregoing reference to
changes in methods of or rules on billing is intended to include any such
change. The parties agree that the reputable, independent electrical consultant,
selected by Landlord (hereinafter called "Landlord's electrical consultant")
shall determine the percentage for the changes in the ERIF based on changes in
Landlord's electric rate, charges, etc.
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17.03. (a) The parties agree that Landlord's electrical consultant may
from time to time make surveys in the Demised Premises covering the electrical
equipment and fixtures and use of current therein, and the connected electrical
load and usage portion of the ERIF shall be changed in accordance with such
survey, and the ERIF automatically redetermined, accordingly, by Landlord's
electrical consultant. The Fixed Rent shall be appropriately adjusted effective
as of the date of any such change in connected load and usage, as disclosed by
said survey. In no event, is the originally specified $9,240.00 ERIF portion of
the Fixed Rent (as adjusted by any electricity cost increases of Landlord after
September 1, 1991) to be reduced.
(b) The determination of change in the ERIF by Landlord's
electrical consultant shall be binding and conclusive on Landlord and on Tenant
from and after the delivery of copies of such determination to Landlord and
Tenant, unless within thirty (30) days after the delivery of such copies. Tenant
disputes such determination. If Tenant disputes the determination, it shall, at
its own expense, obtain from a reputable, independent electrical consultant its
own survey of Tenant's electrical lighting and power load and hours of use
thereof, and a determination of such change in the ERIF in accordance with the
provisions of this Article 17. Tenant's consultant and Landlord's electrical
consultant then shall seek to agree on a finding of such determination of such
change in the ERIF. If they cannot agree, they shall choose a third reputable
electrical consultant whose cost shall be shared equally by Land and Tenant, to
make a similar survey, and the determination of such ERIF change by such third
electrical consultant shall be controlling. (If they cannot agree on such third
consultant, within ten (10) days, then either party may apply to the Supreme
Court in the County of New York for the appointment of such third consultant.)
However, pending such determination, Tenant shall pay to Landlord the amount of
ERIF as determined by Landlord's electrical consultant, provided, however, if
the amount of ERIF determined as aforesaid is different from that determined by
Landlord's electrical consultant, then Landlord and Tenant shall make adjustment
for any deficiency owed by Tenant or overage paid by Tenant pursuant to the
decision of Landlord's electrical consultant.
17.04. Landlord's Right to Discontinue. Landlord reserves the right to
discontinue furnishing electric energy to Tenant at any time upon sixty (60)
days' written notice to Tenant, and from and after the effective date of such
termination, Landlord shall no longer be obligated to furnish Tenant with
electric energy, provided, however, that such termination date may be extended
for a time reasonably necessary for Tenant to make arrangements to obtain
electric service directly from the public utility company servicing the
Building. If Landlord exercises such right of termination, this Lease shall
remain unaffected thereby and shall continue in full force and effect; and
thereafter Tenant shall diligently arrange to obtain electric service directly
from the public utility company servicing the Building, and may utilize the then
existing electric feeders, risers and wiring serving the Demised Premises to the
extent of Tenant's then authorized connected load. Landlord shall be obligated
to pay no part of any cost required for Tenant's direct electric service.
Commencing with the date when Tenant receives such direct service, and as long
as Tenant shall continue to receive such service, the Fixed Rent payable under
this Lease shall be reduced to what the Fixed Rent would then have been but for
the adjustments under this Article 17 and for the inclusion therein of the
original ERIF payable by Tenant pursuant to this Lease.
17.05. Submetered Electric. landlord shall have the option at any time
to elect to furnish electric energy (subject to Section 17.04 hereof) on a
submetered basis, in accordance with Exhibit C annexed hereto and made a part
hereof. In the event that Landlord shall exercise the option contained in this
Section 17.05, the Fixed Rent set forth herein shall be reduced in the manner
described in Section 17.04 hereof.
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17.06. Failure of Supply. Landlord shall not be liable in any way to
Tenant for any failure or defect in the supply or character of electric energy
furnished to the Demised Premises by reason of any requirement, act or omission
of the public utility serving the Building with electricity or for any other
reason not attributable to Landlord. Landlord shall furnish and install the
replacement lighting tubes, lamps, bulbs and ballasts in the Demised Premises,
at Tenant's expense.
17.07. Capacity. Tenant's use of electric energy in the Demised Premises
shall not at any time exceed the capacity of any of the electrical conductors
and equipment in or otherwise serving the Demised Premises. In order to insure
that such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld), connect any
fixtures, appliances or equipment to the Building's electric distribution system
or make any alteration or addition to the electric system of the Demised
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
ARTICLE 18
Signs
18.01. If Tenant shall cause or permit any sign or other object to be
placed on or affixed to any part of the Building not within the Demised Premises
without Landlord's written permission. Landlord shall have the right, in
addition to any other rights or remedies, without notice or liability to Tenant,
to remove and dispose of any such sign or other object and to make any repairs
necessitated by such removal, all at Tenant's sole cost and expense, and
Landlord's cost and expense in performing such removal and repair shall be
deemed Additional Rent payable with the next installment of Fixed Rent due
hereunder.
ARTICLE 19
Limitation of Landlord's Liability
19.01. Tenant shall look solely to the estate and interest of Landlord
in the Building for the satisfaction of Tenant's remedies for the collection of
any judgment (or other judicial process) requiring the payment of money by
Landlord in the event of any default or breach by Landlord with respect to any
of the terms, covenants and conditions of this Lease to be observed or performed
by Landlord, and no other property or assets of Landlord or any of the partners,
shareholders or other principals of Landlord shall be subject to levy, execution
or other enforcement procedure for the satisfaction of Tenant's remedies under
or with respect to either this Lease, the relationship of Landlord and Tenant
hereunder or Tenant's use and occupancy of the Demised Premises.
ARTICLE 20
Broker
20.01. Tenant covenants, warrants and represents that Xxxxxx X.
Xxxxxxxxx and Coldwell Banker Xxxxxxx, Inc. were the sole brokers who negotiated
and brought about the consummation of this Lease, and that no discussions or
negotiations were had with any other broker concerning the leasing of space in
the Building. Based on the foregoing warranty and representation, Landlord has
agreed to pay a commission only Xxxxxx X. Xxxxxxxxx and Coldwell Banker Xxxxxxx,
Inc. in
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connection with the consummation of this Lease and Tenant agrees to indemnify,
defend and hold Landlord harmless from and against any claim for a brokerage
commission or other compensation arising out of any discussions or negotiations
had by Tenant with this or any other broker.
ARTICLE 21
Default -- Conditions of Limitation
21.01. Bankruptcy. This Lease and the Term and estate hereby granted are
subject to the limitation that whenever Tenant, or any guarantor of Tenant's
obligations under this Lease, shall make an assignment of the benefit of
creditors, or shall file a voluntary petition under any bankruptcy or insolvency
shall be filed against Tenant or such guarantor under any bankruptcy or
insolvency law, or whenever a petition shall be filed by or against Tenant or
such guarantor under the reorganization provisions of the United States
Bankruptcy Act or under the provisions of any law of like import, or whenever a
petition shall be filed by Tenant or such guarantor under the arrangement
provisions of any law of like import, or whenever a permanent receiver of
Tenant, or such guarantor, or of or for the property of Tenant, or such
guarantor, shall be appointed, then Landlord (a) if such event occurs without
the acquiescence of Tenant, or such guarantor, as the case may be, at any time
after the event continues for sixty (60) days or (b) in any other case at any
time after the occurrence of any such event, may give Tenant a notice of
intention to end the term of this Lease at the expiration of said five (5) days
from the date of service of such notice of intention, and upon the expiration of
said five (5) day period this Lease and the Term and estate hereby granted,
whether or not the Term shall theretofore have commenced, shall terminate with
the same effect as if that day were the Expiration Date, but Tenant shall remain
liable for damages as provided in Article 23.
If, at any time, (a) Tenant shall be comprised of two or more persons,
or (b) Tenant's interest in this Lease shall have been assigned, the word
"Tenant", as used in this Section shall be deemed to include any such person,
Tenant herein named and each assignor and assignee and not merely the Tenant in
possession. Any monies received by Landlord from or on behalf of Tenant during
the pendency of any proceeding of the types referred to in this Section shall be
deemed paid as compensation for the use and occupation of the Demised Premises
and the acceptance of any such compensation by Landlord shall not be deemed an
acceptance of Rent or a waiver on the part of Landlord of any rights hereunder.
