Exhibit 10.4
AGREEMENT OF LEASE, made as of this 15th day of October, 1991, between
HMCC ASSOCIATES, a limited partnership, having its principal office at 000
Xxxxxxxxxxx Xxxx, Xxxxx 000 W, CS 5341, Melville, New York 11747-0983
(hereinafter referred to as "Landlord"), and MEDE AMERICA, INC., a corporation,
having its principal place of business at 000 Xxx Xxxxxx, Xxxxxx Xxxx, XX 00000
(hereinafter referred to as "tenant").
WITNESSETH: Landlord and Tenant hereby covenant and agree as follows:
SPACE
1. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the space substantially as shown on the Rental Plan initialed by the
parties and made part of hereof as Exhibit "1" ("Demised Premises" or
"Premises") in the building known as Nassau West Omni, located at Xxxx Xxxxxxxx
Boulevard, Xxxxxxx Field, New York (hereinafter referred to as the "Building")
which the parties agreed contains 8,255 square feet in a Building containing
555,816 square feet which constitutes 1.48 per cent of the rentable area of the
Building.
TERM
2. The term "term" or "Demised Term" of this lease shall commence on
February 1, 1992, hereinafter referred to as the "Term Commencement Date and
shall terminate on January 31, 2003, hereinafter referred to as the "Expiration
Date", unless the Term shall sooner terminate pursuant to any of the terms,
covenants or conditions of this lease pursuant to law.
If on the foregoing data specified for the Term Commencement Datethe
Demised Premises shall not be "substantially completed" in accordance with
Schedule A annexed hereto, then the Term Commencement Date shall be postponed
until the date on which the Demised Premises shall be "substantially completed"
and the Term of this lease shall be extended so that the Expiration Date shall
be eleven (11) years after the last day of the month in which the Term
Commencement Date occurs. "Substantially completed" as used herein is defined to
mean the only items to be completed are those which do not interfere with the
Tenant's occupancy substantially full enjoyment of the Demised Premises; but is
Landlord shall be delayed in such "substantial completion" as a result of (i)
Tenant's failure to furnish plans and specifications; (ii) Tenant's request for
materials, finishes or installations other than Landlord's standard; (iii)
Tenant's changes in said plans; (iv) the performance or completion of any work,
labor or services by a party employed by Tenant; (v) Tenant's failure to approve
final plans, working drawings or reflective ceiling plans (collectively "Tenant
Delays"), the commencement of the term of said lease and the payment of rent
thereunder shall be accelerated by the number of
days of such delay. Tenant waives any right to rescind this lease under Section
223-a of the New York Real Property Law or any successor statute of similar
import then in force and further waives the right to recover any damages which
may result from Landlord's failure to deliver possession of the Premises on the
Term Commencement Date.
RENT
3. The annual rental rate ("Rent") is as follows:
2/1/92 During the first year of the term of this lease the Rent shall be
$18,506.28, payable $1,542.19 in equal monthly installments.
2/1/93 During the second year the Rent shall be $279,519.76, payable
$43,003.04 for the first month and $21,501.52 for each of the second
through twelfth months.
2/1/94 During the third year the Rent shall be $267,230.28, payable
$22,269.19 in equal monthly installments.
2/1/95 During the fourth year the Rent shall be $276,360.00, payable
$23,030.00 in equal monthly installments.
2/1/96 During the fifth year the Rent shall be $285,654.24, payable
$23,804.52 in equal monthly installments.
2/1/97 During the sixth year the Rent shall be $294,866.28, payable
$24,572.19 in equal monthly installments.
2/1/98 During the seventh year the Rent shall be $304,078.20, payable
$25,339.85 in equal monthly installments.
2/1/99 During the eighth year the Rent shall be $313,502.28, payable
$26,107.52 in equal monthly installments.
2/1/00 During the ninth year the Rent shall be $322,502.28, payable
$26,875.19 in equal monthly installments.
2/1/01 During the tenth year the Rent shall be $331, 714.20, payable
$27,642.85 in equal monthly installments.
2/1/02 During the eleventh year the Rent shall be $319,424.72, payable
$28,410.52 for each of the first through eleventh months and $6,909.00
for the twelfth month, which Tenant agrees to pay Landlord, without
legal notice or demand, in lawful money of the United States which
shall be legal tender in payment of the debts and dues, public and
private, at the time of payment in advance on the first day of each
calendar month during the Demised Term at the office of the Landlord,
or at such other place as Landlord shall designate, except that
Tenant shall pay the first monthly installment on the execution hereof. Tenant
shall pay the rent as above and as hereinafter provided, without any set off or
deduction whatsoever. Should the Term Commencement Date be a date other than the
first day of a calendar month, the Tenant shall pay a pro rata portion of the
rent on a per diem basis, based upon the second month of the Term from such date
to the first day of the following month, and Landlord shall credit the excess
amount paid toward the payment of rent for the next succeeding calendar month.
USE
4. (A) The Tenant shall use and occupy the Demised Premises only for
executive and administrative offices and training of personnel, furnishing of
information, utilizing computerized support and communications networks,
provided the same is in an office context, and for no other purpose.
(B) Tenant shall not use or occupy, suffer or permit the Premises,
or any part thereof, to be used in any manner which would in any way, in the
reasonable judgement of Landlord, (i) violate any laws or regulations of public
authorities; (ii) make void or voidable any insurance policy then in force with
respect to the Building; (iii) impair the appearance, character or reputation of
the Building; (iv) discharge objectionable fumes, vapors or odors into the
Building, air-conditioning systems or Building flues or vents in such a manner
as to offend other occupants. The provisions of this Section shall not be deemed
to be limited in any way to or by the provisions of any other Section or any
Rule or Regulation.
(C) The emplacement of any equipment which will impose an evenly
distributed floor in excess of 100 pounds per square foot shall be done only
after written permission is received from the Landlord. Landlord represents that
the floor load is 100 pounds per square foot. Such permission will be granted
only after adequate proof if furnished by a professional engineer that such
floor loading will not endanger the structure. Business machines and mechanical
equipment in the Premises shall be placed and maintained by Tenant, at Tenant's
expense, in such a manner as shall be sufficient in Landlord's judgement to
absorb vibration and noise and prevent annoyance or inconvenience to Landlord or
any other tenants or occupants of the Building.
(D) Tenant will not at any time use or occupy the Demised Premises
in violation of the certificate of occupancy (temporary or permanent) issued for
the Building or portion thereof of which the Demised Premises form a part.
LANDLORD ALTERATION
5. Landlord, at its expense, will perform the work and make the
installations, as set forth in Schedule A annexed hereto, which is sometimes
hereinafter referred to as the "Landlord's Initial Construction".
SERVICES
6. (A) As long as Tenant is not in default under any material covenants
of this lease, Landlord, during the hours of 8:00 A.M. to 7:00 P.M. on weekdays
and on Saturdays from 8:00 A.M. to 1:00 P.M., excluding legal holidays, shall
provide normal services to the "Common Area" of the Building.
