TABLE OF CONTENTS
BLUE HILL PLAZA STANDARD LEASE
Article Page
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ARTICLE 1 ................................................................... 1
1.01. Demise .................................................. 1
1.02. Demised Premises ........................................ 1
1.03. Term .................................................... 1
ARTICLE 2 ................................................................... 2
2.01. Definitions ............................................. 2
2.02. Headings ................................................ 4
ARTICLE 3 ................................................................... 4
3.01. Rent .................................................... 4
3.02. Payments Due ............................................ 5
3.03. Rent Control ............................................ 5
3.04. Late Charge ............................................. 5
ARTICLE 4 ................................................................... 6
4.01. Definitions of Tax and Operating Expenses ............... 6
4.02. Tax Payments ............................................ 8
4.03. Reduction of Comparison Year Taxes ...................... 8
4.04. Reduction of Base Tax ................................... 8
4.05. Tax Payment Pending Protest.............................. 9
4.06. Adjustment of Operating Expense Payments ................ 9
4.07. No Credit ............................................... 10
4.08. Assessment With Other Properties ........................ 10
4.09. Billing ................................................. 10
4.10. Partial Comparison Year ................................. 10
4.11. Tax Protests ............................................ 10
ARTICLE 5 ................................................................... 10
5.01. Services During Non-Regular Business Hours .............. 10
5.02. Cooling Tower ........................................... 11
ARTICLE 6 ................................................................... 11
6.01. Changes to Building ..................................... 11
6.02. Multi-Tenant Floors ..................................... 11
ARTICLE 7 ................................................................... 11
7.01. Completion of Premises .................................. 11
7.02. Tenant's Work ........................................... 12
7.03. Tenant's Construction Related Obligations ............... 12
7.04. Non-Liability of Landlord ............................... 13
ARTICLE 8 ................................................................... 13
8.01. Commencement Date ....................................... 13
8.02. Consequences of Tenant's Possession of Premises or
Commencement Date ..................................... 14
8.03. Waiver of Right to Rescind .............................. 14
8.04. Early Commencement of Business .......................... 14
ARTICLE 9 ................................................................... 15
9.01. Permitted Uses .......................................... 15
9.02. Prohibited Uses ......................................... 15
9.03. Physical Protection of Premises ......................... 16
ARTICLE 10 .................................................................. 17
10.01. Buildinq Name ........................................... 17
10.02. Tenant Signs ............................................ 17
10.03. Directory ............................................... 17
ARTICLE 11 ................................................................. 17
11.01. Subrogation ............................................. 17
11.02. Attornment .............................................. 18
11.03. Waiver of Termination Right ............................. 18
12.01. Quiet Enjoyment ......................................... 18
13.01. Prohibition Against Assignment, Etc. .................... 19
ARTICLE 14 .................................................................. 19
14.01. Notice and Compliance With Laws ......................... 20
14.02. Contest ................................................. 20
ARTICLE 15 .................................................................. 20
15.01. Tenant's Requirements ................................... 20
15.02. Blanket Policies ........................................ 21
15.03. Tenant's Compliance ..................................... 21
15.04. Waiver of Subrogation ................................... 22
ARTICLE 16 .................................................................. 22
16.01. Parking ................................................ 22
ARTICLE 17 .................................................................. 23
17.01. Permitted Changes ...................................... 23
17.02. Substantial Changes .................................... 24
17.03. Substantial Changes in Excess of $100,000 .............. 24
17.04. Restricted Changes ..................................... 25
ARTICLE 18 .................................................................. 25
18.01. Tenant's Property ...................................... 25
18.02. Abandonment of Tenant's Property ....................... 25
18.03. Leasehold Improvements ................................. 25
18.04. End of Term ............................................ 26
18.05. Removal by Landlord .................................... 26
ARTICLE 19 .................................................................. 26
19.01. Tenant's Required Repairs .............................. 26
19.02. Windows ................................................ 26
19.03. Damage to Building ..................................... 26
ARTICLE 20 .................................................................. 27
20.01. Landlord's Obligations ................................. 27
20.02. Cleaning ............................................... 27
20.03. Extraordinary Refuse ................................... 27
20.04. Quality of Repairs ..................................... 28
20.05. Required Changes ....................................... 28
ARTICLE 21 .................................................................. 28
21.01. General ................................................ 28
21.02. Rent Inclusion ......................................... 29
21.03. Submetering ............................................ 30
21.04. Direct Meter ........................................... 31
21.05. Landlord's Statements and Bills ........................ 31
21.06. Change of Service ...................................... 31
21.07. Additional Installations ............................... 32
ARTICLE 22 .................................................................. 32
22.01. Access and Repair ...................................... 32
22.02. Tenant's Requirements .................................. 33
22.03. Additional Tenant Requirements ......................... 33
ARTICLE 23 .................................................................. 33
23.01. Elevators .............................................. 33
23.02. Interruption of Services ............................... 33
ARTICLE 24 .................................................................. 34
24.01. Tenant's Access to Demised Premises .................... 34
ARTICLE 25 .................................................................. 34
25.01. Lines Through Demised Premises ......................... 34
25.02. Access to Demised Premises ............................. 35
25.03. Access Upon Emergency .................................. 35
25.04. Access During Twelve Months ............................ 35
ARTICLE 26 .................................................................. 36
26.01. Access for Protection .................................. 36
ARTICLE 27 .................................................................. 36
27.01. Notice to Landlord ..................................... 36
ARTICLE 28 .................................................................. 36
28.01. No Liability of Landlord ............................... 36
28.02. Tenant's Indemnification ............................... 37
28.03. Exculpation ............................................ 37
ARTICLE 29 .................................................................. 37
29.01. Notice and Repair Obligation ........................... 37
29.02. Abatement of Rent ...................................... 38
29.03. Termination Rights ..................................... 38
29.04. Termination Upon Casualty .............................. 39
29.05. Non-Liability of Landlord .............................. 39
29.06. Insurance on Tenant's Property ......................... 39
29.07. Waiver of Statutory Protection ......................... 39
29.08. Uncollectibility of Insurance .......................... 39
ARTICLE 30 .................................................................. 39
30.01. Landlord's Rights to Award ............................. 40
30.02. Full Taking ............................................ 40
30.03. Partial Taking ......................................... 40
30.04. Tenant's Rights to Award ............................... 40
30.05. Reconstruction.......................................... 40
ARTICLE 31 .................................................................. 41
31.01. Surrender .............................................. 41
31.02. Holdover ............................................... 41
ARTICLE 32 .................................................................. 41
32.01. Prior to Term .......................................... 41
32.02. During Term ............................................ 42
32.03. Adequate Assurances .................................... 43
ARTICLE 33 .................................................................. 44
33.01. Re-Entry; Summary Proceedings .......................... 44
33.02. Remedies Cumulative .................................... 44
33.03. Retention of Funds ..................................... 44
ARTICLE 34 .................................................................. 44
34.01. Damages ................................................ 44
34.02. Recovery of Damages .................................... 46
34.03. Additional Damages ..................................... 46
ARTICLE 35 .................................................................. 46
35.01. Waiver of Redemption Rights ............................ 46
35.02. No Designation of Payments ............................. 47
35.03. Waiver of Jury Trial ................................... 47
35.04. Counterclaims .......................................... 47
ARTICLE 36 .................................................................. 47
36.01. Performance of Tenant's Obligations .................... 47
ARTICLE 37 .................................................................. 47
37.01. Consents and Approvals ................................. 47
37.02. Expenses ............................................... 48
ARTICLE 38 .................................................................. 48
38.01. Rules and Regulations .................................. 48
ARTICLE 39 48
39.01. Amendments for Financing ............................... 48
ARTICLE 40 .................................................................. 48
40.01. Notice to Mortgagees and Lessors ....................... 48
ARTICLE 41 .................................................................. 49
41.01. Successors and Assigns ................................. 49
41.02. Partnership Tenant ..................................... 49
ARTICLE 42 .................................................................. 51
42.01. Waivers ................................................ 51
42.02. Surrender; Payments .................................... 51
ARTICLE 43 .................................................................. 51
43.01. Notices ................................................ 52
ARTICLE 44 .................................................................. 52
44.01. Tenant's Estoppel ...................................... 52
44.02. Recording .............................................. 52
ARTICLE 45 .................................................................. 53
45.01. Brokerage .............................................. 53
ARTICLE 46 .................................................................. 53
46.01 Security ............................................... 53
ARTICLE 47 .................................................................. 54
47.01 Entire Agreement ....................................... 54
47.02. Partial Invalidity ..................................... 54
47.03. Applicable Law ......................................... 54
47.04. Lease Submission ....................................... 54
47.05. Asterisks .............................................. 54
47.06. Confidentiality ........................................ 54
47.07. Right to Relocate ...................................... 55
ARTICLE 48 .................................................................. 55
48.01. Option to Terminate .................................... 55
Exhibit A -- Floor and Location Plans
Exhibit B -- Estoppel Letter
BLUE HILL PLAZA
LEASE
LEASE, dated June 11 1997, between XXXXXXXX XXX XXXXXX XXXXXX, L.L.C., a
New York limited liability company, having its principal p1ace of business at
000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, ("Landlord"), and EASY STREET
ONLINE, INC. a corporation organized and existing under the laws of the State of
New York having its principal place of business at 00 Xxxxx Xxxx Xxxxxx, Xxxxx,
Xxx Xxxx ("Tenant") .
WHEREAS, Landlord is the owner of the building commonly known as Xxx Xxxx
Xxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx 10965, in the Town of Orangetown, County of
Rockland, and State of New York (the "Building"); and
WHEREAS, Landlord and Tenant desire that a lease be made by Landlord to
Tenant of certain space in the Building for the term, for the rent and upon and
subject to the covenants, agreements, terms, conditions, limitations, exceptions
and reservations herein contained;
NOW, THEREFORE, Landlord and Tenant hereby covenant and agree as follows
ARTICLE 1
Demise-Premises-Term
1.01. Demise.
Landlord hereby demises and leases to Tenant, and Tenant hereby takes and
hires from Landlord, the premises hereinafter mentioned for the term hereinafter
stated, for the rent hereinafter reserved and upon and subject to the covenants,
agreements, terms, conditions, limitations, exceptions and reservations of this
lease.
1.02. Demised Premises.
The premises hereby demised and leased to Tenant are a portion of the 6th
floor of the Building, as shown on the floor and location plans annexed hereto
and marked as Exhibit A. The terms "Demised Premises" or "Premises" at any
given time shall mean the premises described in this Section, subject to the
provisions of this lease.
1.03. Term.
The term of this lease and the estate hereby granted (hereinafter
collectively called the "term of this lease") shall commence on June 13, 1997
(the "Commencement Date") (as defined in Section 8.01) and shall expire on June
30, 2002 (the "Expiration Date"), or on such earlier date upon which said term
may expire or be terminated pursuant to any of the provisions of this lease or
pursuant to law.
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ARTICLE 2
Definitions
2.01 Definitions.
For all purposes of this lease, and all agreements supplemental hereto, the
terms defined in this Section shall have the meanings specified in this
Section unless the context otherwise requires:
(a) The Land shall mean all of the land and improvements thereon owned
or ground leased by Landlord and comprising the Blue Hill project. 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 Land at any time, whereupon the portion so
added or severed shall be included or excluded, as the case may be, from the
Land for purposes of this lease.
(b) The Buildings shall mean the Building, the other office building
and the additional improvements erected or to be erected by Landlord on the
Land, of which Building and the Demised Premises are a part, and all
replacements of such Buildings.
(c) Real Property shall mean the Land and Buildings (or in the event
same shall be submitted to the provisions of Article 9-B of the Real Property
Law, the unit (as defined in Section 339-e of the Real Property Law) of which
the Premises is a part).
(d) The Rentable Area of the Premises, shall be conclusively deemed to
be 5,525 square feet and that of the Buildings shall be conclusively deemed
to be 1,100,000 square feet.
(e) The term mortgage shall include an indenture of mortgage, a deed of
trust to a trustee, a pledge or any other instrument creating a lien on or other
security interest in the Real Property, and the term mortgagee shall include any
such mortgagee, trustee and any other holder of rights under a mortgage.
(f) The terms include and including shall each be construed as if
followed by the phrase "without being limited to".
(g) Landlord shall mean only the owner, or the mortgagee in possession,
for the time being of the Building or the condominium unit (or the owner of a
lease or sublease of the Building or the condominium unit) of which the Premises
form a part, so that in the event of any conveyance, sale or sales of said
Building or condominium unit or an assignment, termination or surrender of said
lease or sublease or in the event of a lease or sublease of said Building or of
the condominium unit, the said Landlord shall be and hereby is entirely freed
and relieved of all covenants and obligations of Landlord hereunder, and it
shall be deemed and construed without further agreement between the parties or
their successors in interest, or between the parties and the purchaser, at any
such sale or other transaction described above, or the said lessee or
transferee of the Building or of the condominium unit, that the purchaser or
the lessee or transferee of the Building or the condominium unit has assumed and
agreed to carry out any and all covenants and obligations of Landlord thereafter
accruing hereunder.
(h) Tenant shall mean and include, at any given time, Tenant herein
named and each successor to or assignee of any interest of Tenant herein named
under this lease pursuant to the terms of this lease.
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(i) The obligations of this lease, and words of like import, shall
mean the covenants to pay rent and additional rent under this lease and all of
the other covenants, agreements, terms, conditions and limitations contained in
this lease.
(j) Xxxxxx's obligations hereunder and Landlord's obligations
hereunder, and words of like import, shall mean the obligations of this lease
which are to be performed, observed, or kept by Xxxxxx, or by Landlord, as the
case may be. Reference to performance of either party's obligations under this
lease shall be construed as "performance, observance and keeping".
(k) The term related corporation shall mean a corporation, individual,
partnership, or other business entity, which directly or indirectly, controls,
is controlled by, or is under common control with, another corporation,
individual, partnership, or other business entity.
(1) The term successor corporation shall mean a Corporation or other
business entity into or with which another corporation or other business entity
shall be merged or consolidated or to which all or substantially all of the
assets of such other corporation or other business entity shall be transferred.
(m) The term laws and requirements of authorities public and words of
like import, shall mean laws and ordinances of any or all of the federal, state,
city, and county governments and rules, regulations, orders and directives of
any or all departments, subdivisions, bureaus, agencies or offices thereof, or
of any other governmental, public or quasi-public authorities, having
jurisdiction of the Land or Building, and the directions of any public officer
pursuant to law.
(n) The term requirements of insurance bodies, and words of like
import, shall mean rules, regulations, orders and other requirements of the New
York Board of Fire Underwriters or the New York Fire Insurance Rating
Organization or any other similar body performing the same or similar functions
and having jurisdiction or cognizance of the Land, Building or Demised
Premises.
(o) The words repair and repairs shall be deemed to include
restoration, replacement and rebuilding.
(p) All references in this lease to numbered Articles and Sections and
lettered Exhibits, are references to Articles and Sections of this lease, and
Exhibits annexed to (and thereby made part of) this lease, as the case may be,
unless expressly otherwise designated in the context.
(q) The term unavoidable delays shall mean delays due to strike,
lockout or other labor or industrial disturbance (whether or not on the part of
employees of either party hereto), civil disturbance, order of any government,
court or regulatory body claiming jurisdiction, act of the public enemy, or
riot, sabotage, blockage, embargo, failure or inability to secure materials or
labor by reason of priority or similar regulation or order of any government or
regulatory body, lightning, earthquake, fire, storm, hurricane, flood, washout,
explosion, act of God, or any cause whatsoever beyond the reasonable control of
either party hereto whether or not similar to any of the causes hereinabove
stated, excluding however, the inability of either party to obtain any financing
which may be necessary to carry out its obligations.
(r) Regular business hours, business days and word of like import
shall mean 8:00 A.M. to 6:00 P.M. on all days other than Saturdays, Sundays, and
all days observed as holidays by the United States, State of New York or labor
unions representing
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individuals servicing the Building in behalf of Landlord; if there be no such
labor unions, such definition shall include holidays designated by Landlord for
the benefit of such individuals.
(s) The word invitee, relating to either Landlord or Tenant, shall mean
any employees, agents, visitors, customers, contractors, licensees, or other
parties claiming under, or in the Building by permission or sufferance of,
Landlord or Tenant, as the case may be.
(t) Tenant's Property shall mean all movable partitions, lighting
fixtures, special cabinet work, business and trade fixtures, machinery and
equipment, vaults and all other property, whether or not attached to or built
into the Premises and which is installed in the Premises by or for the account
of Tenant at its expense and can be removed without damage to the Building, and
all furniture, furnishings and other articles of personal property owned by
Tenant and located in the Premises.
(u) A lease year shall mean the 12 month period commencing with the
Commencement Date (as defined in Section 8.01), and ending the day preceding the
first anniversary of the Commencement Date (except that if the Commencement Date
shall occur on a day other than the first day of a calendar month, such period
shall commence with the Commencement Date and end with the last day of the 12th
full calendar month thereafter) and each 12 month period thereafter, all or
parts of which fall within the term of this lease.
2.02. Headings.
The Article and Section headings in this lease and the Index annexed to
this lease are inserted only as a matter of convenience, and are not to be given
any effect whatsoever in construing this lease.
ARTICLE 3
Rent
3.01. Rent.
The rent reserved under this lease (hereinafter called the "rent"), for
the term hereof, shall be and shall consist of:
(a) $96,687.50 per annum for the period commencing September 1, 1997
through and including June 30, 1998; $102,212.50 per annum for the period
commencing July 1, 1998 through and including June 30, 1999; and $110,500.00
per annum for the period commencing on July 1, 1999 through and including June
30, 2002 (which sum is hereinafter referred to as "fixed rent") which fixed rent
shall be payable without notice, in equal monthly installments in advance
commencing on September 1, 1997 and on the first day of every calendar month of
the term of this lease thereafter, plus*
(b) such other sums of money as shall become due and payable hereunder
(which other sums are collectively hereinafter referred to as "additional
rent"), which additonal rent shall be payable as hereinafter provided, all to be
paid to Landlord or its designated agent, at its principal place of business as
specified on the first page of this lease, or such other place as Landlord may
designate, in lawful money of the United States of America, without abatement,
deduction or set-off. All rent shall be paid
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by currently dated, unendorsed check of Tenant, drawn on a bank or trust
company which is a member of the New York Clearing House. Notwithstanding the
foregoing, Tenant shall pay Landlord $690.63 per month for the first two months
of the term of this lease as Electric Rent.*
3.02. Payments Due.
Tenant covenants and agrees to pay the rent and other charges herein
reserved promptly, as and when the same shall become due and payable, without
notice or demand therefor. If no date shall be set forth herein for the payment
of additional rent, then such sum shall be due and payable within ten business
days after the date upon which Landlord demands such payment. Landlord
acknowledges receipt of the payment of fixed rent for the first full calendar
month of the term, by check, subject to collection.