21.02. Events of Default. This Lease and the Term and estate hereby
granted are subject to the further limitations that:
(a) if Tenant shall default in the payment of any Fixed Rent or
Additional Rent, and such default shall continue for five (5) days, or
(b) if Tenant shall, whether by action or inaction, be in default of any
of its obligations under this Lease (other than a default in the payment of
Fixed Rent or Additional Rent) and such default shall continue and not be
remedied within fifteen (15) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a default which cannot with due
diligence be cured with a period of fifteen (15) days and the continuance of
which for the period required for cure will not subject Landlord to criminal
penalty or to prosecution for a crime or termination of any Superior Lease or
foreclosure of any Superior Mortgage, if Tenant shall not, (i) within said
fifteen (15) day period advise Landlord of Tenant's intention to take all steps
necessary to remedy such default, (ii) duly commence within said fifteen (15)
day period, and thereafter diligently prosecute to completion, all steps
necessary to remedy the default and (iii) complete such remedy within a
reasonable
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time after the date of said notice of Landlord, or
(c) if any event shall occur or any contingency shall arise whereby this
Lease or the estate hereby granted or the unexpired balance of the term hereof
would, by operation of law or otherwise, devolve upon or pass to any person,
firm or corporation other than Tenant, except as expressly permitted by Article
6, or
(d) if Tenant shall vacate or abandon the Demised Premises, or
(e) if there shall be any default by Tenant (or any person which,
directly or indirectly, controls, is controlled by, or is under common control
with Tenant) under any other lease with Landlord (or any person which, directly
or indirectly, controls, is controlled by, or is under common control with
Landlord) which shall not be remedied within the applicable grace period, if
any, provided therefor under such other lease, then in any of said cases
Landlord may give to Tenant a notice of intention to end the Term of this Lease
at the expiration of five (5) days from the date of the service of such notice
of intention, and upon the expiration of said five (5) days this lease and the
Term and estate hereby granted, whether or not the Term shall theretofore have
commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 23.
ARTICLE 22
Re-Entry by Landlord
22.01. Summary Dispossess. If Tenant shall default in the payment of any
Fixed Rent or Additional Rent and such default shall continue for five (5) days
or if this Lease shall terminate as provided in Article 21, Landlord or
Landlord's agents and employees may immediately or at any time thereafter
re-enter the Demised Premises, or any part thereof, either by summary dispossess
proceedings or by any suitable action or proceeding at law, or by force or
otherwise, without being liable to indictment, prosecution or damages therefor,
and may repossess the same, and may remove any person therefrom, to the end that
Landlord may have, hold and enjoy the Demised Premises. The word "re-enter", as
used herein, is not restricted to its technical meaning. If this Lease is
terminated under the provisions of Article 21, or if Landlord shall re-enter the
Demised Premises under the provisions of this Article, or in the event of the
termination of this Lease, or of re-entry, by or under any summary dispossess or
other proceeding or action or any provisions of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the
Fixed Rent and Additional Rent payable up to the time of such termination of
this Lease, or of such recovery of possession of the Demised Premises by
Landlord, as the case may be, and shall also pay to Landlord damages as provided
in Article 23.
22.02. Waivers. Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including creditors, does hereby waive any and
all rights and privileges so far as is permitted by law which Tenant and all
such persons might otherwise have under any present or future law (a) to the
service of any notice of intention to re-enter or to institute legal proceedings
to that end, (b) to redeem the Demised Premises, (C) to re-enter or repossess
the Demised Premises, or (d) to restore the operation of this Lease, after
Tenant shall have been dispossessed by a judgment or by warrant of any court or
judge, or after any re-entry by Landlord, or after 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.
22.03. Injunctive Relief. In the event of a breach or threatened breach
by Tenant of any of its obligations under this Lease, Landlord shall also have
the right
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of injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
22.04. Retention of Monies. If this Lease shall terminate under the
provisions of Article 21, or if Landlord shall re-enter the Demised Premises
under the provisions of this Article, or in the event of the termination of this
Lease, or of re-entry, by or under any summary dispossess or other proceeding or
action or any provisions of law by reason of default hereunder on the part of
Tenant, Landlord shall be entitled to retain all monies, if any, paid by Tenant
to Landlord, whether as advance rent, security or otherwise, but such monies
shall be credited by Landlord against any Fixed Rent or Additional Rent due from
Tenant at the time of such termination or re-entry or, at Landlord's option,
against any damages payable by Tenant under Article 23 or pursuant to law.
ARTICLE 23
Damages
23.01. Acceleration, Reletting. If this Lease is terminated under the
provisions of Article 21, or if Landlord shall re-enter the Demised Premises
under the provisions of Article 22, or in the event of the termination of this
Lease, or of re-entry, by or under any summary dispossess or other proceeding or
action or any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall pay to Landlord as damages, at the election of Landlord,
either:
(a) a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate
amount of the Fixed Rent and the Additional Rent under Articles 2 and 16
which would have been payable by Tenant (conclusively presuming the
Additional Rent under Article 16 to be the same as was payable for the
prior year, or if less than 365 days have then elapsed since the
Commencement Date, the partial year immediately preceding such
termination or re-entry) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry, as the case
may be, and ending with the date contemplated as the Expiration Date
hereof if this Lease had not so terminated or if Landlord had not so
re-entered the Demised Premises, over (ii) the aggregate rental value of
the Demised Premises for the same period, or
(b) sums equal to the Fixed Rent and the Additional Rent which
would have been payable by Tenant had this Lease not so terminated, or
had Landlord not so re-entered the Demised Premises, payable upon the
due dates therefor specified herein following such termination or such
re-entry and until the date contemplated as the Expiration Date hereof
if this Lease had not so terminated or if Landlord had not so
re-entered the Demised Premises provided, however, that if Landlord
shall relet the Demised Premises during said period, Landlord shall
credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Demised Premises and in securing possession thereof, as
well as the expenses of reletting, including, without limitation,
altering and preparing the Demised Premises for new tenants, brokers'
commissions, legal fees, and all other expenses properly chargeable
against the Demised Premises and the rental therefrom, it being
understood that any such reletting may be for a period
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shorter or longer than the remaining Term, but in no event shall Tenant
be entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder nor shall Tenant be entitled in
any suit for the collection of damages pursuant to this subdivision to a
credit in respect of any net rents from reletting, except to the extent
that such net rents are actually received by Landlord. If the Demised
Premises or any part thereof shall be relet in combination with other
space, then proper apportionment on a square foot basis shall be made of
the rent received from such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord for the
unexpired portion of the Term, or any part thereof, before presentation of proof
of such damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for Demised Premises, or part thereof, so relet during the term of
the reletting. Landlord shall not be liable in any way whatsoever for its
failure or refusal to relet the Demised Premises or any part thereof, or if the
Demised Premises or any part thereof are relet, for its failure to collect the
rent under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant's liability for damages or otherwise
under this Lease.
23.02. Successive Suits, etc. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the Term of this Lease would have
expired if it had not been so terminated under the provisions of Article 21, or
under any provision of law, or had Landlord not re-entered the Demised Premises.
Nothing herein contained shall be construed to limit or preclude recovery by
Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by reason
of any default hereunder on the part of Tenant. Nothing herein contained shall
be construed to limit or prejudice the right of Landlord to prove for and obtain
as damages by reason of the termination of this Lease or re-entry on the Demised
Premises for the default of Tenant under this Lease an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved whether or not
such amount be greater, equal to, or less than any of the sums referred to in
Section 23.01.
23.03. Condition of Premises. In addition, if this Lease is terminated
under the provisions of Article 21, or if Landlord shall re-enter the Demised
Premises under the provisions of Article 22, Tenant agrees that:
(a) the Demised Premises then shall be in the same condition as that in
which Tenant has agreed to surrender the same to Landlord at the expiration of
the term hereof;
(b) Tenant shall have performed prior to any such termination any
covenant of Tenant contained in this Lease for the making of any Alteration or
for restoring or rebuilding the Demised Premises or the Building, or any part
thereof; and
(c) for the breach of any covenant of Tenant set forth above in this
Section 23.03, Landlord shall be entitled immediately, without notice or other
action by Landlord, to recover, and Tenant shall pay, as and for liquidated
damages therefor, the cost of performing such covenant (as estimated by an
independent contractor selected by Landlord).
23.04. Interest. In addition to any other remedies Landlord may have
under this Lease, and without reducing or adversely affecting any of Landlord's
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rights and remedies under Article 21, if any Fixed Rent, Additional Rent or
damages payable hereunder by Tenant to Landlord is not paid within five (5) days
after demand therefor, the same shall bear interest at the rate of one and
one-half percent (1 1/2%) per month or the maximum rate permitted by law,
whichever is less, from the due date thereof until paid, and the amount of such
interest shall be Additional Rent hereunder.