(B) Landlord shall provide to the Demised Premises, heat and air
conditioning in the respective seasons and provide the Demised Premises with
electricity for lighting and usual office equipment for a total of 60 hours per
week, as selected by the Tenant (WORKING HOURS). For the purposes of computing
the hours, all times selected by the tenant shall be rounded to the nearest half
hour.
(C) At any hours other than the aforementioned, such services will
be provided at Tenant's expense in accordance with Schedule C.
LANDLORD'S REPAIRS
7. Landlord, at its expense, will make all the repairs to and provide
the maintenance for the Demised Premises (excluding painting and decorating) and
for all public areas and facilities as set forth in Schedule B, except such
repairs and maintenance as may be necessitated by the negligence, improper care
or use of such premises and facilities by Tenant, its agents, employees,
licensees or invitees, which will be made by Landlord at Tenant's expense, after
notice of Tenant, with the right of Tenant to dispute. Landlord agrees that at
it will diligently and expeditiously make all required repairs.
WATER SUPPLY
8. Landlord, at its expense, shall furnish hot and cold or tempered
water for lavatory purposes as per plan.
PARKING FIELD
9. Tenant shall have the right to use thirty-two (32) parking spaces
for the parking of automobiles of the Tenant, its employees and invitees, in the
parking area reserved for tenants of the Building, four (4) of said spaces shall
be marked "Reserved" for Tenant (hereinafter sometimes referred to as "Building
Parking Area") in covered garage subject to the Rules and Regulations now or
hereafter adopted by the Landlord. Tenant shall us its best efforts not to use
nor permit any of its officers, agents or employees to use any parking space in
excess of Tenant's allotted number of spaces therein.
DIRECTORY
10. Landlord, will furnish in the lobby of the Building a directory
which will contain listings requested by Tenant, not to exceed five (5)
listings. The initial listings will be made at Landlord's expense and any
subsequent changes by Tenant shall be made at Tenant's expense. Landlord's
acceptance of any name for listing on the directory, will not be deemed, not
will it substitute for Landlord's consent, as required by this lease, to any
sublease, assignment or other occupancy of the Premises.
TAXES AND OTHER CHARGES
11. (A) As used in and for the purposes of the Article 11, the
following definitions shall apply:
(i)"Taxes" shall be and amount of real estate taxes, assessments,
special or otherwise, sewer rents, rates and charges, general, specific,
ordinary or extraordinary, foreseen or unforseen levied on a calendar or fiscal
basis against the Real Property. If at any time during the Term the method of
taxation prevailing at the date hereof shall be altered so that in lieu of, or
as in addition to, or as a substitute for, the whole or any part of the taxes,
levies, impositions or charges now levied, assessed or imposed on all or any
part of the Real Property and imposed on Landlord, or (c)a license fee measured
by the rent payable by Tenant to Landlord, or (d) any other tax levy, taxes,
levies, impositions, charges or license fee or any part thereof, so measured or
based, shall be deemed to be Taxes. Excluded shall be ground lease rental
increases, Landlord's inheritance tax, Landlord's income tax and Landlord's
franchise tax.
(ii) "Base Year Taxes" shall be the taxes actually paid by the
Landlord in the first year that the Building is assessed as a fully completed
Building.
(iii) "Escalation Year" shall mean each calendar year which
shall include any part of the Demised Term.
(iv) "Real Property" shall be the land upon which the Building
stands and any part or parts thereof utilized for parking and the Building and
other facilities utilized for the purposes required in the operation of the
Building.
(B) The Tenant shall pay the Landlord increases in Taxes levied against
the Real Property as follows: If the Taxes paid by the Landlord in any
Escalation Year shall be increased above the Base Year Taxes, then the Tenant
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shall pay to the Landlord, as additional rent for such Escalation Year, a sum
equal to Tenant's percentage of the rentable area of the Building, as set forth
in Paragraph 1 of this Lease multiplied by the amount of the said increase.
(C) Landlord shall render to Tenant a statement containing a
computation of additional rent due under this Article ("Landlord's Statement")
for the preceding year. Within fifteen (15) days after the rendition of the
Landlord's Statement which shows additional rent to be payable, Tenant shall pay
to Landlord the amount of such additional rent. On the first day of each month
following the rendition of each Landlord's Statement, Tenant shall pay to
Landlord, on account of the potential additional rent, a sum equal to
one-twelfth (1/12th) of the additional rent last paid by Tenant, which sum shall
be subject to increase in Taxes effective prior thereto.
(D) Landlord's failure to render a Landlord's Statement with respect to
any Escalation Year shall not prejudice Landlord's right to render a Landlord's
Statement with respect to any Escalation Year. The obligation of Landlord and
Tenant under the provisions of this Article with respect to any additional rent
for any Escalation Year shall survive the expiration date or any sooner
termination of the Demised Term.
TENANT'S REPAIRS
12. Tenant shall take good care of the Demised Premises and, subject to
the provisions of Article 7 hereof, Landlord at the expense of Tenant shall make
as and when needed as a result of misuse or neglect by Tenant or Tenant's
servants, employees, agents or licensees, all repairs in and about Demised
Premises necessary to preserve them in good order and condition to, at most, the
condition at the commencement of the term. Except as provided in Article 24
hereof, there shall be no allowance to Tenant for a diminution of rental value
and no liability on the part of Landlord by reason of inconvenience, annoyance
or injury to business arising from Landlord, Tenant or others making any
repairs, alterations, additions or improvements in or to any portion of the
Building or of Demised Premises, or in or to the fixtures, appurtenances or
equipment thereof, and no liability upon Landlord for failure of Landlord or
others to make any repairs, alterations, additions or improvements in or to any
portion of the Building or of the Demised Premises, or in or to the fixtures,
appurtenances or equipment thereof.
FIXTURES & INSTALLATIONS
13. All appurtenances, fixtures, improvements, additions and other
property attached to or built into the Demised Premises, whether by Landlord or
Tenant or others, and whether at Landlord's expense, or Tenant's expense, or the
joint expense of Landlord and Tenant, shall be and remain the property of
Landlord, except that any such fixtures, improvements, additions and other
property installed at the sole expense of Tenant with respect to which Tenant
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has not been granted any credit or allowance by Landlord, whether pursuant to
Schedule A or otherwise, and which are removable without material damage to the
said Premises may be removed by Tenant on condition that Tenant shall repair at
its expense any damage to the Demised Premises or the Building resulting from
such removal. All the outside walls of the Demised Premises including corridor
walls and the outside entrance doors to the Demised Premises, any balconies,
terraces or roofs adjacent to the Demised Premises, any balconies, terraces or
roofs adjacent to the Demised Premises, and any space in the Demised Premises
used for shafts, stacks, pipes, conduits, ducts or other building facilities,
and the use thereof, as well as access thereto in and through the Demised
Premises for the Purpose of operation, maintenance, decoration and repair, are
expressly reserved to the Landlord, and Landlord does not convey any rights to
Tenant therein. Notwithstanding the foregoing, Tenant shall enjoy full right of
access to the Demised Premises through the public entrances, public corridors
and public areas within the Building.