3.03. Rent Control.
If at any time during the term of this lease the rent, or any part thereof,
shall not be fully collectible by reason of any law and requirement of public
authority, Tenant shall enter into such agreement or agreements and take such
other action or actions (without additional expense to Tenant) as Landlord may
request and as may be legally permissible, to permit Landlord to collect the
maximum rents which may from time to time during the continuance of such legal
rent restriction be legally permissible (but not in excess of the amounts
reserved therefor under this lease). Upon the termination of such legal rent
restriction prior to the expiration of the term of this lease (a) the rents
shall become and thereafter be payable hereunder in accordance with the amounts
reserved in this lease for the period of the term following such termination and
(b) Tenant shall pay Landlord, if legally permissible, an amount equal to (i)
the rents which would have been paid pursuant to this lease but for such legal
rent restriction less (ii) the rents actually paid by Tenant to Landlord during
the period such rent restriction was in effect. Tenant hereby appoints Landlord
its attorney-in-fact to execute any and all necessary agreements and documents
pursuant to this Section.
3.04. Late Charge.
If any monies owing by Tenant to Landlord are not paid within 10 days
after the date when due and payable pursuant to the provisions of this lease,
Tenant shall pay to Landlord, in compensation for the additional administrative,
bookkeeping and collection expenses incurred by Landlord by reason of such late
payment, a sum calculated by multiplying the amount of money not paid timely by
the greater of (a) 13%, or (b) three percentage points in excess of the prime
rate, then established by Chemical Bank, N.A. (or its successor), dividing the
product by 365 and multiplying the quotient by the number of days between the
date such monies were payable and the date such monies are in fact paid. Nothing
herein shall be intended to violate any applicable law, code or regulation, and
in all instances all such charges shall be automatically reduced to any maximum
applicable legal rate or charge. Such compensation shall be without prejudice to
any of Landlord's rights and remedies hereunder.*
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ARTICLE 4
Adjustment of Rent for Changes in Real Estate Taxes and Operating Expenses.
4.01. Definitions of Taxes and Operating Expenses
As used herein:
(a) "Taxes" shall mean the total amount of real estate taxes and
assessments now or hereafter levied, imposed, confirmed or assessed against the
Real Property, including, city, county, school and transit taxes, water fees and
sewer and refuse disposal charges, or taxes, assessments or charges levied,
imposed, confirmed or assessed against, or a lien on, the Real Property by any
taxing authority whether general or specific, ordinary or extraordinary,
foreseen or unforeseen and whether for public betterments or improvements or
otherwise. If, due to any change in the method of taxation, any franchise,
capital stock, capital, income, profit, sales, rental, use and occupancy tax or
charge shall be levied, assessed, confirmed or imposed upon any owner of the
Real Property in lieu of, or in addition to any real estate taxes or assessments
upon or with respect to the Real Property, such tax shall be included in the
term Taxes. Penalties and interest on Taxes (except to the extent imposed upon
timely payments of assessments that may be, and are in fact, paid in
installments) and income, franchise, transfer, inheritance and capital stock
taxes shall be deemed excluded from Taxes except to the extent provided in the
immediately preceding sentence.
(b) "Base Tax" shall mean a sum determined by applying the tax rates
set forth on tax bills rendered by the taxing authorities for the tax year of
each such taxing authority during which this lease is executed to the assessed
valuations (after any reduction in said assessment as a result of any tax
abatement or other tax relief of any nature whatsoever) of the Real Property for
the tax year during which the Commencement Date shall occur. "Tax Year" shall
mean the fiscal period for each Tax affecting the property (whether or not a
calendar year) as established by each taxing authority. Any and all tax
abatements shall be for the benefit of Landlord.
(c) "Operating Expenses" or "Expenses" shall mean such costs or
expenses (and taxes thereon), as shall be paid or incurred by or in behalf of
Landlord in providing services to tenants, and in the operation, cleaning,
repair (whether structural or non-structural and whether or not capitalized
under generally accepted accounting principles), management, security and
maintenance of any and all parts of the Land and Buildings (collectively called
"Building Operation") including (i) salaries, wages and bonuses paid to, and the
cost of any hospitalization, medical, surgical, union and general welfare
benefits (including group life insurance), pension, retirement or life insurance
plans and other benefit or similar expenses of, Landlord's employees engaged in
Building Operation, (ii) social security, unemployment and other payroll taxes
and the cost of providing disability and workers' compensation coverage with
respect to said employees, (iii) costs and expenses for fuel or energy purchased
or used for the operation of the Buildings' heating, ventilating and air cooling
system and equipment, and for light and power (excluding any allocable share
thereof paid for by tenants for overtime charges), (iv) the cost of casualty,
rent, boiler, machinery, sprinkler, apparatus, liability, fidelity, plate glass
and any other insurance, (v) cost of painting, (vi) cost or rental of all
cleaning supplies, tools, materials and equipment, (vii) cost of uniforms, work
clothes and dry cleaning, (viii) cost of window cleaning, concierge, guard,
watchperson or other security personnel, service or system, if any, (ix)
management fees or, if no managing agent is employed by Landlord, a sum in lieu
thereof which is not in excess of then prevailing rates for management
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fees payable for comparable properties in comparable locations, (x) charges of
independent contractors performing work included within this definition, (xi)
stationery, (xii) legal (except those for the preparation of this and other
leases), accounting and other professional fees and disbursements incurred in
connection with Building Operation, (xiii) water, (xiv) service contracts for
the performance of Landlord's obligations, including elevator, electric,
heating, air-conditioning and plumbing systems, (xv) maintenance and repair of
grounds, including interior and exterior lawns, gardens, shrubbery, trees,
planters, containers, statuary, exhibits, displays, walks and other ways and
areas and common areas, (xvi) maintenance and repairs to the heating,
ventilating and air-conditioning systems, underground pipes, lines, equipment
and systems, roof, and all parts of the Real Property, (xvii) removal of snow,
ice, trash, garbage and other refuse, (xviii) telephone charges incurred at the
Buildings' office, if any, (xix) extermination, (xx) fire protection, (xxi)
repairs or replacements incurred by reason of fire or other casualty or
condemnation to the extent Landlord is not compensated by insurance or the
condemning authority, (xxii) cost of repairs and the cost of replacements
made in connection with repairs of cables, fans, pumps, boilers, cooling
equipment, wiring and electrical fixtures and metering, control and distribution
equipment, component parts of the HVAC, electrical, plumbing, elevator and any
life or property protection system (including sprinkler systems), window washing
equipment and snow removal equipment, (xxiii) costs for alterations or
improvements resulting in or intended to result in a reduction in fuel
consumption or Operating Expenses or made by reason of laws and requirements of
public authorities, insurance bodies or Landlord's insurers, provided however,
that to the extent such costs are capitalized under generally accepted
accounting principles, such costs (together with an interest factor equal to the
greater of 13% or three percentage points in excess of the prime rate
established by Chemical Bank, N.A. (or its successor) at the time of
expenditure) shall be amortized over a period of five years, (xxiv) for each
Expense Comparison Year (as defined in Section 4.06(a) subsequent to the first
Expense Comparison Year, an amount equal to the increase, if any, in the
interest payable as a result of any refinancing of the initial first mortgage
(encumbering the property of which the Premises are a part) during (or with
respect to) such Expense Comparison Year over the interest payable under any
such initial first mortgage during (or with respect to) the first Expense
Comparison Year; provided however, that if the principal balance of such
refinanced mortgage exceeds the principal balance thereof immediately prior to
which refinancing, then for purposes of determining the amount of interest
payable on such refinanced mortgage, the principal amount of such refinanced
mortgage shall be deemed to be equal to the lesser of the principal balance of
such refinanced mortgage or the original principal balance of the initial first
mortgage, and (xxv) costs and expenses (and taxes thereon) paid or incurred in
connection with the operation, cleaning, repair (whether structural or
non-structural and whether or not capitalized under generally accepted
accounting principles), management, security and maintenance of the limited
common elements or common elements of the condominium (if any) of which the
Premises is a part. An item of expense properly included in more than one of the
aforesaid categories shall not be included more than once in the calculation
of Operating Expenses.
(d) "Base Operating Expenses" shall mean Operating Expenses for the
calendar year during which the lease is executed ("Base Expense Year"). If the
Buildings are not fully operational or fully occupied by tenants during such
year, then the Operating Expenses for such year shall be calculated by Landlord
by projecting actual expenses to such increased amount as would have been
incurred if the Buildings had been fully operational and 95% occupied.
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(e) "Tenant's Proportionate Share" shall mean .50%, provided that if the
Premises shall be a portion of a condominium unit the rentable area of which
shall be less than 100% of the rentable square feet in the Buildings, then
"Tenant's Proportionate Share" shall be a percentage by dividing 5,525 square
feet by the total number of square feet of rentable square feet in the unit of
which the Premises is a part.
4.02. Tax Payments.
(a) If Taxes for any Tax Year during the term ("Tax Comparison Year") shall
exceed the Base Tax, Tenant shall pay Landlord, as additional rent for each such
Tax Comparison Year, Tenant's Proportionate Share of such excess ("Tax
Payment"). At Tenant's request, Landlord shall furnish Tenant with a true copy
of all relevant tax bills.
(b) Subsequent to Xxxxxxxx's receipt of the tax bills for each Tax
Comparison Year, Landlord shall submit to Tenant a statement showing (i) the Tax
Payments due for such Tax Comparison Year, and (ii) the basis of calculations
("Landlord's Tax Statement"). Tenant shal1 (y) pay Landlord the unpaid portion
(if any) of the Tax Payment within 30 days after receipt of Landlord's Tax
Statement, and (z) on account of the immediately following Tax Comparison Year,
pay Landlord commencing as of the first day of the month during which Xxxxxxxx's
Tax Statement is rendered, and on the first day of each month thereafter until a
new Landlord's Tax Statement is rendered, 1/12th of the total payment for the
current Tax Comparison Year. The monthly payments based on the total payment for
the current Tax Comparison Year shall be adjusted from time to time to reflect
Landlord's reasonable estimate of increases in Taxes for the immediately
following Tax Comparison Year.
4.03. Reduction of Comparison Year Taxes.
If Taxes for any Tax Comparison Year, or an installment thereof, shall be
reduced before such Taxes or such installment shall be paid, the amount of
Landlord's costs and expenses of obtaining such reduction (including appraisers'
and consultants' fees) shall be added to and deemed part of Taxes for such Tax
Comparison Year. In the event Landlord obtains a refund of Taxes for any Tax
Comparison Year for which a Tax Payment has been made by Tenant, Landlord shall
credit against Xxxxxx's next succeeding Tax Payment, Xxxxxx's Proportionate
Share of the refund (but not more than the Tax Payment that was the subject of
the refund) after deducting from such refund the costs and expenses incurred by
Landlord in obtaining the refund, including appraisers' and consultants' fees.
In the event no Tax Payment shall thereafter be due, Landlord shall pay such
refund to Tenant.
4.04. Reduction of Base Tax.
If Landlord obtains a reduction in the Base Tax after Tenant shall have
made Tax Payments for one or more Tax Comparison Years, the Base Tax shall be
reduced (such reduction to include the expenses incurred by Landlord in
obtaining such reduction, including appraisers' and consultants' fees), prior
Tax Payments shall be recalculated and Tenant shall pay Landlord, for each of
such Tax Comparison Years, Tenant's Proportionate Share of the increased amount
of Tax Payment for each such Tax Comparison Year. Tenant's payment under this
Section 4.04 shall be made within 30 days after Xxxxxxxx's billing therefor.
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4.05. Tax Payment Pending Protest.
While proceedings for the reduction in assessed valuations are pending, the
computation and payment of Tax Payments shall be based upon the original
assessments for the year(s) in question.
4.06. Adjustment of Operating Expense Payments.
(a) If Operating Expenses for any calendar year during the term and
following the Base Expense Year (each such year being called an "Expense
Comparison Year") shall exceed Base Operating Expenses, Tenant shall pay
Landlord for each such Expense Comparison Year, Xxxxxx's Proportionate Share of
such excess ("Expense Payment"). (If the Buildings are not fully operational or
fully occupied by tenants throughout any Expense Comparison Year, then the
Operating Expenses for each such year shall be calculated by projecting actual
expenses to such increased amount as would have been incurred if the Buildings
had been fully operational and occupied).
(b) Subsequent to the end of each Expense Comparison Year, Landlord shall
submit to Tenant a statement showing (i) the Expense Payments due Landlord for
such Expense Comparison Year, and (ii) the basis for such calculation
("Landlord's Statement"). Tenant shall (x) make payment of any unpaid portion of
the Expense Payment within 30 days after receipt of Landlord's Statement, and
(y) pay to Landlord on account of the then current Expense Comparison Year,
within 30 days after receipt of Landlord's Statement an amount equal to the
product obtained by multiplying the total payment required for the preceding
Expense Comparison Year by a fraction, the denominator of which shall be 12 and
the numerator of which shall be the number of months of the current Expense
Comparison Year which shall have elapsed prior to the first day of the month
immediately following the rendition of Landlord's Statement, and (z) pay
Landlord on account of the then current Expense Comparison Year, commencing as
of the first day of the month immediately following the rendition of Landlord's
Statement and on the first day of each month thereafter until a new Landlord's
Statement is rendered, 1/12th of the total payment for the preceding Expense
Comparison Year. The monthly payments based on the total payment for the
preceding Expense Comparison Year shall be adjusted, from time to time, to
reflect Landlord's reasonable estimate of increases in rates and expenses for
the current Expense Comparison Year. The payments required to be made under
clauses (y) and (z) above shall be subject to adjustment as and when Landlord's
Statement for such current Expense Comparison Year is rendered by Landlord.
Tenant shall make payments on account of Expense Payments for the first Expense
Comparison Year on the basis of estimates prepared by Landlord, payments to be
made monthly on the first day of each month during such first Expense Comparison
Year. The payments based on such estimates shall be adjusted following the
expiration of the first Expense Comparison Year, upon rendition of Landlord's
Statement for that year.
4.07. No Credit.
If in a Tax Comparison Year the Taxes are less than the Base Tax, and/or if
in an Expense Comparison Year, the Operating Expenses are less than the Base
Operating Expenses, the Tenant shall not be entitled to receive a credit, by way
of a reduction in fixed rent, a refund of all or a portion of prior (or a credit
against future) Tax Payments or Expense Payments, or otherwise.
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4.08. Assessment With Other Properties.
If, at any time, the Real Property is assessed for tax purposes with other
property owned by Landlord, the tax ascribable to the Real Property shall be the
allocable portion of the Taxes on the entire properties, based upon an informal
apportionment by such assessors of the total assessment to such Real Property or
if such apportionment is not available, as shall be determined by Landlord.
4.09. Billing.
Xxxxxxxx's failure during the term to prepare and/or deliver any statement
or bill required to be delivered to Tenant, or Landlord's failure to make demand
for payment of fixed rent or additional rent shall not be deemed a waiver of, or
cause Landlord to forfeit or surrender its rights to collect, any rent due.
Tenant's liability for all such payments shall continue unabated during the term
and shall survive the expiration or sooner termination of the term,
notwithstanding Landlord's failure to demand payment for same, failure to bill
same, or improper billing thereof.
4.10. Partial Comparison Year.
If the Expiration Date or earlier date upon which the term of this lease
may expire or terminate shall be on a date other than the last day of a Tax or
Expense Comparison Year, Tenant's Tax Payment and Expense Payment for such
partial Tax or Expense Comparison Year (as the case may be) shall be
appropriately prorated.
4.11. Tax Protests.
Tenant shall have no right to institute or participate in any tax
certiorari proceedings or other proceedings of a similar nature, it being
understood that the commencement, maintenance, settlement, or conduct thereof
shall be in the sole discretion of Landlord.
ARTICLE 5
Charges for Services During Non-Regular Business Hours
5.01. Services During Non-Regular Business Hours.
In the event Tenant conducts business in any portion of the Demised
Premises during other than regular business hours, Landlord shall, upon
reasonable advance notice, provide those building services as shall enable
Tenant to utilize the Premises during such period, provided that Tenant shall
pay Landlord's charges therefor, and subject to Landlord's regulations in effect
from time to time.
5.02. Cooling Tower.
In the event Tenant conducts business in any portion of the Demised
Premises during hours other than regular business hours, Landlord shall, upon
reasonable advance notice, operate the Building's cooling tower and such other
equipment and machinery as
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shall enable Tenant to cool the Premises. Tenant shall reimburse Landlord for
Landlord's cost of such service upon rendition of a bill therefor, at a rate
equal to Landlord's actual cost therefor, plus 15%.
ARTICLE 6
Construction of the Building
6.01. Changes to Building.
Landlord may, at any time, without the same constituting an eviction of
Tenant or entitling Tenant to any abatement of rent, and without otherwise
incurring liability to Tenant, and without any effect on any of Tenant's
obligations under this lease, change the arrangement and/or location of
(including the closing off of) public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other parts of the Building, provided
that in so doing, Landlord does not deny Tenant reasonable means of access to
the Demised Premises for the conduct of Xxxxxx's business.
6.02. Multi-Tenant Floors.
Landlord may, without the same constituting an eviction of Tenant or
entitling Tenant to any abatement of rent, and without otherwise incurring
liability to Tenant, and without any effect on any of Tenant's obligations under
this lease, rearrange the space unit divisions and the public corridors on the
floor upon which the Demised Premises is located in any manner Landlord may
determine, provided only that the Demised Premises shall not (i) be changed in
any respect and (ii) have diminished access by public corridor(s) to the
elevator(s), fire stair(s) and public toilet(s) serving said floor.
ARTICLE 7
Completion of the Demised Premises
Mechanics' Liens
7.01. Completion of Premises.
Tenant shall accept the Demised Premises "as is", such term shall mean in
the same condition and repair in which the prior tenant vacated such space, and
Tenant shall be responsible for any demolition and removal of any improvements
existing in the Demised Premises in connection with the prior tenant's
occupancy, and all other work as may be necessary to convert the Demised
Premises to Tenant's requirements. Landlord shall not be responsible for
performing any work with respect to such space, whether or not included in the
Work Letter. Any work, changes or improvements made to such space shall be
performed at Tenant's expense in accordance with the terms of this lease,
including Article 17. *
7.02. Tenant's Work.
(a) If Tenant shall employ or use any contractor or subcontractor other
than Landlord in the performance of any work in connection with Xxxxxx's initial
occupancy, which work Tenant shall not commence until after the Commencement
Date, all of
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Tenant's duties and obligations set forth in Article 17 (relating to Xxxxxx's
duties and obligations in making Tenant's Changes) shall he applicable to and
binding upon Tenant with respect to any such work.
(b) If Tenant shall employ or use any contractor other than Landlord in the
performance of any work in connection with Xxxxxx's initial occupancy, such work
shall be conducted in accordance with all laws and requirements of public
authorities and requirements of insurance bodies, in a good and workmanlike
manner, and in such manner as not to interfere with or delay the work of
Landlord's contractors and subcontractors in the Building, or to impose any
additional expense upon Landlord in the construction within, or operation of,
the Buildings, and so as to maintain harmonious labor relations in the
performance of work in the Buildings. Without limiting the generality of the
foregoing, Tenant shall advise Landlord of the names of Xxxxxx's contractors and
subcontractors and adopt a work schedule in conformity with the schedule of
Landlord's contractors and subcontractors. Tenant agrees that its contractors
and subcontractors shall employ people and means to ensure the progress of the
work in the Buildings without interruption on account of strikes, work stoppage
or other similar cause for delay. At any and all times while Xxxxxxxx's and
Xxxxxx's installations are being performed by Xxxxxx's designated contractor,
Landlord shall be entitled to have a representative(s) on the site for the
purpose of inspecting same, and for such purpose such representative(s) shall
have free and unrestricted access to all parts of the Demised Premises.