ARTICLE 24
Surrender
24.01. Condition of Premises. (a) On the last day of the Term or upon
any earlier termination of this Lease, or upon any re-entry by Landlord upon the
Demised Premises, Tenant shall, at its own expense, quit and surrender the
Demised Premises to Landlord broom clean, in good order, condition and repair,
except for ordinary wear and tear and such damage or destruction as Landlord is
required to repair or restore under the Lease. Tenant shall remove from the
Demised Premises all of Tenant's Property and all personal property and personal
effects of all persons claiming through or under Tenant, and shall pay the cost
of repairing all damage to the Building and the Demised Premises occasioned by
such removal.
(b) All alterations, installations, additions and improvements made
and installed by Tenant, or at Tenant's expense, upon or in the Demised Premises
which are of a permanent nature and which cannot be removed without damage to
the Demised Premises or Building shall become and be the property of Landlord,
and shall remain upon and be surrendered with the Demised Premises as a part
thereof at the end of the term of this Lease, except that Landlord shall have
the right and privilege at any time up to twenty (20) days prior to the
expiration of the term of the Lease to serve notice upon Tenant that any of such
alterations, installations, additions and improvements shall be removed and, in
the event of service of such notice. Tenant will, at Tenant's own cost and
expense, remove the same in accordance with such request, and restore the
Demised Premises to its original condition, ordinary wear and tear and casualty
excepted.
24.02. Sunday, Holidays. If the date of termination of this Lease shall
fall on a Sunday or a Holiday, then Tenant's obligations under Section 24.01
shall be performed on or prior to the Saturday or business day immediately
preceding such Sunday or Holiday.
24.03. Tenant's Property. Any Tenant's Property or other personal
property (other than money, securities, documents, or other valuables) which
shall remain in the Demised Premises after termination of this Lease shall be
deemed to have been abandoned and either may be retained by Landlord as its
property or may be disposed of in such manner as Landlord may see fit; provided,
however, that, notwithstanding the foregoing, Tenant will, upon request of
Landlord made not later than thirty (30) days after the date of termination of
this Lease, promptly remove from the Demised Premises any Tenant's Property or
other personal property at Tenant's own expense. If such Tenant's Property or
other personal property or any part thereof shall be sold, Landlord may receive
and retain the proceeds of such sale and apply the same, at its option, against
the expenses of the sale, cost of moving and storage, any arrears of Fixed Rent
or Additional Rent and damages to which Landlord may be entitled hereunder or
pursuant to law. Any excess proceeds shall be the property of Landlord. Any
expense incurred by Landlord in removing or disposing of such Tenant's Property
or other personal property shall be reimbursed to Landlord by Tenant on demand.
24.04. Indemnification. If the Demised Premises are not surrendered upon
the termination of this Lease, Tenant shall indemnify Landlord against loss,
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liability claims, damage, cost and expense, resulting from delay by Tenant in so
surrendering the Demised Premises as provided in Section 24.01, including any
claims made by any succeeding tenant founded on such delay.
24.05. Last Month. If, during the last month of the Term, Tenant shall
have removed all or substantially all of Tenant's Property from the Demised
Premises, Landlord may immediately enter and alter, renovate and redecorate the
Demised Premises, without elimination, diminution or abatement of Rent, or
incurring liability to Tenant for any compensation, and such acts shall have no
effect upon this Lease.
24.06. Survival. Tenant's obligations under this Article shall survive
the termination of this Lease.
ARTICLE 25
Access to Demised Premises
25.01. Landlord's Rights. Landlord and Landlord's Agents shall have the
following rights in and about the Demised Premises: (i) to enter the Demised
Premises at all times to examine the Demised Premises or for any of the purposes
set forth in this Article or for the purpose of performing any obligation of
Landlord under this Lease or exercising any right or remedy reserved to Landlord
in this Lease, and if Tenant or Tenant's Agents shall not be personally present
or shall not open and permit an entry into the Demised Premises at any time when
such entry shall be necessary or permissible, to use a master key or to forcibly
enter the Demised Premises; (ii) to erect, install, use and maintain pipes,
ducts and conduits in and through the Demised Premises; (iii) to exhibit the
Demised Premises to others; (iv) to make such decorations, repairs, alterations,
improvements or additions, or to perform such maintenance, including, but not
limited to, the maintenance of all heating, air-conditioning, elevator,
plumbing, electrical and other mechanical facilities, as Landlord may deem
necessary or desirable; (v) to take all materials into and upon the Demised
Premises that may be required in connection with any such decorations, repairs,
alterations, improvements, additions or maintenance; and (vi) to install on the
inside of the windows a film or other similar substance to reduce the usage of
energy in the Building.
25.02. Portions Reserved. All parts (except surfaces facing the interior
of the Demised Premises) of all walls, windows and doors bounding the Demised
Premises (including exterior Building walls, core corridor walls, doors and
entrances), all balconies, terraces and roofs adjacent to the Demised Premises,
all space in or adjacent to the Demised Premises used for shafts, stacks,
stairways, chutes, pipes, conduits, ducts, fan rooms, heating, air-conditioning,
plumbing, electrical and other mechanical facilities, service closets and other
Building facilities, and the use thereof, as well as access thereto through the
Demised Premises for the purposes of operation, maintenance, alteration and
repair, are hereby reserved to Landlord. Landlord also reserves the right at any
time to change the arrangement or location of entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets and other public parts of the
Building, provided any such change does not permanently and unreasonably
obstruct Tenant's access to Demised Premises. Nothing contained in this Article
shall impose any obligation upon Landlord with respect to the operation,
maintenance, alteration or repair of the Demised Premises or the Building.
25.03. Third Party Access. Landlord and Landlord's Agents shall have the
right to permit access to the Demised Premises, whether or not Tenant shall be
present, to any receiver, trustee, assignee for the benefit of creditors,
sheriff, xxxxxxxx or court officer entitled to, or reasonably purporting to be
entitled to, such access for the purpose of taking possession of, or removing
any property of Tenant
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or any other occupant of the Demised Premises, or for any other lawful purpose,
or by any representative of the fire, police, building, sanitation or other
department of the Town, Village, County, City, State or Federal Governments.
Neither anything contained in this Section, nor any action taken by Landlord
under this Section, shall be deemed to constitute recognition by Landlord that
any person other than Tenant has any right or interest in this Lease or the
Demised Premises.
25.04. No Eviction. The exercise by Landlord or Landlord's Agent of any
right reserved to Landlord in this Article shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord, or Landlord's Agents, or upon any
Superior Lessor or Superior Mortgagee by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise.
ARTICLE 26
Waivers
26.01. Order of Payment. If Tenant is in arrears in payment of Fixed
Rent or Additional Rent, Tenant waives Tenant's right, if any, to designate the
items which any payments made by Tenant are to be credited, and Tenant agrees
that Landlord may apply any payments made by Tenant to such items as Landlord
sees fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items which any such payments shall be credited.
26.02. Trial by Jury. Landlord and Tenant hereby waive trial by jury in
any action, proceeding or counterclaim brought by either against the other or
any matter whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord and Tenant and Tenant's use or occupancy of the
Demised Premises.
26.03. Counterclaims. Tenant shall not interpose any counterclaim of any
kind in any summary proceeding commenced by Landlord for nonpayment of Rent.
ARTICLE 27
No Surrender, etc.
27.01. Delivery of Keys, etc. No act or thing done by Landlord or
Landlord's Agents during the Term shall constitute a valid acceptance of a
surrender of the Demised Premises or any remaining portion of the Term except a
written instrument accepting such surrender, executed by Landlord. No employee
of Landlord or the Managing Agent shall have any authority to accept the keys of
the Demised Premises prior to the termination of this Lease, and the delivery of
such keys to any such employee shall not operate as a termination of this Lease
or a surrender of the Demised Premises; however, if Tenant desires to have
Landlord sublet the Demised Premises for Tenant's account, Landlord or
Landlord's Agents are authorized to receive said keys for such purposes without
releasing Tenant from any of its obligations under this Lease, and Tenant hereby
relieves Landlord of any liability for loss of, or damage to, any of Tenant's
Property or other effects in connection with such subletting. The failure of
Landlord to seek redress for breach or violation of, or to insist upon the
strict performance of, any term, covenant or condition of this Lease on Tenant's
part to be observed or performed shall not prevent a subsequent act or omission
which would have originally constituted a breach or violation of such term,
covenant or condition from having all the force and effect of an original breach
or violation. The receipt by Landlord of Rent with
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knowledge of the breach or violation by Tenant of any term, covenant or
condition of this Lease on Tenant's part to be observed or performed shall not
be deemed a waiver of such breach or violation. Landlord's failure to enforce
any Rules or Regulations against Tenant or against any other occupant of the
Building shall not be deemed a waiver of any such Rules or Regulations. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver shall be set forth in a written instrument executed by Landlord. No
payment by Tenant or receipt by Landlord of a lesser amount than the aggregate
of all Fixed Rent and Additional Rent then due, no endorsement or statement on
any check and no letter accompanying any check or other Rent payment in any such
lesser amount and no acceptance of any such check or other such payment by
Landlord shall constitute an accord and satisfaction, and Landlord may accept
any such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or to pursue any other legal remedy.