ALTERATIONS
14. (A) After completion of the Demised Premises, Tenant shall make no
alterations, construction, additions or improvements (hereinafter collectively
referred to as "Improvements") in or to the Demised Premises without Landlord's
prior written consent, which consent Landlord covenants shall not be
unreasonably withheld or delayed, and then only by contractors or mechanics
approved by Landlord and at such times and in such manner as Landlord may from
time to time designate. Landlord's consent shall not be required for modular
furniture, phone system or computer equipment installation.
(B) All Improvements by Tenant shall at all times comply with (i)
laws, rules, orders and regulations of governmental authorities having
jurisdiction thereof, and (ii) rules and regulations of the Landlord attached as
Schedule D.
(C) Plans and specifications prepared by and at the expense of
Tenant shall be submitted to Landlord for its prior written approval, which
approval Landlord covenants it will not unreasonably withhold or delay; no
installations or work shall be undertaken, started, or begun by Tenant, its
agents, servants or employees, until Landlord has approved such plans and
specifications; and no amendments or additions to such plans and specifications
shall be made without the prior written consent of Landlord, which approval
Landlord covenants will not unreasonably withhold or delay, and shall be subject
to Landlord's supervisory fee charge of five (5%) percent of the cost thereof,
said supervisory fee shall not be applicable to floor covering or decoration or
computer equipment. Tenant agrees that it will not, either directly or
indirectly, use any contractors and/or labor and/or materials if the use of such
contractors and/or labor and/or materials would or will create any difficulty
with other contractors and/or labor engaged by Tenant or Landlord or others in
the construction, maintenance and/or operation of the Building or any part
thereof.
(D) Tenant's right to make Improvements shall be subject to the
following additional requirements: (i) the Improvements will not results in a
violation of, or require a change in, any Certificate of Occupancy applicable to
the Premises in the Building; (ii) the outside appearance, character or use of
the Building shall not be affected; (iii) no part of the Building outside of
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the Premises shall be physically affected; and (iv) the proper functioning of
any air-conditioning, elevator, plumbing, electrical, sanitary, mechanical and
other service or utility system of the Building shall not be affected.
(E) Tenant shall defend, indemnify and save harmless Landlord
against any and all mechanics' and other liens filed in connection with its
Improvements, repairs or installations, including the liens of any conditional
sales of, or chattel mortgages upon, any materials, fixture or articles so
installed in and constituting part of the Premises and against any loss, cost,
liability, claim, damage and expense, including reasonable counsel fees,
penalties and fines incurred in connection with any such lien, conditional sale
or chattel mortgage or any action or proceeding brought thereon.
Tenant, at its expense, shall procure the satisfaction or
discharge of all such liens within twenty (20) days of the filing of such lien
against the Premises or the Building. If Tenant shall fail to cause such lien to
be discharged within the period aforesaid, then, in addition to any other right
or remedy, Landlord, may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, and in any such event Landlord
shall be entitled, if Landlord so elects, to compel the prosecution of an action
for the foreclosure of such lien by the lienor and to pay the amount of the
judgement in favor of the lienor with interest, costs and allowances. Any amount
so paid by Landlord, and all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon at the maximum legal rate
then prevailing from the respective dates of Landlord's making of the payments
or incurring of the cost and expense, shall constitute Additional Rent and shall
be paid on demand.
REQUIREMENTS OF LAW
15. (A) Tenant, at Tenant's sole cost and expense shall comply with all
statutes, laws, ordinances, orders, regulations and notices of Federal, State,
County and Municipal authorities, and with all directions, pursuant to law, of
all public officers, which shall impose any duty upon Landlord or Tenant with
respect to the Demised Premises or the use or occupation thereof, except that
Tenant shall not be required to make any structural alterations in order so to
comply unless such alterations shall be necessitated or occasioned, in whole or
in part by the acts, omissions, or negligence of Tenant or any person claiming
through or under Tenant or any of their servants, employees, contractors,
agents, visitors or licensees, or by the use or occupancy or manner of use or
occupancy of Demised Premises by Tenant, or any such person. Tenant shall not be
required to comply with any statute or law that requires Tenant to improve the
Premises to a condition greater than at the commencement of the term. Landlord
will comply with all order and laws relating to the Building, but unrelated to
Tenant's use.
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(B) The parties acknowledge that there are certain Federal, state
and local laws, regulations and guidelines now in effect and that additional
laws, regulations and guidelines may hereafter be enacted, relating to or
affecting the Premises, the Building, and the land of which the Premises and the
Building may be a part, concerning the impact on the environment of
construction, land use, the maintenance and operation of structures and the
conduct of business. Tenant will not cause, or permit to be caused, any act or
practice, by negligence, omission, or otherwise, that would adversely affect the
environment or do anything or permit anything to be done that would violate any
of said laws, regulations, or guidelines. Any violation of the covenant shall be
an Event of Default under this Lease.
END OF TERM
16. (A) Upon the expiration or other termination of the Term of this
lease, Tenant shall, at its own expense, quit and surrender to Landlord the
Demised Premises, broom clean, in good order and condition, ordinary wear, tear
and damage by fire or other insured casualty excepted, and Tenant shall remove
all of its property and shall pay the cost of repair all damage to the Demised
Premises or the Building occasioned by such removal. Any restoration required by
Tenant shall not be to a condition greater than the original construction. Any
property not removed from the Premises shall be deemed abandonment by Tenant and
may be retained by Landlord, as its property, or disposed of in any manner
deemed appropriate by the Landlord. Any air conditioning unit installed by
Tenant may be removed by the Tenant at the end of the term, except for those
items for which Tenant has received a credit from Landlord. Any expenses
incurred by Landlord in removing or disposing of such Tenant's property shall be
reimbursed to Landlord by Tenant on demand. Tenant expressly waives, for itself
and for any person claiming through or under Tenant, any rights which Tenant or
any such person may have under the provisions of Section 2201 of the New York
Civil Practice Law and Rules of successor law of like import then in force, in
connection with any holdover or summary proceeding which Landlord may institute
to enforce the foregoing provisions of this Article. Tenant's obligation to
observe or perform this covenant shall survive the expiration or other
termination of the Term of this lease. If the last day of the term of this lease
or any renewal hereof falls on Sunday or a legal holiday, this lease shall
expire on the business day immediately preceding. Tenant's obligations under
this Article 16 shall survive the Expiration Date or sooner termination of this
lease.
(B) If Tenant shall hold over after the end of the Term, such
holding over shall be unlawful and in no manner constitute a renewal or an
extension of the lease and no notice of any kind shall be required prior to any
commencement of summary proceeding and Tenant hereby waives any such right.
However, during such hold over time Tenant shall have all of the obligations of
this lease, including payment of rent as a monthly rate equal to double the
amount due during the first month of the last year of occupancy before the end
of the expired term, plus any escalations or additional rent provided for in
this lease.
