1
Exhibit 10.28
================================================================================
AGREEMENT OF LEASE
between
PURCHASE CORPORATE PARK ASSOCIATES, L.P.
Landlord,
and
INTERLIANT, INC.
Tenant,
Dated: June 16, 1999
PREMISES:
XXX XXXXXX XX XXXXXXXX
XXX XXXXXXXXXXXXXX XXXX
XXXXXXXX, XXX XXXX
A portion of the 1st Floor
================================================================================
2
Interliant-I
3
TABLE OF CONTENTS
Page
----
ARTICLE 1 PREMISES, COMMENCEMENT OF TERM, TERM AND RENT....................1
ARTICLE 2 LAYOUT AND FINISH................................................2
ARTICLE 3 TAX ESCALATION...................................................5
ARTICLE 4 EXPENSE ESCALATION..............................................10
ARTICLE 5 USE.............................................................17
ARTICLE 6 ALTERATIONS AND INSTALLATIONS...................................18
ARTICLE 7 REPAIRS.........................................................21
ARTICLE 8 REQUIREMENTS OF LAW.............................................23
ARTICLE 9 INSURANCE, LOSS, REIMBURSEMENT, LIABILITY.......................24
ARTICLE 10 LANDLORD'S LIABILITY............................................26
ARTICLE 11 ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.........................27
ARTICLE 12 ELECTRICITY.....................................................31
ARTICLE 13 DAMAGE BY FIRE OR OTHER CAUSE...................................34
ARTICLE 14 CONDEMNATION....................................................36
ARTICLE 15 ACCESS TO DEMISED PREMISES; CHANGES.............................37
ARTICLE 16 DEFAULT.........................................................38
ARTICLE 17 RE-ENTRY BY LANDLORD, INJUNCTION................................40
ARTICLE 18 DAMAGES.........................................................41
ARTICLE 19 LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS................43
ARTICLE 20 QUIET ENJOYMENT.................................................44
ARTICLE 21 SERVICES AND EQUIPMENT..........................................44
ARTICLE 22 DEFINITIONS.....................................................47
ARTICLE 23 INVALIDITY OF ANY PROVISION.....................................48
ARTICLE 24 BROKERAGE.......................................................48
4
ARTICLE 25 SUBORDINATION...................................................49
ARTICLE 26 CERTIFICATES OF LANDLORD AND TENANT.............................50
ARTICLE 27 LEGAL PROCEEDINGS WAIVER OF JURY TRIAL..........................52
ARTICLE 28 SURRENDER OF PREMISES...........................................52
ARTICLE 29 RULES AND REGULATIONS...........................................53
ARTICLE 30 CONSENTS AND APPROVALS..........................................53
ARTICLE 31 NOTICES.........................................................54
ARTICLE 32 NO WAIVER.......................................................55
ARTICLE 33 CAPTIONS........................................................56
ARTICLE 34 INABILITY TO PERFORM............................................56
ARTICLE 35 NO REPRESENTATIONS BY LANDLORD..................................56
ARTICLE 36 NAME OF THE BUILDING PROJECT....................................56
ARTICLE 37 RESTRICTIONS UPON USE...........................................56
ARTICLE 38 INDEMNITY.......................................................57
ARTICLE 39 SECURITY DEPOSIT................................................57
ARTICLE 40 MISCELLANEOUS...................................................58
ARTICLE 41 COMMON AREAS AND PARKING........................................60
ARTICLE 42 EXTENSION OF TERM...............................................62
EXHIBITS
EXHIBIT A SITE PLAN.......................................................A-1
EXHIBIT B DESCRIPTION OF LAND.............................................B-1
EXHIBIT C FLOOR PLAN......................................................C-1
EXHIBIT D THIS EXHIBIT HAS BEEN INTENTIONALLY DELETED.....................D-1
EXHIBIT E HVAC SPECIFICATIONS.............................................E-1
EXHIBIT F CLEANING SPECIFICATIONS.........................................F-1
EXHIBIT G RULES AND REGULATIONS...........................................G-1
EXHIBIT H THIS EXHIBIT HAS BEEN INTENTIONALLY DELETED.....................H-1
5
AGREEMENT OF LEASE made as of this 16th day of June, 1999,
between PURCHASE CORPORATE PARK ASSOCIATES, L.P., a New York limited partnership
having an xxxxxx xx Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
(hereinafter referred to as "LANDLORD") and INTERLIANT, INC., a Delaware
corporation having an office at 00 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx Xxxxxx, Xxx
Xxxx 00000 (hereinafter referred to as "TENANT").
W I T N E S S E T H :
Landlord and Tenant hereto, for themselves, their heirs,
distributees, executors, administrators, legal representatives, trustees,
successors and assigns, hereby covenant and agree as follows:
ARTICLE 1
PREMISES, COMMENCEMENT OF TERM, TERM AND RENT
1.1 Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord, subject to any ground leases and/or underlying leases and/or
mortgages as hereinafter provided, and upon and subject to the covenants,
agreements, terms, provisions and conditions of this Lease, in the building
designated Building A/B on the site plan annexed hereto as EXHIBIT A
(hereinafter referred to as the "BUILDING") on land (the "LAND") located in the
Town of Harrison, County of Westchester, State of New York and as more
particularly described in EXHIBIT B annexed hereto, in the office park commonly
known as "THE CENTRE AT PURCHASE", the following space: a portion of the first
(1st) floor designated on EXHIBIT C annexed hereto (the "DEMISED PREMISES"). The
term of this Lease shall commence on the date hereof (hereinafter referred to as
the "COMMENCEMENT DATE") and shall end on June 30, 2004 (hereinafter referred to
as the "EXPIRATION DATE") or until such term shall earlier cease and terminate
as hereinafter provided.
1.2 Tenant shall pay to Landlord a fixed annual rent ("FIXED
ANNUAL RENT") commencing on the date that is the earlier to occur of: (i) one
(1) month from the execution hereof or (ii) the date Tenant or anyone claiming
under or through Tenant first occupies the demised premises for the conduct of
its business, Tenant shall pay to Landlord a fixed annual rent ("FIXED ANNUAL
RENT") of Forty-Two Thousand Seven Hundred Ninety 50/100 Dollars ($42,790.50)
per year, for the period commencing on the Commencement Date and ending on the
Expiration Date.
6
Tenant agrees to pay the fixed annual rent in lawful money of
the United States of America, in equal monthly installments in advance on the
first day of each calendar month during the term of this Lease, at the office of
Landlord or such other place in the United States of America as Landlord may
designate, without any setoff or deduction whatsoever, except such deduction as
may be occasioned by the occurrence of any event permitting or requiring a
deduction from or abatement of rent as specifically set forth in Articles 13 and
14 hereof.
1.3 Tenant shall pay the fixed annual rent and additional rent
as above and as hereinafter provided, by good and sufficient check (subject to
collection) drawn on a bank which is a member of the New York Clearinghouse
Association or another bank approved in writing by Landlord. Tenant is paying
the first month's rent upon the execution hereof. Fixed annual rent and the
monthly payments set forth in Section 4.4(b)(i) shall be paid when due in
accordance with the terms of this Lease. All other sums payable by Tenant
hereunder shall be payable within ten (10) days after written demand for same,
unless other payment dates are hereinafter provided. All sums other than fixed
annual rent payable by Tenant hereunder shall be deemed additional rent, the
default in the payment of which Landlord shall have the same remedies as for a
default in the payment of fixed annual rent.
1.4 If Tenant shall fail to pay when due any installment of
fixed annual rent for a period of ten (10) days after written notice is given to
Tenant that such installment shall have become due, or if Tenant shall fail to
pay any payment of additional rent for a period of ten (10) days after written
notice is given to Tenant that such payment shall have become due, then without
regard to any other remedies which Landlord may have as a consequence of such
default, Tenant shall pay interest thereon at the "INTEREST RATE" (as such term
is defined in Article 22 hereof), from the date when such installment shall have
become due or notice of such additional rent being due is given (as the case may
be) to the date of the payment thereof, and such interest shall be deemed
additional rent.
ARTICLE 2
LAYOUT AND FINISH
2.1 Tenant, at Tenant's cost and expense, and in a
professional and workmanlike manner, shall make and complete the work and
installations in and to the demised premises set forth below in such manner so
that the demised premises will be executive, general and administrative offices
appropriate for a first class office building in Westchester County, New York.
Tenant, at Tenant's expense, shall cause to be prepared
7
a preliminary plan or set of plans (which said plan or set of plans, as the case
may be, are hereinafter called the "plan") which shall contain information
relating to the construction of the demised premises and the engineering in
connection therewith and any effect on building systems. The plan shall be
submitted by Tenant to Landlord for Landlord's approval, which approval shall
not unreasonably withheld or delayed and shall be based solely upon (i) the
effect of "Tenant's Work", as defined below, upon the A/B Building engineering
specifications and systems, (ii) potential for interference with the rights of
other tenants, (iii) compliance of the plan with Legal Requirements (but
Landlord's approval of the plan shall in no way be deemed a representation that
such plans comply with Legal Requirements and (iv) the effect of Tenant's Work
(as hereinafter defined) on the structure of the A/B Building (i.e., Tenant's
Work must not be structural in nature). If Landlord shall disapprove the plan,
Landlord shall set forth its reasons for such disapproval and itemize those
portions of the plan so disapproved. Landlord shall review and respond to
Tenant's plans within seven (7) days of its receipt of a set of detailed plans
and specifications and such other information as Landlord or its agents shall
reasonably (and promptly) request. In the event that Landlord fails to reject
such plans within said seven (7) day period, giving explicit reasons for such
rejection, Tenant's Plans shall be deemed approved. In the event that Landlord
timely refuses to consent to such plans as set forth above, Tenant shall
resubmit the changed plans and Landlord will then have five (5) days from its
receipt of the changed plans and specifications to approve or reject such plans,
using the criteria set forth above. In the event that Landlord fails to reject
such plans within said five (5) day period, giving explicit reasons for such
rejection, Tenant's Plans shall be deemed approved. If Landlord still rejects
such plans, the same procedure shall be used until Landlord's consent is
obtained. Landlord shall not be deemed unreasonable in withholding its consent
to the extent that the plan prepared by Tenant pursuant hereto involves the
performance of work or the installation in the demised premises of materials or
equipment which do not equal or exceed the standard of quality adopted by
Landlord for the Building.
Tenant shall have the right to revise the plan, provided
Tenant has received Landlord's prior written consent to such revision. Final
plans will be delivered to Landlord as they become available, for Landlord's
approval pursuant to this Section 2.1. Subject to Landlord's review of the
plans, Tenant shall not be required to remove Tenant's Work upon the expiration
of this Lease.
2.2 The following conditions shall also apply to Tenant's
Work:
(a) Tenant, at Tenant's expense, shall file all
8
required architectural, mechanical and electrical drawings and obtain all
necessary permits, and shall furnish and perform all engineering and engineering
drawings in connection with Tenant's Work.
(b) Prior to Tenant's occupancy of any portion of the demised
premises for the conduct of Tenant's business, Tenant, at its expense, shall
procure a temporary certificate of occupancy for such portion. Thereafter,
Tenant shall diligently proceed to obtain a permanent certificate of occupancy.
Landlord agrees to cooperate with Tenant in obtaining all permits and
certificate pursuant to this Section 2.2, and, if requested, Landlord agrees to
join in applications therefor.
2.3 Landlord agrees to make a contribution ("Landlord's
Contribution") of Thirty-Three Thousand Three Hundred and 00/100 DOLLARS
($33,300.00) to pay to Tenant or directly to Tenant's contractors or
subcontractors, if any, as directed by Tenant for the cost of Tenant's Work.
Landlord's Contribution will be funded in two installments: one half within ten
(10) days after certification by Tenant to Landlord that Tenant's Work is fifty
percent (50%) complete, and the second half within ten (10) days after the
receipt by Landlord of (i) a certificate executed by Tenant's representative
that such Tenant's Work has been substantially completed in a manner
satisfactory to such parties, or that Tenant has occupied the Premises,
whichever is earlier, and (ii) final lien waivers from the contractors
performing such work. Tenant may apply the Landlord's Contribution to Tenant's
Work undertaken in connection with the lease of certain appurtenant space
entered into simultaneously herewith. Tenant's Work shall become the property of
Landlord and shall remain as part of the demised premises.
2.4 In accordance with the plan and such other plans and
specifications as may be approved by Landlord, and in compliance with Article 6
hereof, Landlord at the request of and on behalf of Tenant, at Tenant's expense,
(subject to Tenant's approval) shall make and complete, or cause to be made and
completed, in and to the demised premises the work and installations (herein
called "Tenant's Work") specified in such plans. Total Cost for Tenant's Work
shall not exceed the actual costs of such work (which may include architect's
fees, engineering fees and costs incurred in connection with obtaining any
required permits) plus Landlord's fee of ten (10%) percent of the actual cost.
ARTICLE 3
TAX ESCALATION
9
3.1 Tenant shall pay to Landlord, as additional rent, tax
escalation in accordance with the provisions of this Article.
3.2 Definitions:
(a) the term "TAX YEAR" shall mean each period of twelve
months, commencing on the first day of January, in which occurs any part of the
term of this Lease;
(b) the term the "A/B BUILDING" or "BUILDING A/B" shall mean
the Building;
(c) the term the "LAND" shall have the meaning set forth in
Article 1.1.;
(d) the term "COMPARATIVE YEAR" shall mean the calendar year
commencing on January 1, 1999 and each subsequent calendar year;
(e) the term "LAND TAXES" shall mean the total of all real
estate and other taxes and special, general, extraordinary or other assessments,
sewer rents, water charges, occupancy taxes, school taxes, and other taxes or
charges of any kind or nature levied, assessed, imposed or attributable at any
time by any governmental authority (including without limitation any town, city,
district, county, village, school district or public transportation authority)
upon or against the Land, and also any tax, assessment, or charge, levied,
assessed or imposed at any time by any governmental authority in connection with
the receipt of income or rents from the Land to the extent that same shall be in
lieu of all or a portion of any of the aforesaid taxes, assessments or charges,
or additions or increases thereof. If, due to a future change in the method of
taxation or in the taxing authority, or for any other reason, a franchise,
income, transit, profit or other tax or governmental imposition, however
designated, shall be levied against Landlord in substitution in whole or in part
for the Land Taxes, then such franchise, income, transit, profit or other tax or
governmental imposition shall be deemed to be included within the definition of
"LAND TAXES" for the purposes hereof. The term "Land Taxes" shall not be deemed
to include (i) gift or inheritance taxes, (ii) corporate franchise taxes or
similar business taxes imposed on noncorporate business entities, (iii) realty
transfer taxes or real property transfer gains taxes imposed in connection with
the sale of or the lease of all or substantially all of the Land or the A/B
Building, Building C or Building D (as designated on EXHIBIT A), (iv) mortgage
recording taxes or (v) income taxes, except with respect to any such taxes
assessed or imposed in lieu of real estate taxes or any portion thereof. As to
special assessments which are payable over a period of time extending beyond the
term
10
of this Lease, only a pro rata portion thereof, covering the portion of the term
of this Lease unexpired at the time of the imposition of such assessment, shall
be included in Land Taxes. If, by law, any assessment shall be payable in
installments, then, for the purposes hereof (i) such assessment shall be deemed
to have been payable in the maximum number of installments permitted by law and
(ii) there shall be included in Land Taxes, for each Tax Year in which such
installments may be paid, the installments of such assessment so becoming
payable during such Tax Year, together with interest payable during such Tax
Year;
(f) the term "BUILDING TAXES" shall have the meaning set forth
in (e), above, except that the phrases "Land Taxes" and "Land" shall be changed
to read "Building Taxes" and the "Building", respectively;
(g) the term "LAND TAX BASE FACTOR" shall mean the amount of
Taxes attributable to the Land for the calendar year 1999;
(h) the term "BUILDING TAX BASE FACTOR" shall mean the
Building Taxes for the calendar year 1999;
(i) the term "THE BUILDING PROJECT" shall mean the Land with
all the improvements thereon (including, without limitation, the office
building(s) and parking areas erected thereon);
(j) the term "THE LAND PERCENTAGE," for purposes of computing
the Tax Escalation Payments (as hereinafter defined) to be made pursuant to this
Article 3 and the Expense Payments (as hereinafter defined) to be made pursuant
to Article 4, shall (subject to the provisions of Article 3.10 hereof) mean
three tenths of one percent (.3%). The Land Percentage has been computed on the
basis of a fraction, the numerator of which is the rentable square foot area of
the demised premises and the denominator of which is the rentable square foot
area of the office building(s) comprising the Building Project. The parties
agree that the rentable square foot area of the demised premises shall be deemed
to be 1,665 rentable square feet and that the rentable square foot area of the D
Building shall be deemed to be 190,137, the rentable square foot area of the
building designated Building C on EXHIBIT A annexed hereto shall be deemed to be
86,804, the rentable square foot area of the building designated Building A/B on
EXHIBIT A annexed hereto shall be deemed to be 281,837, and that the total
rentable square foot area of all the office building(s) comprising a part of the
Building Project shall be deemed to be 558,778 rentable square feet. Tenant
acknowledges that the Land Percentage will be adjusted in the event that the
rentable area of the office space comprising the
11
Building Project shall be increased or reduced.
(k) the term "THE BUILDING PERCENTAGE," for purposes of
computing the Tax Escalation Payments (as hereinafter defined) to be made
pursuant to this Article and the Expense Payments (as hereinafter defined],
shall mean fifty-nine one hundredths of one percent (.59%). The Building
Percentage has been computed on the basis of a fraction, the numerator of which
is the rentable square foot area of the demised premises and the denominator of
which is the rentable square foot area of the A/B Building. The parties agree
that the rentable square foot area of the demised premises shall be deemed to be
1,665 rentable square feet and that the total rentable square foot area of the
A/B Building shall be deemed to be 281,837 rentable square feet;
(l) the term "TAX ESCALATION STATEMENT" shall mean a written
statement setting forth the amount payable by Tenant for a specified Comparative
Year pursuant to this Article, which Tax Escalation Statement shall be
accompanied by a copy of the applicable tax bills from the taxing authorities
when available; and
(m) the term "TAXES" shall mean collectively the Land Taxes
and the Building Taxes.