ARTICLE 28
Curing Tenant's Defaults
28.01. Right to Cure. If Tenant shall default in the performance of any
of Tenant's obligations under this Lease, Landlord, without thereby waiving such
default, may (but shall not be obligated to) perform the same for the account
and at the expense of Tenant, without notice in a case of emergency, and in any
other case only if such default continues after the expiration of fifteen (15)
days from the date Landlord gives Tenant notice of the default.
28.02. Reimbursement. Bills for any expenses incurred by Landlord in
connection with any such performance by it for the account of Tenant, and bills
for all costs, expenses and disbursements of every kind and nature whatsoever,
including reasonable counsel fees, involved in collecting or endeavoring to
collect the Fixed Rent or Additional Rent or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant or Tenant's obligations
hereunder, under or in connection with this Lease or pursuant to law, including
any such cost, expense and disbursement involved in instituting and prosecuting
summary proceedings or in recovering possession of the Demised Premises after
default by Tenant or upon the expiration or sooner termination of this Lease,
and interest on all sums advanced by Landlord under this Article at the rate of
one and one-half percent (1 1/2%) per month or the maximum rate permitted by
law, whichever is less, may be sent by Landlord to Tenant monthly, or
immediately, at Landlord's option, and such amounts shall be due and payable in
accordance with the terms of such bills as Additional Rent.
ARTICLE 29
Notices
29.01. Any notice, statement, request, demand, consent, approval or
other communication required or permitted to be given, rendered or made by
either party to the other, pursuant to this Lease or pursuant to any applicable
law or requirement of public authority, shall be in writing (whether or not so
stated elsewhere in this Lease) and shall be deemed to have been properly given,
rendered or made only if sent by registered or certified mail, return receipt
requested, posted in a United States post office station or letter box in the
continental United States, addressed to the other party at the address
hereinabove set forth (except that after the Commencement Date, Tenant's
address, unless Tenant shall give notice to the contrary, shall be the
Building), and shall be deemed to have been given, rendered or made on the day
so mailed, unless outside of the State of New York, in which case it shall be
deemed to have been given, rendered or made on the first business day after the
day so mailed. Either party may, by notice as aforesaid, designate a
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different address or addresses for notices, statements, demands, consents,
approvals or other communications intended for it. A copy of each notice, etc.
to Landlord shall be sent to the Managing Agent at its address set forth in
Article 1 (or any different address of which Tenant has been given like notice).
ARTICLE 30
Arbitration
30.01. Express Provision. Landlord may at any time request arbitration,
and Tenant may at any time when it is not in default in the payment of any Fixed
Rent and Additional Rent request arbitration, of any matter in dispute where
arbitration is expressly provided for in this Lease. The party requesting
arbitration shall do so by giving notice to that effect to the other party,
specifying in said notice the nature of the dispute, and said dispute shall be
determined in the City of New York, by three (3) arbitrators, in accordance with
the rules then obtaining of the American Arbitration Association (or any
organization which is the successor thereto). The award in such arbitration may
be enforced on the application by either party by the order or judgment of a
court of competent jurisdiction.
30.02. Fees. The fees and expenses of any arbitration shall be borne by
the parties equally, but each party shall bear the expense of its own attorneys
and experts and the additional expenses of presenting its own proof.
ARTICLE 31
Relocation of Demised Premises
31.01. Substitute Premises. Landlord may, at its option, before or after
the Commencement Date, elect by notice to Tenant to substitute for the Demised
Premises other office space in the Building (herein called the "Substitute
Premises") designated by Landlord, provided that the Substitute Premises
contains at least the same usable square foot area as the Demised Premises and
has a configuration substantially similar to that of the Demised Premises.
Landlord's notice shall be accompanied by a plan of the Substitute Premises, and
such notice or the plan shall set forth the usable square foot area of the
Substitute Premises. Tenant shall vacate and surrender the Demised Premises and
shall occupy the Substitute Premises promptly (and, in any event, not later than
15 days) after Landlord has substantially completed the work to be performed by
Landlord in the Substitute Premises pursuant to Section 31.02. Tenant shall pay
the same Fixed Rent and Additional Rent under Articles 2 and 16 with respect to
the Substitute Premises as were payable with respect to the Demised Premises,
without regard to the usable square foot area of the Substitute Premises.
31.02. Landlord's Expense. Tenant shall not be entitled to any
compensation for any inconvenience or interference with Tenant's business, nor
to any abatement or reduction of Fixed Rent or Additional Rent, but Landlord
shall, at Landlord's expense, do the following: (i) furnish and install in the
Substitute Premises fixtures, equipment, improvements and appurtenances at least
equal in kind and quality to those contained in the Demised Premises at the time
such notice of substitution is given by Landlord, (ii) provide to Tenant
personnel to perform under Tenant's direction the moving of Tenant's Property
from the Demised Premises to the Substitute Premises, (iii) promptly reimburse
Tenant for Tenant's actual and reasonable out-of-pocket costs incurred by Tenant
in connection with the relocation of any telephone or other communications
equipment from the Demised Premises to the Substitute Premises, and (iv)
promptly reimburse Tenant for any other actual and reasonable out-of-pocket
costs incurred by Tenant in connection with Tenant's move from the Demised
Premises to the Substitute Premises provided such costs are approved by Landlord
in advance, which approval shall not be
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unreasonably withheld. Tenant agrees to cooperate with Landlord so as to
facilitate the prompt completion by Landlord of its obligations under this
Section and the prompt surrender by Tenant of the Demised Premises. Without
limiting the generality of the preceding sentence, Tenant agrees (i) to provide
to Landlord promptly any approvals or instructions, and any plans and
specifications or any other information reasonably requested by Landlord and
(ii) to promptly perform in the Substitute Premises any work to be performed by
Tenant to prepare the same for Tenant's occupancy.
31.03. Lease Modified. From and after the date that Tenant shall
actually vacate and surrender the Demised Premises to Landlord, this Lease (i)
shall no longer apply to the Demised Premises, except with respect to
obligations which accrued on or prior to such surrender date; and (ii) shall
apply to the Substitute Premises as if the Substitute Premises had been the
space originally demised under this Lease.
ARTICLE 32
No Representations -- Entire Agreement
32.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement which may be made between the parties concurrently
with the execution and delivery of this Lease and shall expressly refer to this
Lease. All understandings and agreements heretofore had between the parties are
merged in this Lease and any other written agreement(s) made concurrently
herewith, which alone fully and completely express the agreement of the parties
and which are entered into after full investigation, neither party relying upon
any statement or representation not embodied in this Lease or any other written
agreement(s) made concurrently herewith.
ARTICLE 33
Changes and Modifications
33.01. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of the abandonment is
sought.
If any Superior Mortgagee shall require any modification of this Lease,
Tenant shall, at Landlord's request, promptly execute and deliver to Landlord
such instrument effecting such modification as Landlord shall require, provided
that such modification does not adversely affect in any material respect any of
the Tenant's rights under this Lease.
ARTICLE 34
Successors and Assigns
34.01. Except as otherwise expressly provided in this Lease, the
obligations of this Lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; provided, however, that (a) no violation of the
provisions of Article 6 shall operate to vest any rights in any successor or
assignee of Tenant and (b) the provisions of this Article shall not be construed
as modifying the conditions of limitation contained in Article 21.
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ARTICLE 35
Inability to Perform
35.01. The obligations of Tenant hereunder shall be in no wise affected,
impaired or excused, nor shall Landlord have any liability whatsoever to Tenant,
because (a) Landlord is unable to fulfill, or is delayed in fulfilling, any of
its obligations under this Lease by reason of strike, other labor trouble,
governmental preemption or priorities or other controls in connection with a
national or other public emergency or shortages of fuel, supplies or labor
resulting therefrom, or any other cause, whether similar or dissimilar, beyond
Landlord's reasonable control; or (b) of any failure or defect in the supply,
quantity or character of electricity or water furnished to the Demised Premises
by reason of any requirement, act or omission of the public utility or others
serving the Building with electric energy, steam, oil, gas or water, or for any
other reason whether similar or dissimilar, beyond Landlord's reasonable
control.