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QUIET ENJOYMENT
17. Landlord covenants and agrees with Tenant that upon Tenant paying
the Rent and additional rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the Demised Premises during the term of this
lease without hindrance or molestation by anyone claiming by or through
Landlord, subject, nevertheless, to the terms, covenants and conditions of this
lease including, but not limited to Article 22.
SIGNS
18. No signs or lettering of any nature may be put on or in any window
now on the exterior of the Building or elsewhere within the Demised Premises
such as will be visible from the street. No sign or lettering in the public
corridors or on the doors are permitted except Landlords standard name plaque.
RULES AND REGULATIONS
19. Tenant and Tenant's agents, employees, visitors and licensees shall
faithfully observe and strictly comply with, and shall not permit violation of
the Rules and Regulations set forth on Schedule D annexed hereto and made part
hereof, and with such further reasonable Rules and Regulations as Landlord at
any time may make and communicate in writing to Tenant which, in Landlord's
judgement shall be necessary for the reputation, safety, care of appearance of
the Building and the land allocated to it or the preservation of good order
therein, or the operation or maintenance of the Building, and such land, its
equipment, or the more useful occupancy of the comfort of the tenants or others
in the Building. Landlord shall not be liable to Tenant for the violation of any
said Rules and Regulations, or the breach of any covenant or condition in any
lease by any other tenant in the Building. Landlord agrees to apply the Rules
and Regulations in a nondiscriminating manner.
RIGHT TO SUBLET OR ASSIGN
20. (A) The Tenant covenants that it shall not assign this lease nor
sublet the Demised Premises or any part thereof without the prior written
consent of Landlord in each instance, except on the conditions hereinafter
stated. The Tenant may assign this Lease or sublet the Demised Premises with
Landlord's written consent, which consent Landlord covenants will not be
unreasonably withheld, or delay consent beyond fifteen (15) days, providing:
(i) That such assignment or sublease is for a use which is in
compliance with the then existing zoning regulations and the Certificate of
Occupancy;
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(ii) That at the time of such assignment or subletting, there is no
default under the material terms of this lease on the Tenant's part;
(iii) That in the event of an assignment, the assignee assume in
writing the performance of all of the terms and obligations of the within lease;
(iv) That a duplicate original of said assignment or sublease be
delivered by registered mail to the Landlord at the address herein set forth
within ten (10) days from the said assignment or sublease and within ninety (90)
days of the date that Tenant first advises Landlord of the name and address of
the proposed subtenant or assignee as required, pursuant to subparagraph (B)
hereof;
(v) Such assignment or subletting shall not, however, release the
within Tenant from its liability for the full and faithful performance of all of
the terms and conditions of this lease;
(vi) If this lease be assigned, or if the Demised Premises or any
part thereof be under let or occupied by anybody other than Tenant, Landlord may
after default by Tenant collect rent from the assignee, undertenant or occupant,
and apply the net amount collected to the rent herein reserved;
(B) Notwithstanding anything contained in this Article 20 to the
contrary, no assignment or underletting shall be made by Tenant in any event
until Tenant has offered to terminate this lease as of the last day of any
calendar month during the term hereof and to vacate and surrender the Demised
Premises to Landlord on the date fixed in the notice served by Tenant upon
Landlord (which date shall be prior to the date of such proposed assignment or
the commencement date of such proposed lease). Simultaneously with said offer to
terminate this lease, Tenant shall advise the Landlord, in writing, of the name
and address of the proposed assignee or subtenant, a reasonably detailed
statement of the proposed subtenant/assignee's business, reasonably detailed
financial references, and all the terms, covenants, and conditions of the
proposed sublease or assignment. Landlord shall, within fifteen (15) days either
accept or reject Tenant's offer to terminate this lease. In the event Landlord
rejects the offer to terminate, the provisions of Subsection (A) shall be
applicable.
(C) Tenant may, without the consent of Landlord, assign this lease
to an affiliated (i.e. a corporation 20% or more of whose capital stock is owned
by the same stockholders owning 20% of Tenant's capital stock or more), parent
or subsidiary corporation of Tenant or to a corporation to which it sells or
assigns all or substantially all of its assets or with which it may be
consolidated or merged, provided such purchasing, consolidated, merged
affiliated or subsidiary corporation shall, in writing assume and agree to
perform all of the obligations of Tenant under this lease and it shall deliver
such assumption with a copy of such assignment to Landlord within ten (10) days
thereafter, and provided further that Tenant shall not be released or discharged
from any liability under his lease by reason of such assignment.
(D) Whenever Tenant shall claim under this Article or any
other part of this lease that Landlord has unreasonably withheld or delayed its
consent to some request of Tenant, provided the Landlord does not act in bad
faith, Tenant shall have no claim for damages by reason of such alleged
withholding or delay,
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and Tenant's sole remedy thereof shall be a right to obtain specific performance
or injunction but in no event with recovery of damages.
LANDLORD'S ACCESS TO PREMISES
21. (A) Landlord or Landlord's agents shall have the right to enter
and/or pass through the Demised Premises at all reasonable times on reasonable
notice, except in an emergency, to examine the same, and to show them to ground
lessors, prospective purchasers or lessees or mortgagees of the Building, and to
make such repairs, improvements or additions as Landlord may deem necessary or
desirable and Landlord shall be allowed to take all material into and upon
and/or through said Demised Premises that may be required therefor. During the
year prior to the expiration of the Term of this lease, or any renewal term,
Landlord may exhibit the Demised Premises to prospective tenants or purchasers
at all reasonable hours and without unreasonably interfering with Tenant's
business. If Tenant shall not be personally present to open and permit an entry
into said premises at any time, in an emergency, when for any reason an entry
therein shall be necessary or permissible, Landlord or Landlord's agents may
enter the same by a master key or forcibly, without rendering Landlord or such
agent liable therefor (if during such entry Landlord or Landlord's agents shall
accord reasonable care to Tenant's property).
(B) Landlord shall also have the right at any time, to change the
arrangement and/or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets, or other public parts of the Building,
provided, however, that Landlord shall make no change in the arrangement and/or
location of entrances or passageways or other public parts of the Building which
will adversely affect in any material manner Tenant's use and enjoyment of the
Demised Premises. Landlord shall also have the right, at any time, to name the
Building, including, but not limited to, appropriate signs and/or lettering on
any or all entrances to the Building, and to change the name, number or
designation by which the Building is commonly known.
(C) Neither this lease nor any use by Tenant shall give Tenant any
right or easement to the use of any door or passage or concourse connecting with
any other building or to any public conveniences, and the use of such doors and
passages and concourse and of such conveniences may be regulated and/or
discontinued at any time and from time to time by Landlord without notice to
Tenant, provided the same does not interfere with Tenant's access to Premises.
(D) The reasonable exercise by Landlord or its agents of any right
reserved to Landlord in this Article shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
lease, or impose any liability upon Landlord, or its agents, or upon any lessor
under any ground or underlying lease, by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise,
provided the same does not substantially interfere with Tenant's use and
occupancy of the Premises.