3.3 In the event that the Land Taxes payable for any
Comparative Year shall exceed the Land Tax Base Factor, Tenant shall pay a tax
escalation to Landlord, as additional rent for such Comparative Year, in an
amount equal to the Land Percentage of the excess. In the event that the
Building Taxes payable for any Comparative Year shall exceed the Building Tax
Base Factor, Tenant shall pay a tax escalation to Landlord as additional rent
for such Comparative Year, in an amount equal to the Building Percentage of such
excess. Any such amounts being payable by Tenant pursuant to this Section 3.3
are hereinafter called the "TAX ESCALATION PAYMENT." Before or after the start
of each Comparative Year, Landlord shall furnish to Tenant a Tax Escalation
Statement of the Taxes payable for such Comparative Year or reasonable estimates
thereof if bills are not yet available. If the Land Taxes payable or estimated
to be payable for such Comparative Year exceed the Land Tax Base Factor,
additional rent for such Comparative Year in an amount equal to the Land
Percentage of the excess shall be due from Tenant to Landlord after Landlord has
furnished Tenant with the Tax Escalation Statement. If the Building Taxes
payable or estimated to be payable for such Comparative Year exceed the Building
Tax Base Factor, additional rent for such Comparative Year in an amount equal to
the Building Percentage of the excess shall be due from Tenant to Landlord after
Landlord has furnished Tenant with the Tax Escalation Statement. Tenant agrees
to make payments on account of the additional rent for each Comparative
12
Year in twelve (12) monthly installments, each in an amount equal to one-twelfth
(1/12) of the Tax Escalation Payment, which installments may be adjusted by
Landlord as bills are received for which estimates were used. If, as finally
determined, the amount of additional rent payable by Tenant to Landlord pursuant
to this Section 3.3 for a Comparative Year shall be greater than (resulting in
an underpayment) or be less than (resulting in an overpayment) the aggregate of
all the installments so paid on account to Landlord by Tenant for such
Comparative Year, then, promptly after the receipt of the Tax Escalation
Statement for such Comparative Year and, in performance of its obligations under
this Article, Tenant shall, in the case of such an underpayment, pay to Landlord
an amount equal to such underpayment with interest thereon at the Interest Rate
or Landlord shall, in the case of such an overpayment, either (i) pay to Tenant
an amount equal to such overpayment with interest thereon at the Interest Rate
or (ii) credit against the next installment(s) of fixed annual rent due from
Tenant an amount equal to such overpayment with interest at the Interest Rate.
If a Tax Escalation Statement is furnished to Tenant after the commencement of
the Comparative Year in respect of which such Tax Escalation Statement is
rendered, Tenant shall, within fifteen (15) days thereafter pay to Landlord an
amount equal to those installments of the total Tax Escalation Payment payable
as provided in this Section 3.3 during the period prior to the first day of the
month next succeeding the month in which the applicable statement has been
furnished.
3.4 If, after Tenant shall have made a payment of additional
rent under this Article, the Taxes payable for any Comparative Year on which
such payment of additional rent shall have been based shall be changed, then the
amount payable for that Comparative Year shall be revised to reflect such change
and appropriate adjustments promptly made between Landlord and Tenant. If, after
Tenant shall have made a payment of additional rent under this Article, Landlord
shall receive a refund of any portion of the Taxes payable for any Comparative
Year on which such payment of additional rent shall have been based, as a result
of a reduction of such Taxes by final determination of legal proceedings,
settlement or otherwise, Landlord shall either (i) after receiving the refund
pay to Tenant the Land or Building Percentage, as the case may be, of the refund
or (ii) credit against the next installment(s) of fixed annual rent due from
Tenant an amount equal to the Land or Building Percentage of the refund, as the
case may be.
3.5 The Tax Escalation Statement to be furnished by Landlord
as provided in this Article shall constitute a final determination as between
Landlord and Tenant of the Tax Escalation Payment for the periods represented
thereby unless Tenant shall have paid the amount thereof and, within sixty (60)
days after the Tax Escalation Statement is furnished, shall give
13
a notice to Landlord that it disputes its accuracy or its appropriateness which
notice shall specify the particular respects in which the Tax Escalation
Statement is inaccurate or inappropriate. Copies of the tax bills and the
relevant records in the tax assessor's office shall be deemed prima facie
evidence of the facts set forth on the Tax Escalation Statement.
3.6 In no event shall the fixed annual rent under this Lease
be reduced by virtue of this Article.
3.7 Upon the date of any expiration or termination of this
Lease (except termination because of Tenant's default), whether the same be the
date hereinabove set forth for the expiration of the term or any prior date, a
proportionate share of said additional rent for the Comparative Year during
which such expiration or termination occurs shall immediately become due and
payable by Tenant to Landlord, if it was not theretofore already billed and
paid. Such proportionate share shall be based upon the length of time that this
Lease shall have been in existence during such Comparative Year. Prior to or
promptly after said expiration or termination, Landlord shall compute the
additional rent due from Tenant, as aforesaid, and Landlord and Tenant shall
thereupon make appropriate adjustments of amounts then owing.
3.8 Landlord's and Tenant's obligation to make the adjustments
referred to in Section 3.3 hereof above shall survive any expiration or
termination of this Lease. After the termination of the Lease, the final
adjustment for the Tax Escalation Payment pursuant to this Article 3 shall be
made as soon as practicable, and if Landlord retains any moneys of Tenant due to
excess payments made by Tenant hereunder, such excess moneys shall be promptly
refunded to Tenant after such final adjustment has been made.
3.9 Any delay or failure of Landlord to xxxx any Tax
Escalation Payment as provided in this Article 3 shall not constitute a waiver
of or in any way impair the continuing obligation of Tenant to pay such Tax
Escalation Payment.
3.10 Notwithstanding any other provision of this Article 3 to
the contrary, if the parcel of land on which any of the buildings comprising a
part of the Building Project shall be assessed as a separate tax lot, the Land
Percentage and the Land Tax Base Factor shall be appropriately adjusted.
ARTICLE 4
EXPENSE ESCALATION
4.1 Tenant shall pay to Landlord, as additional rent,
14
expense escalation in accordance with this Article.
4.2 Definitions:
(a) the term "BUILDING EXPENSE BASE FACTOR" shall mean the
amount of Building Expenses incurred for the calendar year 1999;
(b) the term "NON-BUILDING EXPENSE BASE FACTOR" shall mean the
amount of Non-Building Expenses incurred for the calendar year 1999;
(c) the term "EXPENSE ESCALATION STATEMENT" shall mean a
written statement setting forth the amount payable by Tenant for a specified
Comparative Year pursuant to this Article;
(d) the term "BUILDING EXPENSES" shall mean the total amount
of all costs and expenses incurred or paid by Landlord with respect to and in
connection with the operation, maintenance, replacement and/or normal operating
repair of the Building, including, without limitation, the cost incurred for (i)
air conditioning; (ii) mechanical ventilation; (iii) heating; (iv) cleaning
comparable to the Cleaning Specifications annexed as EXHIBIT F; (i) rubbish
removal; (ii) window washing (interior and exterior, including inside
partitions); (iii) elevators; (iv) escalators; (v) xxxxxx and matron service;
(vi) electric current including electricity for heating, ventilation,
air-conditioning and exterior lighting to the Building and the parking areas
appurtenant thereto (excluding, however, the cost of any electricity in the
Building directly metered to tenants or otherwise allocable to space in the
Building demised to tenants); (vii) oil, purchased steam or any other fuel
consumed at the Building; (viii) protection and security; (ix) ordinary
maintenance (including but not limited to regular painting of non-tenanted areas
at the Building); (x) maintenance and repair of lobby decorations; (xi) interior
landscape work and maintenance; (xii) premiums for fire, extended coverage, any
boiler, sprinkler, apparatus, war risk (if expressly required by mortgagee of
Landlord) and property damage insurance, rental and plate glass insurance and
any other insurance required by a mortgagee of Landlord; (xiii) supplies; (xix)
wages, salaries, disability benefits, pensions, hospitalization, retirement
plans and group insurance respecting service and maintenance employees of
Landlord; (xx) uniforms and working clothes for such employees and the cleaning
thereof; (xxi) expenses imposed on Landlord pursuant to law or to any collective
bargaining agreement with respect to such employees; (xxii) worker's
compensation insurance, payroll, social security, unemployment and other taxes
with respect to such employees; (xxiii) sales, utility and use taxes and other
taxes of like import related to services rendered or products purchased for
common areas of the Building; (xxiv)
15
water rates and sewer rates; (xxv) all operating charges incurred by any
superintendent's and manager's offices in the operation and maintenance of the
Building; (xxvi) charges for maintenance and service contracts for all areas of
the Building; (xxvii) all other operating costs and expenses of repair,
operation and maintenance of the Building excluding fines or penalties caused by
Landlord's negligent acts or omissions or ; (xxviii) the fees of the manager and
superintendent, their assistants and any clerical staff working for such
superintendent or manager whose duties are connected with the maintenance and
operation of the Building; (xxix) reasonable professional and consulting fees,
including legal and audit fees; the expenses, including payments to attorneys,
appraisers and other experts incurred by Landlord in connection with any
application or proceeding wherein Landlord obtains or seeks to obtain reduction
or refund of the Taxes payable or paid upon or against the Building; (xxx)
whether or not capitalized under generally accepted accounting principles, the
cost of repairs and the cost of replacements made in connection with repairs of
cables, fans, pumps, boilers, cooling equipment, wiring the electrical fixtures
and metering, control and distribution equipment, window washing equipment and
snow removal equipment, and component parts of the HVAC, electrical, plumbing,
elevator and any life or property protection systems (including, without
limitation, sprinkler systems); and (xxxi) managing agents' fees comparable to
those charged by other managing agents in Westchester County who manage similar
building projects, or if Landlord elects to manage (or have an affiliate manage)
the Building, an annual fee, for management of the Building, in an amount equal
to three percent (3%) of the rental revenues received by Landlord from the
Building for the Comparative Year in question.
Provided, however, that the following items shall be excluded from Building
Expenses:
(i) leasing commissions;
(ii) cost of repairs or replacements incurred by reason of fire or
other casualty (to the extent that Landlord is compensated therefor through
proceeds of insurance above deductible amounts), or caused by the exercise
of the right of eminent domain (to the extent the same is covered by any
condemnation award);
(iii) Taxes;
(iv) "Non-Building Expenses", as that term is hereinafter defined;
(v) costs incurred in performing work or furnishing services to or
for individual tenants (including this Tenant) at such tenant's expense;
and costs of performing
16
work or furnishing services for tenants other than this Tenant at
Landlord's expense, to the extent that such work or service is in excess of
any work or service Landlord is obligated to furnish to or for this Tenant
at Landlord's expense;
(vi) expenditures for capital improvements other than those that are
(a) specifically included in the definition of Building Expenses; or (b)
included as Building Expenses pursuant to the provisions of Section 4.3(a)
or (b);
(vii) that portion of any cost or expense relating to the Building and
to other buildings or properties owned by Landlord, which is properly
allocable or attributable to such other buildings or properties unless
otherwise provided in this Lease;
(viii) debt service on any mortgages encumbering the Building, or
depreciation of the Building;
(ix) the cost for those services provided to other tenants in the
Building which services are not also provided to Tenant; and
(x) any unpaid rent relating to any space in the Building.
(e) "NON-BUILDING EXPENSES" shall mean the total of public
liability insurance and all the costs and expenses incurred or borne by Landlord
in connection with the operation, maintenance, replacement and/or normal
operating repairs of the Land and "Common Areas" (as that term is hereinafter
defined) including, without limitation, the cost incurred for snow and ice
removal, grading, striping and repair of parking lot surfaces; cleaning,
exterior landscaping, and maintenance, installation, repair and replacement of
signage, traffic control devices and signs; security, ordinary maintenance,
charges for maintenance and service contracts; repair and replacement (other
than capital replacements unless specifically included herein) and improvements
which are appropriate for the operation of the Common Areas of a first class
office building project in Westchester County, New York; all normal operating
charges incurred by any superintendent's and manager's offices in the operation
and maintenance of the Common Areas; the fees of the manager and superintendent,
their assistants and any clerical staff working for such manager or
superintendent whose duties are connected with the operation and maintenance of
the Common Areas; whether or not capitalized under generally accepted accounting
principles, the cost of repairs and the cost of replacements made in connection
with repairs of Common Area cables, fans, pumps, boilers, cooling equipment,
wiring and electrical fixtures and
17
metering, control and distribution equipment, component parts of the HVAC,
electrical, plumbing, elevator and any life or property protection systems
(including, without limitation, sprinkler systems), window washing equipment and
snow removal equipment;
Provided, however that the following items shall be excluded from Non-Building
Expenses:
(i) Building Expenses;
(ii) Taxes;
(iii) expenditures for capital improvements other than those that are
(a) specifically included in the definition of Non-Building Expenses or (b)
included as Non-Building Expenses pursuant to the provisions of Sections
4.3(a) or (b);
(iv) that portion of any cost or expense relating to both the Common
Areas and to other buildings or properties owned by Landlord, which is
properly allocable or attributable to such other buildings or properties
unless otherwise provided in this Lease; and
(v) debt service on any mortgages encumbering the Common Areas, or
depreciation of any portion of the Common Areas.
(f) The term "EXPENSES" shall mean the Building Expenses and
Non-Building Expenses.
(g) Landlord represents that the definitions of "Expenses",
"Building Expenses", and "Non-Building Expenses" are substantially consistent
with the corresponding provisions of the
other leases of space in the Building.
4.3 (a) If Landlord shall purchase any item of capital
equipment or make any capital expenditure designed to result in savings or
reductions in expenses, the costs for same shall be included in Expenses. If
Landlord shall lease any such item of capital equipment designed to result in
savings or reductions in Expenses, then the rentals and other costs paid
pursuant to such leasing shall be included in Expenses for the Comparative Year
in which they were incurred.
(b) If Landlord shall purchase any item of capital equipment
or make any other capital expenditure in order to comply with Legal
Requirements, then the costs for same shall be included in Expenses for the
Comparative Year in which the costs are incurred and subsequent Comparative
Years, on a straight line basis, amortized over the lesser of (i) fifteen (15)
years, or
18
(ii) the useful life of such items. If Landlord shall lease any such item of
capital equipment to comply with Legal Requirements then the rentals and other
costs paid pursuant to such leasing shall be included in Expenses for the
Comparative Year in which they were incurred. If during all or part of any
Comparative Year, Landlord shall not furnish any particular item(s) of work or
service (which would constitute an element of Expense hereunder) to portions of
the Building or the Common Areas due to the fact that such portions are not
occupied or leased, or because such item of work or service is not required or
desired by the tenant of such portion, or such tenant is itself obtaining and
providing such item of work or service, or for other reasons, then, for the
purposes of computing the additional rent payable hereunder, the amount of the
expenses for such item for such period shall be deemed to be increased by an
amount equal to the additional operating and maintenance expenses which would
reasonably have been incurred during such period by Landlord if it had at its
own expense furnished such item of work or services to such portion of the
Building or the Common Areas.
4.4 (a) If the Building Expenses for any Comparative Year
shall be greater than the Building Expense Base Factor, Tenant shall pay to
Landlord, as additional rent for such Comparative Year, in the manner
hereinafter provided, an amount equal to the Building Percentage of the excess
of the Building Expenses for such Comparative Year over the Building Expense
Base Factor. If the Non-Building Expenses for any Comparative Year shall be
greater than the Non-Building Expense Base Factor, Tenant shall pay to Landlord,
as additional rent for such Comparative Year, in the manner hereinafter
provided, an amount equal to the Land Percentage of the excess of the
Non-Building Expenses for such Comparative Year over the Non-Building Expense
Base Factor. The amounts payable by Tenant under this Section 4.4(a) are,
collectively, the "EXPENSE PAYMENT."
(b) (i) Following the expiration of each Comparative Year,
Landlord shall submit to Tenant an Expense Escalation Statement, certified by
Landlord, setting forth the Expenses for the preceding Comparative Year and the
Expense Payment, if any, due to Landlord from Tenant for such Comparative Year.
The rendition of such Expense Escalation Statement to Tenant shall constitute
prima facie proof of the accuracy thereof and, if such statement shows an
Expense Payment due from Tenant to Landlord with respect to the preceding
Comparative Year then (A) Tenant shall make payment of any unpaid portion
thereof within twenty (20) days after receipt of such Expense Escalation
Statement; (B) Tenant shall also pay to Landlord, as additional rent, within
twenty (20) days after receipt of such Expense Escalation Statement, an amount
equal to (x) the product obtained by multiplying the total Expense Payment for
the preceding Comparative Year by a fraction, the denominator of which shall be
twelve (12) and the numerator of which shall be the number of
19
months of the current Comparative Year which shall have elapsed prior to the
first day of the month immediately following the rendition of such Expense
Escalation Statement less (y) the aggregate amount of Expense Payment paid by
Tenant for such elapsed months; and (C) Tenant shall also pay to Landlord, as
additional rent, commencing as of the first day of the month immediately
following the rendition of such Expense Escalation Statement and on the first
day of each month thereafter until a new Expense Escalation Statement is
rendered, one-twelfth (1/12) of the total Expense Payment for the preceding
Comparative Year. The aforesaid monthly payments based on the total Expense
Payment for the preceding Comparative Year shall be adjusted to reflect, as
reasonably estimated by Landlord, increases in rates and amounts, for the
current Comparative Year, applicable to the categories involved in computing
Expenses, whenever such increases become reasonably known or anticipated prior
to or during such current Comparative Year. The payments required to be made
under clauses (B) and (C) of this subsection 4.4(b). shall be credited toward
the Expense Payment due from Tenant for the then-current Comparative Year,
subject to adjustment as and when the Expense Escalation Statement for such
current Comparative Year is rendered by Landlord.