7.03. Tenant's Construction Related Obligations.
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 work performed, or alleged to have been performed, by its
contractor(s) and which shall be issued by any public authority having or
asserting jurisdiction. Tenant shall defend, indemnify and save harmless
Landlord against any and all mechanic's and other liens and financing
statements, conditional bills of sale, chattel mortgages or other financing or
title retention devices, filed in connection therewith and against all costs,
expenses and liabilities (including reasonable attorney's fees) incurred in
connection with any such lien, financing statement, conditional bill of sale,
chattel mortgage or other financing or title retention devices, or any action or
proceeding brought thereon. In connection therewith, Tenant, at its expense,
shall procure the satisfaction or discharge of all such liens, financing
statements, conditional bills of sale, chattel mortgages and other financing or
title retention devices within 15 days after the filing or recording of same.
Nothing herein contained, however, shall prevent Tenant from contesting, in good
faith and at its own expense, any such notice of violation, lien, financing
statement, conditional bill of sale, chattel mortgage, or other financing or
title retention devices provided that (i) in case of a notice of violation,
Tenant shall comply with the provisions of Section 14.02, and (ii) in case of a
lien, financing statement, conditional bill of sale, chattel mortgage, or other
financing or title retention device Tenant shall have accomplished the discharge
thereof by bonding or otherwise within 15 days after the filing or recording of
the same.
7.04. Non-Liability of Landlord.
Neither Tenant nor any of its agents, employees, representatives,
contractors or subcontractors shall have any power or authority to do any act or
thing or to make any contract
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or agreement which will bind Landlord or which may create or be the foundation
for any mechanic's lien or other lien or claim upon or against Landlord or
Landlord's interest in the Real Property; and, further, Landlord shall have no
responsibility to Tenant or to any architect, engineer, contractor,
subcontractor, supplier, material provider, worker or other person, firm or
corporation who shall engage, or participate, in the performance of additional
work or any installation, alteration or improvement to be performed or made by
Tenant under any of the terms of this lease, or otherwise, unless Landlord shall
expressly undertake such obligation by an agreement in writing, signed by
Landlord, and made between Tenant and Landlord or such other party.
ARTICLE 8
Commencement Date-Earlier Possession
8.01. Commencement Date.
(a) The term of this lease shall commence as of June 13, 1997 and expire
June 30, 2002 or on such earlier date upon which said term may expire or be
terminated pursuant to any provision of this lease or law. *
(b) Tenant shall accept the Demised Premises "As-Is" as set forth in
Article 7.01. *
(c) The Floor Plan attached hereto may be revised by Landlord in order to
comply with laws and requirements of public authorities and requirements of
insurance bodies. If any of such revisions or changes are due to Tenant's use of
the Demised Premises, Tenant shall pay for the cost of implementing same. If any
common foyers, exit passages mandated by such requirements are used by more than
one tenant, the rental value therefore shall be apportioned to Tenant in
relation to the Tenant's Rentable Area (as compared to the square footage
occupied by all such tenants) and Xxxxxx's fixed rent shall be increased
accordingly. *
8.02. Consequences of Tenant's Possession of Premises or Commencement Date.
On the Commencement Date or upon such earlier date as Tenant shall take
possession of any part or parts of the Demised Premises, Tenant shall be
conclusively deemed to have agreed that Landlord, up to the time of such
possession or the Commencement Date, as the case may be, has performed all of
its obligations hereunder with respect to preparation of such part or parts for
Tenant's possession, except for such failures or omissions by Landlord in
performing such obligations as Tenant may specify by notice to Landlord not more
than 10 days following the taking of such possessions by Tenant or the
Commencement Date, as the case may be. Tenant shall not be entitled to any rent
abatement on account of any such incomplete work.
8.03. Waiver of Right to Rescind.
The parties agree that this Article covers Xxxxxx's rights with respect to
the time possession of the Premises is to be delivered to it and constitutes an
express provision to the contrary under, and Tenant hereby waives any rights to
rescind this lease and/or recover damages which Tenant might otherwise have
pursuant to, Section 223(a) of the Real Property Law of the State of New York.
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8.04. Ear1y Commencement of Business.
If Tenant shall commence the conduct of its business in one or more
portions of the Demised Premises prior to the Commencement Date, the rents
allocable to such portion or portions shall be payable from the date or dates of
such commencement or commencements, and the obligations assumed by Tenant and to
be performed during the term of this lease shall commence as of the date or
dates of such commencement or commencements, provided that no such partial
commencement of business shall be permitted if, in Landlord's judgment, such
action would interfere with the completion of its construction and installation
obligations. In the event of any such occupancy by Tenant prior to the
Commencement Date, Tenant shall not interfere with or delay the work of
Landlord's contractors and subcontractors in the Buildings and Landlord shall
have no liability to Tenant in the event it, its contractors and subcontractors
shall, in the performance of Landlord's construction and installation
obligations, interfere with, or interrupt the conduct of, Tenant's business.
ARTICLE 9
Use
9.01. Permitted Uses.
Tenant may occupy and use the Demised Premises only for executive,
administrative, accounting, and general office purposes, and for no other
purpose.
9.02. Prohibited Uses.
(a) Xxxxxx agrees that neither Tenant nor any subtenant, assignee or
occupant of the Demised Premises shall at any time during the term of this lease
occupy or use the Demised Premises or permit the same to be used or occupied in
any manner except as provided in Section 9.01. The following non-exclusive list
of uses shall not be deemed to be "executive, administrative, accounting and
general office purposes", and Tenant shall not use, or permit the use of, the
Demised Premises or any part thereof, for:
(i) the conduct of a public auction of any kind, or of any
gaming or gambling activities, or for any political or club activities,
whether public or private;
(ii) the conduct of a school of any kind or as an employment
agency;
(iii) the sale, at retail or wholesale, of any products or
materials kept in the Demised Premises, by vending machine or otherwise;
(iv) manufacturing purposes;
(v) the rendition to the public of medical, dental or other
diagnostic or therapeutic services;
(vi) a restaurant, bar, or the sale of confectionery, tobacco,
newspapers, magazines, soda, beverages, sandwiches, ice cream, baked
goods or similar items, or the preparation, dispensing or consumption of
food and beverages;
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(vii) the conduct of any business, occupation or activity which, in
Landlord's reasonable judgment may (x) impair the reputation of the
Buildings, (y) interfere with or disturb the occupancy of other tenants or
occupants of the Buildings, or (z) create or xxxxxx an unusual risk to the
security of the Buildings or of any of their tenants or occupants;
(viii) the conduct of any business not engaged in by Tenant at the date
of this lease, if the use of the Demised Premises for such business shall
conflict with any negative covenants as to use contained in any other
lease of space in the Buildings entered into subsequent to the date of
this lease but prior to the use of the Demised Premises for such other
business, provided that Landlord shall have notified Tenant of the
existence of such negative covenants; or
(ix) printing and reproduction of materials for sale or for the purpose
of rendering services to others.
(b) Tenant shall not suffer or permit the Demised Premises or any part
thereof to be used in any manner, or anything to be done therein, or suffer or
permit anything to be brought into or kept in the Demised Premises, which would
in any way (i) violate any laws or Requirements of public authorities (subject
to the right to contest such laws or requirements as provided in, and subject to
the provisions of, Section 14.02), (ii) cause injury to the Buildings or any
part thereof, (iii) constitute a public or private nuisance, (iv) impair the
appearance of the exterior of the Buildings, (v) impair the use for normal
purposes of any other area of the Buildings by (or occasion physical discomfort
to, or interfere with services required to be furnished by Landlord to Tenant or
to) any of the other tenants and occupants of the Buildings, or (vi) violate
any of Tenant's other obligations under this lease.
(c) Tenant shall not cause (or allow any of its contractors, agents or
other persons or entities over whom or which it exercises a degree of control to
cause) to occur within the Demised Premises, or the Buildings, any discharge,
spillage, uncontrolled loss, seepage or filtration of hazardous waste or oil or
petroleum liquids or solids, asbestos, pcb, radioactive substances, methane,
volatile hydrocarbons, industrial solvents, or any other materials or substances
which have in the past caused or constituted, or are in the future found to
cause or constitute, a health, safety or environmental hazard.
9.03. Physical Protection of Premises.
(a) Tenant shall not place (nor require the placement of) a load upon any
floor of the Demised Premises exceeding 75 lbs. per square foot (live and dead),
nor shall Tenant place (or require the placement of) a load upon any ceiling
in the Demised Premises exceeding 5 lbs. per square foot. All data processing
and other business machines and equipment and all other mechanical equipment
installed and used by Tenant in the Demised Premises shall be so equipped,
installed and maintained by Tenant, at its expense, as to prevent noise,
vibration or electrical or other interference from being transmitted from the
Demised Premises to any other area of the Buildings. Tenant shall not move any
safe, heavy machinery or heavy equipment into or out of the Buildings without
employing persons properly licensed, if required by laws and requirements of
public authorities.
(b) Tenant shall not discharge or permit to be discharged any materials
into waste lines, vents, or flues of the Buildings which might cause damage
thereto. The water and wash closets and
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other plumbing fixtures in or serving the Demised Premises shall not be used for
any purposes other than those for which they shall have been designed or
constructed, and no sweepings, rubbish or rags shall be deposited therein.
ARTICLE 10
Building Name-Signs-Directory
10.01. Building Name.
Landlord shall have the right, from time to time, to change the name
and/or address of the Buildings.
10.02. Tenant
Landlord agrees that Tenant may, at its own expense, install and maintain
any signs which Tenant may deem appropriate inside the Demised Premises, except
that any such signs which are visible from the outside of the Buildings or
Demised Premises shall be subject to Landlord's approval. Tenant agrees that it
will maintain all such signs at its sole cost and expense and will comply with
all laws and requirements of public authorities with respect thereto. Upon the
termination or expiration of the term of this lease, Tenant shall, at its sole
cost and expense, remove all such signs and repair any damage caused by such
removal.
10.03. Directory.
Landlord shall, upon Xxxxxx's request and upon payment of Landlord's
charge therefor, list on the Building's directory ("Directory") the names of the
Tenant, any other party occupying any part of the Demised Premises in accordance
with the terms hereof, and their officers or employees, provided the number of
names so listed does not exceed Xxxxxx's Proportionate Share of the Directory's
capacity. The listing of any party's name other than that of Tenant shall
neither grant such party any right or interest in this lease and/or the Demised
Premises nor constitute Landlord's consent to any assignment or sublease to, or
occupancy by, such party. Such listing may be terminated by Landlord at any
time, without prior notice.
ARTICLE 11
Subordination
11.01. Subordination.
(a) This lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such leases or the
Real Property, and to all renewals, modifications, consolidations, replacements
and extensions of any such underlying instruments. This clause shall be
self-operative and no further instrument of subordination shall be needed by any
ground or underlying lessee or mortgagee affecting any lease or the Real
Property. In confirmation of such subordination, Tenant shall promptly execute
any certificate that Landlord (or the lessor under any such lease or the holder
of any such mortgage or any of their respective successors in interest) may
request. If Xxxxxx fails to execute, acknowledge or deliver any such instrument
within ten days after request therefor, Tenant
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hereby irrevocably constitutes and appoints Landlord as Xxxxxx's
attorney-in-fact, coupled with an interest, to execute and deliver any such
instrument for and in behalf of Tenant.
(b) Notwithstanding the provisions of Section 11.01(a), subject to the
provisions herein set forth, and at the election of the holder of any current or
future mortgage encumbering all or a portion of the premises of which the
Demised Premises are a part, such mortgage shall be subordinate to this lease
with the same force and effect as if this lease had been executed, delivered and
recorded prior to the execution, delivery and recording of the said mortgage,
except however that the said subordination of the mortgage to the lease shall
not affect nor be applicable to and does expressly exclude:
(i) the prior right, claim or lien of the said mortgage in, to and upon
any award or other compensation heretofore or hereafter to be made for any
taking by eminent domain of any part of the mortgaged premises, and to the
right of disposition thereof in accordance with the provisions of the said
mortgage;
(ii) the prior right, claim and lien of the said mortgage in, to and
upon any proceeds payable under all policies of fire and rent insurance
upon the said mortgaged premises and as to the right of disposition
thereof in accordance with the terms of the said mortgage; and
(iii) any lien, right, power or interest, if any, which may have arisen
or intervened in the period between the recording of the said mortgage and
the execution of this lease, or any lien or judgment which may arise at
any time under the terms of this lease.
Although this clause shall be self-operative upon the election of any such
mortgagee, in confirmation hereof, Tenant shall execute promptly any certificate
that Landlord or such mortgagee may request, and the last sentence of Section
11.01(a) shall apply to this Section 11.01(b) (with appropriate changes in
points of detail).
11.02. Attornment.
In the event any proceedings are brought for the foreclosure of, or in the
event of an exercise of the-power of sale under, any mortgage made by Landlord
covering the premises of which the Demised Premises are a part, Tenant shall
attorn to and acknowledge the purchaser or purchasers upon any foreclosure or
sale and recognize such purchaser or purchasers as the Landlord under this
lease.
11.03. Waiver of Termination Right.
Tenant waives the benefit of the provisions of any statue or rule of law
now or hereafter in effect which may give or purport to give Tenant, any right
of election to terminate this lease or to surrender possession of the Demised
Premises in the event a superior lease or superior mortgage is terminated or
foreclosed, as the case may be.
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ARTICLE 12
Quiet Enjoyment
12.01. Quiet Enjoyment.
Landlord covenants and agrees that so long as Tenant pays the fixed rent
and additional rent due hereunder and performs all of Tenant's other obligations
hereunder, Tenant shall peaceably and quietly have, hold and enjoy the Demised
Premises without hindrance or molestation by Landlord, subject, nevertheless, to
the terms, covenants and conditions of this lease. The covenant herein set forth
shall bind and be enforceable against Landlord or any successor to Xxxxxxxx's
interest, subject to the terms hereof, only so long as Landlord or any successor
to Xxxxxxxx's interest is in possession and is collecting rent from Tenant.
ARTICLE 13
Assignment-Mortgaging-Subletting
13.01. Prohibition Against Assignment, Etc.
(a) Tenant covenants and agrees that neither this lease, nor the term and
estate hereby granted, nor any part hereof or thereof shall be assigned,
mortgaged, pledged, or otherwise transferred (whether voluntarily or
involuntarily, by operation of law or otherwise) to, and that neither the
Demised Premises, nor any part thereof, shall be sublet to, or offered or
advertised for subletting to, or be used or occupied by or permitted to be used
or occupied by, anyone other than Tenant.
(b) Unless Tenant is an entity the securities of which are registered
under appropriate statutory authority and listed and traded on a national
securities exchange, the transfer of any portion of the capital stock of Tenant
or the issuance, of additional capital stock of Tenant the result of which, in
either event, shall be the transfer of control of Tenant to any person or entity
not controlling Tenant on the date of this lease shall be deemed an assignment
of this lease within the meaning of this Section, and shall not be valid and
binding upon Landlord.
(c) If Tenant is controlled (directly or indirectly) by a corporation or
other business entity, ("Parent"), the securities of which are not registered
under appropriate statutory authority and not listed and traded on a national
securities exchange or NASDAQ, the transfer of any portion of the capital stock
of such Parent or the issuance of additional capital stock of such Parent the
result of which, in either event, shall be the transfer of control of such
Parent to any person or entity not controlling such Parent on the date of this
lease shall be deemed an assignment of this lease within the meaning of this
Section, and shall not be valid and binding upon Landlord.*
(d) Any transfer by operation of law or otherwise, of Xxxxxx's interest in
this lease, shall be deemed an assignment of this lease within the meaning of
this Section and shall not be valid and binding upon Landlord.
(e) If this lease shall be assigned, whether or not in violation of the
provisions of this lease, Landlord may (but need not) collect rent from the
assignee. If the Demised Premises or any part thereof be sublet or occupied by
anyone other than Tenant, Landlord may (but need not), after default by Tenant
and expiration of Tenant's time to cure such default, collect rent from the
subtenant or occupant. In either event, Landlord may apply the net amount
collected to the rents herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as Tenant hereunder, or a
release of Tenant from the further performance by Tenant of Tenant's obligations
under this Lease.
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ARTICLE 14
Compliance with Laws
14.01. Notice and Compliance With Laws.
Tenant shall give prompt notice to Landlord of any written notice it
receives of the violation of any law or requirement of public authority
affecting the Demised Premises or the Buildings, and (subject to Section 14.02)
at its expense shall comply with all laws and requirements of public authorities
which shall, with respect to the Demised Premises or the use or occupancy
thereof, or the abatement of any nuisance, impose any violation, order or duty
on Landlord or Tenant, arising from (i) Tenant's use of Demised Premises, (ii)
breach of any of Tenant's obligations hereunder, (iii) the manner of conduct of
any business of Tenant or operation of its installations, equipment or other
property in the Demised Premises, or (iv) any cause or condition created by or
at the instance of Tenant or its invitees.
14.02. Contest.
Tenant may, at its expense (and if necessary, in the name of but without
expense to Landlord), contest, by appropriate proceedings prosecuted diligently
and in good faith, the validity or applicability to the Demised Premises, of any
law or requirement of public authority, and Landlord shall cooperate with
Tenant, in such proceedings, provided that:
(a) Tenant shall defend, indemnify and hold harmless Landlord against
all liability, loss or damage which Landlord shall suffer by reason of
such contest (and any non-compliance in connection therewith), including
reasonable attorneys' fees and other expenses incurred by Landlord, and
shall furnish such bond or other security as may be required pursuant to
the requirements of any mortgage affecting the Real Property or Demised
Premises; and
(b) Tenant shall keep Landlord advised as to the status of such
proceedings.
Tenant need not comply with any law or requirement of public authority so
long as Tenant shall be so contesting the validity or applicability thereof to
the Demised Premises in accordance with this Section, provided that (v)
noncompliance shall not constitute a crime or an offense on the part of Landlord
or any shareholder, member, partner, agent or officer of Landlord punishable by
fine or imprisonment, (w) neither Landlord nor any shareholder, member, partner,
agent or officer of Landlord shall be subjected to civil complaint, (x) no part
of the Buildings shall be in danger of being condemned or vacated by reason of
noncompliance or otherwise by reason of such contest, (y) such noncompliance
shall not cause either a violation of the Certificate(s) of Occupancy for the
Buildings or of any licenses or permits issued for the Buildings or a violation
to be noted or issued against the Buildings, and (z) title to the Demised
Premises, the Real Property and/or the Buildings is not adversely affected by
reason of such contest.