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SUBORDINATION
22. (A) This lease and all rights of Tenant hereunder are, and shall
be, subject and subordinate in all respects to all ground leases and/or
underlying leases and to all first mortgages and building loan agreements which
may now or hereafter be placed on or affect such leases and/or the Real Property
of which the Demised Premises form a part, or any part or parts of such Real
Property, and/or Landlord's interest or estate therein, and to each advance made
and/or hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor. This Section A shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute and deliver promptly any certificate that
Landlord and/or any mortgagee and/or the lessor under any ground or underlying
lease and/or their respective successors in interest may request, at no cost to
Tenant.
(B) Without limitation of any of the provisions of this lease, in
the event that any mortgagee or its assigns shall succeed to the interest of
Landlord or of any successor-Landlord and/or shall have become lessee under a
new ground or underlying lease, then, at the option of such mortgagee, this
lease shall nevertheless continue in full force and effect and Tenant shall and
does hereby agree to attorn to such mortgage or its assigns and to recognize
such mortgagee or its respective assigns as its Landlord.
(C) Tenant shall, at any time and from time to time upon not less
that five days' prior notice by Landlord, execute, acknowledge and deliver to
Landlord a statement in writing 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 and effect as modified and stating the modification) and the dates to
which the Rent, additional rent and other charges have been paid in advance, if
any, and stating whether or not to the best knowledge of the signer of such
certificate Landlord is in default in performance of any covenant, agreement,
term, provision or condition contained in this lease, and if so, specifying each
such default of which the signer may have knowledge, it being intended that any
such statement delivered pursuant hereto may be relied upon by any prospective
purchaser or lessee of said real property or any interest or estate therein, any
mortgagee or prospective mortgagee thereof or any prospective assignee of any
mortgage thereof. If, in connection with obtaining financing for the Building
and the land allocated to it, a banking, insurance or other recognized
institutional lender shall request reasonable modifications in this lease as a
condition to such financing, Tenant will not unreasonably withhold, delay or
defer its consent thereof, provided that such modifications do not increase the
obligations of Tenant hereunder or materially adversely affect the leasehold
interest hereby created.
(D) The Tenant covenants and agrees that if by reason of a default
under any underlying lease (including an underlying lease through which the
Landlord derives its leasehold estate of the Landlord in the premises), such
underlying lease and the leasehold estate of the Landlord in the premises
demised hereby is terminated, providing notice has been given to the Tenant and
leasehold
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mortgagee, the Tenant will attorn to the then holder of the reversionary
interest in the premises demised by this Lease or to anyone who shall succeed to
the interest of the Landlord or to the lessee of a new underlying lease entered
into pursuant to the provisions of such underlying lease, and will recognize
such holder and/or such lessee as the Tenant's landlord of this Lease. The
Tenant agrees to execute and deliver, at any time and from time to time, upon
the request of the Landlord or of the lessor under any such underlying lease,
any instrument which may be necessary or appropriate to evidence such
attornment. The Tenant further waives the provision of any statute or rule of
law now or hereafter in effect which may give or purport to give the Tenant any
right of election to terminate this Lease or to surrender possession of the
premises hereby in the event any proceeding is brought by the lessor under any
underlying lease to terminate the same, and agrees that unless and until any
such lessor, in connection with any such proceeding, shall elect to terminate
this Lease and the rights of the Tenant hereunder, this Lease shall not be
affected in any way whatsoever by any such proceeding, shall elect to terminate
this Lease and the rights of the Tenant hereunder, this Lease shall not be
affected in any way whatsoever by any such proceeding. Nothing herein contained
shall diminish any rights derived by reason of Nondisturbance Agreements granted
to Tenant by lessor under the terms of their underlying lease.
(E) Landlord agrees to use good efforts to obtain a nondisturbance,
subordination and attornment agreement from its mortgagee. Tenant agrees to sign
said agreement on the form of the mortgagee.
PROPERTY LOSS, DAMAGE REIMBURSEMENT
23. (A) Landlord or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the Building, nor for
the loss of or damage to any property of Tenant by theft or otherwise. 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, electrical disturbance, water, rain or snow or leaks from any part
of the Building 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 caused by or due to the negligence of
Landlord, its agents, servants or employees; nor shall Landlord or its agents be
liable for any such damage caused by other tenants or persons in the Building or
caused by operations in construction of any private, public or quasi-public
work; nor shall Landlord be liable for any latent defect in the Demised Premises
or in the Building. If at any time any windows of the Demised premises are
temporarily closed or darkened incident to or for the purpose of repairs,
replacements, maintenance and/or cleaning in, on, to or about the Building or
any part or parts thereof, Landlord shall liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement of rent shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall reimburse and compensate
Landlord as additional rent for all expenditures made by, or damages or fines
sustained or incurred by Landlord due to non-performance or non-compliance with
or breach or failure to observe any term, covenants or condition of this lease
upon Tenant's part to be kept, observed, performed or complied with. Tenant
shall give immediate notice to Landlord in case of fire or accidents in the
Demised Premises or in the Building or of defects therein or in any fixtures or
equipment.
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TENANT'S INDEMNITY
(B) Except for any claim that may be covered by any insurance
provided by the Tenant to Landlord, as provided in Article 25(D) or any other
insurance provided by Tenant, Tenant shall indemnify and save harmless Landlord
against and from any and all claims by or on behalf of any person or persons,
firm or firms, corporation or corporations arising from the conduct or
management of or from any work or thing whatsoever done (other than by Landlord
or its contractors or the agents or employees of either) in and on the Demised
Premises during the term of this lease and during the period of time, if any
prior to the specified commencement date that Tenant may have been given access
to the Demised Premises for the purpose of making installations, and will
further indemnify and save harmless Landlord against and from any and all claims
arising from any condition of the Demised Premises due to or arising from any
act or omissions or negligence of Tenant or any of its agents, contractors,
servants, employees, licensees or invitees and against and from all costs,
expenses, and liabilities incurred in connection with any such claim or claims
or action or proceeding brought thereon; and in case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant, upon notice from
Landlord, agrees that Tenant, at Tenant's expense, will resist or defend such
action or proceeding and will employ counsel therefor reasonably satisfactory to
Landlord.
DESTRUCTION -- FIRE OR OTHER CASUALTY
24. (A) If the Premises or any part thereof shall be damaged by fire or
other casualty and Tenant gives prompt notice thereof to Landlord, Landlord
shall proceed with reasonable diligence to repair or cause to be repaired such
damage. The Rent shall be abated to the extent that the Premises shall have been
rendered untenantable, such abatement to be from the date of such damage or
destruction to the date the Premises shall be substantially repaired or rebuilt,
in proportion which the area of the part of the Premises so rendered
untenantable bears to the total area of the Premises.