(ii) The Expense Escalation Statement to be furnished by
Landlord shall constitute a final determination as between Landlord and Tenant
of the Expenses for the periods represented thereby, unless Tenant shall have
paid the Expense Payment and, within sixty (60) days after it is furnished,
shall give a notice to Landlord that it disputes its accuracy or its
appropriateness, which notice shall specify the particular respects in which the
Expense Escalation Statement is inaccurate. Pending the resolution of such
dispute, Tenant shall pay the additional rent to Landlord in accordance with the
Expense Escalation Statements furnished by Landlord. After payment of said
additional rent, Tenant's certified public accountant shall have the right,
during reasonable business hours and upon not less than five (5) business days'
prior written notice to Landlord, to examine Landlord's books and records with
respect to the foregoing (which Landlord shall maintain in either Westchester
County or New York County for three (3) years subsequent to the Escalation Year
to which they relate) and, at Tenant's expense, to make copies thereof, provided
such examination is commenced within sixty (60) days and concluded within one
hundred twenty (120) days following the rendition of the Expense Escalation
Statement in question. Landlord shall cooperate with Tenant in any such
examination of its books and records and shall, if requested by Tenant in
writing, make a member of its staff available to explain any entries in such
books and records.
(iii) Any such dispute as to an Expense Escalation Statement
referred to in subsection 4.4(b)(i) hereof
20
shall be resolved by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, except that the arbitration shall
be by three (3) arbitrators each of whom shall be a certified public accountant.
Except as hereinafter provided in this paragraph, the cost of such arbitration
shall be split equally between Landlord and Tenant. If the arbitrators decide
that the Expense Payment shown on the Expense Escalation Statement was
overstated by more than ten (10%) percent, then Landlord shall pay the cost of
such arbitration. If the arbitrators decide that the Expense Payment shown on
the Expense Escalation Statement was understated by more than ten percent (10%),
then Tenant shall pay the cost of such arbitration.
4.5 In no event shall the fixed annual rent under this Lease
be reduced by virtue of this Article.
4.6 Upon the date of any expiration or termination of this
Lease (except termination because of Tenant's default), whether the same be the
date hereinabove set forth for the expiration of the term or any prior or
subsequent date, a proportionate share of said additional rent for the
Comparative Year during which such expiration or termination occurs shall
immediately become due and payable by Tenant to Landlord, if it was not
theretofore already billed and paid. The said proportionate share shall be based
upon the length of time that this Lease shall have been in existence during such
Comparative Year. Landlord shall cause an Expense Escalation Statement of the
Expenses for that Comparative Year to be prepared and furnished to Tenant.
Landlord and Tenant shall thereupon make appropriate adjustments of amounts then
owing.
4.7 Landlord's and Tenant's obligation to make the adjustments
referred to in Section 4.6 hereof shall survive any expiration or termination of
this Lease.
4.8 Any delay or failure of Landlord in billing any Expense
Payment hereinabove or hereinafter provided shall not constitute a waiver of or
in any way impair the continuing obligation of Tenant to pay such expense
escalation hereunder.
4.9 Landlord and Tenant agree that in the event of any
overpayment or underpayment of any Expense Payment, the amount of any excess to
be credited to Tenant, or the amount of any deficiency to be paid by Tenant
shall be credited or paid with interest thereon computed at the Interest Rate
from the date such deficiency was due, or such overpayment was made until,
respectively, the date paid or credited.
4.10 Tenant acknowledges that the Building Project includes
Building A/B, Building C and Building D. If the operation of Building A/B and/or
Building C is combined with the
21
operation of the D Building, so that Building Expenses include such items with
respect to all of such buildings, (a) the "BUILDING PERCENTAGE" (for the
purposes of this Article 4, only) shall be reduced to reflect the percentage
which the rentable square foot area of the demised premises bears to the total
rentable square foot area of the Building and such included building(s), and (b)
the Building Expense Base Factor shall be increased to reflect the amount of
Building Expenses incurred for calendar year 1999 for the Building and such
included building(s).
ARTICLE 5
USE
5.1 The demised premises shall be used solely as and for
executive and general offices and for no other purpose.
5.2 Tenant shall not use or permit the use of the demised
premises or any part thereof in any way which would violate any of the
covenants, agreements, terms, provisions and conditions of this Lease or for any
unlawful purposes or in any unlawful manner or in violation of the certificate
of occupancy or other certificate or permit for the demised premises or the
Building, and 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 anything to
be brought into or kept therein which, in the reasonable judgment of Landlord,
shall in any way impair or tend to impair the character, reputation or
appearance of the Building as a high quality office building, impair or
interfere with or tend to impair or interfere with any of the Building services
or the proper and economic heating, cleaning, air conditioning or other
servicing of the Building or the demised premises, or impair or interfere with
or tend to impair or interfere with the use of any of the other areas of the
Building by, or occasion discomfort, inconvenience or annoyance to, any of the
other tenants or occupants of the Building.
5.3 If Tenant uses any portion of the demised premises for the
preparation or consumption of food, Tenant shall pay to Landlord the cost of
employing, on a regular basis, an exterminator to keep the demised premises free
from vermin. Tenant shall cause all food preparation areas to be properly
ventilated so that no odor shall emanate from the demised premises to any other
portion of the Building, and shall bag all wet garbage and place the same in
containers that prevent the escape of odor.
5.4 Tenant shall have access to the demised premises on a
24-hour basis, 7 days per week.
22
ARTICLE 6
ALTERATIONS AND INSTALLATIONS
6.1 Except for the Tenant's Work, Tenant shall make no
alterations, installations, additions or improvements (such work hereinafter
collectively referred to as "ALTERATIONS") in or to the demised premises without
Landlord's prior written consent and then only by contractors or mechanics first
approved by Landlord. All Alterations shall be done at Tenant's sole cost and
expense, and at such times and in such manner as Landlord may from time to time
reasonably designate.
Tenant may from time to time during the term of this lease, at
its expense, make non-structural cosmetic changes, which cost less than
Twenty-Five Thousand 00/100 Dollars ($25,000.00), without Landlord's prior
consent.
Tenant shall obtain and deliver to Landlord written,
unconditional waivers of mechanic's or other liens on the real property in which
the demised premises are located, signed by all architects, engineers,
contractors, mechanics and designers involved in such Alterations as and when
such architects, engineers, contractors, mechanics and designers are paid for
their work in connection therewith.
Any Alterations in the demised premises shall be effected
solely in accordance with the plans and specifications approved by Landlord.
Tenant shall reimburse Landlord promptly upon demand for any reasonable
out-of-pocket costs and expenses incurred by Landlord in connection with
Landlord's review of such Tenant's plans and specifications. Landlord will not
unreasonably withhold or delay its consent for nonstructural Alterations
(provided they will not affect the outside of the Building or the demised
premises or adversely affect the Building's structure, electrical, HVAC,
plumbing, mechanical or other systems). Prior to granting its consent to
Alterations, Landlord may impose such conditions as to guarantee of completion
and payment and of restoration as Landlord may reasonably consider desirable.
Any such approved Alterations shall be performed in accordance
with the foregoing and the following provisions of this Article 6:
(a) All Alterations shall be done in a professional and
workmanlike manner.
23
(b) (1) In the event Tenant shall employ any contractor to do
in the demised premises any Alterations permitted by this Lease, such contractor
and any subcontractor shall agree to employ only such labor as will not result
in jurisdictional disputes or strikes or result in causing disharmony with other
workers employed at the Building. Tenant will inform Landlord in writing of the
names of any contractor or subcontractor Tenant proposes to use in the demised
premises at least ten (10) days prior to the beginning of work by such
contractor or subcontractor, but such information given to Landlord shall in no
way constitute Landlord's approval of such contractor or subcontractor.
(2) Tenant covenants and agrees to pay to its
contractor(s), as the work progresses, the entire cost (less a reasonable
retainage) of supplying the materials and performing the work shown on Tenant's
approved plans and specifications in accordance with Tenant's contract or
contracts with such contractor(s).
(c) All such Alterations shall be effected in compliance with
all applicable laws, ordinances, rules and regulations of governmental bodies
having or asserting jurisdiction in the demised premises and all applicable
insurance rules and regulations.
(d) Tenant shall keep the Building Project and the demised
premises free and clear of all liens for any work or material claimed to have
been furnished to Tenant or to the demised premises on Tenant's behalf, and all
work to be performed by Tenant shall be done in a manner which will not
unreasonably interfere with or disturb other tenants or occupants of the
Building.
(e) During the progress of the work to be done by Tenant, said
work shall be subject to inspection by representatives of Landlord which, upon
reasonable notice, shall be permitted access and the opportunity to inspect, at
all reasonable times, but this provision shall not in any way whatsoever create
any obligation on Landlord to conduct such an inspection or create any
obligations or liability (or relieve Tenant of any obligations under this Lease)
in the event Landlord does conduct such an inspection.
(f) Prior to commencement of any work, Tenant or Tenant's
contractor(s) shall furnish to Landlord certificates evidencing the existence
of:
(i) worker's compensation insurance covering all persons
employed for such work; and
(ii) contractor's comprehensive general
24
liability and property damage insurance naming Landlord, any of its
mortgagees and ground lessors and Tenant as insureds, with coverage
of at least $3,000,000 combined single limit.
6.2 Any mechanic's lien, filed against the demised premises or
the Building or the Building Project for work claimed to have been done for or
materials claimed to have been furnished to Tenant shall be discharged by Tenant
at its expense within thirty (30) days after notice of such filing, by payment,
filing of the bond required by law or otherwise. Notice is hereby given that
Landlord shall not be liable for any labor or materials furnished or to be
furnished to Tenant upon credit, and that no mechanic's or other lien for any
such labor or materials shall attach to or affect the reversion or other estate
or interest of Landlord in and to the demised premises.
6.3 All work, installations and improvements made and
installed by solely Landlord shall be the property of Landlord and shall remain
upon and be surrendered with the demised premises as a part thereof at the end
of the term of this Lease; provided, however, that Landlord's contribution shall
not grant Landlord any title or claim to title to Tenant's Work.
6.4 All Alterations, made and installed by Tenant, or at
Tenant's expense, upon or in the demised premises shall become and be the
property of Landlord, and shall remain upon and be surrendered with the demised
premises as a part thereof at the end of the term of this Lease. Notwithstanding
the foregoing, Tenant shall remove all Alterations which in Landlord's
reasonable judgment are of a non-Building Standard nature, such as internal
stairways, slab openings, special electronic data processing or communications
installations, vaults and raised floors, at or before the Expiration Date or
within fifteen (15) business days after any earlier termination date, and Tenant
shall repair or pay the cost of repairing any damage to the demised premises or
Building resulting from the removal thereof and restoring the demised premises
to their condition prior to the installation thereof unless at the time of
installation, Tenant shall have requested and obtained Landlord's waiver of the
removal of such Alterations.
6.5 Where furnished by or at the expense of Tenant all
furniture, furnishings and trade fixtures, including, without limitation,
murals, business machines and equipment, telecommunications equipment and
cabling, counters, screens, grille work, special paneled doors, cages,
partitions, metal railings, closets, panelling, lighting fixtures and equipment,
drinking fountains, refrigeration and air handling equipment, and any other
movable property shall remain the property of Tenant which may at its option
remove all or any part thereof at any time prior to the expiration of the term
of this Lease.
25
6.6 If any Alterations or other property which Tenant shall
have the right to remove or be requested by Landlord to remove as provided in
Article 6.4 or 6.5 hereof (hereinafter called "TENANT'S PROPERTY") are not
removed on or prior to the expiration of the term of this Lease, Landlord shall
have the right to remove Tenant's Property and to dispose of the same without
accountability to Tenant and at the sole cost and expense of Tenant. Landlord
shall endeavor to give notice to Tenant that Tenant may remove such Tenant's
Property within five (5) days of the date stated therein; provided that
Landlord's failure to give such notice shall not give rise to any claim against
or liability on Landlord's part. In case of any damage to the demised premises
or Building resulting from the removal of Tenant's property, Tenant shall repair
such damage or, in default thereof, shall reimburse Landlord for Landlord's cost
in repairing such damage. This obligation shall survive any termination of this
Lease.
6.7 Tenant shall keep records of Tenant's Alterations costing
in excess of $50,000, and of the cost thereof for a period of five (5) years
after the completion thereof. Tenant shall, within forty-five (45) days after
demand by Landlord, furnish to Landlord copies of such records and cost if
Landlord shall require the same in connection with any proceeding to reduce the
assessed valuation of the A/B Building, Building C or Building D or any other
tax or charge, or in connection with any proceeding instituted pursuant to
Articles 13 or 14 hereof.
ARTICLE 7
REPAIRS
7.1 Tenant shall, at its sole cost and expense, make such
repairs to the demised premises and the fixtures and appurtenances therein as
are necessitated by the reckless or negligent acts or omissions of Tenant or by
the use of the demised premises in a manner contrary to the purposes for which
same are leased to Tenant as set forth in Section 5.1, as and when needed to
preserve them in good working order and condition subject to normal wear and
tear and damage by fire or other casualty. All damage or injury to the demised
premises and to its fixtures, appurtenances and equipment or to the Building or
to its fixtures, appurtenances and equipment caused by Tenant moving property in
or out of Building or by installation or removal of furniture, fixtures or other
property by or on behalf of Tenant, shall be repaired, restored or replaced
promptly by Tenant at its sole cost and expense, which repairs, restorations and
replacements shall be in quality and class equal to the original work or
installations. If Tenant fails to make such repairs, restoration or
replacements, within ten (10) days after Landlord gives Tenant written notice of
the necessity thereof,
26
the same may be made by Landlord at the expense of Tenant and such expense shall
be collectible as additional rent and shall be paid by Tenant within thirty (30)
days after rendition of a xxxx therefor.
The exterior walls of the Building, the portions of any
windowsills outside the windows, and the windows are not part of the premises
demised by this Lease and Landlord reserves all rights to such parts of the
Building.
7.2 Tenant shall not place a load upon any floor of the
demised premises exceeding fifty (50) pounds per useable square foot live load,
and if Tenant shall desire a floor load in excess of such floor load, Landlord
agrees to strengthen and reinforce the same so as to give the live load desired,
provided, (i) Tenant shall submit to Landlord the plans showing the locations of
and the desired floor live load for the areas in question, (ii) Tenant shall
agree to pay for or reimburse Landlord on demand for the cost of such
strengthening and reinforcement as well as any other costs to and expenses of
Landlord occasioned by or resulting from such strengthening or reinforcement,
(iii) Landlord's architects, in their sole reasonable discretion, find that the
work necessary to increase such floor load does not adversely affect the
structure of the Building and (iv) such work will not interfere with the amount
or availability of any space adjoining alongside, above or below the demised
premises, or interfere with the occupancy of other tenants in the Building.
7.3 Landlord shall exercise reasonable diligence in the making
of any repairs, alterations, additions or improvements so as to minimize any
interference with Tenant's business operations, but shall not be required to
perform the same on an overtime or premium pay basis.
7.4 Landlord shall, at its expense (subject to the provisions
of Section 7.1 hereof and to reimbursement as set forth in Article 4 hereof)
keep and maintain the Common Areas and the Building in good condition and repair
in accordance with the standards appropriate to a first class office building in
Westchester County, New York, and make all repairs, structural and otherwise,
interior and exterior, as and when needed in or about the demised premises,
except for those repairs for which Tenant is responsible pursuant to the
provisions of this Lease.
ARTICLE 8
REQUIREMENTS OF LAW
8.1 Tenant, at Tenant's cost and expense, shall comply with
all Legal Requirements (as defined in Section 22.4) which result from Tenant's
manner or use or occupation of the demised
27
premises. Landlord represents that, as of the date hereof, the demised premises
are in substantial compliance with all Legal Requirements and Tenant's use as
set forth Section 5.1 is permitted under the current Certificate of Occupancy
for the Building.
8.2 Notwithstanding the provisions of Section 8.1 hereof,
Tenant, at its own cost and expense, in its name may contest, in any manner
permitted by law (including appeals to a court, or governmental department or
authority having jurisdiction in the matter), the validity or the enforcement of
any governmental act, regulation or directive with which Tenant is required to
comply pursuant to this Lease, and may defer compliance therewith provided that:
(a) such non-compliance shall not subject Landlord to criminal
or civil prosecution or subject the Land and/or the Building Project to lien or
sale;
(b) such non-compliance shall not be in violation of any fee
mortgage, or of any ground or underlying lease or any mortgage thereon;
(c) Tenant shall first deliver to Landlord a surety bond (in
such sum as Landlord may reasonably request) issued by a surety company of
recognized responsibility, or other security satisfactory to Landlord,
indemnifying and protecting Landlord against any loss or injury by reason of
such non-compliance; and
(d) Tenant shall promptly and diligently prosecute such
contest.
Landlord, without expense or liability to it, shall cooperate
with Tenant and execute any documents or pleadings required for such purpose,
provided that Landlord shall reasonably be satisfied that the facts set forth in
any such documents or pleadings are accurate.
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.1 Tenant shall not knowingly or intentionally violate, or
permit the violation of, any condition imposed by any insurance policy then
issued in respect to the Building Project and/or the property therein and shall
not do, or permit anything to be done, or keep or permit anything to be kept in
the demised premises which would subject Landlord to any liability or
responsibility for bodily injury or death or property damage, or which would
increase any insurance rate in respect to the Building Project or the property
therein over the rate which
28
would otherwise then be in effect or which would result in insurance companies
of good standing refusing to insure the Building Project or the property therein
in amounts reasonably satisfactory to Landlord, or which would result in the
cancellation of or the assertion of any defense by the insurer in whole or in
part to claims under any policy of insurance in respect of the Building Project
or the property therein, but nothing contained in this Section 9.1 shall be
construed to restrict Tenant's use of the demised premises for the purposes
permitted under Article 5 hereof.
9.2 If, by reason of any failure of Tenant to comply with the
provisions of Section 8.1 or Section 9.1, the premiums on Landlord's insurance
on the Building Project and/or equipment or property therein shall be higher
than they otherwise would be, Tenant shall reimburse Landlord, on demand, for
that part of such premiums attributable to such failure on the part of Tenant. A
schedule or "make up" of rates for the Building Project issued by the applicable
fire insurance rating organization or other similar body making rates for
insurance for the Building Project shall be conclusive evidence of the facts
therein stated and of the several items and charges in the insurance rate then
applicable to the Building Project.