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ARTICLE 15
Insurance
15.01. Tenant's Requirements.
Tenant covenants to provide prior to entry upon the Demised Premises and
to keep in full force and effect during the period prior to the commencement of
the term during which Tenant shall enter upon and occupy any portion of the
Demised Premises for any purpose, and throughout the term of this lease, at its
own cost, and with responsible, insurance companies of recognized standing,
authorized to do business in the State of New York and approved by Landlord, (i)
public liability and property damage insurance, written on an occurrence basis,
to afford protection in an amount not less than $2,500,000 combined single limit
for personal injury, death and property damage arising out of any one
occurrence, protecting Landlord and Tenant against any and all claims for
personal injury, death or property damage occurring in, upon or adjacent to the
Demised Premises and any part thereof, or arising from, related to, or in any
way connected with the conduct and operation of Tenant's use, or occupancy, of
the Demised Premises, which insurance shall name Landlord (and, at Xxxxxxxx's
request, Xxxxxxxx's mortgagees) as additional insureds, (ii) workers'
compensation insurance covering all persons employed by Tenant or its
contractors in connection with any work performed by or for Tenant, and (iii)
plate glass insurance covering exterior plate glass in the Demised Premises, if
any. All of Tenant's insurance shall be in form satisfactory to Landlord and
shall provide that it shall not be subject to cancellation, termination or
change except after at least 30 days' prior written notice to Landlord. All such
policies or duly executed certificates for the same (in both instances with
satisfactory evidence of the payment of the premium therefor) shall be deposited
with Landlord not less than 30 days prior to the day such insurance is required
to be in force and upon renewals of said policies not less than 30 days prior to
the expiration of the term of such coverage. Landlord shall have the right at
any time and from time to time during the term hereof on not less than 30 days
notice to Tenant to require that Tenant increase the amount and/or types of
coverage required to be maintained under this Article to the amounts and/or
types of coverage then generally required of tenants in first class office
buildings the New York City metropolitan area. The minimum limits of liability
insurance required pursuant to clause (i) of this Section shall in no way limit
or diminish Tenant's liability under Section 28.02 hereof.
15.02. Blanket Policies.
The insurance required to be provided by Tenant hereunder may be effected
by "umbrella" policies. Any such policy or policies shall, as to the Premises,
otherwise comply as to endorsements and coverage, with the provisions of this
Article.
15.03. Tenant's Compliance.
Tenant shall not commit or permit any violation of the casualty and rent
insurance policies carried by Landlord, or do or permit anything to be done, or
keep or permit anything to be kept, in the Demised Premises, which, in case of
any of the foregoing (i) could result, in termination of any of such policies,
(ii) could adversely affect Landlord's right of recovery under any such
policies, or (iii) would result in reputable and independent insurance companies
refusing to insure the Building or property of Landlord therein in amounts
reasonably satisfactory to Landlord and its mortgagees, in compliance with the
requirements of insurance bodies. If any such action by Xxxxxx, or any failure
by Tenant either to comply with the requirements of insurance bodies with
respect to the Demised Premises or to perform any of Tenant's obligations
hereunder, or any use of the Demised Premises by
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Tenant (whether or not permitted under Article 9) shall result in the
cancellation of any such insurance or an increase in the rate of premiums
payable with respect to such policies carried by landlord, Tenant shall
indemnify and hold Landlord harmless against any loss which would have been
covered by such insurance and reimburse Landlord for the resulting additional
premiums which shall thereafter be paid by Landlord. Tenant shall make such
reimbursement within 30 days after the receipt of notice from Landlord that such
additional premiums have been paid by Landlord, without limiting Landlord's
rights under Articles 32, 33 and 34.
15.04. Waiver of Subrogation.
Tenant shall procure an appropriate clause in, or endorsement on, each of
its policies for fire or extended coverage insurance covering the Demised
Premises or the Building or personal property, fixtures or equipment located
thereon or therein, pursuant to which the insurance company waives subrogation
or consents to a waiver of right of recovery against Landlord, and Tenant
hereby agrees that it will not make any claim against or seek to recover from
Landlord for any loss or damage to its property or the property of others
covered by such fire or extended coverage insurance. To the extent that Tenant
shall be a self-insurer with respect to Tenant's Property, Tenant shall and
hereby does waive its right of recovery, if any, against Landlord, its agents
and employees, for loss, damage or destruction of Tenant's Property.
ARTICLE 16
Parking
16.01. Parking.
(a) Throughout the term, so long as Tenant shall have performed all of the
agreements on Tenant's part to be performed, Landlord shall make available to
Tenant the following number of parking spaces, on a non-exclusive basis:
two (2) spaces for executive cars marked for Tenant's exclusive use.
fifteen (15) spaces for employee cars, which shall be located within the
parking lots surrounding the Buildings, unless otherwise provided for herein.
If Tenant or its invitees use more than the specified number of spaces set
forth above then after five days notice from Landlord, Tenant shall, at the
option of Landlord, either (i) pay Landlord's then current charge per month for
each additional space used for each month during which such excess use takes
place (even if for less than the full month) (as of the date of this lease,
Landlord's current monthly charge is $40.00 per space), or (ii) cease and desist
immediately from using said additional spaces. If Landlord selects the first of
such options, Landlord may revoke such choice on 30 days notice.
(b) As necessary, Landlord shall (between 7:00 a.m. and 10:00 p.m. on
business days), light, clean, remove snow from and otherwise maintain, the
parking area. Tenant shall be responsible for repairing damage to the parking
areas caused by Tenant or its invitees. Landlord shall not be obligated to
remove snow unless the accumulation exceeds three inches. In no event shall
Landlord be obligated to remove snow from areas obstructed by parked vehicles at
the time Landlord's equipment is servicing such areas.
(c) Tenant shall require its invitees to park only in areas designated by
Landlord, and not to obstruct the parking areas of
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other tenants. Tenant shall, upon request, furnish to Landlord the license
numbers of the automobiles operated by Tenant, its executives and other
employees. Landlord may use any lawful means to enforce the parking regulations
established pursuant to Article 38, including, but not limited to, the towing
away of improperly parked or unauthorized cars and pasting of warning notices on
car windows and windshields.
(d) Landlord may temporarily close any parking area in order to make
repairs or changes, to prevent the acquisition of public rights, or to
discourage unauthorized parking. Landlord may do such other acts in and to such
areas as, in its judgment, may be desirable to improve same.
(e) The parking areas for trucks and delivery vehicles in front of loading
areas (if any) adjacent to the Buildings are not to be used by Tenant or its
invitees, as parking spaces, unless otherwise directed by Landlord. Such loading
areas are provided solely for the loading and unloading of Tenant's goods and
no vehicles may be parked in such areas longer than necessary, in Landlord's
reasonable judgment, for the efficient discharge of such purposes. In no event
shall access to any loading area be blocked for more than 15 minutes.
(f) Neither Tenant nor its invitees shall park automobiles, trucks or
other motor vehicles overnight within the parking areas.
ARTICLE 17
Tenant's Changes
17.01. Permitted Changes.
After completion of the initial preparation of the Demised Premises as
provided for in Article 7, Tenant may, at any time and from time to time during
the term of this lease, at its expense, make or have made such other
alterations, additions, installations, substitutions, improvements and
decorations (hereinafter collectively called "changes" and, as applied to
changes provided for in this Article, "Tenant's Changes") in and to the Demised
Premises, but not structural alterations additions or changes, as Tenant may
reasonably consider necessary for the conduct of its business in the Demised
Premises, provided that:
(a) the outside appearance of the Building, or the strength of the
Building or of any of its exterior walls, supporting beams, columns, floor
slabs, foundations or elevator systems is not adversely affected;
(b) no Tenant's Changes shall operate to reduce the Rentable Area of
the Demised Premises or the value of the Buildings,
(c) no Tenant's Changes shall adversely affect (or increase the cost
of) any service required to be furnished by Landlord to the Demised
Premises or to any other portion of the Buildings;
(d) in performing the work involved in making such changes, Tenant
shall be bound by and observe all applicable conditions and provisions
contained in Sections 7.02(b), 7.03 and 7.04 as if such changes were
included in the initial preparation of the Demised Premises;
(e) in the case of any Tenant's Changes, other than decorations,
Tenant shall give notice to Landlord, including general plans and
specifications (if any) for such Tenant's
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Changes, at least 20 days before the work of making such Tenant's Changes shall
commence;
(f) if the reasonably anticipated cost of any Tenant's Change or
series or group of proposed Tenant's Changes intended to be made at or
about the same time shall be $50,000 or more ("Substantial Change"), or if
any Tenant's Change shall include a change which under the provisions of
the applicable governmental Building Code then in effect requires an
alteration permit, Tenant, prior to commencement of such change, shall
obtain consent thereto from Landlord; Landlord agrees that its consent
shall not be unreasonably withheld, but Xxxxxx agrees that any such
consent may be upon condition that upon the expiration or earlier
termination of this lease, Tenant shall restore the Demised Premises to
the condition in which it would be if the change in respect of which the
consent is required had not been made; it is agreed that Landlord shall be
deemed to be acting reasonably in refusing to give any such consent if the
making of such change would constitute a default under a mortgage
encumbering the Land or Building;
(g) if because of the nature of any Tenant's Change, compliance with
any provisions of a mortgage encumbering the Land or Building is required,
Tenant at its own expense, shall comply therewith; and
(h) in connection with any Tenant's Changes, Tenant shall, at its own
cost and expense, obtain such permits and certificates as shall be
required under the applicable governmental Building Code then in effect,
and all other permits and certificates of any other governmental authority
having jurisdiction over the Building; and
(i) at Landlord's option, Tenant shall employ Landlord or an affiliate
of Landlord to perform Tenant's Changes, provided Landlord or its
affiliates price for such Tenant's Changes is competitive with other
licensed (and union if applicable) contractors for similar work in similar
buildings in Rockland County.
17.02. Substantial Changes.
Each Substantial Change shall be made under the supervision of an
architect or engineer selected (and paid) by Xxxxxx and approved by Landlord,
which approval shall not be unreasonably withheld. Each Substantial Change shall
be made in accordance with detailed plans and specifications prepared by an
architect or engineer designated (and paid) by Xxxxxx and approved by Landlord,
such approval not to be unreasonably withheld. Copies of all such plans and
specifications shall be delivered by Tenant to Landlord, and shall be subject to
the advance approval of Landlord, which approval shall not be unreasonably
withheld. If any plans and/or specifications are prepared in connection with any
Tenant's Change, Tenant shall furnish copies thereof to Landlord.
17.03. Substantial Changes in Excess of $100,000.
If the estimated cost of any proposed Tenant's Change shall be $100,000 or
more or if the estimated aggregate cost of any series or group of proposed
Tenant's Changes intended to be made at or about the same time shall be $100,000
or more, Tenant shall, at its sole cost and expense and before commencing same,
furnish to Landlord (and the holder of any mortgage affecting the Land or
Building, if therein required) (i) a surety company bond, issued by a surety
company approved by Landlord, which approval shall not
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be unreasonably withheld (and the holder of any such mortgage where required),
in an amount at least equal to the estimated cost of such change, or the
estimated collective cost of such group of permitted changes, as the case may
be, or (ii) other security satisfactory to Landlord (and the holder of any such
mortgage where required), in each case guaranteeing to Landlord (and the holder
of any such mortgage where required) the fully paid completion of the proposed
change, or proposed permitted changes, as the case may be, within a reasonable
time, free and clear of all liens, encumbrances, chattel mortgages, conditional
bills of sale and other claims and charges, and in accordance with any plans and
specifications therefor approved by Landlord (and the Holder of any such
mortgage where required).
17.04. Restricted Changes.
Except as provided in this Article, Tenant shall not have any right to
make any changes in the Demised Premises without the prior consent of Landlord.
ARTICLE 18
Tenant's Property
18.01. Tenant's Property.
Tenant's Property shall be and shall remain the property of Tenant, may be
removed by it at any time during the term of this lease so long as Tenant shall
not be in default hereunder and shall be in possession of the Demised Premises.
Tenant shall repair or pay the cost of repairing any damage to the Demised
Premises or to the Buildings resulting from such removal.
18.02. Abandonment of Tenant's Property.
Any of Tenant's Property which shall remain in the Demised Premises
following the expiration or earlier termination of the term of this lease and
the removal of Tenant from the Demised Premises, may, at the option of Landlord,
be deemed to have been abandoned and ether may be retained by Landlord as its
property or be disposed of by Landlord at Tenant's expense, without
accountability to Tenant, in such manner as Landlord may see fit, subject to the
reimbursement provisions of Section 18.05. Tenant's failure to remove any of
Tenant's Property from the Demised Premises after the expiration or earlier
termination of the term of this lease shall not be construed to create a holding
over by Xxxxxx.
18.03. Leasehold Improvements.
All leasehold improvements at any time constructed or installed in the
Demised Premises, except as hereinafter otherwise provided, shall remain in the
Demised Premises upon the expiration or sooner termination of the term of this
lease. All leasehold improvements which Tenant is required to remove under the
following sentence, shall be removed by Tenant without damage to the Demised
Premises and Buildings and in the event any damage is caused by such removal,
the damage shall be repaired by Tenant at Tenant's expense. If any alteration
which shall require the Landlord's consent or approval is an item which is not a
customary leasehold improvement, such as (for illustrative purposes only) a
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raised computer floor, supplemental HVAC system, private elevator, vault,
internal stairway or private lavatory, then unless Landlord shall give written
notice to Tenant to the contrary at the time it grants consent or approval for
the alteration, Landlord will require removal of said alteration by Xxxxxx at
the expiration or sooner termination of the term of this lease.
18.04. End of Term.
Upon the expiration or sooner termination of the term of this lease,
Tenant shall quit and surrender possession of the Premises, broom clean and dry,
in good order and condition, ordinary wear and tear excepted, and Tenant shall
remove Xxxxxx's Property from the Premises and repair any damage caused by such
removal. All leasehold improvements which Tenant is required to remove shall be
removed by Tenant, and any damage caused by such removal shall be repaired by
Tenant at Tenant's expense.
18.05. Removal by Landlord.
In the event Tenant fails to (i) remove any item of Tenant's Property or
any leasehold improvement or alteration it is required to remove, or (ii) repair
damage caused by such removal, then Landlord may effect such removal and repair,
and Tenant shall pay Landlord's costs for such removal and repair, such
obligation to survive the expiration or sooner termination of the term of this
lease.
ARTICLE 19
Tenant's Repairs
19.01. Tenant's Required Repairs.
Tenant shall, at its own expense, take good care of the Demised Premises,
and shall be responsible for replacement of all fluorescent tubes, starters and
light bulbs installed in the Demised Premises. Tenant, at its expense shall make
all repairs, including structural repairs, in the Demised Premises and the
Buildings as shall be required by reason of the negligence or other improper
conduct of Tenant or its invitees. In addition to the foregoing, Tenant shall,
at Tenant's expense, keep in good order and condition all installations,
alterations and additions in the Demised Premises comprising Tenant's Property
(including Tenant's pneumatic tubes, conveyors, mail chutes and air-conditioning
equipment installed by or at the expense of Tenant) and make all repairs
thereto, ordinary or extraordinary, structural or otherwise, foreseen or
unforeseen, as from time to time may be necessary, whether or not such repairs
are or shall be made necessary by reason of fault or neglect on the part of
Tenant
19.02. Windows.
Tenant shall not clean the exterior side of any window in the Demised
Premises or require, permit or allow it to be cleaned, from the outside, in
violation of any law or requirement of public authority.
19.03. Damage to Building.
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All damage to the Buildings caused by Tenant in moving property into or out
of the Building or in installing or removing furniture, equipment or fixtures
shall promptly be repaired by Tenant at its expense. If Tenant permits
consumption of food in the Demised Premises, Tenant, at its expense, shall
employ the regular services of an exterminator to keep the Demised Premises and
Buildings free of vermin occasioned by such consumption.
ARTICLE 20
Landlord's Repairs, Maintenance, Cleaning
20.01. Landlord's Obligations.
Landlord, at its expense, shall keep and maintain the Building and its
fixtures, appurtenances, systems and facilities, in working order, condition and
repair and shall make all repairs, structural and otherwise, interior and
exterior, as and when needed in or about the Demised Premises, except for items
installed by or for Tenant at Tenant's expense and except for those repairs for
which Tenant is expressly responsible pursuant to any other provisions of this
lease.
20.02. Cleaning.
(a) Provided that Tenant shall keep the Demised Premises in good order,
Landlord shall cause the Demised Premises to be cleaned in accordance with the
provisions of the Cleaning Specifications annexed hereto and made part hereof.
Tenant shall provide Landlord with unrestricted access to the interior of all
windows within the Demised Premises, as a condition precedent to Landlord's
obligation to clean same.
(b) Tenant shall pay to Landlord, within 30 days after demand, the costs
and expenses incurred by Landlord as a result of (i) cleaning performed by or
for the account of Landlord in the Demised Premises, the Buildings or on the
Land, necessitated by (v) misuse or neglect on the part of Tenant or its
invitees, use of any portion of the Demised Premises for preparation, serving
or consumption of food or beverages, reproducing operations, private lavatories
or other special purposes requiring greater or more difficult cleaning work than
that normally associated with office areas, (x) interior glass surfaces, (y)
non-building standard materials or finishes installed by Tenant or at its
request, or (z) increases in frequency or scope of any of the items set forth in
the Cleaning Specifications as shall have been requested by Tenant and provided
by Landlord, and (ii) removal from the Demised Premises, the Buildings or Land
of (y) so much of any refuse and rubbish of Tenant as shall exceed that normally
accumulated daily in the routine or ordinary business office occupancy or (z)
all of the refuse and rubbish of Tenant's machines and eating facilities
requiring special handling. Tenant shall provide Landlord, its contractors and
their employees with free access to the Demised Premises during hours other than
regular business hours, together with the use of Tenant's lights, electricity
and water, all as may be required for the purpose of cleaning the Demised
Premises.
20.03. Extraordinary Refuse.
Extraordinary waste (such as crates, cartons, boxes and used furniture and
equipment) shall be removed from the Buildings by
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Landlord, at Tenant's cost and expense. At no time shall Tenant place any waste
of any kind in any public area. Anything placed in a public area by Tenant shall
be deemed abandoned and of no value to Tenant, and Landlord may have same
removed and disposed of, and the cost thereof shall be paid by Tenant to
Landlord, within 30 days after submission of a statement therefor, without
limiting Landlord's rights under Articles 32, 33 and 34.
20.04. Quality of Repairs.
All repairs to be made by Tenant pursuant to this lease shall be of
first-class quality and workmanship. If Tenant shall fail to commence any
required repairs within a reasonable time, or in any event within ten days after
service of a notice by Landlord requesting such repairs, or after commencing
such repairs shall fail to complete them with reasonable diligence, Landlord may
(but shall not be obliged to) make or complete such repairs at the expense of
Tenant.
20.05. Required Changes.
If at any time during the term of this lease there is imposed upon Landlord
by any governmental authority having jurisdiction, any obligation or requirement
to perform any structural or non-structural alteration, change or improvement
(collectively, "changes") to the Buildings which changes are not required to be
performed by Tenant pursuant to any provision of this lease, Tenant shall pay to
Landlord, as additional rent, Tenant's Proportionate Share of all costs and
expenses incurred by Landlord in performing such changes. Such payment by Tenant
shall be due to Landlord within 30 days after rendition of a bill therefor,
accompanied by a statement setting forth the changes performed by Landlord.