ARTICLE 36
Rules and Regulations
36.01. Tenant and its employees and agents shall faithfully observe and
strictly comply with the Rules and Regulations annexed hereto and made a part
hereof as Exhibit D, and such reasonable changes therein (whether by
modification, elimination or addition) as Landlord hereafter may make and
communicate in writing to Tenant which do not unreasonably affect the conduct of
the permitted use of the Demised Premises. Tenant's right to dispute the
reasonableness of any changes in the Rules and Regulations shall be deemed
waived unless asserted by notice to Landlord within thirty (30) days after the
date upon which Landlord shall have given notice to Tenant of the adoption of
any such changes in which case such dispute shall be determined by arbitration
pursuant to Article 30. In case of any conflict or inconsistency between the
provisions of this Lease and any Rules and Regulations as originally promulgated
or as changed, the provisions of this Lease shall control. Landlord shall have
no duty or obligation to enforce any Rule or Regulation, or any term, covenant
or condition of any other lease, against any other tenant or occupant of the
Building, and Landlord shall have no liability to Tenant for any violation of
the same by any other tenant or occupant of the Building.
ARTICLE 37
Consents
37.01. Express Provision. The provisions of this Article shall apply
only in cases where either party hereto shall have specifically agreed not to
unreasonably withhold its consent or approval as provided in this Lease, or
where this Lease expressly provides that a judgment, opinion, requirement, act,
sum of money or time limit be reasonable.
37.02. Consent and Approval. If a party considers that the other party
has unreasonably withheld or delayed a consent it shall so notify the other
party within ten (10) days after receipt of notice of denial of the requested
consent or, in case notice of denial is not received, within ten (10) days after
the expiration of the time period during which a reply to a request should have
been given, or if no specific time period is provided, within twenty (20) days
after making its request for the consent, and within ten (10) days after giving
the first-mentioned notice may submit the question of whether the withholding or
delaying of such consent is unreasonable to determination by arbitration in the
manner provided in Article 30. A consent shall not be deemed to have been
unreasonably withheld or delayed unless the aggrieved party complies with the
foregoing procedure and it shall be so
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determined by arbitration as aforesaid. In the event of such determination the
requested consent shall be deemed to have been granted for all purposes of this
Lease. The party who shall have refused or failed to give such consent shall not
have any liability to the other party therefor, each party hereby waiving any
claim for damages which it may have against the other based upon any assertion
that the other party has unreasonably refused or failed or delayed to give a
requested consent. The only remedy for an alleged unreasonable withholding or
delaying of consent by either party shall be as provided in this Section.
ARTICLE 38
Partnership Tenant
38.01. If Tenant is a partnership (or is comprised of two or more
persons, individually and as co-partners of a partnership) or if Tenant's
interest in this Lease shall be assigned to a partnership (or to two or more
persons, individually and as co-partners of a partnership) pursuant to Article 6
(any such partnership and such persons being referred to in this Section as
"Partnership Tenant"), the following provisions of this Section shall apply to
such Partnership Tenant: (i) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, (ii) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any modifications which may hereafter be given by Partnership Tenant
or by any of the parties comprising Partnership Tenant, (iii) any bills,
statements, notices, demands, requests or other communications given or rendered
to Partnership Tenant or to any of the parties comprising Partnership Tenant
shall be deemed given or rendered to Partnership Tenant and to all such parties
and shall be binding upon Partnership Tenant and all such parties, and (iv) if
Partnership Tenant shall admit new partners, all of such new partners shall, by
their admission to Partnership Tenant, be deemed to have assumed performance of
all of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed.
ARTICLE 39
Quiet Enjoyment
39.01. If and so long as Tenant pays the Fixed Rent and Additional Rent
and performs and observes all the terms, covenants and conditions hereof on the
part of Tenant to be performed and observed, Tenant shall quietly enjoy the
Demised Premises during the Term without hindrance or molestation by any one
claiming by, through or under Landlord, subject, however, to the terms of this
Lease.
ARTICLE 40
Security
40.01. Tenant has deposited with Landlord the sum of $16,940.08 as
security for the full and faithful performance and observance by Tenant of
Tenant's covenants and obligations under this Lease. If Tenant defaults in the
full and prompt payment and performance of any of Tenant's covenants and
obligations under this Lease, including, but not limited to, the payment of
Fixed Rent and Additional Rent, Landlord may use, apply or retain the whole or
any part of the security so deposited and the interest accrued thereon, if any,
to the extent required for the payment of any Fixed Rent and Additional Rent or
any other sums as to which Tenant is in default or for any sum which Landlord
may expend or may be required to expend by reason of Tenant's default in respect
of any of the terms, covenants and conditions of this Lease, including, but not
limited to, any damages or deficiency in the reletting of the Demised Premises,
whether such damages or
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deficiency accrue before or after summary proceedings or other re-entry by
Landlord. If Landlord shall so use, apply or retain the whole or any part of the
security or the interest accrued thereon, if any, Tenant shall upon demand
immediately deposit with Landlord a sum equal to the amount so used, applied or
retained as security as aforesaid. If Tenant shall fully and faithfully comply
with all of Tenant's covenants and obligations under this Lease, the security or
any balance thereof, with the interest thereon, if any, to which Tenant is
entitled, shall be returned or paid over to Tenant after the date on which this
Lease shall expire or sooner end or terminate, and after delivery to Landlord of
entire possession of the Demised Premises. In the event of any sale of
Landlord's interest in the Building or leasing of the Building, Landlord shall
have the right to transfer the security and interest thereon, if any, to which
Tenant is entitled, to the vendee or lessee and Landlord shall thereupon be
released by Tenant from all liability for the return or payment thereof; and
Tenant shall look solely to the new landlord for return or payment of the same;
and the provisions hereof shall apply to every transfer or assignment made of
the same to a new landlord. Tenant shall not assign or encumber or attempt to
assign or encumber the monies deposited herein as security or any interest
thereon to which Tenant is entitled, and neither Landlord nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
ARTICLE 41
Late Charge
41.01. In the event that any payment of Fixed Rent or Additional Rent
required to be made by Tenant under this Lease shall be received by Landlord
more than ten (10) days after the same is due (the due date for payments of
Fixed Rent is the first day of each month), a late charge of four cents (4 cts)
for each dollar so overdue may be charged by Landlord for each month, or
fraction of each month, from its due date until paid, for the purpose of
defraying the expenses incurred in handling delinquent payments. It is
understood that the late charge payable under this Article is in addition to the
payment of interest on overdue payments pursuant to Section 23.04.
ARTICLE 42
Miscellaneous
42.01. Governing Law. Irrespective of the place of execution or
performance, this Lease shall be governed by and construed in accordance with
the laws of the State of New York.
42.02. Severability. If any provision of this Lease or the application
thereof to any person or circumstances shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Lease and the application of
that provision to other persons or circumstances shall not be affected but
rather shall be enforced to the extent permitted by law.
42.03. Captions. The table of contents, captions, headings and titles in
this Lease are solely for convenience of reference and shall not affect its
interpretation.
42.04. Tenant's Covenants. Each covenant, agreement, obligation or other
provision of this Lease on Tenant's part to be performed shall be deemed and
construed as a separate and independent covenant of Tenant, not dependent on any
other provisions of this Lease.
42.05. Gender. All terms and words used in this Lease, regardless of the
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number of gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require.
42.06. Tenant's Occupancy of Other Space. Tenant shall not occupy any
space in the Buildings (by assignment, sublease or otherwise) other than the
Demised Premises, except with the prior written consent of Landlord in each
instance.
42.07. Excavation. If an excavation shall be made upon land adjacent to
or under the Building, or shall be authorized to be made, Tenant shall afford to
the person causing or authorized to cause such excavation, license to enter the
Demised Premises for the purpose of performing such work as said person shall
deem necessary or desirable to preserve and protect the Building from injury or
damage and to support the same by proper foundations, without any claim for
damages or liability against Landlord and without reducing or otherwise
affecting Tenant's obligations under this Lease.
42.08. Construction. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
42.09. Notice of Accident. Tenant shall give notice to Landlord,
promptly after Tenant learns thereof, of (a) any accident in or about the
Demised Premises or the Building for which Landlord might be liable, (b) any
fire in the Demised Premises, (c) all damage to or defects in the Demised
Premises including fixtures, equipment and appurtenances thereof for the repair
of which Landlord might be responsible and (d) all damage to or defects in any
parts or appurtenances of the air-conditioning, elevator, plumbing, electrical,
sanitary, mechanical or other service or utility systems located in or passing
through the Demised Premises.
42.10. Window Cleaning. Neither Tenant or Tenant's Agents or employees
will require, permit, suffer or allow the cleaning of any window in the Demised
Premises from the outside (within the meaning of Section 202 of the New York
Labor Law) except in compliance with all applicable Regulations.
42.11. No Offer to Lease. This Lease is not to be construed as an offer
to lease and shall not in any way bind Landlord until such time as Landlord
shall have executed this Lease and made delivery thereof to Tenant.