9.3 Tenant, at its expense, shall maintain at all times during
the term of this Lease (a) "all risk" property insurance covering Tenant's
property and improvements and betterments to a limit of not less than 100% of
the replacement cost thereof and (b) comprehensive general liability insurance,
including contractual liability, in respect of the demised premises and the
conduct or operation of business therein, with Landlord and its managing agent,
if any, and any lessor of any ground or underlying lease or the holder of any
mortgage, as the case may be, whose name and address shall have been furnished
to Tenant, as additional insureds, with limits of not less than $3,000,000
combined single limit bodily injury and property damage liability. Landlord
hereby agrees that the comprehensive general liability insurance requirement
described in clause (b) of the preceding sentence may be satisfied through the
use of umbrella coverage, which umbrella coverage must be evidenced by a policy
of insurance satisfactory to Landlord. The limits of such insurance shall not
limit the liability of Tenant hereunder. Tenant shall deliver to Landlord and
any additional insureds such fully paid-for policies and certificates of
insurance in form satisfactory to Landlord issued by the insurance company or
its authorized agent, at least ten (10) days before the Commencement Date.
Tenant shall procure and pay for renewals of such insurance from time to time
before the expiration thereof, and Tenant shall deliver to Landlord and any
additional insureds such renewal policy and certificates of coverage at least
thirty (30) days before the expiration of any existing policy. All such policies
shall be issued by companies reasonably acceptable to
29
Landlord. If Landlord is included as a named payee on any check issued by
Tenant's insurer in payment of any claim solely with respect to Tenant's
property, Landlord agrees that it will promptly upon Tenant's request endorse
such check to Tenant. Landlord further agrees that it shall have no right or
authority to participate in any settlement of any claim by Tenant against its
insurer which relates solely to damage or loss to Tenant's property.
9.4 Each party agrees to have included in each of its
insurance policies a waiver of the insurer's right of subrogation against the
other party (and in the case of Tenant against other tenants of the Building)
during the term of this Lease or, if such waiver should be unobtainable or
unenforceable, (i) an express agreement that such policy shall not be
invalidated if the insured waives the right of recovery against any party
responsible for a casualty covered by the policy before the casualty, or (ii)
any other form of permission for the release of the other party reasonably
satisfactory to the party intended to be released. If such waiver, agreement or
permission shall not be, or shall cease to be, obtainable from either party's
then current insurance company, the insured party shall so notify the other
party promptly after learning thereof, and shall use commercially reasonable
efforts to obtain the same from another insurance company (if the insured party
is Tenant, an insurance company described in Section 9.3 hereof). Each party
hereby releases the other party (and in the case of Tenant, other tenants of
Building who shall have executed a similar waiver or agreement as set forth in
this Section 9.4) with respect to any claim (including a claim for negligence)
which it might otherwise have against the other party, for loss, damage or
destruction with respect to its property occurring during the term of this Lease
to the extent to which it is required pursuant to the terms hereof, to be
insured under a policy or policies containing a waiver of subrogation, agreement
or permission to release liability, as provided in the preceding subdivisions of
this section. If, notwithstanding the recovery of insurance proceeds by either
party for loss, damage or destruction of its property, the other party is liable
to the first party with respect thereto or is obligated under this Lease to make
replacement, repair or restoration or payment, then, provided the first party's
right of full recovery under its insurance policies is not thereby prejudiced or
otherwise adversely affected, the amount of the net proceeds of the first
party's insurance against such loss, damage or destruction shall be offset
against the second party's liability to the first party therefor, or shall be
made available to the second party to pay for replacement, repair or
restoration, as the case may be. Nothing contained in this section shall be
deemed to relieve either party of any duty imposed elsewhere in this Lease to
repair, restore or rebuild provided for elsewhere in this Lease.
30
9.5 Landlord may from time to time, but not more frequently
than once every three (3) years, require that the amount of comprehensive
general liability insurance to be maintained by Tenant under Section 9.3 or
Section 6.1(f) be reasonably increased.
9.6 Landlord or its agents shall 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 or leaks from any part of
the Building Project, or from the pipes, appliances or plumbing works or from
the roof, street or subsurface or from any other place or by dampness or by any
other cause of whatsoever nature, unless any of the foregoing shall be caused by
or due to the negligence of Landlord.
9.7 Landlord or its agents shall not be liable for any damage
which Tenant may sustain if at any time any window of the demised premises is
temporarily closed, darkened or bricked up for any reason whatsoever, or
permanently closed, darkened or bricked up to comply with Legal Requirements or
the requirements of Landlord's insurers, and Tenant shall not be entitled to any
compensation therefor or abatement of rent or to any release from any of
Tenant's obligations under this Lease, nor shall the same constitute an
eviction.
9.8 Each party agrees to give the other party notice in case
of fire or accidents in the demised premises promptly after such party becomes
aware of such event.
ARTICLE 10
LANDLORD'S LIABILITY
10.1 Tenant agrees to look solely to Landlord's estate and
interest in the Building, or the proceeds from the sale thereof for the
satisfaction of any right or remedy of Tenant for the collection of a judgment
(or other judicial process) requiring the payment of money by Landlord, in the
event of any liability by Landlord hereunder, and no other property or assets of
Landlord shall be subject to levy, execution, attachment, or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this Lease, the relationship of Landlord and Tenant hereunder, or Tenant's use
and occupancy of the demised premises, or any other liability of Landlord to
Tenant hereunder. Neither the partners constituting Landlord (the "PARTNERS"),
nor the partners, shareholders, directors or officers of Landlord or the
Partners shall be liable for the performance of Landlord's obligations under
this Lease.
ARTICLE 11
31
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.1 Subject to the provisions of Section 11.2 hereof Tenant
shall not (a) assign or otherwise transfer this Lease or any interest herein, or
the term and estate hereby granted, (b) sublet the demised premises or any part
thereof or allow the same to be used or occupied by others, (c) mortgage, pledge
or encumber this Lease or the demised premises or any part thereof in any manner
by reason of any act or omission on the part of Tenant, or (d) advertise, or
authorize a broker to advertise, for a subtenant or an assignee at a
consideration or at rental rates below the rental rates then being advertised by
Landlord as its rental rates for comparable space in the Building Project and
for a comparable term, without, in each instance, obtaining the prior written
consent of Landlord, except as otherwise expressly provided in this Article 11.
For purposes of this Article 11, (i) the transfer of a majority of the issued
and outstanding capital stock of any corporate tenant, or of a corporate
subtenant, or the transfer of a majority of the total interest in any
partnership, limited liability company or other entity that is the Tenant or a
subtenant, however accomplished, whether in a single transaction or in a series
of related or unrelated transactions, shall be deemed an assignment of this
Lease, or of such sublease, as the case may be, and (ii) a takeover agreement
shall be deemed a transfer of this Lease.
11.2 The consent of Landlord shall not be required for (but
the provisions of Section 11.5(d) hereof shall be applicable to) an assignment
or sublease of all or any portion of the demised premises to (i) a corporation
into or with which Tenant is merged or consolidated, (ii) an entity to which
substantially all of Tenant's shares or assets are transferred or, (iii) if
Tenant is a partnership, a successor partnership, provided that any such merger,
consolidation, transfer or other transaction is not principally for the purpose
of transferring the leasehold estate created hereby, and provided further, that
the assignee, successor or subtenant, as applicable, has a net worth at least
equal to or in excess of the net worth of Tenant immediately prior to the
transaction in question. The provisions of clauses (a) and (b) of Section 11.1
shall not apply to transactions with an entity (hereinafter called an
"AFFILIATE") which controls or is controlled by Tenant or is under common
control with Tenant during the period it remains an Affiliate. Furthermore, an
Affiliate of Tenant shall be permitted to occupy the demised premises but only
during such period as it shall remain an Affiliate. For the purposes of the
foregoing "control" shall mean ownership of 50% or more of the stock,
partnership interests or other equity interests in the entity.
11.3 Any assignment or transfer, whether made with Landlord's
consent as required by Section 11.1 or without
32
Landlord's consent pursuant to Section 11.2, shall not be effective hereunder
until, the assignee shall execute, acknowledge and deliver to Landlord a
recordable agreement, in form and substance reasonably satisfactory to Landlord,
whereby the assignee shall assume the obligations and performance of this Lease
from and after the date of such assignment and agree to be personally bound by
and upon all of the covenants, agreements, terms, provisions and conditions
hereof on the part of Tenant to be performed or observed and whereby the
assignee shall agree that the provisions of Section 11.1 hereof shall,
notwithstanding any further assignment or transfer, continue to be binding upon
it in the future. Tenant covenants that, notwithstanding any assignment or
transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of fixed annual rent by Landlord from an assignee
or transferee or any other party, Tenant shall remain fully and primarily liable
for the payment of the fixed annual rent and additional rent due and to become
due under this Lease and for the performance of all of the covenants,
agreements, terms, provisions and conditions of this Lease on the part of Tenant
to be performed or observed.
11.4 (a) Except for an assignment or sublease pursuant to
Section 11.2 hereof, if Tenant agrees to enter into an assignment of this Lease
or a sublease to sublet the demised premises or any portion thereof, Tenant
shall, as soon as that agreement is consummated, but no less than sixty (60)
days prior to the effective date of the contemplated assignment or sublease,
deliver to Landlord an executed counterpart of the proposed assignment or
sublease, and Landlord shall then have the right to elect, by notifying Tenant
within thirty (30) days of such delivery, to (i) in the case of an assignment of
this Lease, to terminate this Lease or to accept an assignment of this Lease
from Tenant, and Tenant shall then promptly execute and deliver to Landlord or
entity affiliated with Landlord, in form reasonably satisfactory to Landlord's
counsel, an assignment on the terms reflected in the proposed assignment, which
assignment shall be effective as of such effective date and shall relieve Tenant
of further liability accruing under this Lease after such effective date as to
such portion of the demised premises assigned to Landlord or entity affiliated
with Landlord, and (ii) in the case of a proposed subletting, to terminate this
Lease, with respect to the portion of the demised premises affected by any such
proposed subletting or the entire demised premises in the case of a proposed
subletting thereof or to accept a sublease from Tenant thereof, and Tenant shall
then promptly execute and deliver a sublease to Landlord or entity affiliated
with Landlord, for the duration of Tenant's proposed subletting, commencing with
such effective date, at the rental terms reflected in the proposed sublease. If
an offer of sublease to Landlord results in all or substantially all of the
demised premises being sublet for substantially all of the term of this Lease
(i.e., the balance of the term less one year or less), then
33
Landlord shall have the option to extend the term of the sublease being offered
to it for the remainder of the term of this Lease less one day.
(b) If Landlord should elect to have Tenant execute and
deliver a sublease pursuant to any of the provisions of this Section 11.4, said
sublease shall be in a form reasonably satisfactory to Landlord's counsel and on
all the terms contained in this Lease, except that:
(i) The rental terms shall be as provided in
subsection 11.4(a) hereof,
(ii) The sublease shall not provide for any work to be done
for the subtenant or for any initial rent concessions or contain
provisions inapplicable to a sublease, except that in the case of a
subletting of a portion of the demised premises, Tenant shall reimburse
subtenant for the cost of erecting such demising walls as are necessary
to separate the subleased premises from the remainder of the demised
premises and to provide access and building services thereto, provided
Tenant was obligated to perform such work or reimburse the proposed
subtenant for such work under the terms of the proposed sublease,
(iii) The subtenant thereunder shall have the right to
underlet the subleased premises, in whole or in part, without Tenant's
consent,
(iv) The subtenant thereunder shall have the right to make,
or cause to be made, any changes, alterations, decorations, additions
and improvements that such subtenant may desire or authorize,
(v) Such sublease shall expressly negate any intention
that any estate created by or under such sublease be merged with any
other estate held by either of the parties thereto,
(vi) Any consent required of Tenant, as lessor under that
sublease, shall be deemed granted if consent with respect thereto is
granted by Landlord,
(vii) The use of the sublet premises by the subtenant shall
be for general, administrative and/or executive offices unless
constructed for another purpose by or for Tenant in which event
Landlord may in addition use it for such purpose,
(viii) Any failure of the subtenant thereunder to comply with
the provisions of said sublease, other than with respect to the payment
of rent to Tenant, shall not
34
constitute a default thereunder or hereunder if Landlord has consented
to such non-compliance, unless such failure to comply would cause a
violation of law or would increase or extend the liability of Tenant
under this Lease,
(ix) Upon execution of such sublease, Tenant's obligations
with respect to vacating the demised premises and removing any changes,
alterations, decorations, additions or improvements made in the
subleased premises shall be limited to those which accrued and related
to such as were made prior to the effective date of the sublease, and
(x) Such sublease shall provide that at the expiration of
the term of such subletting Tenant will accept the space in the
condition provided for in the proposed sublease.
If Landlord should elect to have Tenant execute and deliver a
sublease pursuant to any of the provisions of this Section 11.4, Tenant shall be
excused from having to obtain Landlord's consent, as required by the terms of
this Lease, for changes, alterations, decorations, additions or improvements
desired by the subtenant.
(c) If pursuant to the exercise of any of Landlord's options
pursuant to this Section 11.4 hereof this Lease is terminated as to only a
portion of the demised premises, then the fixed annual rent payable hereunder
and the additional rent payable pursuant to Articles 3 and 4 hereof shall be
adjusted in proportion to the portion of the demised premises affected by such
termination.
11.5 In the event that Landlord does not exercise the option
available to it pursuant to subsection 11.4(a) hereof, Landlord shall not
unreasonably withhold or delay its consent to an assignment of this Lease or a
proposed subletting of the demised premises, as the case may be, by Tenant,
provided:
(a) Tenant shall have furnished Landlord with the name and
business address of the proposed subtenant or assignee, information with respect
to its intended use of the demised premises and the nature and character of the
proposed subtenant's or assignee's business, or activities, and, if Tenant is no
longer the actual tenant of the demised premises, such reasonable references and
current financial information with respect to net worth, credit and financial
responsibility as are reasonably satisfactory to Landlord, and an executed
counterpart of the sublease or assignment agreement;
(b) the proposed subtenant or assignee is a reputable party
whose financial net worth, credit and financial
35
responsibility is, considering the responsibilities involved, satisfactory to
Landlord;
(c) the proposed subtenant or assignee is not then an occupant
of any part of the Building Project or a party who is dealing with Landlord or
Landlord's agent (directly or through a broker) with respect to space then
available (or becoming available) in the Building Project; and
(d) each sublease shall specifically state that (i) it is
subject to all of the terms, covenants, agreements, provisions, and conditions
of this Lease, and (ii) the subtenant or assignee, as the case may be, will not
have the right to a further assignment thereof or sublease or assignment
thereunder, or to allow the demised premises to be used by others, without the
prior reasonable consent of Landlord in each instance.
11.6 If Tenant defaults in the payment of any rent, Landlord
is authorized to collect any rents due or accruing from any assignee, subtenant
or other occupant of the demised premises and to apply the net amounts collected
to the fixed annual rent and additional rent reserved herein. The receipt by
Landlord of any amounts from an assignee or subtenant, or other occupant of any
part of the demised premises shall not be deemed or construed as releasing
Tenant from Tenant's obligations hereunder or the acceptance of that party as a
direct tenant.
ARTICLE 12
ELECTRICITY
12.1 (a) Landlord shall supply electricity to the demised
premises in accordance with the provisions of this Section 12.1. For the
purposes of this Section 12.1, Landlord and Tenant agree that the term "COST PER
KILOWATT HOUR" shall mean the total cost for electricity incurred by Landlord to
service the demised premises, as measured by the meter servicing that portion of
the Building in which the demised premises are located, during a particular time
period (including all applicable surcharges, demand charges, energy charges,
fuel adjustment charges, time of day charges, taxes and other sums payable in
respect thereof) divided by the total kilowatt hours purchased by Landlord
during such period.
(b) Electricity shall be supplied by Landlord to service the
demised premises and Tenant shall pay to Landlord, as additional rent, an amount
determined by applying the Cost per Kilowatt hour to Tenant's consumption of and
demand for electricity within the demised premises as recorded on the submeter
or submeters servicing the demised premises. Where more than one meter measures
the electric service to Tenant, the
36
electric service rendered through each meter shall be computed and billed
separately in accordance with the provisions hereinafter set forth. Bills for
the electricity additional rent shall be rendered to Tenant at such time as
Landlord may elect. If any tax is imposed upon Landlord's receipts from the sale
of electricity to Tenant by Federal, State or municipal authority, Tenant agrees
that, unless prohibited by law, Tenant's proportionate share of such taxes shall
be included in the xxxx of, and paid by Tenant to, Landlord, as additional rent.
Landlord's failure during the term of this Lease to prepare and deliver any
statements or bills under this Article 12, or Landlord's failure to make a
demand under this Article 12, or any other provisions of this Lease 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 have become due
pursuant to this Article 12 during the term of this Lease. The costs incurred by
Landlord for meter readings for those meters and sub-meters that measure the
electric service supplied to Tenant, and the costs incurred by Landlord in the
maintenance of such meters and sub-meters, shall be paid by Tenant on demand, as
additional rent. Tenant's liability for any amounts due under this Article 12
shall survive the expiration or sooner termination of this Lease.
12.2 Notwithstanding the provisions of Section 12.1 above, at
Landlord's option, Tenant shall, within sixty (60) days after receiving notice
from Landlord (or any shorter period as may be required by applicable legal
requirements), contract directly with the public utility furnishing electric
current to the Building for the supply, at Tenant's cost, of all electric
current to be used in the demised premises including, without limitation, such
as is required for the operation of any supplemental heating, ventilating and
air-conditioning system serving the demised premises except that which is used
in the operation of the "HVAC SYSTEM" (as that term is hereinafter defined in
Section 21.1).
12.3 Tenant's use of electric current in the demised premises
shall not at any time exceed the capacity of any of the electrical conductors
and equipment in or otherwise serving the demised premises. Tenant shall not
make or perform, or permit the making or performing of, any alterations to
wiring, installations or other electrical facilities in or serving the demised
premises without the prior consent of the Landlord in each instance. Should
Landlord grant any such consent, all additional risers or other equipment
required therefor shall be installed by Landlord (after advising Tenant of the
estimated cost thereof and provided Tenant elects to have Landlord proceed with
such work) and the cost thereof shall be paid by Tenant upon Landlord's demand,
at which time Landlord shall provide Tenant with documentation in regard to such
costs, which such costs shall not exceed what would be paid in an arm's-length
37
transaction and any such alterations shall be made in accordance with Article 6
thereof.