ARTICLE 21
Electricity
21.01. General.
(a) Electricity shall be supplied to the Demised Premises during the term
in accordance with the provisions of paragraph 21.02 of this Article. However,
at any time and from time to time during the term hereof, provided it is then
permissible under the provisions of laws and requirements of public authorities,
Landlord shall have the option to have electricity supplied to the Demised
Premises in accordance with either paragraph 21.03 or 21.04 of this Article.
(b) For the purposes of this Article:
(i) The term "Electric Rate" shall mean the greater of either:
(a) the Service Classification pursuant to which Landlord purchases
electricity from the utility company servicing the Building, or
(b) the Service Classification pursuant to which Tenant would purchase
electricity directly from the utility company servicing the Building,
provided, however, at no time shall the amount payable by Tenant for electricity
be less than Landlord's Cost per Kilowatt and Cost
-27-
per Kilowatt Hour (as such terms are hereinafter defined), and provided further
that in any event, the Electric Rate shall include all applicable surcharges,
and demand, energy, fuel adjustment and time of day charges (if any), taxes and
other sums payable in respect thereof.
(ii) The term "Cost per Kilowatt Hour" shall mean the total cost for
electricity incurred by Landlord to service the Building during a particular
time period (including all applicable surcharges, and energy, fuel adjustment
and time of day charges (if any), taxes and other sums payable in respect
thereof) divided by the total kilowatt hours purchased by Landlord during such
period.
(iii) The term "Cost per Kilowatt" shall mean the total cost for demand
incurred by Landlord to service the Building during a particular time period
(including all applicable surcharges, demand, and time of day charges (if any),
taxes and other sums payable in respect to thereof) divided by the total
kilowatts purchased by Landlord during such period.
21.02. Rent Inclusion.
Landlord shall redistribute or furnish electricity to the Demised
Premises on a "rent inclusion" basis in such reasonable quantities as may be
required by Tenant to service Tenant's ordinary office equipment installed in
the Demised Premises as of the Commencement Date. Tenant shall pay to Landlord,
on account, the annual sum of $1.50 per square foot of Rentable Area, which sum
is included in the fixed rent as set forth in Article 3.01(a) ("Electric
Rent"). At any time during the term, Landlord, at Tenant's sole cost and
expense, may cause an independent electrical engineer or electrical consulting
firm selected by Landlord (hereinafter referred to as the "Engineer") to make a
survey of Tenant's electrical equipment located in the Demised Premises, and
the use thereof, to determine if the full value of electricity furnished to the
Demised Premises exceeds the Electric Rent. If the value of such electricity
(applying the Electric Rate to Tenant's usage) exceeds the Electric Rent,
Landlord shall furnish a copy of said survey to Tenant and Landlord shall
adjust the Electric Rent and fixed rent in accordance with the survey and the
Electric Rate, or Cost per Kilowatt and cost per Kilowatt Hour in effect on the
date hereof, as adjusted in accordance with Section 21.02 (iii) below.
(ii) if, on the Commencement Date or at any time during the term, Tenant
desires to install in the Demised Premises equipment which would not be
considered ordinary office equipment, including, but not limited to, items such
as supplemental air-conditioning systems, or other heat or cooling intensive
electrically operated equipment, Tenant shall submit to Landlord a list
indicating the specific type of additional equipment, and the number, type and
model of each item of equipment to be installed, as well as the manufacturer's
electrical rating associated with same. If Landlord consents to the installation
of such additional equipment, Landlord, at Tenant's cost and expense, subsequent
to or simultaneously with the installation thereof, may either (a) cause the
Engineer to make a survey of such additional equipment in accordance with the
provisions of Section 21.02(i) hereof, or (b) at Tenant's cost, install a
submeter to record Tenant's consumption of and demand for electricity within the
Demised Premises and in that event the provisions of Section 21.03 below shall
apply.*
(iii) If, at any time or times after the execution of this lease, the
electric rate as published by the electric utility company servicing the Demised
Premises ("Electric Schedule") shall
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be increased or decreased, then commencing with the Commencement Date and from
time to time thereafter, the fixed rent and the Electric Rent shall be increased
or decreased, as the case may be, by the percentage increase or decrease in the
Electric Schedule. Notwithstanding anything herein to the contrary, under no
circumstances shall the Electric Rent be less than the amount set forth in
Section 21.02(i) hereof.
21.03. Submetering.
(i) Landlord may supply electricity to service the Demised Premises on a
submetered basis, and Tenant in such event shall pay to Landlord, as additional
rent, the sum of (y) an amount determined by applying the Electric Rate or, at
Landlord's election, the Cost per Kilowatt Hour and Cost per Kilowatt, to
Tenant's consumption of and demand for electricity within the Demised Premises
as recorded on the submeter or submeters servicing the Demised Premises, and (z)
Landlord's administrative charge of 12% of the amount referred to in clause (y)
above, if and to the extent same is permitted by laws and requirements of public
authorities (such combined sum being hereinafter called "Submeter Electric
Rent"). Except as set forth in the foregoing clause (z), Landlord will not
charge Tenant more than the Electric Rate or, at Landlord's election, the Cost
per Xxxxxxxx and Cost per Kilowatt Hour for the electricity provided pursuant
to this paragraph. If, pursuant to paragraph (a) hereof, Landlord shall have
elected to supply electricity to the Demised Premises in accordance with this
paragraph, the fixed rent shall be decreased by the Electric Rent. At Landlord's
request, Xxxxxx agrees to execute a supplementary agreement modifying this lease
to reflect the changes in the fixed rent resulting from such election.
(ii) Where more than one submeter measures the electric service to Tenant,
the electric service rendered through each submeter shall be computed and billed
separately in accordance with the provisions hereinabove set forth.
(iii) Tenant shall pay to Landlord, on account of the Submeter Electric
Rent payable pursuant to this Section 21.03, the annual sum of $1.50 per square
foot of Rentable Area ("Estimated Submeter Electric Rent"), subject to the
adjustments on the first day of each and every calendar month of the term
(except that if the first day of the term is other than the first day of a
calendar month, the first monthly installment, prorated to the end of said
calendar month, shall be payable on the first day of the first full calendar
month).
(iv) From time to time during the term, the Estimated Submeter Electric
Rent may be adjusted by Landlord on the basis of either Landlord's reasonable
estimate of Tenant's electric consumption and demand (if at any time the
submeter(s) servicing the Demised Premises are inoperative) or Tenant's actual
consumption of and demand for electricity as recorded on the submeter(s)
servicing the Demised Premises, and, in either event, the Electric Rate or Cost
per Kilowatt and Cost per Kilowatt Hour then in effect.
(V) Subsequent to the end of each calendar year during the term of this
lease, or more frequently if Landlord shall elect, Landlord shall submit to
Tenant a statement of the Electric Submeter Rent for such year or shorter period
together with the components thereof, as set forth in clause (i) of this Section
21.03 ("Submetered Electric Statement"). To the extent that the Estimated
Submeter Electric Rent paid by Tenant for the period covered by the Submetered
Electric Statement shall be less than the Submeter Electric Rent as set forth on
such Submeter Electric Statement, Tenant shall pay Landlord the difference
within 30 days
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after receipt of the Submeter Electric Statement. If the Estimated Submeter
Electric Rent paid by Tenant for the period covered by the Submeter Electric
Statement shall be greater than the Submeter Electric Rent as set forth on the
Submeter Electric Statement, such difference shall be credited against the next
required payment(s) of Estimated Submeter Electric Rent. If no Estimated
Submeter Electric Rent payment(s) shall thereafter be due, Landlord shall pay
such difference to Tenant.
(vi) For any period during which the submeter(s) servicing the premises
are inoperative, the Submeter Electric Rent shall be determined by Landlord,
based upon its reasonable estimate of Tenant's actual consumption of and demand
for electricity, and the Electric Rate or Cost per Kilowatt and Cost per
Kilowatt Hour then in effect.
21.04. Direct Meter.
If Landlord discontinues furnishing electricity to the Demised Premises
pursuant to Sections 21.02 or 21.03, Tenant shall make its own arrangements to
obtain electricity directly from the utility company furnishing electricity to
the Building. The cost of such service shall be paid by Tenant directly to such
utility company. Landlord shall permit its electric feeders, risers and wiring
serving the Demised Premises to be used by Tenant, to the extent available, safe
and capable of being used for such purpose. All meters and all additional panel
boards, feeders, risers, wiring and other conductors and equipment which may
be required to enable Tenant to obtain electricity of substantially the same
quality and character, shall be installed by Landlord at Tenant's cost and
expense.
21.05. Landlord's Statements and Bills.
(a) Bills for electricity supplied pursuant to Sections 21.02 and 21.03
shall be rendered to Tenant at such times as Landlord may elect. Tenant's
payments for electricity supplied in accordance with Sections 21.02 and 21.03
shall be due and payable within 30 days after delivery of a statement therefor,
by Landlord to Tenant. If such bills are not paid within 30 days after the same
are rendered, Landlord may, without further notice, discontinue the service of
electricity to the Demised Premises without releasing Tenant from any liability
under this lease and without Landlord or Landlord's agents incurring any
liability for any damage or loss sustained by Tenant as the result of such
discontinuance. If any tax is imposed upon Xxxxxxxx's receipts from the sale of
electricity to Tenant by laws and requirements of public authorities, Tenant
agrees that, unless prohibited by such laws and requirements of public
authorities, Xxxxxx's Proportionate Share of such taxes shall be included in the
bills of, and paid by Tenant to Landlord, as additional rent.
(b) Xxxxxxxx's failure during the term to prepare and deliver any
statements or bills under this Article, or Xxxxxxxx's failure to make a demand
under this Article, shall not in any way be deemed to be a waiver of, or cause
Landlord to forfeit or surrender, its rights to collect any amount of additional
rent which may become due pursuant to this Article. Tenant's liability for any
amounts due under this Article shall survive the expiration or sooner
termination of the term.
(c) Tenant's failure or refusal, for any reason, to utilize the electrical
energy provided by Landlord, shall not entitle Tenant to any abatement or
diminution of fixed rent or additional rent, or otherwise relieve Tenant from
any of its obligations under this lease.
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21.06. Change of Service.
If either the quantity or character of the electrical service is changed by
the utility company supplying electrical service to the Building or is no
longer available or suitable for Tenant's requirements, or if there shall be a
change, interruption or termination of electrical service due to a failure or
defect on the part of the utility company, no such change, unavailability,
unsuitability, failure or defect shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any payment from Landlord
for any loss, damage or expense, or to abatement or diminution of fixed rent or
additional rent, or otherwise relieve Tenant from any of its obligations under
this lease, or impose any obligation upon Landlord or its agents. Landlord will
use reasonable efforts to insure that there is no interruption in electrical
service to Tenant, but in no event shall Landlord be responsible for any
failures of the utility providing such service or the negligence or other acts
of third parties causing any such interruption.
21.07. Additional Installations.
(a) Tenant, shall not make any electrical installations, alterations,
additions or changes to the electrical equipment or appliances in the Demised
Premises without prior written consent of Landlord in each such instance.
Tenant shall comply with the rules and regulations applicable to the service,
equipment, wiring and requirement of Landlord and of the utility company
supplying electricity to the Building. Tenant agrees that its use of
electricity in the Demised Premises will not exceed the capacity of existing
feeders to the Building or the risers or wiring installations therein and
Tenant shall not use any electrical equipment which, in Landlord's judgment,
will overload such installations or interfere with the use thereof by other
tenants in the Building. If, in Landlord's judgment, Tenant's electrical
requirements necessitate installation of an additional riser, risers or other
proper and necessary equipment or services, including additional ventilating or
air-conditioning, the same shall be provided or installed by Landlord at
Tenant's expense, which shall be chargeable and collectible as additional rent
and paid within 10 days after the rendition to Tenant of a bill therefor.
(b) If, after Xxxxxxxx's initial installation work, (i) Tenant shall
request the installation of additional risers, feeders or other equipment or
service to supply its electrical requirements and Landlord shall determine that
the same are necessary and will not cause 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, repairs or expense or interfere
with or disturb other tenants or occupants of the Building, or (ii) Landlord
shall determine that the installation of additional risers, feeders or other
equipment or service to supply Tenant's electrical requirements is necessary,
then and in either of such events Landlord shall cause such installations to be
made, at Tenant's sole cost and expense and Tenant shall pay Landlord for such
installations, as additional rent, within 30 days after submission of a
statement therefor.
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ARTICLE 22
Heat, Ventilation and Air-Conditioning
22.01. Access and Repair.
Landlord shall have free and unrestricted access to any and all heating,
air-conditioning and ventilating equipment in the Demised Premises. The cost of
maintaining said systems shall, except to the extent set forth in this Section
and in Section 22.02, be deemed an Operating Expense. Any damage caused to the
heating, air-conditioning and ventilating equipment, appliances or appurtenances
as a result of the negligence of, or careless operation of the same by Tenant
or its invitees, shall be repaired by Landlord and the cost and expense thereof
shall be paid by Xxxxxx, as additional rent, within 30 days after submission of
a statement therefor, without limiting Landlord's rights under Articles 32, 33
and 34. Landlord shall have no maintenance or repair obligation as to heating,
ventilating or air conditioning equipment installed by, or at the expense or
direction of, Tenant.
22.02. Tenant's Requirements.
Landlord will not be responsible for the failure of the air-conditioning
system to meet its maximum performance specifications prior to the proper
balancing of the systems, or, if such failure results from the occupancy of the
Demised Premises by more than an average of 1 person for each 150 square feet of
Tenant's Rentable Area or if Tenant installs and operates machines and
appliances the installed electrical load of which when combined with the load of
all lighting fixtures exceeds 4 xxxxx per square foot of Tenant's Rentable Area
in any one room or other area. If the use of the Demised Premises in a manner
exceeding the aforementioned occupancy and electrical load criteria, or the
rearrangement, or partitioning after the initial preparation, of the Demised
Premises, results in the interference with the normal operation of the
air-conditioning in the Demised Premises, and as a result thereof changes in the
air-condition system servicing the Demised Premises are needed, such changes
shall be made by Landlord, at Tenant's request and at Tenant's expense, and
shall be paid within 30 days after submission of a statement therefor.
22.03. Additional Tenant Requirements.
Tenant shall keep all windows closed and lower and close window coverings
when necessary because of the sun's position. Xxxxxx agrees to cooperate fully
with Landlord and to comply with all regulations and requirements Landlord may
establish for the proper functioning and protection of the heating,
air-conditioning and ventilating systems.
ARTICLE 23
Landlord's Other Services
23.01. Elevators.
Landlord shall provide Tenant, in common with other tenants in the
Building, passenger elevator service. If Landlord shall be obliged to repair,
maintain or replace such elevators by reason of the negligence or other improper
conduct of Tenant or its invitees, such work shall be performed at Tenant's
expense; Tenant shall pay for such work, within 30 days after submission of a
statement therefor, without limiting Landlord's rights under Articles 32, 33
and 34.
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23.02. Interruption of Services.
Landlord reserves the right, without any liability to Tenant, to interrupt,
curtail, suspend or stop any of Landlord's services to Tenant or the Demised
Premises (including heat, ventilation, elevators, and water and such other
services as may hereafter be undertaken by Landlord for Tenant) at such times as
may be necessary, and for so long as may be reasonably required, by reason of
the making of repairs or changes which Landlord is retired by this lease to make
or in good xxxxx xxxxx necessary. In each such case Landlord shall exercise
reasonable diligence to effect restoration of service and shall give Tenant
reasonable notice, when practicable, of the commencement and anticipated
duration of such interruption, curtailment, suspension or stoppage of any of
Landlord's services. Before commencing any work require in connection with the
foregoing, or any other work or repairs in the Demised Premises which would
interfere with Xxxxxx's use thereof, Landlord shall endeavor to notify Tenant of
the need or and nature of the work and repairs and the manner in which and the
length of time for which such work or the making of such repairs will affect the
Demised Premises. Such notice with respect to the making of emergency repairs
shall, if time permits, be given by telephone or in person to such
representative of Tenant at the Demised Premises as Tenant may have designated
to receive such notice. Except in the event of an emergency, Tenant may require
Landlord to perform such work or make such repairs after Xxxxxx's business
hours if they would otherwise create a material interference with Xxxxxx's use
of the Demised Premises and can properly be accomplished at such time provided
however, that if Landlord shall thereby incur any additional expense by reason
of overtime work, Tenant shall reimburse Landlord for the amount thereof within
30 days after submission of a statement therefor.
ARTICLE 24
Tenant's Access
24.01. Tenant's Access to Demised Premises.
During the term of this lease Tenant may conduct its business in the
Demised Premises on such days and hours as it may determine, and Tenant and its
invitees at all times shall have access to the Demised Premises by means of
doorways, passageways, corridors, stairways, elevators, entrances and service
entrances in the Building selected by Landlord and affording access to
the Demised Premises. Notwithstanding the foregoing, Landlord may, during times
other than regular business hours and regular business days, limit or restrict
access to the Building and Demised Premises to all persons other than Tenant and
employees and invitees specifically designated to Landlord by Xxxxxx. Rules and
procedures to be followed in order to gain access to the Building and Demised
Premises may, from time to time, be established and amended by Landlord, and
shall be complied with by Tenant, its employees and invitees.
ARTICLE 25
Landlord's Access
25.01. Lines Xxxxxxx Xxxxxxx Premises.
Tenant shall permit Landlord to install, use and maintain
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additional utility and other pipes, ducts, lines, flues and conduit in the
Demised Premises, provided:
(a) such installations shall be so located as to cause the least
possible interference with the Tenant's use of the Demised Premises and the
conduct of its operations therein, materially shall not unreasonably
damage the appearance or materially reduce the floor area of the Demised
Premises or affect Tenant's layout, in each case consistent with
requirements of any laws and requirements of public authorities and
insurance bodies if such installation is required by the aforesaid public
authorities or insurance bodies;
(b) the installation shall be performed at such times and in such
manner as to create the least practicable interference with Xxxxxx's use of
the Demised Premises and the conduct of its operations therein; and
(c) Landlord shall repair and restore all damage caused by such
installations.
Where access doors are required for mechanical equipment in or adjacent to the
Demised Premises, Landlord shall furnish and install such access doors and
confine their location, wherever practicable, to closets, coat rooms, toilet
rooms, corridors and kitchen or pantry rooms. Landlord and Tenant will cooperate
with each other in the location of Landlord's and Tenant's facilities requiring
such access doors.
25.02. Access to Demised Premises.
Landlord and/or Landlord's agents shall have the right, upon request made
to Tenant, or to a designated representative of Tenant at the Demised Premises,
to enter and pass through the Demised Premises or any part or parts thereof
during business hours (i) to examine the Demised Premises and to show them to
the lessors of underlying or ground leases or mortgagees and to prospective
purchasers, mortgagees or lessees of the Real Property, and (ii) for the purpose
of performing such maintenance and making such repairs or changes in or to the
Demised Premises or in or to the Building or its facilities as may be provided
for or permitted by this lease or deemed necessary by Landlord for the benefit
of the Demised Premises or other portions of the Building or as may be mutually
agreed upon by the parties or as Landlord may be required to make by laws and
requirements of public authorities. Landlord shall be allowed to take all
materials into and upon the Demised Premises that may be required for such
repairs, changes or maintenance, without being deemed thereby to evict Tenant
from the whole or any part of the Demised Premises. Landlord's rights under this
Section shall be exercised in such manner (not involving any overtime expenses,
unless Tenant shall agree to reimburse Landlord for such expenses as additional
rent) as to create the least practicable interference with Tenant's normal
conduct of its business in the Demised Premises.