42.12. Name of Building. Landlord may adopt any name for the Building,
and Landlord reserves the right to change the name and/or address of the
Building at any time.
ARTICLE 43
Common Areas and Parking
43.01. Landlord shall provide and shall make available from time to time
within the boundaries of the Property such parking facilities, driveways,
entrances and exits thereto, landscape and planted areas, and other improvements
and facilities, as Landlord shall at any time and from time to time deem
appropriate (all the foregoing being collectively referred to in this Lease as
"Common Areas"). Tenant and its officers, employees, agents, customers and
invitees shall have a nonexclusive right, in common with Landlord and all others
to whom Landlord has granted or may hereafter grant rights, to use the Common
Areas. The Common Areas shall at all times be subject to the exclusive control
and management of Landlord, and Landlord shall have the right from time to time
to establish, modify and enforce reasonable rules and regulations with respect
to the Common Areas, and Tenant agrees, after notice thereof, to abide by such
rules and regulations and
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to cause its officers, employees, agents, customers and invitees to conform
thereto. Landlord shall construct, operate, manage, equip, repair, landscape,
and maintain the Common Areas for their intended purposes in such manner as
Landlord shall, in Landlord's sole discretion, from time to time determine.
Landlord's rights respecting the Common Areas shall include (but shall not be
limited to) the following:
(i) to construct, maintain and operate lighting facilities
serving the Common Areas;
(ii) from time to time to change the area, level, location and
arrangement of parking areas and other Common Area facilities, to make
installations therein and to move or remove such installations, and to
change the location of, or permanently diminish or discontinue the use
of, any portion of the Common Areas;
(iii) to restrict parking by tenants, their officers, agents,
employees, customers and invitees, to designated areas;
(iv) to discontinue, or restrict the use of, any portion of the
Common Areas to such extent, and for such period of time, as may in the
opinion of Landlord's counsel be necessary to prevent a dedication
thereof or the accrual of any rights to any person or the public
therein;
(v) to temporarily suspend the use of all, or any portion of,
the Common Areas: and
(vi) to take any other action with respect to the Common Areas,
as Landlord, in his sole discretion, shall determine to be advisable.
43.02. Tenant's right to use the Common Areas shall be deemed to be a
license coterminous with this Lease, and Landlord shall not be subject to any
liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent by reason of Landlord's exercise of any right or rights
respecting Common Areas reserved pursuant to Section 43.01 hereof, nor shall the
exercise of any such right be deemed a constructive or actual eviction.
43.03. With respect to the parking of vehicles at the Property:
(a) If Landlord elects to designate a specific parking area for
Tenant's use, Tenant shall require its personnel and visitors to park
their vehicles only in parking spaces designated by Landlord for
Tenant's use for its personnel and visitors on a "first come, first
served" basis. Landlord reserves the right at all times to redesignate
such parking spaces. Tenant, its personnel and visitors shall not at any
time park any trucks or delivery vehicles in any of the parking areas.
In accordance herewith, Landlord shall provide Tenant with two (2)
reserved parking spaces.
(b) All parking spaces and any other parking areas used by
Tenant, its personnel and visitors will be at their own risk, and
Landlord shall not be liable for any injury to person or property, or
for loss or damage to any automobile or its contents, resulting from
theft, collision, vandalism or any other cause whatsoever.
(c) There shall be no overnight parking, and Tenant shall, and
shall cause its personnel and visitors to, remove their automobiles from
the parking area at the end of the working day. If any automobile owned
by Tenant or by its personnel or visitors remains in the parking area
overnight and the same interferes with the cleaning or maintenance of
said area (snow or otherwise), any costs or liabilities incurred by
Landlord in
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removing said automobile to effectuate cleaning or maintenance, or any
damages resulting to said automobile or to Landlord's equipment or
equipment owned by others by reason of the presence of or removal of
said automobile during such cleaning or maintenance shall be paid by
Tenant to Landlord, as additional rent on the rent payment date next
following the submission of a xxxx therefor.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
WITNESS: LANDLORD:
BLUE HILL PLAZA ASSOCIATES
By: BNB Associates Limited Partnership,
general partner
By: Blue Hill Corp., General Partner
By /s/
--------------------------------
WITNESS: TENANT:
LONG DISTANCE DIRECT, INC.
By /s/
--------------------------------
Tenant's Federal Tax Identification Number is _____________.
CORPORATE TENANT ACKNOWLEDGMENT
STATE OF NEW YORK )
: ss.:
COUNTY OF )
On this __________ day of _____________, 19__, before me, personally
came _______________________________________, to me known, who being duly sworn,
did depose and say that he resides in _______________________, to me known, who
being by me duly sworn, did depose and say that he resides in _________________,
City of __________________ State of _______________________, that he is the
_______________ of _________________ , the corporation described in and which
executed the foregoing Lease, as Tenant; and that he signed his name thereto by
order of the Board of Directors of said corporation.
-------------------
Notary Public
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INDIVIDUAL TENANT ACKNOWLEDGMENT
STATE OF NEW YORK )
: ss.:
COUNTY OF )
On this day of __________, 19__, before me, personally came ___________,
to me known, and known to me to be the individual described in and who executed
the foregoing Lease, as Tenant, and he duly acknowledged to me that he executed
the same.
-------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF )
On this day of __________, 19__, before me, personally came ___________,
to me known, and known to me to be the individual described in and who executed
the foregoing Lease, as Tenant, and to me acknowledged that he is a general
partner in the firm of BLUE HILL PLAZA ASSOCIATES, and that he executed the same
individually and as a general partner of said firm.
-------------------
Notary Public
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EXHIBIT A
FLOOR PLAN
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EXHIBIT A-1
PLOT PLAN OF PROPERTY
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EXHIBIT B
LANDLORD'S WORK AND TENANT'S WORK
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EXHIBIT C
ELECTRICITY OPTION
(a) If Landlord elects to supply electric current to the demised
premises, Tenant agrees that electric current will be supplied by Landlord and
Tenant will pay Landlord or Landlord's designated agent, as additional rent for
the supplying of electric current, the sum of (i) an amount computed by applying
Tenant's consumption and demand for the billing period in question (as measured
by the meter(s) installed in the demised premises for that purpose) to the rates
in Service Classification No.4 of Consolidated Edison Company of New York, Inc.
then in effect (or any successor rate classification pursuant to which Landlord
purchases electricity for the building of which the demised premises forms a
part), plus, (ii) fifteen (15) percent of such amount. Where more than one (1)
meter measures the service of Tenant in the building of which the demised
premises forms a part, the service rendered through each meter may be computed
and billed separately in accordance with the rates herein. Bills therefor shall
be rendered at such times as Landlord may elect and the amount, as computed from
a meter, shall be deemed to be, and be paid as, additional rent within twenty
(20) days of rendition thereof. If any tax is imposed on Landlord's receipt from
the sale or resale of electric energy or gas or telephone service to Tenant by
any federal, state or municipal authority, Tenant covenants and agrees that
where permitted by law, Tenant's pro rate share of such taxes shall be passed on
to, and included in the xxxx of, and paid by, Tenant to Landlord. In no event
shall the cost to Tenant for the supply of electric energy be less than 115% of
the aggregate cost to Landlord for the supply of electric energy to Tenant at
the demised premises (including any meter company charges, taxes, fuel
adjustment charges and other charges and expenses to which Landlord is subject).
If any meters or other equipment must be installed to furnish electric service
to the demised premises on a submetered basis, as herein provided, the same
shall be installed by Landlord at Tenant's expense, and Tenant shall pay
therefor within thirty (30) days after demand by Landlord.
(b) Landlord shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric energy, steam or other utilities
furnished to the demised premises by reason of any requirement, act or omission
of the public utility serving the Building with electricity or steam or other
utilities or for any other reason. Tenant's use of electric energy in the
demised premises shall not at any time exceed the capacity of any of the
electrical conductors, machinery and equipment in or otherwise serving the
demised premises. In order to ensure that such capacity is not exceeded and to
avert possible adverse effect upon the electric service in the Building, Tenant
agrees not to connect any additional electrical equipment, fixtures, machinery
or appliances of any type to the Building electric distribution system, other
than lamps, typewriters and other small office machines which consume comparable
amounts of electricity, without Landlord's prior written consent, which consent
shall not be unreasonably withheld. Any additional risers, feeders, or other
equipment proper or necessary to supply Tenant's electrical requirements, upon
written request of Tenant, will be installed by Landlord's, at the sole cost and
expense of Tenant, if, in Landlord's sole judgment, the same are necessary and
will not cause permanent damage or injury to the Building or the demised
premises, or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repair or expense or interfere with or
disturb other tenants or occupants.