12.4 Landlord shall not be liable in any way to Tenant for any
failure or defect in the supply or character of electric energy furnished to the
demised premises by reason of any requirement, act or omission of the public
utility serving the Building with electricity or for any other reason and not
attributable to Landlord's negligence.
12.5 If, at any time during the term of this Lease, Tenant
wishes to install in the demised premises equipment which would not be
considered ordinary office equipment, including, but not limited to, items such
as computer installation or 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 to be
installed. Such list shall include 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, in Landlord's reasonable judgment the operation of
such equipment will impair the proper operation of the plumbing, heating,
ventilation, air conditioning or other systems for the Building, Tenant shall
not be permitted to make such installation, provided that Landlord, in its sole
discretion, may permit Tenant to make such installation if as a condition to the
installation of such equipment, Tenant shall reimburse Landlord for Landlord's
additional cost incurred, as a result of such equipment installation and
operation, in connection with the proper function of such systems.
ARTICLE 13
DAMAGE BY FIRE OR OTHER CAUSE
13.1 If the Building or the demised premises shall be
partially or totally damaged or destroyed by fire or other cause, within
forty-five (45) days after Landlord acquires knowledge of such damage, Landlord
shall deliver to Tenant an estimate prepared by a reputable contractor selected
by Landlord setting forth such contractor's estimate as to the reasonable time
required to repair such damage. If the demised premises are damaged or destroyed
or if they are not but the building is damaged, which damage materially
adversely affects Tenant's access to the demised premises, and the time period
set forth in such estimate exceeds three hundred and sixty (360) days, Tenant
may elect to terminate this Lease by notice to Landlord not later than fifteen
(15) days following the delivery of such estimate to Tenant. If Tenant makes
such election, the Term shall expire upon the twentieth (20th) day after notice
of such election is given by Tenant and Tenant shall vacate the demised premises
and
38
surrender the same to Landlord. Upon such termination, Tenant's liability for
fixed annual rent and additional rent shall cease as of the day following such
damage and any prepaid portion thereof for any period after such date shall be
refunded by Landlord to Tenant. If (x) the estimate does not exceed three
hundred and sixty (360) days, or (y) Tenant fails to make its election as set
forth hereinabove in this paragraph, and if Landlord does not make the election
under Section 13.3 (if applicable), Landlord shall repair the damage and restore
and rebuild the Building and/or the demised premises, at its expense (without
limiting the rights of Landlord under any other provisions of this Lease);
provided, however, that Landlord shall not be required to repair or replace any
of Tenant's property, improvements, betterments or Alterations.
13.2 If the Building or the demised premises shall be
partially damaged or partially destroyed by fire or other cause, the fixed
annual rent and additional rent payable hereunder shall be abated to the extent
that the demised premises shall have been rendered untenantable for the period
from the date of such damage or destruction to the date the damage shall be
substantially repaired or restored. If the demised premises shall be totally
(which shall be deemed to include substantially totally) damaged or destroyed or
rendered completely (which shall be deemed to include substantially completely)
untenantable on account of fire or other cause, the fixed annual rent and
additional rent shall xxxxx as of the date of the damage or destruction and
until Landlord shall substantially repair, restore and rebuild the Building and
the demised premises. Should Tenant reoccupy a portion of the demised premises
during the period the restoration work is taking place with respect to any
damage or destruction referred to in this Section 13.2 and prior to the date
that the same are made tenantable, rents allocable to such portion shall be
payable by Tenant from the date of such occupancy. Furthermore, if Tenant delays
the performance of the restoration work, such work shall be deemed to be
substantially completed on the date that it would have been completed but for
such delay.
13.3 If the Building or the demised premises shall be totally
(which shall be deemed to include substantially totally) damaged or destroyed by
fire or other cause, or if the Building shall be so damaged or destroyed by fire
or other cause (whether or not the demised premises are damaged or destroyed) as
to require a reasonably estimated expenditure of more than forty percent (40%)
of the full insurable value of the Building immediately prior to the casualty,
then in either such case Landlord may terminate this Lease by giving Tenant
notice to such effect within one hundred twenty (120) days after the date of the
casualty.
13.4 No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or
39
annoyance arising from any repair or restoration of any portion of the demised
premises or of the Building pursuant to this Article 13.
13.5 Notwithstanding any of the foregoing provisions of this
Article 13, if Landlord or the lessor of any superior lease or the holder of any
superior 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 Building by fire or other cause, by reason of some
action or inaction on the part of Tenant or any of its employees, agents or
contractors, then, without prejudice to any other remedies which may be
available against Tenant, there shall be no abatement of Tenant's rents, but the
total amount of such rents not abated (which would otherwise have been abated)
shall not exceed the amount of uncollected insurance proceeds.
13.6 Landlord will not carry separate insurance of any kind on
Tenant's property, improvements, betterments or Alterations and, shall not be
obligated to repair any damage thereto or replace the same. Tenant shall
maintain insurance on Tenant's property, improvements, betterments or
Alterations and Tenant shall be obligated to repair any damage thereto and
replace the same.
13.7 The provisions of this Article 13 shall be considered an
express agreement governing any cause of damage or destruction of the demised
premises by fire or other casualty, and no statute, rule, law or regulation of
the State of New York or any of its political subdivisions now or hereafter in
force and providing for such a contingency in the absence of an express
agreement (including without limitation Section 227 of the Real Property Law),
shall have application in such case.
ARTICLE 14
CONDEMNATION
14.1 In the event that the whole of the demised premises shall
be lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part of
the demised premises shall be so condemned or taken, then, effective as of the
date of vesting of title, the fixed annual rent under Article l hereunder and
additional rents under Articles 3 and 4 hereunder shall be abated in an amount
thereof apportioned according to the area of the demised premises so condemned
or taken. In the event that only a part of the Building Project (as such term is
defined in subsection 3.2(i) hereof) shall be so condemned or taken, then (a)
Landlord
40
(whether or not the demised premises be affected) may, at Landlord's option,
terminate this Lease and the term and estate hereby granted as of the date of
such vesting of title by notifying Tenant in writing of such termination within
sixty (60) days following the date on which Landlord shall have received notice
of vesting of title, or (b) if such condemnation or taking shall be of fifteen
percent (15%) or more of the demised premises or of a substantial part of the
means of access thereto, Tenant may, at Tenant's option, by delivery of notice
in writing to Landlord within thirty (30) days following the date on which
Tenant shall have received notice of vesting of title, terminate this Lease and
the term and estate hereby granted as of the date occurring six months after the
vesting of title, or (c) if neither Landlord nor Tenant elects to terminate this
Lease, as aforesaid, this Lease shall be and remain unaffected by such
condemnation or taking, except that the fixed annual rent payable under Article
1 and additional rents payable under Articles 3 and 4 shall be abated to the
extent hereinbefore provided. In the event that only a part of the demised
premises shall be so condemned or taken and this Lease and the term and estate
hereby granted with respect to the remaining portion of the demised premises are
not terminated as hereinbefore provided, Landlord will, with reasonable
diligence and at its expense, restore the remaining portion of the demised
premises as nearly as practicable to the same condition as it was in prior to
such condemnation or taking. Tenant shall be obligated to repair and replace its
property, improvements, betterments and Alterations.
14.2 In the event of its termination in any of the cases
hereinbefore provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date, and the fixed annual rent and additional rents payable
hereunder shall be apportioned as of such date.
14.3 In the event of any condemnation or taking hereinbefore
mentioned of all or a part of the Building Project, Landlord shall be entitled
to receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this Lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof, and
Tenant shall be entitled to receive no part of such award. Provided that
Landlord's award is not reduced by reason thereof, Tenant may apply for an award
for its moving expenses and trade fixtures.
14.4 It is expressly understood and agreed that the provisions
of this Article 14 shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period.
41
ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES
15.1 Tenant shall permit Landlord to erect, use and maintain
pipes, ducts and conduits in and through the demised premises, provided the same
are installed adjacent to or concealed behind walls and ceilings of the demised
premises. Landlord shall to the extent practicable install such pipes, ducts and
conduits by such methods and at such locations as will not materially interfere
with or impair Tenant's layout or use of the demised premises. Landlord or its
agents or designees, on reasonable notice to Tenant (except in the case of
emergency), shall have the right to enter the demised premises, at reasonable
times during business hours (except in the case of emergency), for the making of
such repairs or alterations as Landlord may reasonably deem necessary for the
Building or which Landlord shall be required to or shall have the right to make
by the provisions of this Lease or any other lease in the Building and, subject
to the foregoing, shall also have the right to enter the demised premises for
the purpose of inspecting them or exhibiting them to prospective purchasers or
lessees of the entire Building or to prospective mortgagees of the fee or of the
Landlord's interest in the property of which the demised premises are a part or
to prospective assignees of any such mortgages or to the holder of any mortgage
on the Landlord's interest in the property, its agents or designees. Landlord
shall exercise reasonable diligence so as to minimize the disturbance, but
nothing contained herein shall be deemed to require Landlord to perform the same
on an overtime or premium pay basis.
15.2 Landlord reserves the right, without the same
constituting an eviction and without incurring liability to Tenant therefor, to
change the arrangement and/or location of public entrances, passageways, doors,
doorways, corridors, possible elevators, stairways, toilets and other public
parts of the Building; provided, however, that access to the Building shall not
be cut off and there shall be no unreasonable obstruction of access to the
demised premises or unreasonable interference with the use or enjoyment thereof.
15.3 In connection with any work performed by Landlord in
accordance with the provisions of this Article 15, upon the completion of such
work, Landlord will restore as closely as reasonably possible any improvements
located on the demised premises to the condition of such improvements prior to
the commencement of such work by Landlord; provided, however, nothing contained
in this paragraph is meant to (i) limit in any way Landlord's rights to perform
any work or repairs permitted to be performed by this Article 15 or (ii) require
the use of labor on an overtime or premium pay basis to perform such restoration
work on the improvements located on the demised premises.
42
15.4 Landlord may, during the six (6) months prior to
expiration of the term of this Lease, exhibit the demised premises to
prospective tenants during normal business hours upon reasonable advance notice
to Tenant.
15.5 If Tenant shall not be personally present to open and
permit an entry into the demised premises at any time when for any reason an
entry therein shall be urgently necessary by reason of fire or other emergency,
Landlord or Landlord's agents may forcibly enter the same without rendering
Landlord or such agents liable therefor (if during such entry Landlord or
Landlord's agents shall accord reasonable care to Tenant's property and shall be
liable for any loss, damage or theft) and without in any manner affecting the
obligations and covenants of this Lease.
ARTICLE 16
DEFAULT
16.1 This Lease and the term and estate hereby granted are
subject to the limitation that whenever Tenant shall make an assignment of the
property of Tenant for the benefit of creditors, or shall file a voluntary
petition under any bankruptcy or insolvency law or any involuntary petition
alleging an act of bankruptcy or insolvency shall be filed against Tenant under
any bankruptcy or insolvency law, or whenever a petition shall be filed by or
against Tenant under the reorganization provisions of the United States
Bankruptcy Act or under the provisions of any law of like import, or whenever a
petition shall be filed by Tenant under the provisions of any law of like
import, or whenever a permanent receiver of Tenant or of or for the property of
Tenant shall be appointed, then, Landlord may, (a) at any time after receipt of
notice of the occurrence of any such event, and (b) if such event occurs without
the acquiescence of Tenant, at any time after the event continues for sixty (60)
days, give Tenant a notice of intention to end the term of this Lease at the
expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period, this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 18.
16.2 This Lease and the term and estate hereby granted are
subject to further limitation as follows:
(a) whenever Tenant shall default in the payment of any
installment of fixed annual rent, or in the payment of any
43
additional rent or any other charge payable by Tenant to Landlord, in either
case for ten (10) days after written notice is given to Tenant that such payment
shall have become due; or
(b) whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to or in violation of any of Tenant's
obligations, or, the terms, conditions or provisions hereunder, other than
Tenant's obligations to pay fixed annual rent or additional rent or other
charges under this Lease, and if such situation shall continue and shall not be
remedied by Tenant within twenty (20) days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a happening or default
which cannot with due diligence be cured within a period of twenty (20) days and
the continuation of which for the period required for cure will not subject
Landlord to the risk of criminal or civil liability (as more particularly
described in Article 8 hereof) or termination of any superior lease or
foreclosure of any superior mortgage, if Tenant shall not, (i) within said
twenty (20) day period advise Landlord of Tenant's intention to duly institute
all steps necessary to remedy such situation, (ii) duly institute within said
twenty (20) day period, and thereafter diligently and continuously prosecute to
completion all steps necessary to remedy the same and (iii) complete such remedy
within such time after the date of the giving of said notice of Landlord as
shall reasonably be necessary; or
(c) whenever any event shall occur or any contingency shall
arise whereby this Lease or the estate hereby granted or the unexpired balance
of the term hereof would, by operation of law or otherwise, devolve upon or pass
to any person, firm, corporation or other entity other than Tenant, except as
expressly permitted by Article 11; or
(d) whenever Tenant shall abandon the demised premises (unless
as a result of a casualty) and such abandonment shall continue for twenty (20)
days after Landlord shall have given Tenant notice thereof;
(e) whenever Tenant shall default in the due keeping,
observing or performance of any covenant, agreement, provision or condition of
Article 5 hereof on the part of Tenant to be kept, observed or performed and if
such default shall continue and shall not be remedied by Tenant within three (3)
Business Days after Tenant receives a notice specifying the same; or
(f) whenever Tenant shall default with respect to any other
lease between Landlord and Tenant;
then in any of said cases set forth in the foregoing subsections (a), (b), (c),
(d), (e) and (f), Landlord may give to Tenant a notice of intention to end the
term of this Lease at the
44
expiration of three (3) days from the date of the service of such notice of
intention, and upon the expiration of said three (3) days this Lease and the
term and estate hereby granted, whether or not the term shall theretofore have
commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 18.
ARTICLE 17
RE-ENTRY BY LANDLORD, INJUNCTION
17.1 If Tenant shall default in the payment of any installment
of fixed annual rent, or of any additional rent or other charges under this
Lease, on any date upon which the same ought to be paid, and if such default
shall continue for ten (10) days after Landlord shall have given to Tenant a
notice specifying such default, or if any of the events described in Article 16
shall occur, 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, without being liable to indictment, prosecution or damages therefrom, to
the end that Landlord may have, hold and enjoy the demised premises again as and
of its first estate and interest therein. 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 16 or if Landlord shall re-enter
the demised premises under the provisions of this Article 17 or in the event of
the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceedings or action by reason of default hereunder on the
part of Tenant, Tenant shall thereupon pay to Landlord the fixed annual rent and
additional rent payable by Tenant to Landlord up to the time of such termination
of this Lease, or of such recovery of possession of the demised premises by
Landlord, as the case may be, and shall also pay to Landlord damages as provided
in Article 18.
17.2 In the event of a breach or threatened breach by Tenant
of any of its obligations under this Lease, Landlord shall also have the right
of injunction. 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.
17.3 If this Lease shall terminate under the provisions of
Article 16, or if Landlord shall re-enter the demised premises under the
provisions of this Article 17, or in the event of the termination of this Lease,
or of re-entry by or
45
under any summary dispossess or other proceeding or action 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 fixed
annual rent or additional rent due from Tenant at the time of such termination
or re-entry or, at Landlord's option against any damages payable by Tenant under
this Article 17 or Article 18 or pursuant to law.
17.4 Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the demised premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or otherwise.
ARTICLE 18
DAMAGES
18.1 If this Lease is terminated under the provisions of
Article 16, or if Landlord shall re-enter the demised premises under the
provisions of Article 17, 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 by
reason of default hereunder on the part of Tenant, Tenant shall pay to landlord
as damages, at the election of Landlord, either
(a) a sum which at the time of such termination of this Lease
or at the time of any such re-entry by Landlord, as the case may be, represents
the present value (which present value shall be calculated at a discount rate
equal to the then legal rate of interest on judgments in New York State) of the
excess, if any, of
(i) the aggregate of the fixed annual rent and the additional
rent payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as was
payable for the year immediately preceding such termination except that
additional rent on account of increases in Taxes and Expenses shall be
presumed to increase at the average of the rates of increase thereof
previously experienced by Landlord during the period (not to exceed
three (3) years) prior to such termination) for the period commencing
with such earlier termination of this Lease or the date of any such
re-entry, as the case may be, and ending with the Expiration Date, had
this Lease not so terminated or had Landlord not so re-entered the
demised premises, over
46
(ii) the aggregate rental value of the demised premises for
the same period, or
(b) sums equal to the fixed annual rent and the additional
rent (as above presumed) payable hereunder which would have been payable by
Tenant had this Lease not so terminated, or had Landlord not so re-entered the
demised premises, payable upon the due dates therefor specified herein following
such termination or re-entry and until the Expiration Date; 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 this Lease or 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 and all other expenses properly chargeable against
the demised premises and the rental thereof; it being understood that any such
re-letting may be for a period shorter or longer than the remaining term of this
Lease; but in no event shall Tenant be entitled to receive any excess of such
net rents over the sums payable by Tenant to Landlord hereunder, nor shall
Tenant be entitled in any suit for the collection of damages pursuant to this
subsection to a credit in respect of any net rents from a re-letting, except to
the extent that such net rents are actually 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 expenses of re-letting.
If the demised premises or any part thereof be re-let by Landlord for the
unexpired portion of the term of this Lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such re-letting shall, prima facie, be the fair and
reasonable rental value for the demised premises, or part thereof, so re-let
during the term of the re-letting.
18.2 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated under the provisions of Article 16, or under any
provision of law, or had Landlord not re-entered the demised premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of
47
any default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of the termination of this Lease or re-entry of the
demised premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 18.1.
ARTICLE 19
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
19.1 If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions of this Lease, (a) Landlord may remedy
such default for the account of Tenant, immediately and without notice in case
of emergency, or in any other case only provided that Tenant shall fail to
remedy such default after Landlord shall have notified Tenant in writing of such
default and the applicable grace period for curing such default shall have
expired; and (b) if Landlord makes any expenditures or incurs any obligations
for the payment of money in connection with such default including, but not
limited to, reasonable attorneys' fees and expenses, such sums paid or
obligations incurred, with interest at the Interest Rate, shall be deemed to be
additional rent hereunder and shall be paid by Tenant to Landlord within thirty
(30) days after rendition of a xxxx to Tenant therefor.