(B) If the Premises shall be totally damaged or rendered wholly
untenantable by fire or other casualty, and Landlord has not terminated this
lease pursuant of Subsection (C) and Landlord has not completed the making of
the required repairs and restored and rebuilt the Premises and/or access thereto
within nine (9) months from the date of such damage or destruction, and such
additional time after such date (but in no event to exceed six (6) months), as
shall equal the aggregate period Landlord may have been delayed in doing so by
unavoidable delays or adjustment of insurance, Tenant may serve notice on
Landlord of its intention to terminate this lease, and within thirty (30) days
thereafter Landlord shall not have completed the making of the required repairs
and restored and rebuilt the Premises, this lease shall terminate on the
expiration of such thirty (30) day period as if such termination date were the
Expiration Date, and the Rent and additional rent shall be refunded by Landlord
to Tenant.
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(C) If the premises shall be totally damaged or rendered wholly
untenantable by fire or other casualty or if the Building shall be so damaged by
fire or other casualty that substantial alteration or reconstruction of the
Building shall, in Landlord's opinion, be required (whether or not the Premises
shall been damaged by such fire or other casualty), then in any of such events
Landlord may, at its option, terminate this lease and the Term and estate hereby
granted, by giving Tenant thirty (30) days notice of said termination within
thirty (30) days after the date of such damage. In the event that such notice of
termination shall be given, this lease and the term and estate hereby granted,
shall terminate as of the date provided in such notice of termination (whether
or not the Term shall have commenced) with the same effect as if that were the
Expiration Date, and the Rent and additional rent shall be apportioned as of the
date of the fire or destruction or sooner termination, and any prepaid portion
of Rent and additional rent for any period after such date shall be refunded by
Landlord to Tenant.
(D) Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage by fire or other casualty or the repair thereof. Landlord will
not carry insurance of any kind on Tenant's property, and Landlord shall not be
obligated to repair any damage thereto or replace the same.
(E) This lease shall be considered an express agreement governing
any case of damage to or destruction of the Building or any part thereof by fire
or other casualty, and Section 227 of the Real Property Law of the State of New
York providing for such a contingency in the absence of such express agreement,
and any other law of like import nor or hereafter enacted, shall have no
application in such case.
(F) Notwithstanding anything to the contrary elsewhere contained
herein, if the Premises or the building containing the same are so damaged or
rendered untenantable by fire or other casualty that the Landlord, in the
Landlord's good faith estimate, cannot complete repairs or rebuild the Premises
to a condition to restore possession of the same so that the Tenant may resume
its business therein within one hundred twenty (120) days of the damage or
destruction, then the Tenant is hereby given an option to cancel this lease
without penalty, within fifteen (15) days of receipt of Landlord's Notice by
written notice to Landlord. The Landlord shall deliver the aforesaid good faith
estimate of repairs or rebuilding time within thirty (30) days from the date of
damage or destruction.
INSURANCE
25. (A) Tenant shall not do anything, or suffer or permit anything to
do done in or about the Premises which shall (a) subject Landlord to any
liability or responsibility for injury to any person or property by reason of
any activity being conducted in the Premises or (b) cause any increase in the
fire insurance rates applicable to the Building or equipment or other property
located therein at the beginning of the Term or at any time thereafter. Tenant,
at Tenant's expense, shall comply with all rules, orders, regulations or
requirements of the New York Board of Fire Underwriters and the New York Fire
Insurance Rating Organization or any similar body.
(B) If, by reason of any act or omission on the part of the
Tenant, the rate of fire insurance with extended coverage on the Building or
equipment or other property of Landlord or another tenant or occupant of the
Building shall be higher than it otherwise would be, Tenant shall reimburse
Landlord and all such other tenants or occupants on demand, for that part of the
premises for fire insurance and extended coverage paid by Landlord and such
other tenants or occupants because of an act or omission on the part of Tenant.
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(C) In the event that any dispute should arise between Landlord
and Tenant concerning insurance rates, a schedule or make up or insurance rates
for the Building or the Premises, as the case may be, issued by the New York
Fire Insurance Rating Organization or other similar body making rates for fire
insurance and extended coverage for the Premises concerned, shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates with extended coverage then applicable to such Premises.
(D) Tenant shall obtain and keep in full force and effect during
Term, at its own cost and expense, (a) Public Liability Insurance, such
insurance to afford protection in an amount of not less than Three Million
($3,000, 000) Dollars for injury or death arising out of any one occurrence, and
Five Hundred Thousand ($500,000) Dollars for damage to property, protecting
Landlord and Tenant as named insureds against any and all claim for personal
injury, death or property damage occurring in, upon, adjacent to, or connected
with the Premises or any part thereof; and (b) insurance against loss or damage
by fire, and such other risks and hazards as are insurable under present and
future standard forms of fire and extended coverage insurance policies, to
Tenant's property for the full insurable value thereof, protecting Landlord and
Tenant as named insured.
(E) Said insurance is to be written in form and substance
reasonably satisfactory to Landlord by a good and solvent insurance company of
recognized standing, admitted to do business in the State of New York and rated
as "good" in Bests Insurance Rating Manual. Tenant shall procure, maintain and
place such insurance and pay all premiums and charges therefor and upon failure
to do so Landlord may, but shall not be obligated to, procure, maintain and
place such insurance or make such payments, and in such event the Tenant agrees
to pay the amount thereof, plus interest at the legal rate then prevailing, to
Landlord on demand and said sum shall be in each instance collectible as
Additional Rent on the first day of the month following the date of payment by
Landlord. Tenant shall cause to be included in all such insurance policies a
provision to the effect that the same will be non-cancellable except upon twenty
(20) days written notice to Landlord. On the Commencement Date the original
insurance policies or appropriate certificates shall be deposited with Landlord.
Any renewals, replacements or endorsements thereto shall also be deposited with
Landlord to the end that said insurance shall be in full force and effect during
the Term.
(F) Each party agrees to use its best efforts to include in each
of its insurance policies (insuring the Building and Landlord's property
therein, in the case of Landlord, and insuring Tenant's property, in the case of
Tenant, against loss, damage or destruction by fire or other casualty) a waiver
of the insurer's right of subrogation against the other party, or if such waiver
should be unobtainable or unenforceable (a) an express agreement that such
policy shall not be invalidated if the assured waives or has waived before the
casualty the right of recovery against any party responsible for a casualty
covered by the policy, or (b) any other form of permission for the release of
covered by the policy, or (b) any other form of permission or the release of the
other party, or (c) the inclusion of the other party as an additional
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insured, but not a party to whom any loss shall be payable. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable without
additional charge or at all, the insured party shall so notify the other party
promptly after learning thereof. In such case, if the other party shall agree in
writing to pay the insurer's additional charge therefor, such waiver, agreement
or permission shall be included in the policy, or the other party shall be named
as an additional assured in the policy, but not a party to whom any loss shall
be payable. Each such policy which shall so name a party hereto as an additional
assured shall contain, if obtainable, agreements by the insurer that the policy
will not be cancelled without a least twenty (20) days prior notice to both
assured and that the act or omission of one assured will not invalidate the
policy as to the other assured.