25.03. Access Upon Emergency.
Landlord shall also have the right to enter on and pass through the Demised
Premises, or any part thereof, at such times as such entry shall be required by
emergency circumstances affecting the Demised Premises or the Building. In such
event, if practicable, Landlord or its agents shall be accompanied by a
designated representative of Tenant or a member of the police, fire, water or
other municipal department concerned or of a recognized protection company
or of a public utility which is concerned.
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25.04. Access During Twelve Months.
During the period of 12 months prior to the Expiration Date, Landlord may
exhibit the Demised Premises to prospective tenants, during regular business
hours, upon prior notification to Tenant.
ARTICLE 26
Shoring
26.01. Access for Protection.
If an excavation or other substructure work shall be undertaken or
authorized upon land adjacent to the Building or beneath the Building, Tenant,
without liability on the part of Landlord, shall afford to the person causing
or authorized to cause such excavation or other substructure work license to
enter upon the Demised Premises for the purpose of doing such work as such
person shall deem to be reasonably necessary to protect or preserve any of the
walls or structures of the Building or surrounding lands from injury or damage
and to support the same by proper foundations, pinning and/or underpinning,
provided that such entry (except in the event of an emergency) shall be
accomplished in the presence of a representative of Tenant, who shall be
designated by Tenant promptly upon Xxxxxxxx's request. The said license to
enter the Demised Premises shall be granted by Tenant without any claim for
damages or indemnity against Landlord, and Tenant shall not be entitled to any
diminution of rent on account therefor.
ARTICLE 27
Notice of Accidents, Fire, Damage and Defects
27.01. Notice to Landlord.
Tenant shall give prompt notice to Landlord of any of the following of
which Tenant shall have knowledge: (i) any accident in or about the Demised
Premises or the Building for which Landlord might be liable, (ii) all fires in
the Demised Premises, and (iii) all damage to, or defects in, the Demised
Premises (including the fixtures, equipment and appurtenances constituting part
thereof), or in any parts or appurtenances of the Building's sanitary,
electrical, heating, ventilating, air-conditioning, elevator and other systems
located in or passing through the Demised Premises or any part thereof.
ARTICLE 28
Landlord Not Liable, Indemnity and Exculpation
28.01. No Liability of Landlord.
Except for the negligence of Landlord, its agents or employees,
Landlord and its agents shall not be liable for any damage to property of Tenant
or others entrusted to employees of the Buildings, nor for the loss of or
damage to any property of Tenant by theft or otherwise. Except for the
negligence of Landlord, its agents or employees, Landlord and its agents shall
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not be liable for any injury or damage to persons or property resulting from
fire, explosion, falling plaster, steam, gas, electricity, water, rain or snow
which may leak from any part of the Buildings or from the pipes, appliances or
plumbing works of the same, or from any other place, or from dampness or any
other cause of whatsoever nature; nor shall Landlord or its agents be liable for
any such damage caused by other tenants or persons in, upon or about said
Buildings, or caused by operations in construction of any public or quasi-public
work; nor shall Landlord be liable for any latent defect in the Buildings or
Premises. If at any time any windows of the Demised Premises are temporarily or
permanently closed, or bricked up for any reason whatsoever, Landlord shall not
be liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction.
28.02. Tenant's Indemnification.
Tenant shall defend, indemnify and save harmless Landlord and its agents
and employees against and from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable attorneys' fees, which
may be imposed upon or incurred by or asserted against Landlord and/or its
agents or employees by reason of any of the following occurring during the term,
or during any period of time prior to the Commencement Date that Tenant may have
acquired or been given access to or possession of all or any part of the Demised
Premises: (i) any work or thing done in, on or about the Demised Premises or any
part thereof by or at the instance of Tenant, or any of its invitees, (ii) any
negligent or otherwise wrongful act or omission on the part of Tenant or any of
its invitees, (iii) any accident, injury or damage to any person or property
occurring in, on or about the Demised Premises or any part thereof, or vault,
passageway or space adjacent thereto caused by the negligence of Tenant or any
of its invitees, and (iv) any failure on the part of Tenant to perform or comply
with any of the covenants, agreements, terms, provisions, conditions or
limitations contained in this lease on its part to be performed or complied
with. In case any action or proceeding is brought against Landlord by reason of
any such claim, Tenant upon notice from Landlord shall, at Tenant's expense,
resist or defend such action or proceeding by counsel approved by Landlord,
which approval Landlord shall not unreasonably withhold. Counsel selected by
Tenant's insurance companies shall be deemed approved by Landlord.
28.03. Exculpation,
Tenant shall look solely to the estate and interest of Landlord, its
successors and assigns, in the Building for the collection of any judgment (or
other judicial process) recovered against Landlord based upon the breach by
Landlord of any of the terms, conditions or covenants of this lease on the part
of Landlord to be performed, and no other property or assets of Landlord shall
be subject to levy, execution or other enforcement procedures for the
satisfaction of Tenant's remedies under or with respect to either this lease,
the relationship of landlord and tenant hereunder, or Xxxxxx's use and occupancy
of the Demised Premises.
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ARTICLE 29
Destruction or Damage
29.01. Notice and Repair Obligation
Tenant sha11 give prompt notice to Landlord in case of fire or other
casualty in or about the Demised Premises. If the Demised Premises and/or access
thereto shall be partially or totally damaged or destroyed by fire or other
casualty, then, Landlord shall, subject to its rights as set forth in Section
29.03, repair the damage and restore and rebuild the Demised Premises and/or
access thereto as nearly as may be reasonably practical to its condition and
character immediately prior to such damage or destruction, with reasonable
diligence after notice to it of the damage or destruction, which repair and
restoration shall be limited to the extent of insurance proceeds received,
subject to unavoidable delays and delays in the adjustment of insurance claims.
In no event shall Landlord be required to repair or replace Tenant's
furnishings, decorations and other moveable items in the Premises, or personal
property of any type belonging to Tenant. Unless Landlord shall terminate this
lease in accordance with Section 29.03, Tenant shall cooperate with Landlord's
restoration by removing from the Premises as promptly as possible, all of
Tenant's salvageable inventory and movable equipments, furniture and other
property.
29.02. Abatement of Rent.
If the Demised Premises and/or access thereto shall be partially or totally
damaged or destroyed by fire or other casualty not attributable to the fault,
negligence or misuse of the Demised Premises or the Buildings by the Tenant or
its invitees, the rents payable hereunder shall be abated to the extent that
the Demised Premises shall have been rendered untenantable, from the date of
such damage or destruction to the date the damage shall be substantially
repaired. Should Tenant reoccupy a portion of the Demised Premises during the
period that the repair is in progress and prior to the date that the same are
made completely tenantable, rents allocable to such portion shall be payable by
Tenant from the date of such occupancy to the date the Demised Premises are made
tenantable.
29.03. Termination Rights.
In case the Demised Premises shall be rendered wholly unusable by reason of
fire or other casualty or if the Building shall be so damaged by fire or other
casualty that substantial renovation, reconstruction or demolition of the
Building shall, in Landlord's opinion, be required (whether or not the Demised
Premises shall leave been damaged by such fire or other casualty), or in the
event Landlord's mortgagee(s) shall make claim to the proceeds of the
casualty insurance maintained by Landlord, then Landlord may, at its option,
terminate this lease and the term and estate hereby granted, by notifying
Tenant of such termination, within 120 days after the date of such damage; such
termination date shall be not more than 60 days after the giving of such notice.
If at any time prior to Landlord giving Tenant the aforesaid notice of
termination or commencing the repair and restoration pursuant to Section 29.01,
the holder of a mortgage or the lessor of a superior lease or any person
claiming under or through the holder of such mortgage or the lessor of such
lease takes possession of the Building through foreclosure or otherwise, such
holder or lessor shall have a further period of 60 days from the date of taking
possession to terminate this lease by appropriate notice to Tenant. Nothing
contained in this Section shall relieve Tenant from any liability to Landlord in
connection with any damage to the Demised Premises or the Buildings by fire
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or other casualty if Tenant shall be legally liable in such respect.
29.04. Termination Upon Casualty.
In the event of the termination of this lease pursuant to the provisions of
this Article, this lease shall expire as fully and completely on the date fixed
in such notice of termination as if that were the date definitely fixed for
the expiration of this lease, and Tenant shall forthwith quit, surrender and
vacate the Premises without prejudice, however, to Landlord's rights and
remedies against Tenant under the lease provisions in effect prior to such
termination. Any rent owing shall be paid up to such date, and any payments of
rent made by Tenant which were on account of any period subsequent to such date
shall be returned to Tenant
29.05. Non-Liability of Landlord.
No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Buildings pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not to interfere unreasonably with
Xxxxxx's use and occupancy.
29.06. Insurance on Tenant's Property.
Landlord will not carry insurance of any kind on Tenant's Property or on
any work in excess of building standard work and shall not be obligated to
repair any damage thereto or replace the same. For purposes of this Article the
term casualty damage, to the extent Landlord is responsible under this
Article, shall not be deemed to include damage caused by vandalism, unknown
cause or other act not normally covered under fire and extended coverage
insurance policies applicable to office buildings in the New York City
metropolitan area.
29.07. Waiver of Statutory Protection.
The provisions of this Article shall be considered an express agreement
governing any case of damage or destruction of the Demised Premises by fire or
other casualty, and Section 227 of the Real Property Law, providing for such a
contingency in the absence of an express agreement, and any other law of like
import, now or hereafter in force, shall have no application in such case.
29.08. Uncollectibility of Insurance.
Notwithstanding any of the foregoing provisions of this Article, if
Landlord or the lessor of any underlying lease or the holder of any mortgage
shall be unable to collect all of the insurance proceeds (including rent
insurance proceeds) applicable to damage or destruction of the Demised Premises
or the Buildings by fire or other cause, by reason of some action or inaction on
the part of Tenant, or any of its invitees, then without prejudice to any other
remedies which may be available against Tenant, the abatement of Tenant's rent
provided for in Section 29.02 shall not be effective to the extent of the
uncollected insurance proceeds.
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ARTICLE 30
Condemnation
30.01. Landlord's Rights to Award.
In the event that the Real Property or any part thereof, shall be taken in
condemnation proceedings or by the exercise or any right of eminent domain or
by agreement between any superior lessors and lessees and/or Landlord on the one
hand and any governmental authority authorized to exercise such right on the
other hand (collectively a "taking"), Landlord shall be entitled to collect from
the condemnor the entire award or awards that may be made in any such proceeding
without deduction therefrom for any estate hereby vested in or owned by Tenant.
Tenant hereby expressly assigns to Landlord all of its right, title and interest
in or to every such award and also agrees to execute any and all further
documents that may be required in order to facilitate the collection thereof by
Landlord.
30.02. Full Taking.
If title to the whole or substantially all of the Real Property shall be
subject to a taking, this lease shall terminate and expire on the date of such
taking and the fixed rent and additional rent provided to be paid by Tenant
shall be apportioned and paid to the date of such taking.
30.03. Partial Taking.
If substantially all of the Real Property is not so taken and if only a
part of the Demised Premises shall be so taken, this lease nevertheless shall
continue in full force and effect, except that either party may elect to
terminate this lease, if that portion of the Demised Premises then occupied by
Tenant shall be reduced by more than 25%, by notice of such election to the
other party given not later than 30 days after (i) notice of such taking is
given by the condemning authority, or (ii) the date of such taking, whichever
occurs later. Upon the giving of such notice this lease shall terminate on the
date of service of such notice and the fixed rent and additional rent due and to
become due, shall be prorated and adjusted as of the date of the taking. If
both parties fail to give such notice upon such partial taking, and this lease
continues in force as to any part of the Demised Premises not taken, (x) the
rents apportioned to the part taken shall be prorated and adjusted as of the
date of taking and from such date the fixed rent and additional rent shall be
reduced to the amount apportioned to the remainder of the Demised Premises, (y)
the number of parking spaces allocated to Tenant pursuant to Section 16.01
shall be proportionately reduced and (z) the Tenant's Proportionate Share
shall be recomputed to reflect the number of square feet of Tenant's Rentable
Area remaining in the Demised Premises in relation to the Rentable Area
remaining in the Real Property.
30.04. Tenant's Rights to Award.
Tenant shall not be entitled to appear, claim, prove or receive any award
in the proceedings relating to any taking
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30.05. Reconstruction.
In the event of any taking which does not result in a termination of this
lease, Landlord, at its expense, shall proceed with reasonable diligence to
repair the remaining part of the Building and the Demised Premises to
substantially the same condition as it was in immediately prior to such taking
to the extent that the same may be feasible, so as to constitute a tenantable
Building and Demised Premises, provided that Landlord's liability under this
Section shall be limited to the amount received by Landlord as an award arising
out of such taking, and Landlord shall have no liability or responsibility to
repair Tenant's Property.
ARTICLE 31
Surrender and Holdover
31.01. Surrender.
On the Expiration Date, or upon any earlier termination of the term of
this lease, Tenant shall quit and surrender the Demised Premises to Landlord in
good order, condition and repair, except for ordinary wear and tear, damage or
destruction by fire or other casualty or the elements, and Tenant shall remove
all of Tenant's Property therefrom except as otherwise expressly provided in
this lease.
31.02. Holdover.
Tenant acknowledges that possession of the Demised Premises must be
surrendered to Landlord at the expiration or sooner termination of the term of
this lease. Xxxxxx agrees it shall indemnify and save Landlord harmless against
all liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including reasonable attorneys' fees, resulting from delay by Xxxxxx
in so surrendering the Demised Premises, including any claims made by any
succeeding tenant founded on such delay. The parties recognize and agree that
the damage to Landlord resulting from any failure by Xxxxxx to surrender
possession of the Demised Premises on a timely basis as aforesaid will be
extremely substantial, will exceed the amount of fixed rent and additional rent
theretofore payable hereunder and will be impossible of accurate measurement.
Tenant, therefore, agrees that if possession of the Demised Premises is not
surrendered to Landlord on the date of expiration or sooner termination of the
term of this lease, then Tenant agrees to pay to Landlord as liquidated damages
for each month and for any portion of a month during which Xxxxxx holds over in
the Demised Premises after expiration or termination of the term of this lease,
a sum equal to 200% of the average fixed rent and additional rent which was
payable per month under this lease during the last three months of the term
hereof. Such liquidated damages shall not limit Tenant's indemnification
obligation with respect to claims made by any succeeding tenant founded upon
Xxxxxx's failure or refusal to surrender the Premises to Landlord at the
expiration or sooner termination of the term of this lease. Nothing contained
herein shall be deemed to authorize Tenant to remain in occupancy of the Demised
Premises after the expiration or termination of the term of this lease.
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ARTICLE 32
Conditions of Limitation
32.01. Prior to Term.
If at or before the commencement of the term of this lease:
(a) Tenant (or any guarantor of Tenant's obligations under this lease)
shall file a petition commencing a voluntary case under the Bankruptcy
Code (Title 11 of the United States Code), as now or hereafter in effect,
or under similar law, or file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to any state insolvency law
or any similar state law;
(b) An involuntary case against Tenant (or any guarantor of Tenant's
obligations under this lease) as debtor is commenced by a petition under
the Bankruptcy Code (Title 11 of the United States Code), as now or
hereafter in effect, or under similar law, or a petition or answer
proposing the adjudication of Tenant (or any guarantor of Tenant's
obligations under this lease) as a bankrupt or its reorganization pursuant
to any state insolvency law or any similar state law shall be filed in any
court and shall not be dismissed, discharged or denied within 60 days
after the filing thereof, or if Tenant (or any guarantor of Tenant's
obligations under this lease) shall consent or acquiesce in the filing
thereof;
(c) A custodian, receiver, United States Trustee, trustee or
liquidator of Tenant or of all or substantially all of Tenant's property
(or any guarantor of Tenant's obligations under this lease) or of the
Demised Premises shall be appointed in any proceedings brought by Tenant;
or if any such custodian, receiver, United States Trustee, trustee or
liquidator shall be appointed in any proceedings brought against Tenant
and shall not be discharged within 60 days after such appointment or if
Tenant shall consent to or acquiesce in such appointment; or
(d) If Tenant shall generally not pay Tenant's debts (or the guarantor
of Tenant's obligations under this lease shall generally not pay its
debts) as such debts become due, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally, as they become due;
this agreement shall be deemed canceled and terminated, in which event neither
Tenant nor any person claiming through or under Tenant or by virtue of any
statute or of an order of any court shall be entitled to possession of the
Demised Premises, but Tenant shall remain liable for damages as provided in
Article 34.
32.02. During Term.
(a) If any of the events set forth in Section 32.01 occurs during the term
of this lease, such term, at the option of Landlord, exercised within a
reasonable time after notice of the happening of any one or more of such events,
shall terminate on such date as Landlord shall specify by notice to Tenant, with
the same effect as if the date of termination were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 34.
(b) The term of this lease is subject to the further limitation that:
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(i) Whenever Tenant shall default in the payment of any installment of
rent or any other charge payable by Tenant to Landlord, on any day upon
which the same is due, and such default shall continue for five days after
Landlord shall have given to Tenant a notice specifying such default;
(ii) Whenever Tenant shall do, or permit to be done, whether by
action or inaction, anything contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be
remedied by Tenant within 30 days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a situation which
cannot with due diligence be cured within a period of 30 days, if Tenant
shall not (y) within said 30-day period advise Landlord of Xxxxxx's
intention duly to institute all steps necessary to remedy such situation,
and (z) duly institute within said 30-day period, and thereafter
diligently prosecute to completion, all steps necessary to remedy the
same;
(iii) Whenever Tenant shall desert and abandon the Demised Premises
(whether the keys be surrendered or not and whether the rent be paid or
not);
(iv) Whenever Tenant shall default in the timely payment of rent for
two consecutive months or for a total of four months in any period of 12
months, notwithstanding the possibility that each of such defaults shall
have been cured within the time period set forth in subparagraph (i); or
(v) Whenever Tenant shall default in the performance of any non-rental
obligation imposed upon it hereunder more than two times in any period of
six months or more than three times in any period of 12 months,
notwithstanding the possibility that each of such defaults shall have been
cured within the time period set forth in subparagraph (ii);
then in any of said cases set forth in the foregoing subparagraphs (i) through
(v), Landlord may give to Tenant a notice of intention to end the term of this
lease at the expiration of five days from the date of service of such notice of
intention, and upon the expiration of said five days the term and estate hereby
granted, whether or not the term shall theretofore have commenced, shall expire
and terminate with the same effects as if the date of termination were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 34.