ARTICLE 20
QUIET ENJOYMENT
20.1 Landlord covenants and agrees that subject to the terms
and provisions of this Lease, if, and so long as, Tenant keeps and performs in
all material respects each and every covenant, agreement, term, provision and
condition herein contained on the part or on behalf of Tenant to be kept or
performed, then Tenant's rights under this Lease shall not be cut off or ended
before the expiration of the term of this Lease, subject however to ground and
underlying leases and mortgages by anyone claiming by or through Landlord which
affect this Lease (as provided in Article 25 hereof).
ARTICLE 21
SERVICES AND EQUIPMENT
48
21.1 Landlord shall, at its cost and expense (but subject to
reimbursement by Tenant pursuant to Article 4 hereof):
(a) provide necessary passenger elevator facilities during
Business Hours (as such term is defined in Article 22 hereof) and shall have at
least one passenger elevator subject to call at all other times. At Landlord's
option, the elevators shall be operated by automatic control or by manual
control, or by a combination of both of such methods. Landlord shall provide
freight elevator service to Tenant upon reasonable notice from Tenant;
(b) maintain, keep in repair and provide the services of the
Building system air-conditioning, heating and ventilating system ("HVAC SYSTEM")
installed by Landlord in accordance with the design criteria annexed hereto as
EXHIBIT E. The aforesaid systems will function when seasonably required during
Business Hours. The cooling season for the purposes of this Lease shall be May
15 through September 15 of each calendar year. Landlord shall have no
responsibility or liability for the ventilating conditions and/or temperature of
the demised premises during the hours or days Landlord is not required to
furnish heat, ventilation or air-conditioning pursuant to this subsection. In
any event, Tenant shall keep entirely unobstructed all the vents, intakes,
outlets and grilles, at all times and shall comply with and observe all
regulations and requirements prescribed by Landlord for the proper functioning
of the heating, ventilating and air-conditioning systems including without
limitation, the lowering and closing of Venetian blinds in the demised premises
during daylight hours. In the event that Tenant shall require air-conditioning,
heating or ventilation at such times as same are not furnished by Landlord,
Tenant shall give Landlord at least 24-hours advance notice of such requirement,
and Tenant agrees to pay the Landlord's prevailing rate therefor as additional
rent.
(c) provide cleaning and janitorial services on Business Days
in accordance with the specifications annexed hereto as EXHIBIT F; provided,
however, Tenant shall pay to Landlord upon ten (10) days notice the costs
incurred by Landlord for (a) extra cleaning work in the demised premises
required because of (i) misuse or neglect on the part of Tenant or its employees
or visitors, (ii) use of portions of the demised premises for preparation,
serving or consumption of food or beverages, data processing or reproducing
operations, private lavatories or toilets or other special purposes requiring
greater or more difficult cleaning work than office areas, (iii) unusual
quantity of interior glass surfaces, (iv) non-building standard materials or
finishes installed by Tenant or at its request, and (b) removal from the demised
premises and the Building of so much
49
of any refuse and rubbish of Tenant as shall exceed that ordinarily accumulated
daily in the routine of business office occupancy. Landlord, its cleaning
contractor and their employees shall have access outside of Business Hours to
the demised premises and the use (at Tenant's expense) of light, power and water
in the demised premises as reasonably required for the purpose of cleaning the
demised premises in accordance with Landlord's obligations hereunder; and
(d) furnish hot and cold water for lavatory and office
cleaning purposes and cold water for drinking purposes. If Tenant requires, uses
or consumes water for any other purposes, Tenant agrees to Landlord installing a
meter or meters or other means to measure Tenant's water consumption, and Tenant
further agrees to reimburse Landlord for the cost of the meter or meters and the
installation thereof, and to pay for the maintenance of said meter equipment
and/or to pay Landlord's cost of other means of measuring such water consumption
by Tenant. Tenant shall reimburse Landlord for the cost of all water consumed,
as measured by said meter or meters or as otherwise measured, including, without
limitation, sewer rents.
21.2 Landlord reserves the right to stop the heating,
air-conditioning, elevator, plumbing, electric and other systems when necessary
by reason of accident or emergency or for repairs, alterations, replacements or
improvements, provided that except in case of emergency, Landlord will notify
Tenant in advance of any such stoppage and its estimated duration, and will
proceed diligently with the work necessary to resume such service as promptly as
possible and in a manner so as to minimize interference with the Tenant's use
and enjoyment of the demised premises but nothing herein shall be deemed to
require Landlord to perform the same on an overtime or premium pay basis unless
requested to do so by, and at the expense of, Tenant.
21.3 It is expressly agreed that only Landlord or any one or
more persons, firms or corporations authorized in writing by Landlord will be
permitted to furnish laundry, linen towels, drinking water, ice, food or
beverages and other similar supplies and services to tenants and licensees in
the Building provided the quality thereof and the charges therefor are
reasonably comparable to that of other suppliers of such services. Landlord may
fix, in its own absolute discretion, at any time and from time to time, the
hours during which and the regulations under which such supplies and services
are to be furnished. Landlord expressly reserves the right to act as or to
designate, at any time and from time to time, an exclusive supplier of all or
any one or more of the said supplies and services, provided that the quality
thereof and the charges therefor are reasonably comparable to that of other
suppliers; and Landlord furthermore expressly reserves the right to exclude from
the Building any person, firm or corporation attempting to furnish any of said
50
supplies or services but not so designated by Landlord. It is understood,
however, that Tenant or regular office employees of Tenant who are not employed
by any supplier of such food or beverages or by any person, firm or corporation
engaged in the business of purveying such food or beverages, may personally
bring food or beverages into the Building for consumption within the demised
premises by employees of Tenant, but not for resale to or for consumption by any
other tenant. Landlord may fix in its absolute discretion, at any time and from
time to time, the hours during which, and the regulations under which, foods and
beverages may be brought into the Building by regular employees of Tenant.
21.4 Tenant agrees to employ such third-party office
maintenance contractor as Landlord may from time to time reasonably designate,
for all waxing, polishing, lamp replacement, cleaning (other than those cleaning
services Landlord is obligated to furnish) and the maintenance work in the
demised premises, provided that the quality thereof and the charges therefor are
reasonably comparable to that of other contractors. Tenant shall not employ any
other contractor without Landlord's prior written consent, which consent shall
not be unreasonably withheld or delayed.
21.5 Landlord will maintain a listing on the Building
directory for Tenant. Landlord will provide a plaque in the mail room for any
additional names Tenant wishes. Tenant may place a sign, approved by Landlord,
on the entrance doors to the demised premises with Tenant's name. Other than
Tenant's name, Tenant shall place no other names, plaques, signs or the like on
the entrance doors to the demised premises and shall place no names, plaques,
signs or the like elsewhere on the exterior of the demised premises. The listing
of any name other than that of the Tenant, whether on the doors of the demised
premises, on the Building directory, or otherwise, shall not operate to vest any
right or interest in this Lease or in the demised premises or to be deemed to be
the written consent of Landlord mentioned in Article 11 hereof, it being
expressly understood that any such listing is a privilege extended by Landlord
revocable at will by written notice to Tenant.
21.6 Landlord will not be required to furnish any other
services, except as otherwise provided in this Lease.
ARTICLE 22
DEFINITIONS
22.1 The term "LANDLORD" as used in this Lease means only the
owner, or the mortgagee in possession, for the time being of the Land and the
Building or the Building Project (or
51
the owner of a lease of the Building Project or the Building or of the Land and
Building), so that in the event of any transfer of title to the Building Project
or said Land and the Building or said lease, or in the event of a lease of the
Building Project or the Building, or of the Land and the Building, the said
transferor Landlord shall be and hereby is entirely freed and relieved of all
future covenants, obligations and liabilities of Landlord hereunder, and it
shall be deemed and construed as a covenant running with the land without
further agreement between the parties or their successors in interest, or
between the parties and the transferee of title to the Building Project or said
Land and the Building or said lease, or the said lessee of the Building Project
or the Building, or of the Land and the Building, that the transferee or the
lessee has assumed and agreed to carry out any and all such covenants,
obligations and liabilities of Landlord hereunder arising after such transfer.
22.2 The term "BUSINESS DAYS" as used in this Lease shall
exclude Saturdays, Sundays and the following holidays: New Year's Day, Good
Friday, Memorial Day, Independence Day, Labor Day, President's Day, Thanksgiving
Day and the immediately following day, Christmas Day, and all other days
recognized as holidays under applicable union contracts.
22.3 "INTEREST RATE" shall mean a rate per annum equal to the
lesser of (a) two percent (2%) above the commercial lending rate announced from
time to time by The Chase Manhattan Bank (or any successor), as its prime rate
for 90-day unsecured loans, or (b) the maximum applicable legal rate, if any.
22.4 "LEGAL REQUIREMENTS" shall mean laws, statutes and
ordinances (including building codes and zoning regulations and ordinances) and
the orders, rules, regulations, directives and requirements of all federal,
state, county, city and borough departments, bureaus, boards, agencies, offices,
commissions and other subdivisions thereof, or of any official thereof, or of
any other governmental public or quasi-public authority, whether now or
hereafter in force, which may be applicable to the Building Project, the Land or
the Building or the demised premises or any part thereof, or the sidewalks,
curbs or areas adjacent thereto (including, without limitation, the Common
Areas) and all requirements, obligations and conditions of all instruments of
record on the date of this Lease.
22.5 "BUSINESS HOURS" shall mean 8:00 A.M. to 6:00 P.M. on
Business Days.
ARTICLE 23
INVALIDITY OF ANY PROVISION
52
23.1 If any term, covenant, condition or provision of this
Lease or the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease or the application
thereof to any circumstances or to any person, firm or corporation other than
those as to which any term, covenant, condition or provision is held invalid or
unenforceable, shall not be affected thereby, and each remaining term, covenant,
condition and provision of this Lease shall be valid and shall be enforceable to
the fullest extent permitted by law.
ARTICLE 24
BROKERAGE
24.1 Landlord and Tenant each covenant, represent and warrant
that it has had no dealings or communications with any broker or agent in
connection with this Lease other than Xxxxxx Commercial Realty, Inc. ("BROKER"),
and each covenants and agrees to pay, hold harmless and indemnify the other from
and against any and all cost, expense (including reasonable attorneys' fees and
expenses) or liability for any compensation, commissions or charges claimed by
any other broker or agent with whom the indemnifying party dealt with respect to
this Lease or the negotiation thereof. Landlord will pay any commission earned
by Broker, pursuant to the terms of a separate agreement.
ARTICLE 25
SUBORDINATION
25.1 This Lease is and shall be subject and subordinate to all
ground or underlying leases which may now or hereafter affect the real property
of which the demised premises form a part and to all mortgages which may now or
hereafter affect such leases or such real property, and to all renewals,
modifications, replacements and extensions thereof. The provisions of this
Section 25.1 shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall promptly
execute and deliver at its own cost and expense any instrument, in recordable
form if required, that Landlord, the lessor of the ground or underlying lease or
the holder of any such mortgage or any of their respective successors in
interest may request to evidence such subordination.
25.2 In the event of a termination of any ground or underlying
lease, or if the interests of Landlord under this
53
Lease are transferred by reason of, or assigned in lieu of, foreclosure or other
proceedings for enforcement of any mortgage, or if the holder of any mortgage
acquires a lease in substitution therefor, then Tenant under this Lease will, at
the option to be exercised in writing by the lessor under such ground or
underlying lease or such mortgagee or purchaser, assignee or lessee, as the case
may be, either (i) attorn to it and will perform for its benefit all the terms,
covenants and conditions of this Lease on Tenant's part to be performed with the
same force and effect as if said lessor, such mortgagee or purchaser, assignee
or lessee, were the landlord originally named in this Lease, or (ii) enter into
a new lease with said lessor or such mortgagee or purchaser, assignee or lessee,
as landlord, for the remaining term of this Lease and otherwise on the same
terms and conditions and with the same options, if any, then remaining. The
foregoing provisions of clause (i) of this Section 25.2 shall enure to the
benefit of such lessor, mortgagee, purchaser, assignee or lessee, shall be
self-operative upon the exercise of such option, and no further instrument shall
be required to give effect to said provisions. Tenant, however, upon demand of
any such lessor, mortgagee, purchaser, assignee or lessee agrees to execute,
from time to time, instruments in confirmation of the foregoing provisions of
this Section 25.2, satisfactory to any such lessor, mortgagee, purchaser,
assignee or lessee, acknowledging such subordination and attornment and setting
forth the terms and conditions of its tenancy. Tenant hereby constitutes and
appoints Landlord or its successors in interest to be the Tenant's
attorney-in-fact, irrevocably and coupled with an interest, to execute and
deliver such instrument of attornment, or such new lease, if Tenant refuses or
fails to do so promptly upon request.
25.3 Anything herein contained to the contrary
notwithstanding, under no circumstances shall the aforedescribed lessor under
the ground lease or mortgagee or purchaser, assignee or lessee, as the case may
be, whether or not it shall have succeeded to the interests of the landlord
under this Lease, be
(a) liable for any act, omission or default of any prior
landlord so long as such ground lessor or mortgagee shall not be a "related
party" (as that term is defined by the Internal Revenue Code of such prior
landlord); or
(b) subject to any offsets, claims or defenses which the
Tenant might have against any prior landlord; or
(c) bound by any rent or additional rent which Tenant might
have paid to any prior landlord for more than one (1) month in advance or for
more than three (3) months in advance where such rent payments are payable at
intervals of more than one (1) month; or
54
(d) bound by any modification, amendment or abridgment of the
Lease, or any cancellation or surrender of the same, made without its prior
written approval.
25.4 If, in connection with the financing of the Building, the
holder of any mortgage shall request reasonable modifications in this Lease as a
condition of approval thereof, Tenant will not unreasonably withhold, delay or
defer making such modifications provided such modifications do not increase
Tenant's monetary obligations, change the Term, change the demised premises or
materially increase any other of Tenant's obligations or materially decrease
Tenant's rights under this Lease.
ARTICLE 26
CERTIFICATES OF LANDLORD AND TENANT
26.1 Tenant shall, without charge, at any time and from time
to time, within ten (10) days after request by Landlord, deliver a written
instrument to Landlord or any other person, firm or corporation specified by
Landlord, duly executed and acknowledged, certifying:
(a) that this Lease is unmodified and in full force and effect
or, if there has been any modification, that the same is in full force and
effect as modified and stating any such modification, whether there is any
existing basis to cancel or terminate this Lease, and whether to the best of
Tenant's knowledge Landlord is in default thereunder;
(b) that the term of this Lease has commenced and rent has
become payable thereunder, and that Tenant is in possession of all of the
demised premises;
(c) the amount of the fixed annual rent payable under this
Lease and the dates to which the fixed annual rent and additional rent and other
charges hereunder, have been paid; and
(d) whether or not Tenant has made any claim against Landlord
under this Lease and if so the nature thereof and the dollar amount, if any, of
such claim.
26.2 Landlord agrees, at any time and from time to time, as
requested by Tenant, upon not less than ten (10) days prior notice, to execute
and deliver a statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications that the same is in full
force as modified and stating the modifications), certifying the dates to which
the fixed rent and additional rent have been paid, and stating whether or not,
to the best knowledge of the signer,
55
Tenant is an default in performance of any of his obligations under this Lease,
and, if so, specifying each such default of which the signer may have knowledge.
26.3 Tenant agrees that, except for the first month's rent
hereunder, it will pay no rent under this Lease more than thirty (30) days in
advance of its due date, if so restricted by any existing or future ground lease
or mortgage to which this Lease is subordinated or by an assignment of this
Lease to the ground lessor or the holder of such mortgage, and, in the event of
any act or omission by Landlord, Tenant will not exercise any right to remedy
the default until Tenant shall have given written notice of such act or omission
to the ground lessor and to the holder of any mortgage on the fee or the ground
lease who shall have furnished such lessor's or holder's last address to Tenant,
and until a reasonable period for remedying such act or omission shall have
elapsed following the giving of such notices, during which time such lessor or
holder shall have the right, but shall not be obligated, to remedy or cause to
be remedied such act or omission.
ARTICLE 27
LEGAL PROCEEDINGS WAIVER OF JURY TRIAL
27.1 Landlord and Tenant do hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the demised premises, and/or any other claims (except claims for
personal injury or property damage) and any emergency statutory or any other
statutory remedy. It is further mutually agreed that in the event Landlord
commences any summary action or proceeding for non-payment of rent, Tenant will
not interpose and does hereby waive the right to interpose any counterclaim of
whatever nature or description in any such proceeding.
ARTICLE 28
SURRENDER OF PREMISES
28.1 Upon the expiration or other termination of the term of
this Lease, Tenant shall quit and surrender to Landlord the demised premises,
broom clean, in good order and condition, ordinary wear and tear and damage by
fire, the elements or other casualty that Tenant is not required to repair
excepted, and Tenant shall remove all of its property as herein provided.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease. If Tenant remains in
possession of the demised premises
56
after the termination of this Lease without the execution of a new lease,
Tenant, at the option of Landlord, shall be deemed to be occupying the demised
premises as a tenant from month to month, subject to all of the other terms and
conditions of this Lease insofar as the same are applicable to a month-to-month
tenancy, but at a monthly rental equal to 200% of the monthly fixed annual rent,
Tax Escalation Payment and Expense Payment last payable by Tenant hereunder.
Nothing contained in this Section 28.1 shall (i) imply any right of Tenant to
remain in the demised premises after the termination of this Lease without the
execution of a new lease, (ii) imply any obligation by Landlord to grant a new
lease or (iii) be construed to limit any right or remedy that Landlord has
against Tenant as a holdover tenant or trespasser.