(c) Landlord reserves the right to discontinue furnishing electric
energy to Tenant at any time upon sixty (60) days' written notice to Tenant, and
from and after the effective date of such termination, Landlord shall no longer
be obligated to furnish Tenant with electric energy, provided, however, that
such termination date may be extended for a time reasonably necessary for Tenant
to make arrangements to obtain electric service directly from the public utility
company servicing the
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Building. If Landlord exercises such right of termination, this lease shall
remain unaffected thereby and shall continue in full force and effect, and
thereafter Tenant shall diligently arrange to obtain electric service directly
from the public utility company servicing the Building, and may utilize the then
existing electric feeders, risers and wiring serving the demised premises to the
extent available and safely capable of being used for such purpose and only to
the extent of Tenant's then authorized connected load. Landlord shall be
obligated to pay no part of any cost required for Tenant's direct electric
service.
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EXHIBIT D
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors, elevators and
escalators servicing the Building are limited to ingress to and egress from such
tenant's premises for the tenant and its employees, licensees and invitees, and
no tenant shall use, or permit the use of, the entrances, corridors, escalators
or elevators for any other purpose. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the Building
by any other tenants. Fire exits and stairways are for emergency use only, and
they shall not be used for any other purpose by the tenants, their employees,
licensees or invitees. No tenant shall encumber or obstruct, or permit the
encumbrance or obstruction of any of the sidewalks, plazas, entrances,
corridors, escalators, elevators, fire exits or stairways of the Building.
Landlord reserves the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of the tenants, in such manner as it in its reasonable judgment deems
best for the benefit of the tenants generally.
2. Landlord may refuse admission to the Building outside of Business
Hours on Business Days (as such terms are defined in the Lease to which this
Exhibit is attached) to any person not known to the watchman in charge or not
having a pass issued by Landlord or the tenant whose premises are to be entered
or not otherwise properly identified, and Landlord may require all persons
admitted to or leaving the Building outside of Business Hours on Business Days
to provide appropriate identification. Tenant shall be responsible for all
persons for whom it issues any such pass and 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 or reputation of the Building or of its tenants may be denied access
to the Building or may be ejected therefrom. During any invasion, riot, public
excitement or other commotion, Landlord may prevent all access to the Building
by closing the doors or otherwise for the safety of the tenants and protection
of property in the Building.
3. No tenant shall obtain or accept for use in its premises ice,
drinking water, food, beverage, towel, barbering, bootblacking, floor polishing,
cleaning or other similar services from any persons reasonably prohibited in
writing from furnishing such services. Such services shall be furnished only at
such hours, and under such reasonable regulations, as may be fixed by Landlord
from time to time.
4. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by tenant or its employees, agents, contractors, licensees or
invitees, shall be paid by such tenant.
5. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens which are
different from the standards adopted by Landlord for the Building shall be
attached to or hung in, or used in connection with, any exterior window or door
of the premises of any tenant, without the prior written 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.
6. No lettering, sign, advertisement, notice or object shall be
displayed in or on the exterior windows or doors, or on the outside of any
tenant's premises,
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or at any point inside any tenant's premises where the same might be visible
outside of such premises, without the prior written consent of 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 violating this rule. Interior signs, elevator cab designations and
lettering on doors and the Building directory shall, 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.
7. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window xxxxx or on the
peripheral air conditioning enclosures, if any.
8. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
9. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the premises of any tenant or the Building.
10. No noise, including, but not limited to, music or 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 in the premises of
any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any other space in the Building.
11. No tenant, nor any tenant's contractors, employees, agents, visitors
or licensees, shall at any time bring into or keep upon the premises or the
Building any flammable, combustible, explosive or otherwise dangerous fluid,
chemical or substance.
12. No additional locks or bolts of any kind shall be placed, upon any
of the doors or windows in any tenant's premises and no lock on any door therein
shall be changed or altered in any respect. Additional keys for a tenant's
premises and toilet rooms shall be procured only from Landlord who may make a
reasonable charge therefor. Each tenant shall, upon the termination of its
tenancy, turn over to Landlord all keys of 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 thereof.
13. 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 must take place during such hours and in such elevators, and in such
manner as Landlord or its agent may determine from time to time. The persons
employed to move safes and other heavy objects shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a Master's Rigger's license.
Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All labor and
engineering costs incurred by Landlord in connection with any moving specified
in this rule, including a reasonable charge for overhead and profit, shall be
paid by Tenant to Landlord, on demand.
14. 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 these Rules and Regulations or the lease of which
this Exhibit is 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,
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from the tenant from whose premises the package or object or matter is being
removed, but the establishment and enlargement of such requirement shall not
impose any responsibility on Landlord for the protection of any tenant 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 or of Rule 2 hereof.
15. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco in
any form, or as a xxxxxx, beauty or manicure shop, or as a school. No tenant
shall use its premises or any part thereof or permit the same to be used, for
manufacturing or the sale at retail or auction of merchandise, goods or property
of any kind.
16. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's reasonable judgment, tends
to impair the reputation of the Building or its desirability as a building for
others, and upon written notice from Landlord, such tenant shall refrain from
and discontinue such advertising or identifying sign.
17. Landlord shall have the right to prescribe the weight and position
of safes and other objects of excessive weight, and no safe or other object
whose weight exceeds the lawful load for the area upon which it would stand
shall be brought into or kept upon any tenant's premises. If, in the judgment of
Landlord, it is necessary to distribute the concentrated weight of any heavy
object, the work involved in such distribution shall be done at the expense of
the tenant and in such manner as Landlord shall determine.
18. No machinery or mechanical equipment other than ordinary portable
business machines may be installed or operated in any tenant's premises without
Landlord's prior written consent which consent shall not be unreasonably
withheld or delayed, and in no case (even where the same are of a type so
excepted or as so consented to by Landlord) shall any machines or mechanical
equipment be so placed or operated as to disturb other tenants; but machines and
mechanical equipment which may be permitted to be installed and used in a
tenant's premises shall be so equipped, installed and maintained by such tenant
as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
19. Landlord, its contractors, and their respective employees, shall
have the right to use, without charge therefor, all light, power and water in
the premises of any tenant while cleaning or making repairs or alterations in
the premises of such tenant.
20. No premises of any tenant shall be used for lodging or sleeping or
for any immoral or illegal purpose.
21. 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.
22. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall cooperate to prevent the same.
23. No tenant shall cause or permit 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 of any tenant
except as
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is expressly permitted in such tenant's lease.
24. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, cleaning or other servicing of the Building or the premises,
or the use or enjoyment by any other tenant of any other premises, nor shall
there be installed by any tenant any ventilating, air-conditioning, electrical
or other equipment of any kind which, in the reasonable judgment of Landlord,
might cause any such impairment or interference.
25. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purposes for which they designed or constructed, and no sweepings, rubbish,
rags, acids, or other foreign substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenants who, or
whose servants, employees, agents, visitors, or licensees shall have, caused the
same. Any cuspidors or containers or receptacles used as such in the premises of
any tenant or for garbage or similar refuse, shall be emptied, cared for and
cleaned by and at the expense of such tenant.
26. All entrance doors in each tenant's premises shall be left locked
and all windows shall be left closed by the tenant when the tenant's premises
are not in use. Entrance doors shall not be left open at any time. Each tenant,
before closing and leaving its premises at any time, shall turn out all lights.
27. Hand trucks not equipped with rubber tires and side guards shall not
be used within the Building.
28. All windows in each tenant's premises shall be kept closed, and all
blinds therein above the ground floor shall be lowered as reasonably required
because of the position of the sun, during the operation of the Building
air-conditioning system to cool or ventilate the tenant's premises. If Landlord
shall elect to install any energy saving film on the windows of the premises or
to install energy saving windows in place of the present windows Tenant shall
cooperate with the reasonable requirements of Landlord in connection with such
installation and permit Landlord to have access to the tenant's premises at
reasonable times during Business Hours to perform such work.
29. Tenant shall not install any resilient tile or similar floor
covering in the Demised Premises except in such manner as may be approved by
Landlord.
30. Tenant's employees shall not loiter around the hallways, stairways,
elevators, front, roof or any other part of the Building used in common by the
occupants thereof.
31. If the Demised Premises become infested with insects or vermin,
Tenant, at its sole cost and expenses, shall cause the Demised Premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
32. Tenant shall not install nor permit to be installed any vending
machines.
33. No tenant shall cause unnecessary labor by reason of carelessness
and indifference to the preservation of good order and cleanliness in its
premises and in the Building.
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34. A directory on the first floor will be provided by Landlord, on
which the names of tenants will be placed by Landlord.
35. No tenant, or any employee of any tenant, shall go upon the roof of
the Building without the written consent of Landlord.