32.03. Adequate Assurances.
Without limiting an of the provisions of Articles 32, 33 or 34, if
pursuant to the Bankruptcy Code of 1978, as the same may be amended, Tenant is
permitted to assign this lease in disregard of the obligations contained in
Article 13 hereof, Tenant agrees that adequate assurance of future performance
by the assignee permitted under the Code shall mean the deposit of cash security
with Landlord in an amount equal to the sum of one year's fixed rent then
reserved hereunder plus an amount equal to all additional rent payable under
this lease for the calendar year preceding the year in which such assignment is
intended to become effective, which deposit shall be held by Landlord, for the
balance of the term of this lease as security for the full and faithful
performance of all of the obligations under this lease on the part of Tenant
yet to be performed. If Xxxxxx receives or is to receive any valuable
consideration for such an assignment of this lease, such consideration after
deducting therefrom (i) the brokerage commissions, if any, and other expenses
reasonably incurred by Tenant for such assignment and (ii) any portion of such
consideration reasonably designated by the assigned as paid
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for the purchase of Tenant's property in the Demised Premises, shall be the sole
and exclusive property of Landlord and shall be paid over to Landlord directly
by such assignee.
ARTICLE 33
Re-Entry by Landlord
33.01. Re-Entry; Summary Proceedings.
If Tenant shall default in the payment of any installment of rent or any
other charge payable by Tenant to Landlord, and if such default shall continue
for five days, or if the term of this lease shall be terminated as in Article 32
provided, 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 persons
therefrom, to the end that Landlord may have, hold and enjoy the Demised
Premises. The word "re-enter", as herein used, is not restricted to its
technical legal meaning. In the event of any termination of this lease under the
provisions of Article 32 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 under any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall thereupon pay to Landlord the rent and any other charge
payable by Tenant to Landlord up to the time of such termination or re-entry, as
the case may be, and shall also pay to Landlord damages as provided in Article
34.
33.02. Remedies Cumulative.
The special remedies to which Landlord may resort hereunder are cumulative
and are not intended to be exclusive of any other remedies or means of redress
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.
33.03. Retention of Funds.
If the term of this lease shall be terminated under the provisions of
Article 32, 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 provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all moneys, if any, paid by Tenant to
Landlord, whether as advance rent, security or otherwise, but such moneys shall
be credited by Landlord against any rent or other charge due from Tenant at the
time of such termination or re-entry or, at Landlord's option, against any
damages payable by Xxxxxx under Article 34 or pursuant to law.
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ARTICLE 34
Damages
34.01 Damages
Tenant covenants and agrees that if the term of this lease shall be
terminated under the provisions of Article 32, or if Landlord shall re-enter the
Demised Premises under the provisions of Article 33, or in the event of the
termination of the term 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 or at the time of such
re-entry by Landlord, as the case may be, represents the then value of the
excess, if any, of: (i) the aggregate of the rent payable hereunder which
would have been payable by Xxxxxx (conclusively presuming the additional
rent to be the same as was payable for the year immediately preceding such
termination or re-entry) for the period commencing with the date of such
termination or re-entry, as the case may be, and ending with the
Expiration Date had the term of this lease not been so terminated or had
Landlord not so re-entered the Demised Premises, over (ii) the aggregate
rental value of the Demised Premises for the same period; both discounted
to the date of such termination or re-entry, as the case may be, at the
rate of 10% per annum compounded quarterly; or
(b) sums equal to the rent payable hereunder which would have been
payable by Tenant had the term of this lease not been terminated, or had
Landlord not re-entered the Demised Premises, payable upon the due dates
therefor specified herein following such termination or such re-entry and
until the Expiration Date; Landlord may re-let the Demised Premises or any
part or parts thereof either in the name of Landlord or otherwise, for a
term or terms, which may at Landlord's option be less than or exceed the
period which would otherwise have constituted the balance of the term of
this lease; Landlord may grant concessions of free rent and Landlord, at
its option, may make such alterations and decorations in the Demised
Premises as Landlord considers advisable and necessary for the purpose of
re-letting the Demised Premises, and the granting of such concessions
and/or making of such alterations and decorations shall not operate or be
construed to release Tenant from liability hereunder as a foresaid
provided however, that if Landlord shall re-let the Demised Premises
during said period, Landlord shall credit Tenant with the net rents
received by, Landlord from such re-letting, such net rents to be
determined by first deducting from the gross rents as and when received by
Landlord from such re-letting, the expenses incurred or paid by Landlord
in terminating the term of this lease and in re-entering the Demised
Premises and in securing possession thereof, as well as the expenses of
re-letting, including altering and preparing the Demised Premises for new
tenants, brokers' commissions, attorneys' fees and all other expenses
properly chargeable against the Demised Premises and the rental therefrom
it being understood that any such re-letting may be for a period shorter
or longer than the remaining term of this lease. In no event shall Tenant
be entitled to receive any excess of such net rents over the sums payable
by Tenant to Landlord hereunder, or shall Tenant be entitled in any suit
for the collection of damages pursuant to this Article to a credit in
respect of any net rents from a re-letting, except to the extent that such
net rents are received by Landlord. If the Demised Premises or any part
thereof should be re-let in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent received
from such re-letting and of the
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expenses of re-letting.
In the event of a default by Tenant in its obligations under this lease,
beyond applicable grace periods, if any, in addition to Landlord's other
rights and remedies, there shall be immediately payable by Tenant to
Landlord, as additional rent, the amount of all of the following which are
incurred, granted or assumed by Landlord in connection with the lease: all
rent concessions, free rent, rent credits, contributions or payments by
Landlord with respect to work or improvements performed in the Demised
Premises, and/or obligations expenses and liabilities of Tenant assumed or
paid for by Landlord in consideration of Tenant's entering into this
lease.
If the Demised Premises or any part thereof be relet by Landlord for the
unexpired portion of the Term, or an 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.
34.02. Recovery of Damages.
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
terminated under the provisions of Article 32, or under any provision of law, or
had Landlord not re-entered the Demised Premises.
34.03. Additional Damages.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Landlord against Tenant of any sums or damages, in addition to the
damages particularly provided above, to which Landlord may lawfully be entitled
by reason of any default hereunder on the part of Tenant.
ARTICLE 35
Waivers
35.01. Waiver of Redemption Rights.
Tenant, for Tenant, and on behalf of any and all persons claiming through
or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
lease or after the termination of the term of this lease as herein provided.
Tenant also waives the provisions of any law now or hereafter in effect relating
to notice and delay in levy of execution in case of an eviction or dispossess of
a tenant
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for non-payment of rent.
35.02. No Designation of Payments.
Tenant waives Tenant's right, if any, to designate the items against which
any payments made by Tenant are to be credited, and Xxxxxx agrees that Landlord
may apply any payments made by Tenant to any items it sees fit, irrespective of
and notwithstanding any designation or request by Tenant as to the items against
which any such payments shall be credited.
35.03. Waiver of Jury Trial.
Xxxxxxxx and Xxxxxx waive trial by jury in any action, proceeding or
counterclaim brought by either against the other on any matter whatsoever
arising out of or in any way connected with this lease, the relationship of
landlord and tenant, Xxxxxx's use or occupancy of the Demised Premises, any
claim of injury or damage, or any emergency statutory or any other statutory
remedy.
35.04. Counterclaims.
Tenant shall not interpose any counterclaim of any kind in any summary
proceeding commenced by Landlord for nonpayment of rent.
ARTICLE 36
Unperformed Covenants
36.01. Performance of Tenant's Obligations.
If Tenant shall default in the performance of any of Tenant's obligations
hereunder, Landlord, without thereby waiving such default, may at Landlord's
option, after reasonable notice to Tenant, perform the same for the account of
Tenant. If Landlord makes any expenditures or incurs any obligations for the
payment of money, including attorneys' fees in instituting, prosecuting or
defending any action or proceeding by reason of any default of Tenant hereunder,
such sums paid or obligations incurred, with interest at the maximum legal
rate thereon, shall be deemed to be additional rent hereunder and shall be paid
by Tenant to Landlord upon rendition of any bill or statement to Tenant
therefore.
ARTICLE 37
Consents and Approvals
33.01. Consents and Approvals.
Whenever in this lease it is provided that Landlord shall not unreasonably
withhold or delay consent or approval or shall exercise its judgment reasonably
(such consent or approval and such exercise of judgment being collectively
referred to as "consent"), if Landlord shall delay or refuse such consent,
Tenant in no event shall be entitled to make, nor shall Tenant make, any claim,
and Tenant hereby waives any claim, for money damages (nor shall Tenant claim
any money damage by way of setoff, counterclaim or defense) based upon any claim
or assertion by Xxxxxx that Landlord unreasonably withheld or unreasonably
delayed its
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consent. Tenant's sole remedy shall be an action or proceeding for specific
performance, injunction or declaratory judgment to enforce any such provision,
but any such equitable remedy which can be cured by the expenditure of money may
be enforced personally against Landlord only to the extent of its interest in
the Building. Failure on the part of Tenant to seek such relief within 30 days
after the date upon which Landlord has withheld its consent shall preclude any
right to dispute the reasonableness of such withholding of consent.
37.02. Expenses.
If Tenant shall request the consent or approval of Landlord to the making
of any alterations or to any other thing, and Landlord shall seek and pay a
separate fee for the expert opinion of Landlord's counsel, architect, engineer
or other representative or agent as to the form or substance thereof, Tenant
shall pay to Landlord, as additional rent, within 30 days after demand, all
costs and expenses of Landlord incurred in connection therewith, including, in
case of any alteration, costs and expenses of Landlord in reviewing plans and
specifications.
ARTICLE 38
Rules and Regulations
38.01. Rules and Regulations.
Tenant and Xxxxxx's invitees shall observe and comply with the Rules and
Regulations attached hereto and made part hereof, and such other and further
Rules and Regulations as Landlord or Landlord's agents may from time to time
adopt. Notice of any additional Rules and Regulations shall be given to Tenant.
Nothing in this lease shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations or the terms, covenants or
conditions in any other lease, against any other tenant or occupant of the
Buildings, and Landlord shall not be liable to Tenant for violation of the same
by any other tenant or such other tenant's licensees. In the event of a conflict
between the Rules and Regulations and the provisions of this lease, the
provisions of this lease shall prevail.
ARTICLE 39
Amendments for Financing
39.01. Amendments for Financing.
If, in connection with obtaining financing for the Real Property, a
banking, insurance or other recognized institutional lender shall request
modifications in this lease as a condition to such financing, Tenant will not
withhold, delay or defer its consent thereto, provided that such modifications
do not increase the monetary obligations of Tenant hereunder.
ARTICLE 40
Notice to Mortgagees and Underlying Lessors
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40.01. Notice to Mortgagees and Lessors.
Upon the occurrence of any act or omission on the part of Landlord which
would give Tenant the right, either immediately or after the lapse of a period
of time, to terminate this lease or the term hereof or to claim a partial or
total eviction, Tenant shall not exercise such right until (i) it has given
notice of the occurrence of such act or omission to holders of any mortgages
which at the time shall be liens on the leasehold estate under any ground lease
or the Real Property, and the lessors under all underlying leases, if the names
and addresses of such holders and lessors shall previously have been furnished
to Tenant, and (ii) a period of time has elapsed after such notice as shall
equal the greater of (y) twice the length of time to which Landlord would be
entitled under this lease or otherwise, after similar notice, to remedy such act
or omission, or (z) the same time to which Landlord would be so entitled, plus
the time reasonably required to enable the holder of such mortgage or lease to
become legally entitled (through receivership or otherwise) to remedy such act
or omission.
ARTICLE 41
Parties Bound; Partnership Tenant
41.01. Successors and Assigns.
The covenants, agreements, terms, provisions and conditions 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 hereto is named or
referred to, except that no violation of the provisions of Article 13 shall
operate to vest any rights under this lease in any successor or assignee of
Tenant. Notwithstanding the foregoing, it is understood and agreed that (i) the
covenants and obligations on the part of Landlord under this lease shall not be
binding upon Landlord herein named with respect to any period subsequent to the
transfer of its interest in the Real Property as owner or lessee thereof, (ii)
in the event of such transfer said covenants and obligations shall thereafter
be binding upon each transferee of the interest, of Landlord herein named as
such owner or lessee of the Real Property, but only with respect to the period
ending with a subsequent transfer of such interest, (iii) a lease of the entire
interest of Landlord hereunder shall be deemed a transfer within the meaning of
this Article, and (iv) the provisions of this Article shall not be construed as
modifying the conditions of limitation contained in Article 32.
41.02. Partnership Tenant.
If Xxxxxx's interest in this lease shall at any time be held by a
partnership, or by two or more persons or entities individually (any such
partnership and such persons and entities are referred to in this Section as
"Partnership Tenant"), the following provisions shall apply to such Partnership
Tenant:
(a) the liability of each of the parties comprising Partnership Tenant
shall be joint and several;
(b) each of the parties comprising Partnership Tenant consents in
advance to, and agrees to be bound by, any (i) written instrument which
may thereafter be executed, changing, modifying or discharging this lease,
in whole or in part, or surrendering all or any part of the Demised
Premises to Landlord, and (ii) notices, demands, requests or other
communications which may thereafter be given, by Partnership
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Tenant or any of the parties comprising Partnership Tenant;
(c) any bills, statements, notices, demands, requests or other
communications given or rendered to Partnership Tenant, or to any of 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;
(d) 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; and
(e) Partnership Tenant shall give prompt notice to Landlord of the
admission of each new partner, and upon demand of Landlord, shall cause
each new partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each new partner shall assume
performance of all of the terms, covenants and conditions of this lease on
Tenant's part to be observed and performed (but neither Landlord's failure
to request any such agreement nor the failure of any such partner to
execute or deliver any such agreement to Landlord shall vitiate the
provisions of this subparagraph).
(f) Anything herein to the contrary notwithstanding, if Tenant is a
limited or general partnership (or is comprised of two (2) or more
persons, individually or as co-partners), the change or conversion of
Tenant to a limited liability company, (ii) a limited liability
partnership, or (iii) any other entity which possesses the characteristics
of limited liability (any such limited liability company, limited
liability partnership, or entity is collectively referred to as a
"Successor Entity") shall be prohibited unless the prior written consent
of Landlord is obtained, which consent may be withheld in Landlord's sole
discretion.
(g) Notwithstanding the foregoing in Paragraph (f), Xxxxxxxx agrees not
to unreasonably withhold or delay such consent provided that:
(1) The Successor Entity succeeds to all or substantially all of
Tenant's business and assets;
2) The Successor Entity shall have a net worth ("Net Worth"),
determined in accordance with generally accepted accounting principles,
consistently applied, of not less than the greater of the Net Worth of
Tenant on (i) the date of execution of the Lease, or (ii) the day
immediately preceding the proposed effective date of such conversion;
(3) Tenant is not in default of any of the terms, covenants or
conditions of this lease on the proposed effective date of such
conversion;
(4) Tenant shall cause each partner of Tenant to execute and deliver
to Landlord an agreement, in form and substance satisfactory to
Landlord, wherein each such partner agrees to remain personally liable
for all of the terms, covenants, and conditions of the Lease that are
to be observed and performed by the Successor Entity; and
(5) Tenant shall reimburse Landlord within ten (10) days following
demand by Landlord for any and all reasonable costs and expenses that
may be incurred by
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Landlord in connection with said conversion of Tenant to a Successor
Entity, including, without limitation, any attorney's fees and
disbursements.
Landlord shall release from liability hereunder, as to obligations
thereafter accruing, retiring partners and the estates of deceased partners,
provided that the aggregate assets of the remaining partners of a Partnership
Tenant shall be sufficient in Landlord's sole judgment to meet Xxxxxx's
obligations hereunder.
The provisions of this Section shall not be deemed to constitute a
consent, by Xxxxxxxx, to the assignment of any interest in this lease by Xxxxxx.
ARTICLE 42
No Other Waivers or Modifications
42.01. Waivers.
The failure of Landlord to insist in any one or more instances upon the
strict performance or observance of any one or more of the obligations of this
lease, or to exercise any election herein contained, shall not be construed as a
waiver or relinquishment for the future of the performance of such one or more
obligations of this lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this lease or the
Premises, in whole or in part, unless such executory agreement is in writing and
is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge or termination or effectuation of the abandonment is
sought.
42.02. Surrender; Payments.
Without limiting the generality of the foregoing provisions of this
Article:
(a) No agreement to accept a surrender of all or any part of the
Demised Premises shall be valid unless in writing, signed by Landlord.
The delivery of keys to the Demised Premises to an employee of Landlord or
of its agent shall not operate as a termination of the term of this lease
or a surrender of the Demised Premises.
(b) The receipt by Landlord, or the payment by Xxxxxx, of rent or any
other payment by Tenant with knowledge of breach of any obligation of this
lease shall not be deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser amount than
the correct amount of any rent or other charge due hereunder shall be
deemed to be other than a payment on account; nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance or
pursue any other remedy in this lease or at law provided.
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ARTICLE 43
Notices
43.01. Notices.
Except for rent bills, any notice, approval, consent, bill, statement 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 (shall be sent in
duplicate to Landlord) and shall be delivered by registered or certified mail or
nationally recognized overnight carrier (e.g., Federal Express), addressed to
the other party at the address hereinabove set forth (in the case of notice to
Landlord, a second copy is to be delivered, in the same manner, to Xxxxxx Xxxxxx
Company, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attn: Executive
Vice-President and Associate General Counsel, and a third copy is to be
delivered in the same manner to Glorious Xxx Xxxxxx Xxxxxx, L.L.C., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xx. Xxxx Xxxx) and shall be deemed to
have been given, rendered, made or (in the case of any communication required by
the provisions of this lease to have been received before any period prescribed
herein for the taking of any action or the creation of any rights shall
commence) received, on the second business day following the day so mailed if
mailed in Westchester County and the third business day following the day so
mailed if mailed outside of Westchester County. Any notices, approvals,
consents, bills, statements or other communication given pursuant to this
Article by either party may be given by such, party, their agents or attorneys.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices, bills, statements or other communications intended for
it.
ARTICLE 44
Estoppel Certificate-Recording
44.01. Tenant's Estoppel.
Tenant agrees, at any time and from time to time, upon ten days prior
notice from Landlord, to execute, acknowledge and deliver to Landlord and any
other person designated by Landlord, a statement in writing stating (i) that
this lease is unmodified and in full force and effect (or if there have been
modifications, that the lease is in full force and effect as modified and
stating the modifications), (ii) the dates to which the fixed rent, additional
rent and other charges, if any have been paid by Xxxxxx, (iii) whether or not
Landlord is in default in the performance of any covenant, agreement or
condition contained in this lease and, if so, specifying in detail each such
default, (iv) 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 (v) the address to which notices to Tenant should be
sent. If requested by Xxxxxxxx, the form of statement shall be, at Landlord's
election, as set forth on Exhibit B, annexed hereto and made part hereof. Any
such statement delivered pursuant hereto may be relied upon by the holder of any
interest in the Real Property, any prospective purchaser of the Real Property,
any mortgagee or prospective mortgagee of the Real Property or of Landlord's
interest, or any prospective assignee of any such mortgage.
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44.02 Recording.