ARTICLE 29
RULES AND REGULATIONS
29.1 Tenant and Tenant's servants, employees and agents shall
observe faithfully and comply strictly with the Rules and Regulations set forth
in EXHIBIT G attached hereto and made part hereof entitled "Rules and
Regulations" and such other and further reasonable Rules and Regulations as
Landlord or Landlord's agents may from time to time adopt; provided, however,
that in case of any conflict or inconsistency between the provisions of this
Lease and of any of the Rules and Regulations as originally or as hereafter
adopted, the provisions of this Lease shall control. Reasonable written notice
of any additional Rules and Regulations shall be given to Tenant and any dispute
with respect to the reasonableness of any such additional Rules and Regulations
shall be resolved by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Landlord agrees that it shall not
enforce or fail to enforce any of the Rules and Regulations in a manner so as to
apply the same in an unfairly discriminatory manner with respect to Tenant.
Nothing in this Lease contained 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 of
the Building, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
ARTICLE 30
CONSENTS AND APPROVALS
57
30.1 Wherever in this Lease Landlord's consent or approval is
required and the lease provides that Landlord shall not unreasonably withhold or
delay such consent or approval, if Landlord shall delay or refuse such consent
or approval, Tenant in no event shall be entitled to make, nor shall Tenant
make, any claim, and Tenant hereby waives any claim, for money damages (nor
shall Tenant claim any money damages by way of set-off, counterclaim or defense)
based upon any claim or assertion by Tenant that Landlord unreasonably withheld
or unreasonably delayed its consent or approval. Tenant's sole remedy shall be
an action or proceeding to enforce any such provision, for specific performance,
injunction or declaratory judgment.
30.2 If Tenant desires to determine any dispute between
Landlord and Tenant as to the reasonableness of Landlord's decision to refuse to
consent to (i) any assignment or subletting in accordance with the provisions of
Article 11 hereof with respect to which Landlord expressly agreed not to
withhold its consent, or (ii) any Alteration pursuant to the provisions of
Article 2 or 6 hereof with respect to which Landlord expressly agreed not to
withhold its consent, such dispute shall be settled and finally determined by
arbitration in the County of New York in accordance with the Commercial
Arbitration Rules of the American Arbitration Association.
ARTICLE 31
NOTICES
31.1 Any notice or demand, consent, approval or disapproval,
or statement required to be given by the terms and provisions of this Lease, or
by any law or governmental regulation, either by Landlord to Tenant or by Tenant
to Landlord, shall be in writing. Unless otherwise required by such law or
regulation, such notice, demand, consent, approvals, statement or disapproval
shall be given, and shall be deemed to have been served and given when such
notice or demand is mailed by registered or certified mail deposited enclosed in
a securely closed post-paid wrapper, in a United States Government general or
branch post office, or official depository with the exclusive care and custody
thereof, or delivered to an overnight delivery service requiring a receipt,
addressed to Landlord or to Tenant at its address set forth on page one (1) of
this Lease (except that after the Commencement Date, Tenant's address, unless
Tenant shall give notice to the contrary, shall be the Building, directed to the
attention of General Counsel). At such time as Tenant or anyone claiming under
or through Tenant first occupies the demised premises for the conduct of its
business, all such notices and demands shall be served or given to Tenant at the
demised premises in lieu of its address on page one (1) hereof. Either party
may, by notice as aforesaid, designate a different
58
address or addresses for notices, demands, consents, approvals statements or
disapprovals.
31.2 In addition to the foregoing, either Landlord or Tenant
may, from time to time, request in writing that the other party serve a copy of
any notice or demand, consent, approval or disapproval, or statement, on one
other person or entity designated in such request, such service to be effected
as provided in Section 31.1 hereof.
ARTICLE 32
NO WAIVER
32.1 No agreement to accept a surrender of this Lease shall be
valid unless in writing signed by Landlord. No employee of Landlord or of
Landlord's agents shall have any power to accept the keys of the demised
premises prior to the expiration or termination of this Lease. The delivery of
keys to any employee of Landlord or of Landlord's agent shall not operate as a
termination of this Lease or a surrender of the demised premises. In the event
of Tenant at any time desiring to have Landlord sublet the premises for Tenant's
account, Landlord or Landlord's agents are authorized to receive said keys for
such purpose without releasing Tenant from any of the obligations under this
Lease. The failure of Landlord to seek redress for violation of, or to insist
upon the strict performance of, any term, provision, covenant or condition of
this Lease or any of the Rules and Regulations set forth herein, or hereafter
adopted by Landlord, shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. The receipt by Landlord of rent with knowledge of the breach
of any covenant of this Lease shall not be deemed a waiver of such breach. The
failure of Landlord to enforce any of the Rules and Regulations set forth
herein, or hereafter adopted, against Tenant and/or any other tenant in the
Building shall not be deemed a waiver of any such Rules and Regulations. No
provision of this Lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing signed by Landlord. No payment by Tenant or receipt by
Landlord of a lesser amount than the rent herein stipulated shall be deemed to
be other than on the account of the earliest stipulated rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment of rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
32.2 This Lease contains the entire agreement between the
parties, and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment
59
of it in whole or in part unless such executory agreement is in writing and
signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
ARTICLE 33
CAPTIONS
33.1 The captions are inserted only as a matter of convenience
and for reference, and in no way define, limit or describe the scope of this
Lease nor the intent of any provision thereof.
ARTICLE 34
INABILITY TO PERFORM
34.1 If, by reason of (i) strike, (ii) labor troubles, (iii)
governmental preemption in connection with a national emergency, (iv) any rule,
order or regulation of any governmental agency, (v) conditions of supply or
demand which are affected by war or other national, state or municipal
emergency, or any other cause or (vi) any other cause beyond Landlord's
reasonable control, Landlord shall be unable to fulfill its obligations under
this Lease or shall be unable to supply any service which Landlord is obligated
to supply, this Lease and Tenant's obligation to pay rent hereunder shall in no
wise be affected, impaired or excused, except as provided in Section 13.2 and
14.1.
ARTICLE 35
NO REPRESENTATIONS BY LANDLORD
35.1 Landlord or Landlord's agents have made no
representations or promises with respect to the Building or demised premises
except as herein expressly set forth.
ARTICLE 36
NAME OF THE BUILDING PROJECT
36.1 Landlord shall have the full right at any time to name or
change the name of the Building Project or the Building and to change the
designated address of the Building Project or the Building.
ARTICLE 37
RESTRICTIONS UPON USE
60
37.1 It is expressly understood that no portion of the demised
premises shall be used as, by or for (i) a bank, trust company, savings bank,
industrial bank, savings and loan association or personal loan bank (or any
branch office or public accommodation office of any of the foregoing), or (ii) a
public stenographer or typist, xxxxxx shop, beauty shop, beauty parlor or shop,
telephone or telegraph agency, telephone or secretarial service, messenger
service, travel or tourist agency, employment agency, public restaurant or bar,
commercial document reproduction or offset printing service, public vending
machines, retail, wholesale or discount shop for sale of merchandise, retail
service shop, labor union, school or classroom, governmental or
quasi-governmental bureau, department or agency, including an autonomous
governmental corporation, an advertising agency, a firm whose principal business
is real estate brokerage, or a company engaged in the business of renting office
or desk space.
ARTICLE 38
INDEMNITY
38.1 Tenant shall indemnify, defend and save Landlord harmless
from and against any liability or expense (including, without limitation,
reasonable attorneys fees and expenses) arising from the use or occupation of
the demised premises by Tenant or anyone in the demised premises with Tenant's
permission, or from the breach of this Lease by Tenant, unless the liability or
expense results from the reckless conduct or negligent acts or omissions of
Landlord, its employees, agents or contractors.
ARTICLE 39
SECURITY DEPOSIT
39.1 Tenant has deposited with Landlord the sum of Fourteen
Thousand Two Hundred sixty-Three 50/100 Dollars ($14,263.50) as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this Lease. Said sum shall be deposited in an interest bearing
account, and the interest shall be paid annually to Tenant, provided that Tenant
is not in material default hereunder beyond any applicable notice and grace
periods. It is agreed that in the event Tenant defaults beyond applicable grace
periods in respect of any of the terms, provisions and conditions of this Lease,
including, but not limited to, payment of fixed annual 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
61
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of the terms, covenants and conditions of this Lease,
including but not limited to, any damages or deficiency in the reletting of the
demised premises, whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Landlord. 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 at the
expiration of this Lease.
39.2 THIS SECTION HAS BEEN INTENTIONALLY DELETED.
39.3 In the event of a sale of the Building or leasing,
conveyance or transfer of the Building, 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 Tenant agrees to look to the new Landlord solely for the return of
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.
ARTICLE 40
MISCELLANEOUS
40.1 Irrespective of the place of execution or performance,
this Lease shall be governed and construed in accordance with the laws of the
State of New York.
40.2 This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
40.3 Except as otherwise expressly provided in this Lease,
each covenant, agreement, obligation or other provision of this Lease on
Tenant's part to be performed shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease.
40.4 All terms and words used in this Lease, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require.
40.5 Time shall be of the essence with respect to the
62
exercise of any option granted under this Lease.
40.6 Except as otherwise provided herein whenever payment of
interest is required by the terms hereof it shall be at the Interest Rate.
40.7 In the event that Tenant is in arrears in payment of
fixed annual rent or additional rent hereunder, Tenant waives Tenant's right, if
any, to designate the items against which any payments made by Tenant are to be
credited, and Tenant 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.
40.8 Landlord or Landlord's agents have made no
representations or promises with respect to the Building Project or the demised
premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth herein. Landlord makes no representation as to the actual rentable
square foot area of the demised premises, the Building, or the other
improvements at the Building Project. By the execution of this Lease, Tenant
hereby accepts possession of the demised premises in the condition in which it
exists on the date hereof "as is" and further agrees that, except as expressly
provided herein, Landlord shall have no obligation to perform any work or make
any installations in order to prepare the demised premises for Tenant's
occupancy. The execution of this lease by Tenant shall be conclusive evidence as
against Tenant, that, on the date hereof, the demised premises and the Building
were in good and satisfactory condition.
40.9 Tenant represents, warrants and covenants that:
(a) Tenant is not an employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), which is subject to Title I of ERISA, nor a plan as
defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended (each of the foregoing hereinafter referred to collectively as
a "Plan"), nor is Tenant an entity whose assets constitute "plan
assets" of one or more such Plans within the meaning of Department of
Labor Regulation Section 2510.3-101;
(b) Neither Tenant nor any of its affiliates (within the
meaning of Part V(c) of Prohibited Transaction Exemption 84-14 granted
by the United States Department of Labor ("PTE 84-14")) has, or during
the immediately preceding year has exercised, the authority to appoint
or terminate The Prudential Insurance Company of America ("Prudential")
as investment manager of any assets of the employee benefit
63
plans whose assets are held by Prudential or to negotiate the terms of
any management agreement with Prudential on behalf of any such plan;
(c) Tenant is not a related party of Prudential within the
meaning of Part V(h) of PTE 84-14; and
(d) The representations and warranties in the preceding
subparagraphs (a), (b) and (c) are made for the benefit of the holders
of the mortgages presently encumbering the Building (and their
successors) and shall be deemed to be made for the benefit of such
holders (and their successors). Such representations and warranties
shall not be modified or rescinded without the written consent of such
holders (or their successors).
(e) The execution, delivery and performance by Tenant of this
Lease have been duly authorized by all necessary corporate action.
ARTICLE 41
COMMON AREAS AND PARKING
41.1 Landlord shall provide and shall make available from time
to time within the boundaries of the Land such parking facilities, driveways,
entrances and exits thereto, landscape and planted areas, and other improvements
and facilities, as Landlord shall at any time and from time to time deem
appropriate (all the foregoing being collectively referred to in this Lease as
"COMMON AREAS"). Tenant and its officers, employees, agents, customers and
invitees shall have a nonexclusive right, in common with Landlord and other
tenants and occupants of the Building Project (and their employees and invitees)
and contractors working at the Building Project to whom Landlord has granted or
may hereafter grant rights, to use the Common Areas. The Common Areas shall at
all times be subject to the exclusive control and management of Landlord, and
Landlord shall have the right from time to time to establish, modify and enforce
reasonable rules and regulations with respect to the Common Areas, and Tenant
agrees, after notice thereof, to abide by such rules and regulations and to
cause its officers, employees, agents, customers and invitees to conform
thereto. Landlord shall construct, operate, manage, equip, repair, landscape,
and maintain the Common Areas for their intended purposes in such manner as
Landlord shall, in Landlord's sole discretion, from time to time determine.
Landlord's rights respecting the Common Areas shall include (but shall not be
limited to) the following:
(i) to construct, maintain and operate lighting facilities
serving the Common Areas;
64
(ii) from time to time to change the area, level, location and
arrangement of parking areas and other Common Area facilities, to make
installations therein and to move or remove such installations, and to
change the location of, or permanently diminish or discontinue the use
of, any portion of the Common Areas provided the number of parking
spaces available for Tenant's use shall not be materially reduced;
(iii) to restrict parking by tenants, their officers, agents,
employees, customers and invitees, to designated areas;
(iv) to discontinue, or restrict the use of, any portion of
the Common Areas to such extent, and for such period of time, as may in
the opinion of Landlord's counsel be necessary to prevent a dedication
thereof or the accrual of any rights to any person or the public
therein;
(v) to temporarily suspend the use of all, or any portion of,
the Common Areas if required to comply with laws or the requirements of
Landlord's insurers or to make any repairs or alterations thereto or if
necessary in connection with the maintenance thereof; and
(vi) to take any other action with respect to the Common
Areas, as Landlord, in its sole discretion, shall determine to be
advisable.
41.2 Tenant's right to use the Common Areas shall be deemed to
be an irrevocable license coterminous with the term of this Lease, and Landlord
shall not be subject to any liability nor shall Tenant be entitled to any
compensation or diminution or abatement of rent by reason of Landlord's exercise
of any right or rights respecting Common Areas reserved pursuant to Section 41.1
hereof, nor shall the exercise of any such right be deemed a constructive or
actual eviction.
41.3 Tenant shall be entitled to free use of a total of six
(6) parking spaces (five (5) unreserved parking spaces in common with others and
one (1) reserved parking space within close proximity to the Building). Tenant
agrees that if Landlord shall designate specific parking spaces, it or its
employees and invitees shall only use such designated parking spaces. Landlord
agrees that it will not designate any such parking spaces in a discriminatory
manner with respect to Tenant.
41.4 With respect to the parking of vehicles at the Building
Project:
(a) If Landlord elects to designate a specific parking
65
area for Tenant's use, Tenant shall require its personnel and visitors to park
their vehicles only in parking spaces designated by Landlord for Tenant's use
for its personnel and visitors on a "first come, first served" basis. Landlord
reserves the right at all times to redesignate such parking spaces. Tenant, its
personnel and visitors shall not at any time park any trucks or delivery
vehicles in any of the parking areas;
(b) all parking spaces and any other parking areas used by
Tenant, its personnel and visitors will be at their own risk, and Landlord shall
not be liable for any injury to person or property, or for loss or damage to any
automobile or its contents, resulting from theft, collision, vandalism or any
other cause whatsoever;
(c) there shall be no overnight parking and Tenant shall, and
shall cause its personnel and visitors to, remove their automobiles from the
parking area at the end of their working day. If any automobile owned by Tenant
or by its personnel or visitors remains in the parking area overnight and the
same interferes with the cleaning or maintenance of said area (snow or
otherwise), any costs or liabilities incurred by Landlord in removing said
automobile to effectuate cleaning or maintenance, or any damages resulting to
said automobile or to Landlord's equipment or equipment owned by others by
reason of the presence of or removal of said automobile during such cleaning or
maintenance shall be paid by Tenant to Landlord, as additional rent on the rent
payment date next following the submission of a xxxx therefor; and
(d) Tenant agrees not to use, or permit its employees or
invitees to use, any portion of the parking areas which have been designated for
the exclusive use of another tenant in the Building Project.
ARTICLE 42
EXTENSION OF TERM
42.1 Tenant shall have the right to extend the term of this
Lease for one (1) additional term of one (1) year (the "EXTENSION TERM").
42.2 (a) The Extension Term shall commence upon the day
following the Expiration Date and shall end on the last day of the calendar
month in which occurs the day preceding the fifth (5th) anniversary of the
commencement of the Extension Term. The option contained in this Section 41.2
shall be subject to the following terms and conditions:
(i) Tenant shall give Landlord notice (hereinafter
66
called the "EXTENSION NOTICE") of its election to extend the term of
this Lease at least nine (9) months prior to the commencement of the
Extension Term;
(ii) Tenant is not in default under the Lease in any material
respect (beyond any applicable grace period) as of the time of the
giving of the Extension Notice and the commencement of the Extension
Term unless Landlord shall waive any such default in writing;
(iii) Tenant named herein is the actual occupant of not less
than fifty percent (50%) of the usable area of the demised premises as
of the time of the giving of the Extension Notice and the commencement
of the Extension Term; and
(iv) Simultaneous with the giving of the Extension Notice
hereunder, Tenant shall exercise the extension option contained in the
lease of space which adjoins the demised premises.
(b) The fixed annual rent payable by Tenant to Landlord during
the Extension Term shall be the higher of (i) Forty-Two Thousand Seven Hundred
Ninety 50/100 Dollars ($42,790.50) per year, or (ii) the then fair market rent
for the demised premises (as determined in accordance with Section 42.4
herein).
42.3 THIS SECTION HAS BEEN INTENTIONALLY DELETED.
42.4 (a) After Landlord receives a notice from Tenant as
specified in Section 42.2(i), it shall make the initial determination of the
fixed annual rent for the Extension Term ("LANDLORD'S SUBMITTED RENT"), which
determination will be Landlord's statement of the then fair market rent (as
defined in Section 42.4(b) hereof) of the demised premises. Landlord shall give
notice to Tenant of Landlord's Submitted Rent within thirty (30) days after
receipt of such notice from Tenant. If Landlord and Tenant shall fail to agree
upon the fixed annual rent for the Extension Term, within thirty (30) days after
delivery of such notice by Landlord, then Landlord and Tenant each shall give
notice to the other setting forth the name and address of an arbitrator
designated by the party giving such notice. If either party shall fail to give
notice of such designation within ten (10) Business Days of the end of such
thirty (30) day period, then the arbitrator chosen shall make the determination
alone. If two arbitrators shall have been designated, within thirty (30) days
thereafter such two arbitrators shall make their determinations of fixed annual
fair market rent, as defined in Section 42.4(b), for the Extension Term, in
writing and give notice thereof to each other and to Landlord and Tenant. Such
67
two arbitrators shall have thirty (30) days after the receipt of notice of each
other's determinations to confer with each other and to attempt to reach
agreement as to the determination of fixed annual rent for the Extension Term.