36. No article shall be fastened to or holes drilled or nails or screws
driven into the walls or partitions, nor shall the walls or partitions be
painted, papered or otherwise covered or in any way marked or broken, nor shall
any attachment be made to the electric-lighting wires of the Building for
storing of electricity, or for the running of motors or other purposes, nor
shall any tenant use any other method of heating than that provided by Landlord,
without the written consent of Landlord. No mechanic shall be allowed in or
about the Building other than those employed by the Managing Agent, without the
written consent of Landlord first having been obtained.
37. Landlord reserves the right rescind, alter or waive any role or
regulation at any time prescribed for the Building when, in its reasonable
judgment, it deems it necessary, desirable or proper for its best interest and
for the best interests of the tenants generally, and no alteration or waiver of
any rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. Landlord shall not be responsible to any
tenant for the non-observance or violation by any other tenant of any of the
rules and regulations at any time prescribed for the Building.
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FIRST MODIFICATION OF LEASE
FIRST MODIFICATION OF LEASE dated the 1st day of Oct., 1994, between
BLUE HILL PLAZA ASSOCIATES, a New York limited partnership, having an address at
Xxx Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx, 00000 (hereinafter called
"Landlord"), and LONG DISTANCE DIRECT, INC., a New York Corporation, having an
office at Xxx Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx (hereinafter called
"Tenant").
WITNESSETH:
WHEREAS:
A. Landlord and Tenant have heretofore entered into a certain Lease,
dated March, 1993 (such Lease as the same may have been and may hereafter be
amended is hereinafter called the "Lease"), with respect to a portion of the
fourteenth (14th) floor (hereinafter called the "Old Demised Premises") in the
building (hereinafter called the "Building") known as One Blue Hill Plaza, Pearl
River, New York, for a term ending on March 31, 1998, or on such earlier date
upon which said term may expire or be terminated pursuant to any conditions or
limitations or other provisions of the Lease or pursuant to law;
B. The parties hereto desire to modify the Lease to provide for the
addition of certain premises and in certain other respects.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto hereby modify said Lease as follows:
1. All terms contained in this First Modification of Lease (the
"Agreement") shall, for the purposes hereof, have the same meaning ascribed to
them in the Lease.
2. All of the terms and conditions as are in effect as of
September 30, 1994, shall remain in full force and effect except that effective
as of October 1, 1994 (the "Adjustment Date") and for the remainder of the term
of the Lease, there shall be added to the Old Demised Premises the following
additional space on the fourteenth (14th) floor of the Building, to wit:
The portion of the fourteenth (14th) floor of the Building
substantially as shown hatched on the floor plan annexed hereto as Exhibit A
(the "Additional Space") (the Demised Premises, as referred to in the Lease,
shall be deemed to include the Old Demised Premises and the Additional Space for
all purposes except where either the specific term "Additional Space" or ""Old
Demised Premises" is referred to).
Landlord does hereby lease to Tenant and Tenant does hereby
hire from Landlord the Additional Space subject and subordinate to all superior
leases and superior mortgages as provided in the Lease and upon and subject to
all the covenants, agreements, terms, and conditions of the Lease as
supplemented by this First Modification of Lease.
3. The addition of the Additional Space as provided in Paragraph
3 hereof shall be on the same terms and conditions of the Lease as modified
hereby, except that effective as of the Adjustment Date and for the remainder of
the term of the Lease (as hereby modified):
(i) (a) The annual rental rate payable (the "Fixed Rent")
pursuant to Section 2.03 of the Lease shall be THIRTY-THREE THOUSAND EIGHT
HUNDRED SEVENTY-FOUR AND 50/100 ($33,874.50) DOLLARS per year, payable in equal
monthly installments of $2,822.88, during the period commencing on the
Adjustment
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Date and ending on the Expiration Date.
(b) Notwithstanding anything in Subparagraph (a) of this
Article 3(i) to the contrary, provided Tenant is not in default of any terms or
provisions of the Lease, the Fixed Rent attributable to the Additional Space
only shall be partially abated during the four (4) month period (the "Partial
Abatement Period") commencing on the Adjustment Date and ending January 31,
1995, so that, during this First Partial Abatement Period, Tenant shall pay
$256.63 per month. There shall be no abatements of rent in connection with the
Old Demised Premises and no further rent abatements in connection with the
Additional Space. Accordingly, Fixed Rent in accordance with the Lease, as
modified by this First Modification of Lease, shall be due and payable except as
specifically abated in this Article (3)(i)(b).
(ii) The amount that is included in the Fixed Rent and which
is allocable to Tenant's electric energy costs as set forth in Section 17.02 of
the Lease shall be increased by $3,079.50 per year, thereby increasing the
amount set forth in said Section 17.02 to $12,319.50 per year, which amount may
be subject to further adjustments in accordance with Article 17 of the Lease.
(iii) With respect to the definitions as set forth in Article
16 of the Lease as same relate only to the Additional Space as herein set forth,
it being understood that the escalations applicable to the Old Demised Premises
shall be calculated in accordance with the definitions as previously agreed to
as if this Agreement did not exist, the following definitions shall apply:
(A) The term "Operating Year" as set forth in Section 16.01(b) of the
Lease, for purposes of the Additional Space only, shall mean, "each calendar
year, subsequent to the calendar year 1996, in which occurs any part of the
Term."
(B) The term "Tenants Proportionate Share" as set forth in Section
16.01(c) of the Lease for purposes of the Additional Space only shall mean,
.19%.
(C) The term "Real Estate Tax Base" as set forth in Section 16.01(e)
of the Lease for purposes of the Additional Space only shall mean, the sum of
(a) the School Tax payable with respect to the Property for the period
commencing July 1, 1994 and ending June 30, 1995, and (b) one-half of the sum of
(x) the amount which is payable by Landlord for the State, County, and Town Tax
with respect to the Property for the period commencing January 1, 1994 and
ending December 31, 1994, and (y) the amount which is payable by Landlord for
the State, County and Town Tax with respect to the Property for the period
commencing January 1, 1995 and ending December 31, 1995 (as same may be reduced
by appropriate proceeding).
(D) The term "Base Year" as set forth in Section 16.08(a)(3) of the
Lease for purposes of the Additional Space only shall mean calendar year 1996.
(iv) Landlord and Tenant agree that all escalations as per
Article 16 of the Lease applicable to the Additional Space shall be computed in
accordance with the definitions and amended language as set forth in paragraph
(iii) of this Article 3. Notwithstanding, however, the escalations relating to
the Old Demised Premises shall be computed in accordance with the original
definitions and provisions as set forth in Article 16 of the Lease as if this
Agreement did not exist.
4. Tenant has inspected the Additional Space and agrees to accept
same in its "as is" condition and agrees further that Landlord shall have no
obligations to perform any work or incur any cost or expense in preparation for
Tenant's occupancy. In addition, Tenant is occupying the Old Demised Premises
and accepts same in its "as is" condition and agrees that Landlord shall have no
obligation to perform any work nor incur any cost or expense in preparation for
Tenant's continued occupancy.
5. Tenant shall deposit with Landlord the additional sum of
$5,645.00 as
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security deposit in connection with the Additional Space, so that the total
amount on deposit shall be $22,585.08 as security for the Demised Premises. This
deposit will be held as the Security Deposit applicable to the Demised Premises
in connection with the terms set forth in Article 40 of the Lease.
6. Tenant covenants, represents and warrants that Tenant has had
no dealings or communications with any broker or agent in connection with the
consummation of this Agreement other than Xxxxxxxx Real Estate Services, Inc.
(who is representing Landlord) and Tenant covenants and agrees to pay, hold
harmless and indemnify Landlord from and against any and all costs, expense
(including reasonable attorney's fees) or liability for any compensation,
commissions or charges claimed by any other broker or agent with whom Tenant has
had dealings or communications with respect to this Agreement.
7. Except as modified by this Agreement, the Lease and all
covenants, agreements, terms and conditions thereof shall remain in full force
and effect and are hereby in all respects ratified and confirmed.
8. The covenants, agreements, terms and conditions contained in
this Agreement shall bind and inure to the benefit of the parties hereto and
their respective successors and, except as otherwise provided in the Lease as
hereby modified, to their respective assigns.
9. This Agreement may not be changed or terminated orally but only
by an Agreement in writing signed by the party against which enforcement of any
waiver, change, termination, modification or discharges is sought.
IN WITNESS WHEREOF, the parties hereto have executed the First Modification of
Lease as of the day and year first above written.
BLUE HILL PLAZA ASSOCIATES, Landlord
BY: BNB ASSOCIATES LIMITED PARTNERSHIP,
General Partner
BY: BLUE HILL CORP., General Partner
ATTEST:
/s/
------------------------- ----------------------------------------
ATTEST: LONG DISTANCE DIRECT, INC., Tenant
/s/ X. Xxxxx /s/
------------------------- ----------------------------------------
X. Xxxxx