This lease shall not be recorded. At the request of Landlord, Xxxxxx shall
promptly execute, acknowledge and deliver to Landlord a memorandum in form
satisfactory to Landlord with respect to this lease, and any amendment of or
other agreement supplementary to this lease, sufficient for recording.
ARTICLE 45
Brokerage
45.01. Brokerage.
Tenant covenants, warrants and represents that, in the negotiation of this
lease, it dealt with no broker or any other person who could legally claim to be
entitled to receive a brokerage commission or finder's or consultant's fee with
respect to this transaction, except Cali Realty, L.P., which commission Landlord
shall pay per a separate agreement. Tenant shall indemnify and hold Landlord
harmless from and against any and all losses, costs, damages, expenses, claims
and liabilities (including court costs and attorneys' fees and disbursements)
arising out of any inaccuracy or alleged inaccuracy of the above representation.
ARTICLE 46
SECURITY
46.01. Security.
Tenant has deposited with Landlord a sum of money (by check, subject to
collection) equal to $16,114.58, as security for the full and faithful
performance and observance by Tenant of the terms, provisions and conditions of
this lease. If Tenant defaults in respect of any of the terms, provisions and
conditions of this lease, including but not limited to, the payment of rent and
additional rent, Landlord may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any rent and
additional rent, or any other sum as to which Tenant is in default, or for any
sum which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this lease,
including but not limited to, any damages or deficiency in the reletting of the
Premises, whether such damages or deficiency accrued before or after summary
proceedings or other re-entry by Xxxxxxxx. In the event that Tenant shall fully
and faithfully comply with all of the terms, provisions, covenants and
conditions of this lease, the security shall be returned to Tenant after the
date fixed as the Expiration Date and after delivery of possession of the entire
Premises to Landlord. If Landlord applies or retains any part of the security
so deposited, Tenant, upon demand, shall deposit with Landlord the amount so
applied or retained, so that Landlord shall have the full deposit on hand at all
times during the term of this lease. In the event of a sale of the Land and
Building or condominium unit of which the Premises may be a part or leasing,
conveyance or transfer of the Building or condominium unit of which the Premises
form a part, Landlord shall have the right to transfer the security to the
vendee, lessee or transferee and Landlord shall thereupon be released by Tenant
from all liability for the return of such security; and Xxxxxx agrees to look to
the new Landlord solely for the return of
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said security; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Landlord. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.*
The security amount set forth above shall be increased to $18,4.16.67 as
of July 1, 1998. Tenant shall deposit with Landlord such additional security in
the amount of $2,302.09 on or before July 1, 1998.*
ARTICLE 47
Miscellaneous
47.01. Entire Agreement.
This lease contains the entire agreement between Landlord and Tenant
relating to the leasing of the Premises. Tenant expressly acknowledges and
agrees that Landlord has not made and is not making, and, in executing and
delivering this lease Tenant is not relying upon, any warranties,
representations, promises or statements, extent that the same may be expressly
set forth in this lease.
47.02. Partial Invalidity.
If any term or provision of this lease, or the application thereof to any
person or circumstance, shall, to any extent, be invalid or unenforceable, the
remainder of this lease, or the application of such term or provision to persons
or circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this lease shall be valid and enforceable to the fullest extent permitted by
law.
47.03. Applicable Law.
This lease shall be deemed to have been made in Rockland County, and shall
be construed according to, and governed by, the laws of the State of New York.
47.04. Lease Submission.
This lease is submitted to Tenant for signature, with the understanding
that it shall not bind Landlord unless and until it has been executed by
Landlord and delivered to Tenant or Tenant's attorney or agent.
47.05. Asterisks.
The asterisks set forth at various locations in this lease are set forth
for Landlord's internal administrative purposes, and are not intended to refer
to any other language or to be used for interpretive purposes.
47.06. Confidentiality.
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Xxxxxx agrees not to disclose the terms, covenants, conditions or other facts
with respect to this lease, to any person, business entity, association,
newspaper, periodical or other entity, except pursuant to a valid business
purpose. This non-disclosure and confidentiality agreement shall be binding upon
Tenant without limitation as to time, and a breach of this Section shall
constitute a material breach of Tenant's obligations under this lease.*
47.07. Right to Relocate.
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 Buildings (herein called the "Substitute Premises") designated by Landlord,
provided that the Substitute Premises contains at least the same Rentable Area
as the Demised Premises and has a configuration substantially similar to that of
the Demised Premises. Xxxxxxxx's notice shall be accompanied by a plan of the
Substitute Premises, and such notice or the plan shall set forth the Rentable
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 this Section.
Tenant shall pay the same fixed rent and additional rent under Articles 3 and 4
with respect to the Substitute Premises as were payable with respect to the
Demised Premises, without regard to the Rentable Area of the Substitute
Premises.
Tenant shall not be entitled to any compensation for any inconvenience or
interference with Xxxxxx'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 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 Xxxxxx's move from the
Demised Premises to the Substitute Premises provided such costs are approved by
Landlord in advance. Xxxxxx 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 Xxxxxx of the Demised Premises. Without
limiting the generality of the preceding sentence, Xxxxxx 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
Xxxxxx to prepare the same for Xxxxxx's occupancy.
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.
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ARTICLE 48
48.01. Option to Terminate
Tenant shall have the right to elect to terminate this lease effective no
later than December 31, 1997 ("Termination Date") provided Tenant (i) has not
been able to complete an initial public offering, (ii) is not in default of any
of its obligations under this lease and (iii) has given Owner notice of its
election no later than 60 days prior to the Termination Date (time being of the
essence in the giving of such notice).(1) *
IN WITNESS WHEREOF, Landlord and Xxxxxx have duly executed this lease as of
the day and year first above written.
GLORIOUS XXX XXXXXX XXXXXX, L.L.C.
By: RM Blue Hill, LLC, Member
By:/s/
-----------------------------
Member/Manager
EASY STREET ONLINE, INC.
By:/s/ Xxxxxxx X. Xxxx-Xxxxxxxx
-----------------------------
President
(1) In consideration for terminating this lease, within the first six months
hereof Landlord shall retain the $16,114.58 currently being held by Landlord
pursuant to Article 46.
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WORK LETTER (SECTION 7.01)
WORK SCHEDULE OF LANDLORD'S RESPONSIBILITY
Premises will be delivered in broom clean condition finished substantially "as
is" except as set forth under Additional Work Specifications hereinbelow, and
the floor plan attached hereto.
Office Area:
Walls, doors, ceilings and floors shall be as currently installed. All
alterations, additions or deletions called for in the Additional Work
Specifications or in the floor plan attached hereto shall be furnished and
prepared to the standards now existing on the premises.
Convenience wall outlets, lighting switches, and lighting fixtures shall be as
installed. Supplementary or replacement xxxxxxx by Tenant. Tenant shall not
overload electric circuits.
Standard duplex convenience outlets, ceiling lighting, lighting switches,
heating and air conditioning equipment shall be wired and operative. Any wiring
distribution other than for the above may be used by Tenant to the extent
serviceable but is not warranted by Owner as to operating condition.
All selections or designations to be made by Tenant are to be made within five
(5) business days after request by Landlord. If Tenant has not made such
designations or selections within said period, the Landlord shall be authorized
to do so on behalf of Tenant.
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CLEANING SPECIFICATIONS (SECTION 20.02)
1. General
(a) All flooring to be swept and/or dust mopped on each business day.
(b) All carpeting areas and rugs vacuumed twice weekly.
(c) All stairways to be swept each business day.
(d) Empty and wipe wastepaper baskets and ashtrays each business day.
(e) Cigarette urns to be cleaned each business day and sand replaced when
necessary.
(f) Floors, walls and interior surfaces of lobby, elevators and public
corridors to be maintained as required.
(g) Dust furniture and window xxxxx as required.
(h) Water coolers to be wiped each business day.
(i) Entrance lobby glass to be washed or wiped each business day.
2. Lavatories Daily (Business Days)
(a) All flooring to be swept and washed using disinfectant in water.
(b) All basins, bowls, urinals and toilet seats to be washed.
(c) All mirrors to be washed.
(d) Paper towel and sanitary disposal receptacles to be emptied and
cleaned.
(e) Toilet tissue holders and soap and paper towel dispensers to be filled.
3. Windows
(a) Three times per year clean all exterior windows on the inside only,
provided that window xxxxx are free of articles and access to the
windows is not obstructed.
(b) Two times per year clean all exterior windows, on the outside.
4. Venetian Blinds
Venetian blinds to be dusted annually.
5. Ledges and moldings
Ledges and moldings to be high dusted semi-annually as required.
6. Lighting Fixtures
Interior and exterior of lighting fixtures to be dusted annually as
required.
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Rules and Regulations (Section 38.01)
1. Any moving of furniture or equipment into or out of the Demised Premises
must be done by Tenant at its own cost and expense, on business days after 6:00
P.M., or on Saturday subject, however, to the prior written consent of Landlord.
If such move requires use of an elevator, such move shall not be in excess of
such elevator's carrying load capacity.
2. The sidewalks, entrances, passages, lobby, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by Tenant or
used for any purpose other than ingress and egress to and from the Demised
Premises and Tenant shall not permit any of its invitees to congregate in any of
said areas. No door mat shall be placed or left in any public hall or outside
any entry door of the Demised Premises.
3. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades, or screens shall be attached to or
hung in, or used in connection with, any window or door of the Demised Premises,
without the prior 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.
4. No sign, insignia, advertisements, object, notice or other lettering
shall be exhibited, inscribed, painted or affixed by any tenant on any part of
the outside or inside of the Demised Premises or the Buildings without the prior
written consent of Landlord. In the event of the violation of the foregoing by
Xxxxxx, Landlord may remove the same without any liability, and may charge the
expense incurred in such removal to Tenant. Interior signs and lettering on
doors and directory tablets shall, if and when approved by Landlord, be
inscribed, painted or affixed by Landlord at the expense of Tenant, and shall be
of a size, color and style acceptable to Landlord.
5. 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
Buildings shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels, or other articles be placed on window xxxxx.
6. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Buildings, nor placed in the halls, corridors or
vestibules by Tenant.
7. Tenant shall not discharge or permit to be discharged any materials
which may cause damage into waste lines, vents or flues of the Buildings. The
water and wash closets and other plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed, and no
sweepings, rubbish, rags, corrosives, acids or other substances shall be thrown
or deposited therein. All damages resulting from any misuse of the fixtures
shall be borne by the tenant who, or whose invitees, shall have caused the same.
8. Tenant shall not mark, paint, drill into, or in any way deface any part
of the Demised Premises or the Buildings. No boring, cutting or stringing of
wires shall be permitted, except with the prior consent of Landlord, and as
Landlord may direct. Tenant shall not lay linoleum, or other similar floor
covering, so that the same shall come in direct contact with the floor of the
Demised Premises, and, if linoleum or other similar floor covering is desired to
be used, an interlining of builder's deadening felt shall be first affixed to
the floor, by a paste or other material, soluble in water, the use of cement and
other similar adhesive material being expressly prohibited.
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9. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the Demised Premises.
10. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television which, in Landlord's
judgment, might disturb other tenants in the Buildings, shall be made or
permitted by Tenant. Nothing shall be done or permitted in the Demised Premises
by Tenant which would impair or interfere with the use or enjoyment by any other
tenant of any other space in the Buildings. Tenant shall not throw anything out
of the doors, windows of skylights or down the passageways.
11. Neither Tenant nor its invitees shall bring or keep upon the Demised
Premises any explosive fluid, chemical or substance, nor any inflammable or
combustible objects or materials.
12. Additional locks or bolts of any kind which shall not be operable by
the grand master key(s) for the Buildings shall not be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said grand master
key(s). 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, Tenant and in the event of the loss of any keys furnished by
Landlord, Tenant shall pay to Landlord the cost thereof.
13. All removals from the Demised Premises or the Buildings, or the moving
or 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 as Landlord or its agent may determine from time to
time. All deliveries of any nature whatsoever to the Buildings or the Demised
Premises must be made only through Building entrances specified for such
deliveries by Landlord. Landlord reserves the right to inspect all objects and
matter to be brought into the Buildings and to exclude from the Buildings all
objects and matter which violate any of these Rules and Regulations or the
Lease. Landlord may require any person leaving the Buildings with any package or
other object or matter, to submit a pass, listing such package or object or
matter, from the tenant from whose premises the package or other object or
matter is being removed, but the establishment and enforcement 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 Tenant for damages or loss arising from
the admission, exclusion or ejection of any person to or from the Demised
Premises or the Buildings under the provisions of this Rule 13 or Rule 17
hereof.
14. Tenant shall not occupy or permit any portion of the Demised Premises
to be occupied as an office for a public stenographer or public typist, or for
the possession, storage, manufacture, or sale of beer, wine or liquor,
narcotics, drugs, tobacco in any form, or as a xxxxxx, beauty or manicure shop,
or as an employment bureau. Tenant shall not engage or pay any employees on the
Demised Premises, except those actually working for Tenant on the Demised
Premises, nor advertise for laborers giving an address at the Demised Premises.
Tenant shall not use the Demised Premises or any part thereof, or permit the
Demised Premises or any part thereof to be used, for manufacturing, or for sale
at auction of merchandise, goods or property of any kind.
15. Tenant shall not obtain, purchase or accept for use in the Demised
Premises ice, drinking water, food, beverage, towel, barbering, boot blacking,
cleaning, floor polishing or other similar services from any persons not
authorized by Landlord in
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writing to furnish such services, provided always that the charges for such
services by persons authorized by Landlord shall not be excessive. Such services
shall be furnished only at such hours, in such places within the Demised
Premises, and under such regulations as may be fixed by Landlord. Tenant shall
not purchase or contract for waxing, rug shampooing, venetian blind washing,
furniture polishing, lamp servicing, cleaning of electric fixtures, removal of
garbage or towel service in the Demised Premises except from contractors,
companies or persons so approved by the Landlord.
16. Landlord shall have the right to prohibit any advertising or
identifying sign by Tenant which in Landlord's judgment tends to impair the
reputation of the Buildings or their desirability as buildings for offices, and
upon notice from Landlord, Tenant shall refrain from or discontinue such
advertising or identifying sign.
17. Landlord reserves the right (although it is specifically understood
that Landlord shall not be obligated under any circumstances) to exclude from
the Building during hours other than regular business hours and days all persons
who do not present a pass to the Building signed by Landlord. All persons
entering and/or leaving the Building during hours other than regular business
hours and days may be required to sign a register. Landlord will furnish passes
to persons for whom any tenant requests same in writing. Tenant shall be
responsible for all persons for whom Tenant requests such pass and shall be
liable to Landlord for all acts or omissions of such persons. Landlord's
providing of services during other than regular business hours and days shall
not be interpreted to mean that the Buildings are in operation during such
after-hours; and, in lieu of possible darkness, lack of activity and lack of
such services during such after-hours, Tenant may wish to take measures
regarding security of its invitees using the Demised Premises during other than
regular business hours and days.
18. Tenant, before closing and leaving the Demised Premises at any time,
shall see that the lights are turned off. All entrance doors in the Demised
Premises shall be left locked by Tenant when the Demised Premises are not in
use. Entrance doors shall not be left open at any time.
19. Unless Landlord shall furnish electrical energy hereunder as a service
included in the rent, Tenant shall, at Tenant's expense, provide artificial
light and electrical energy for the employees of Landlord and/or Landlord's
contractors while doing janitorial service or other cleaning in the Demised
Premises and while making repairs or alterations in the Demised Premises.
20. The Demised Premises shall not be used for lodging or sleeping or for
any immoral or illegal purpose.
21. The requirements of Tenant will be attended to only upon application at
the office of the Buildings. 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 Buildings are prohibited and
Tenant shall cooperate to prevent the same.
23. There shall not be used in any space, or in any lobbies, corridors
public halls or other public areas of the Buildings, in the moving or delivery
or receipt of safes, freights, furniture, packages, boxes, crates, paper office
material, or any other object or thing, any hand trucks except those equipped
with rubber tires, side guards, and such other safeguards as Landlord shall
require. No move or delivery of any object or thing of whatever nature, other
than light-weight objects hand-carried by not more than one person, shall be
made without at least 24 hours prior
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notice by Tenant to Landlord and without Tenant, prior, to any such move or
delivery, laying (without affixation or attachment to any part of the floor or
floor covering) adequate masonite or plywood sheets covering all lobby,
corridor, public hall and other public area floors of the Buildings (whether
carpeted or terrazzo) over which such move or delivery shall take place.
24. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Demised
Premises which would annoy other tenants or create a public or private nuisance.
No cooking shall be done in the Demised Premises except as is expressly
permitted in the lease.
25. Tenant shall cooperate with Landlord in obtaining maximum effectiveness
of the cooling system by lowering and closing venetian blinds and/or drapes and
curtains when the sun's rays fall directly on the windows of the Demised
Premises.
26. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Buildings, when, in its judgment, it
deems it necessary or desirable for the reputation, safety, care or appearance
of the Buildings, or the preservation of good order therein, or the operation or
maintenance of the Buildings or the equipment thereof, or the comfort of tenants
or others in the Buildings. No recision, alteration or waiver of any rule or
regulation in favor of one tenant shall operate as a recision, alteration or
waiver in favor of any other tenant.
27. Tenant, its employees, agents, licensees, contractors and subtenants
shall not litter any public areas of the Real Property (including the walkways
and parking areas located thereon).
28. Landlord shall not unreasonably withhold its consent to the
installation, maintenance and operation by Tenant in the Demised Premises of
data processing machines, office duplicating machines, teletype machines and
other business machines and machinery customarily used in offices in the
ordinary course of business, provided however, that Tenant shall comply with all
other obligations of this lease that may be applicable to or result from such
installation, maintenance or operation.
29. Landlord shall not unreasonably withhold or delay from Tenant any
approval provided for in the Rules and Regulations.
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EXHIBIT "B"
STATEMENT OF TENANT IN RE:
Date:
Re: Address:
Your Appl. #
Gentlemen:
It is our understanding that you have committed to place a mortgage upon
the subject premises and as a condition precedent thereof have required this
certification by the undersigned.
The undersigned, as Lessee, under that certain lease dated ___________,
made with ________________________ as Lessor, hereby ratifies the said lease
and certifies that:
1. the undersigned has entered into occupancy of the premises described
in said lease on ___________________;
2. the undersigned is presently open and conducting business with the
public in the premises;
3. the minimum rental in the annual amount of $____________ was payable
from the date of occupancy;
4. that said lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way (except by agreement(s)
dated _____________), and neither party thereto is in default
thereunder;
5. that the same represents the entire agreement between the parties as
to this leasing;
6. that the term of said lease expires on _________________;
7. that all conditions under said lease to be performed by the Lessor
have been satisfied, including but without limitations all co-tenancy
requirements thereunder;
8. all required contributions by Lessor to Lessee on account of Xxxxxx's
improvements have been received;
9. on this date there are no existing defenses or offsets which the
undersigned has against the enforcement of said lease by the Lessor;
10. that no rental has been paid in advance and no security, (or in the
amount of $_____________) has been deposited with Lessor;
11. that rental for ______________, 19__, has been paid.
Very truly yours,
_____________________(Tenant)
By:_________________________
(Title)
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