If such two arbitrators shall concur as to the determination of such fixed
annual rent, such concurrence shall be final and binding upon Landlord and
Tenant. If such two arbitrators shall fail to concur, then such two arbitrators
shall immediately designate a third arbitrator. If the two arbitrators shall
fail to agree upon the designation of such third arbitrator within five (5)
days, then either party may apply to the American Arbitration Association or any
successor thereto having jurisdiction for the designation of such arbitrator.
All arbitrators shall be real estate appraisers or consultants who shall have
had at least ten (10) years continuous experience in the business of appraising
or managing real estate or acting as real estate agents or brokers in the County
of Westchester and shall not be affiliated with Landlord or Tenant. The third
arbitrator shall conduct such hearings and investigations as he may deem
appropriate and shall, within thirty (30) days after his designation, choose one
of the determinations of the two arbitrators originally selected by the parties,
and that choice by the third arbitrator shall be binding upon Landlord and
Tenant. Each party shall pay its own counsel fees and expenses, if any, in
connection with any arbitration under this Section, including the expenses and
fees of any arbitrator selected by it in accordance with the provisions of this
Section, and the parties shall share equally all other expenses and fees of any
such arbitration. The determination rendered in accordance with the provisions
of this Section shall be final and binding in fixing the fixed annual rent for
the Extension Term. The arbitrators shall not have the power to add to, modify
or change any of the provisions of this Lease.
(b) "FAIR MARKET RENT" for purposes of this Article 42 shall
mean the rental rate that would be paid in an arms-length transaction between a
landlord who is under no compulsion to lease and a tenant who is under no
compulsion to rent the premises in question, based upon the rental market for
comparable premises in comparable buildings in Westchester County under terms
(other than those pertaining to the payment of fixed annual rent) similar to
those in this Lease.
(c) Prior to the determination of the arbitrators, Tenant
shall pay as the fixed annual rent for the Extension Term, the fixed annual rent
payable for the immediately preceding term, and in the event the arbitrators
determine that the fixed annual rent payable pursuant to this Section 42.4 is
more than that being paid by Tenant, then Tenant shall pay the amount of such
underpayment, with interest thereon at the Interest Rate, within thirty-five
(35) days after the arbitrators' determination.
68
(d) For the purposes of facilitating the computations of sums
due for fair market rent pursuant to Section 42.4(b): the sums payable pursuant
to Articles 3 and 4, as calculated on a per square foot basis, for the Lease
Year immediately preceding the commencement of the Extension Term shall be
subtracted from the gross fixed annual rent for the Extension Term determined
pursuant to this Section 42.4, as calculated on a per square foot basis; and in
computing escalations with respect to such space under Articles 3 and 4 hereof
the Land Tax Base Factor, the Building Tax Base Factor, the Building Expense
Base Factor and the Non-Building Expense Base Factor shall remain unchanged.
42.5 Except as provided in Section 42.2 hereof, Tenant's
occupancy of the demised premises during the Extension Term shall be on the same
terms and conditions as are in effect immediately prior to the commencement of
the Extension Term, provided, however, that upon the expiration of the Extension
Term Tenant shall have no further right to extend the term of this Lease and
Landlord shall not be required to perform any work to prepare the demised
premises for Tenant's occupancy.
42.6 If Tenant does not send an Extension Notice pursuant to
provisions of Section 42.2, this Article 42 hereof shall have no force or effect
and the term of this Lease shall expire on the last day of the initial term
hereof. At such time as Tenant exercises its option pursuant to this Article 42,
Landlord or Tenant can request the other party hereto to execute an instrument
setting forth the exercise of Tenant's right to extend the term of this Lease
and the last day of the Extension Term.
42.7 At such time as Tenant exercises its right to extend the
term of this Lease as herein provided, the phrases "the term of this Lease" or
"the term hereof" as used in this Lease, shall be construed to include, when
practicable, the Extension Term.
69
IN WITNESS WHEREOF, Landlord and Tenant have respectively
executed this Lease as of the day and year first above written.
PURCHASE CORPORATE PARK
ASSOCIATES, L.P., Landlord
By: PCPA, LLC, the General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx,
a Co-Managing Member
INTERLIANT, INC., Tenant
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Co-Chairman
70
EXHIBIT A
SITE PLAN
71
EXHIBIT B
DESCRIPTION OF LAND
All that certain plot, piece or parcel of land, situate, lying
and being in the Town/Village of Xxxxxxxx, County of Westchester and State of
New York, being a 42.642 Acre Parcel of land shown and delineated on Map Number
20975 filed in the Office of the Clerk of Westchester County (Division of Land
Records) on July 26th, 1982; said parcel also being a portion of Parcels "C" and
"D" as shown on Map Number 19488 filed in the Office of the Clerk of Westchester
County (Division of Land Records) on May 22nd, 1978, being more particularly
bounded and described as follows:
BEGINNING at a point on the northeasterly side of Route I-684
where the same is intersected by the southerly line of land now or formerly of
Xxxxxxxx Xxxx, said point being the northwesterly corner of Parcel "C" as shown
on Filed Map No.
19488;
running thence along said land of Xxxxxxxx Xxxx, the following
courses and distances:
North 72(degree) 13' 05" East 321.205 feet,
North 84(degree) 509' 40" East 333.53 feet,
North 44(degree) 11' 00" East 453.19 feet,
North 48(degree) 58' 00" East 29.71 feet,
North 65(degree) 11' 30" East 200.54 feet and
North 65(degree) 51' 30" East 56.95 feet to the
division line between Parcel "C" and Parcel "F" and the southwesterly corner of
said Parcel "F" as shown on Filed Map No.
19488;
thence easterly along said division line along a curve to the
right having a radius of 600.00 feet, the radial of which at its westerly end
bears North 14(degree) 00' 31" West, said curve having a central angle
22(degree) 38' 22" a distance of 237.079 feet to the division line between
Parcel "B" and Parcel "C" as shown on Filed Map No. 19488;
thence along said division line, South 2(degree) 52' 00" West
720.135 feet to the division line between Parcel "C" and Parcel "B";
thence along said division line, commencing in a northerly
direction along a curve to the left having a radius of 70.00 feet, a central
angle of 271(degree) 27' 23", a distance of 331.65 feet to a point of reverse
curve;
thence along a curve to the right having a radius of 50.00
feet, a central angle of 48(degree) 11' 23" a distance of 42.05 feet to a point
of tangency;
72
thence continuing along the division line between Parcel "C"
and Parcel "B", South 40(degree) 24' 00" East 693.099 feet to a point of curve;
thence along a curve to the right having a radius of 50.00
feet, a central angle of 64(degree) 21' 26" a distance of 56.162 feet to a
point, said point being a non-tangent intersection on Parcel 228 as shown on
Filed Map No. 20781;
thence along the highway right-of-way, as established per said
filed Map No. 20781 as follows: In a southwesterly direction along a curve to
the left having a radius of 751.20 feet a central angle of 9(degree) 29' 38" a
distance of 124.473 feet to a point of tangency; South 33(degree) 30' 33" West
447.23 feet, South 57(degree) 19' 19" West 23.62 feet, South 72(degree) 58' 51"
West 78.52 feet, and South 67(degree) 39' 54" West 138.766 feet to a non-tangent
intersection with the division line between Parcel "C" and Parcel "D" as shown
on Filed Map No. 19488;
thence along said division line in a northwesterly direction
along a curve to the right having a radius of 400.00 feet, a central angle of
19(degree) 46' 54" a distance of 138.101 feet to a point of tangency and
northeasterly side of Route I-684;
thence along the northeasterly side of Route I-684, the
following courses and distances:
North 63(degree) 19' 08" West 462.679 feet,
South 45(degree) 59' 00" West 593.505 feet,
South 45(degree) 30' 27" West 138.225 feet, and
South 23(degree) 35' 05" West 535.16 feet, to the point and
place of Beginning.
73
EXHIBIT C
FLOOR PLAN
74
EXHIBIT D
THIS EXHIBIT HAS BEEN INTENTIONALLY DELETED.
75
EXHIBIT E
HVAC SPECIFICATIONS
H.V.A.C.:
Year round air conditioning systems capable of providing and maintaining design
criteria as follows:
Design Condition Inside Condition Outside Condition
---------------- ---------------- -----------------
Cooling Cycle 76 degr. D.B.F. 90 degr. D.B.F.
50% R.H. 77 degr. W.B.F.
Heating Cycle 65 degr. F. 0 degr. F.
These design standards are based on an occupancy of not more than one (1) person
per 150 square feet and a total connected load not to exceed 3 xxxxx per square
foot for lighting and standard electrical office power, all in accordance with
State and Federal regulations.
The system shall be designed to furnish not less than .05 cubic feet per minute
of fresh air and not less than 1.0 cubic feet per minute of total supply air per
square foot of the premises.
The air conditioning system shall combine use of periphery heating and one (1)
variable volume air conditioning control unit per 1,500 square feet with ceiling
diffusers and thermostatic controls.
76
EXHIBIT F
CLEANING SPECIFICATIONS
FOR
THE CENTRE AT PURCHASE
GENERAL OFFICE AND PUBLIC AREAS
Daily
1. Sweep or dry mop all resilient tile and wood floors;
remove gum, tar, etc. adhering to floors.
2. Empty and damp wipe all ashtrays.
3. Empty and damp wipe waste baskets.
4. Remove trash to designated area.
5. Dust all horizontal surfaces with treated dust cloths;
this includes furniture, files, equipment, blinds,
louvers, etc. that can be reached without use of a
ladder.
6. Damp wipe with germicidal solutions all telephones
(including dials and crevices).
7. Spot clean to remove smudges, marks and fingerprints from
walls, equipment, doors, partitions, light switches, etc.
within reach.
8. Wash chalk boards as requested by tenants.
9. Wash water fountains with germicidal solution.
10. Wash cafeteria tables and chairs.
11. Damp mop all non resilient floors such as terrazzo, ceramic tile,
quarry, tile, etc.
12. Thoroughly clean all elevator cabs and landing doors.
13. Clean lobby entrance doors and glass.
14. Turn off all lights when areas have been cleaned.
Weekly
1. Wash glass in display windows, building directory,
entrance doors and show windows, both sides.
2. Spot clean interior partitions and desk glass to remove
smudge marks.
77
3. Sweep all stair areas.
4. Scrub and recondition resilient tile floors.
5. Brush all fabric covered chairs with lint brush.
6. Vacuum three times weekly.
Monthly
1. Scrub and recondition resilient tile floors using buffable
non slip floor finish.
2. Vacuum all ceiling and wall air supply and exhaust diffusers
and grills.
3. Wash all stairwell landing and treads.
Quarterly
1. High dust all horizontal and vertical surfaces not reached in nightly
cleaning such as pipes, light fixtures, door frames, picture frames,
etc.
2. Vacuum or dust all books in place.
3. Wash and polish vertical terrazzo or marble surfaces.
4. Damp wipe diffusers, vents, grills, etc., including surrounding wall or
ceiling areas that are soiled.
Semi-Annually
1. Wash exterior windows.
Annually
1. Wash light fixtures including reflectors, globes, diffusers
and trim.
2. Wash walls in corridors, lobbies and cafeteria.
3. Clean all vertical surfaces not attended to in nightly,
weekly, monthly or quarterly schedules.
RESTROOMS
Daily
1. Clean mirrors, soap dispensers, shelves, basins, exposed
plumbing, dispensers and disposal units using disinfectant
solution.
78
2. Damp wipe all ledges, toilet stalls and doors.
3. Spot clean light switches, doors and walls.
4. Thoroughly clean commodes and urinals with disinfectant
solution.
5. Pour one ounce of bowl cleaner into bowls and urinals when
finished cleaning. Do not flush.
6. Remove all trash to designated area.
7. Refill all soap, toilet tissue and towel and other
dispensers.
8. Damp mop tile floors with disinfectant solution.
9. Clean all baseboards.
Weekly
1. Brush all fabric covered chairs and couches in the Ladies
lounges with a lint brush.
Monthly
1. Vacuum all ceiling and wall air supply and exhaust units.
Quarterly
1. High dust all horizontal and vertical surfaces not reached
in nightly cleaning.
2. Damp wash diffusers, vents and grills.
Annually
1. Wash light fixtures.
2. Wash walls with disinfectant solution.
3. Machine scrub floors using disinfectant solutions.
79
EXHIBIT G
RULES AND REGULATIONS
1. The sidewalks and public portions of the Building, such as
entrances, passages, courts, elevators, vestibules, stairways, corridors or
halls shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress to and from the demised premises.
2. No awnings or other projections shall be attached to the
outside walls of the Building. No curtains, blinds, shades, louvered openings 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 written consent of Landlord,
unless installed by Landlord.
3. Except as provided in the Lease, no sign, advertisement,
notice or other lettering shall be exhibited, inscribed, painted or affixed by
any tenant on any part of the outside of the demised premises or Building or on
corridor walls. Signs on entrance door or doors shall be subject to Landlord's
approval which shall not be unreasonably withheld. Signs on doors shall, at the
tenant's expense, be inscribed, painted or affixed for each tenant by sign
makers approved by Landlord, which approval shall not be unreasonably withheld.
In the event of the violation of the foregoing by any tenant, Landlord may
remove same without any liability, and may charge the expense incurred by such
removal to the tenant or tenants violating this rule.
4. The sashes, sash doors, skylights, windows, heating,
ventilating and air conditioning vents and door that reflect or admit light and
air into the halls, passageways or other public places in the Building shall not
be covered or obstructed by any tenant, nor shall any bottles, parcels, or other
articles be placed outside of the demised premises.
5. No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in the public
halls, corridors or vestibules without the prior written consent of Landlord.
6. Intentionally omitted.
7. The water and wash closets and other plumbing fixtures
shall not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall be
borne by the tenant who, or whose servants, employees, agents, visitors or
licensees,
80
shall have caused the same.
8. No tenant shall in any way deface any part of the demised
premises or the Building of which they form a part. No tenant shall 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 or other similar adhesive material
being expressly prohibited.
9. No bicycles, vehicles or animals of any kind (except seeing
eye dogs) shall be brought into or kept in or about the premises. No cooking
shall be done or permitted by Tenant in the demised premises except in
conformity to law and then only in the utility kitchen, if any, as set forth in
Tenant's layout, which is to be primarily used by Tenant's employees for heating
beverages and light snacks. No tenant shall cause or permit any unusual or
objectionable odors to be produced upon or permeate from the demised premises.
10. No space in the Building shall be used for the
manufacturing or distribution or for the storage of merchandise or for the sale
at auction or manufacture, or otherwise of merchandise, goods or property of any
kind.
11. No tenant shall make, or permit to be made, any unseemly
or disturbing noises or disturb or interfere with occupants of the Building or
neighboring buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. No tenant shall throw anything out of
the doors, or windows or down the passageways.
12. No tenant, nor any of the tenant's servants, employees,
agents, visitors or licensees, shall at any time bring or keep upon the demised
premises any inflammable, combustible or explosive fluid, or chemical substance,
other than reasonable amounts of cleaning fluids, reproduction fluids and
solvents required in the normal operation of tenant's business offices.
13. No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by any tenant, nor shall any changes be made in
existing locks or the mechanism thereof, without the prior written approval of
the Landlord and unless and until a duplicate key is delivered to Landlord,
except with respect to security areas so designated by Tenant, which shall in no
event exceed five percent (5%) of the rentable area of the demises premises.
Each tenant must, upon the termination of his tenancy, restore to the Landlord
all keys of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such
81
tenant, and in the event of the loss of any keys, so furnished, such tenant
shall pay to Landlord the cost thereof.
14. All removals, or the carrying in or out of any safes,
freight, furniture or bulky matter of any description must take place during the
hours which Landlord or its agent may determine from time to time. Landlord
reserves the right to inspect all freight to be brought into the Building and to
exclude from the Building all freight which violates any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
15. Intentionally omitted.
16. Landlord shall have the right to prohibit any advertising
by any tenant mentioning the Building which, in Landlord's reasonable opinion,
tends to impair the reputation of the Building or its desirability as a building
for offices, and upon written notice from Landlord, tenants shall refrain from
or discontinue such advertising.
17. In order that the Building can and will maintain a uniform
appearance to those outside of same, each tenant in building perimeter areas
shall (a) use only building standard lighting in areas where lighting is visible
from the outside of the Building and (b) use only building standard venetian or
vertical blinds in window areas which are visible from the outside of the
Building.
18. Landlord reserves the right to exclude from the Building
between the hours of 6:30 p.m. and 7:30 a.m. and at all hours on non-business
days all persons who do not present a pass to the Building signed by a tenant.
Each tenant shall be responsible for all persons for whom such pass is issued
and shall be liable to Landlord for all acts of such persons.
19. The premises shall not be used for lodging or sleeping or
for any immoral or illegal purpose.
20. The requirements of tenants will be attended to only upon
application at the office of the Building. Building employees shall not perform
any work or do anything outside of their regular duties, unless under special
instructions from the office of the Landlord.
21. Intentionally omitted.
22. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
23. There shall not be used in any space, or in the
82
public halls of any building, either by any tenant or by jobbers or others, in
the delivery or receipt of merchandise, any hand trucks, except those equipped
with rubber tires and side guards. No hand trucks shall be used in passenger
elevators which have not been prepared for use to carry freight.
24. Tenants, in order to obtain maximum effectiveness of the
cooling system, shall lower and/or close venetian or vertical blinds or drapes
when sun's rays fall directly on windows of demised premises.
25. After the initial work, replacement of ceiling tiles after
they are removed for Tenant by telephone company installers, in the public
corridors, will be charged to Tenant on a per tile basis.
Whenever and to the extent that the above rules conflict with
any of the rights or obligations of Tenant pursuant to the provisions of the
Articles of this Lease, the provisions of the Articles shall govern.
83
EXHIBIT H
THIS EXHIBIT HAS BEEN INTENTIONALLY DELETED.