(G) As long as Landlord's fire insurance policies then in force
include the waiver of subrogation or agreement or permission to release
liability referred to in Subsection (F) or name the Tenant as an additional
assured, Landlord hereby waives (a) any obligation on the part of Tenant to make
repairs to the Premises necessitated or occasioned by fire or other casualty
that is an insured risk under such policies, and (b) any right of recovery
against Tenant, any other permitted occupant of the Premises, and any of their
servants, employees, agents or contractors, for any loss occasioned by fire or
other casualty that is an insured risk under such policies. In the event that at
any time Landlord's fire insurance carriers shall not include such or similar
provisions in Landlord's fire insurance policies, the waivers set forth in the
foregoing sentence shall be deemed of no further force or effect.
(H) As long as Tenant's fire insurance policies then in force
include the waiver of subrogation or agreement or permission to release
liability referred to in Subsection (F), or name the Landlord as an additional
assured Tenant hereby waives (and agrees to cause any other permitted occupants
of the Premises to execute and deliver to Landlord written instruments waiving)
any right of recovery against Landlord, any other tenants or occupants of the
Building, and any servants, employees, agents or contractors of Landlord or of
any such other tenants or occupants, for any loss occasioned by fire or other
casualty which is an insured risk under such polices. In the event that at any
time Tenant's fire insurance carriers shall not include such or similar
provisions in Tenant's fire insurance policies, the waiver set forth in the
foregoing sentence shall, upon notice given by Tenant to Landlord, be deemed of
no further force or effect with respect to any insured risks under such policy
from and after the giving of such notice. During any period while the foregoing
waiver of right of recovery is in effect, Tenant, or any other permitted
occupant of the Premises, as the case maybe, shall look solely to the proceeds
of such policies to compensate Tenant or such other permitted occupant of the
Premises, as the case may be,shall look solely to the proceeds of such policies
to compensate Tenant or such other permitted occupant for any loss occasioned by
fire or other casualty which is an insured risk under such policies.
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EMINENT DOMAIN
26. (A) 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 Rent 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 shall be so condemned or
taken, then (a) Landlord (whether or not the Demised Premised be affected) may,
at its 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, and (b) if such condemnation or taking
shall be of a substantial part of the Demised Premises or a substantial part of
the means of access thereof, Tenant shall have the right by delivery of notice
in writing to Landlord within sixty (60) days following the date on which Tenant
shall have received notice of vesting of title to terminate this lease and the
Term and estate hereby granted as of the date of vesting of title, or (c) if
neither Landlord nor Tenant elect to terminate this lease, as aforesaid, this
lease shall be and remain unaffected by such condemnation or taking, except that
the Rent shall be and remain unaffected by such condemnation or taking, except
that the Rent shall be abated to the extent, if any, hereinabove provided in
this Article 26. In the event that only a part of the Demised Premised shall be
so condemned or taken and this lease and the Term and estate hereby granted are
not terminated as hereinbefore provided Landlord will 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.
(B) In the event of a termination in any of the cases hereinabove
provided, this lease and the Term and estate granted shall expire as of the date
of such termination with the same effect as if that were the date hereinbefore
set for the expiration of the Term of this lease, and the rent hereunder shall
be apportioned as of such date.
(C) In the event of any condemnation or taking hereinabove
mentioned of all or a part of the Building, 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, except that the
Tenant may file a claim for any taking of nonmovable fixtures owned by Tenant
and for moving expenses incurred by Tenant. It is expressly understood and
agreed that the provisions of this Article 26 shall not be applicable to any
condemnation or taking for governmental occupancy for a limited period.
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NONLIABILITY OF LANDLORD
27. (A) If Landlord or a successor in interest is an individual (which
term as used herein includes aggregates of individuals, such as joint ventures,
general or limited partnerships or associations) such individual shall be under
no personal liability with respect to any of the provisions of this Lease, and
if such individual hereto is in breach or default with respect to its
obligations under this lease, Tenant shall look solely to the equity of such
individual in the land and Building of which the Demised Premises form a part
for the satisfaction of Tenant's remedies and in no event shall Tenant attempt
to secure any personal judgment against any partner, employee or agent of
Landlord by reason of such default by Landlord.
(B) The word "Landlord" as used herein means only the owner in
fee for the time being of the land and Building (or the owners of a lease of the
Building or of the land and Building) of which the Premises form a part, and in
the event of any sale of the Building and land of which the Demised Premises
form a part, Landlord shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder and it shall be deemed and
construed without further agreement between the parties or between the parties
and the purchaser of the Premises, that such purchaser has assumed and agreed to
carry out any and all covenants and obligations of Landlord hereunder.
DEFAULT
28. (A) Upon the occurrence, at any time prior to or during the Demised
Term, of any one or more of the following events (referred to as "Events of
Default"):
(i) If Tenant shall default in the payment when due of any
installment of Rent or in the payment when due of any additional rent, and such
default shall continue for a period of (5) days after notice by Landlord to
Tenant of such default; or
(ii) If Tenant shall materially default in the observance or
performance of any term, covenant or condition of this lease on Tenant's part to
be observed or performed (other than the covenants for the payment of Rent and
additional rent) and Tenant shall fail to remedy such default within ten (10)
days after notice by Landlord to Tenant specifying such default, or if such
default is of such a nature that it cannot be completely remedied within said
period of ten (10) days and Tenant shall not commence within said period of ten
(10) days, or shall not thereafter diligently prosecute to completion, all steps
necessary to remedy such default; or
(iii) If Tenant shall file a voluntary petition in bankruptcy
or insolvency, or shall be adjudicated a bankrupt or become insolvent, or shall
file any petition or answer seeking any reorganization, arrangement,
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composition, readjustment, liquidation, dissolution or similar relief under the
present or any future federal bankruptcy act or any other present or future
applicable federal, state or other statute of law, or shall make an assignment
for the benefit of creditors or shall seek or consent to or make an assignment
for the benefit of creditors or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all or any
part of Tenant's property; or
(iv) If, within sixty (60) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or otherwise
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
act or any other present or future applicable federal, state or other statute or
law, such proceedings shall not have been dismissed, or if, within sixty (60)
days after the appointment or any trustee, receiver or liquidator of Tenant, or
of all or any part of Tenant's property, without the consent or acquiescence of
Tenant, such appointment shall not have been vacated or otherwise discharged, or
if any execution or attachment shall be issued against Tenant or any of Tenant's
property pursuant to which the Demised Premises shall be taken or occupied or
attempted to be taken or occupied; or
(v) If the Demised Premises shall become vacant, deserted or abandoned
for a period of ten (10) consecutive days; or
(vi) If Tenant's interest in this lease shall devolve upon or pass to
any person, whether by operation of law or otherwise, except as expressly
permitted under Article 20.
Then , upon the occurrence, at any time prior to or during the Demised Term, of
any one or more of such Events of Default, Landlord, at any time thereafter, at
Landlord's option, may give to Tenant a five (5) days' notice of termination of
this lease and, in the event such notice is given, this lease and the Term shall
come to an end and expire (whether or not said term shall have commenced) upon
the expiration of said five(5) days with the same effect as if the date of
expiration of said five (5) days were the Expiration Date, but Tenant shall
remain liable for damages as provided in Article 30.
(B) If, at any time (i) Tenant shall be comprised of two (2) or more
persons, or (ii) Tenant's obligations under this lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
lease shall have been assigned, the word "Tenant", as used in subsection (iii)
and (iv) of section 28A, shall be deemed to mean any one or more of the persons
primarily or secondarily liable for Tenant's obligations under this lease. Any
monies received by Landlord from or on behalf of Tenant during the pendency of
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any proceeding of the types referred to in said subsections (iii) and (iv) shall
be deemed paid as compensation for the use and occupation of the Demised
Premises and the acceptance of any such compensation by Landlord shall not be
deemed an acceptance of Rent or a waiver on the part of Landlord of any rights
under section 28(A).
TERMINATION ON DEFAULT
29. (A) If Tenant shall default in the payment when due of any
installment of rent or in the payment when due of any additional rent and such
default shall continue for a period of five (5)days after notice by Landlord to
Tenant of such default, or if this lease and the demised term shall expire and
come to an end as provided in Article 28:
(i) Landlord and its agents and servants may immediately, or at
any time after such default or after the date upon which this lease and the
Demised Term shall expire and come to an end, re-enter the Demised Premises or
any part thereof, without notice, either by summary proceedings or by any other
applicable action or proceeding, or by force or otherwise (without being liable
to indictment, prosecution or damages therefor), and may repossess the Demised
Premises and dispossess tenant and any other persons from the Demised Premises
and remove any and all of their property and effects from the Demised Premises;
and
(ii) Landlord, at Landlord's option, may relet the whole or any
part or parts of the Demised Premises from time to time, either in the mane of
Landlord or otherwise, to such tenant or tenants, for such term or terms ending
before, on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, may determine. Landlord shall have no
obligation to relet the Demises Premises or any part thereof and shall in no
event be liable for refusal or failure to relet the Demised Premises or any part
thereof, or in the event of any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this lease or otherwise
to affect any such liability; Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decoration and
other physical changes in and to the Demised Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this lease or otherwise affecting any such liability.
(B) Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does hereby waive any
and all rights which Tenant and all such persons might otherwise have under any
present or future law to redeem the Demised Premises, or to re-enter or
repossess the Demised Premises, or to restore the operation of this lease, after
(i) Tenant shall have been dispossessed by a judgment or by warrant of any court
or judge,
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or (ii) any re-entry by Landlord, or (iii) any expiration or termination of this
lease and the Demised term, whether such dispossess, re-entry, expiration or
termination shall be by operation of law or pursuant to the provisions of this
lease. In the event of a breach or threatened breach by Tenant or any persons
claiming through or under Tenant, of any term, covenants or condition of this
lease on Tenant's part to be observed or performed, Landlord shall have the
right to enjoin such breach and the right to invoke any other remedy allowed by
law or in equity as if re-entry, summary proceedings and other special remedies
were not provided in this lease for such breach. The rights to invoke the
remedies hereinbefore set forth are cumulative and shall not preclude Landlord
from invoking any other remedy allowed at law or in equity.
DAMAGES
30. (A) If this lease and the demised term shall expire and come to an
end as provided in Article 28 or by or under any summary proceeding, or any
other action or proceeding or if Landlord shall re-enter the Demised Premises as
provided in Article 29 or by or under any summary proceedings or any other
action or proceeding, then, in any of said events:
(i) Tenant shall pay to Landlord all Rent, additional rent and
other charges payable under this lease by Tenant to Landlord to the date upon
which this lease and the Demised Term shall have expired and come to an end or
to the date of re-entry upon the Demised Premises by Landlord, as the case may
be; and
(ii)Tenant shall also be liable for and shall pay to Landlord,
as damages, any deficiency (referred to as "Deficiency") between the rent and
additional rent reserved in this lease for the period which otherwise would have
constituted the unexpired portion of the Demised Term and the net amount, if
any, of rents collected under any reletting effected pursuant to the provisions
of section 29(A) for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's expenses in connection with
the termination of this lease or Landlord's re-entry upon the Demised Premises
and with such reletting including, but not limited to, all repossession costs,
brokerage commissions for the balance of the Demised Term, for the balance of
the Demised Term, legal expenses, attorney's fees, alteration costs and other
expenses of preparing the Demised Premises for such reletting). Any such
Deficiency shall be paid in monthly installments by tenant on the days specified
in this lease for payment of installments of Rent, Landlord shall be entitled to
recover form Tenant each monthly Deficiency as the same shall arise, and no suit
to collect the amount of the Deficiency for any month shall prejudice Landlord's
rights to collect the Deficiency for any subsequent month by a similar
proceeding; and
(iii) At any time after the Demised Term shall have expired and
come to an end or Landlord shall have re-entered upon the Demised Premises, as
the case may be, whether or not Landlord shall have collected any monthly
Deficiencies as aforesaid, Landlord shall be entitled to recover from Tenant,
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and Tenant shall pay to Landlord, on demand, as and for liquidated and agreed
final damages, a sum equal to the amount by which the rent and additional Rent
reserved in this lease for the period which otherwise would have constituted the
unexpired portion of the Demised Term exceeds the then fair and reasonable
rental value of the Demised Premises for the same period, both discounted to
present worth at the rate of four (4%) per cent per annum. If, before
presentation of proof of such liquidated damages to any court, commission, or
tribunal, the Demised Premises, or any part thereof, shall have been relet by
Landlord for the period which otherwise would have constituted the unexpired
portion of the Demised Term, or any part thereof, the amount of Rent reserved
upon such reletting shall be deemed, prima facie, to be the fair and reasonable
rental value for the part of the whole of the Demised Premises so relet during
the time of the reletting.
(B) If the demised Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved under
any such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Article 30. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the rent reserved in this lease. Solely for the purposes
of this Article, the term "Rent" as used in Section 30(A) shall mean the rent in
effect immediately prior to the date upon which this lease and the Demised Term
shall have expired and come to an end or the date of re-entry upon the Demised
Premises by Landlord, as the case may be, plus any additional rent payable
pursuant to the provisions of Article 11 of the Escalation Year (as defined in
Article 11) immediately preceding such event. Nothing contained in Article 28
and 29 of this Lease shall be deemed to limit or preclude the recovery by
Landlord from Tenant of the maximum amount allowed to be obtained as damages by
any statute or rule of law, or of any sums or damages to which Landlord may be
entitled in addition to the damages set forth in Section 30(A).
SUMS DUE LANDLORD
31. In any case in which the Rent or additional rent is not paid within
ten (10) days of the day when same is due, tenant shall pay a late charge equal
to 6 cent for each dollar so due, and in addition thereto, the sum of $100.00
for the purpose of defraying expenses incident to the handling of such
delinquent account. The provisions for payment of late charges shall be forgiven
once in every calendar year. Tenant further agrees that the late charge imposed
is fair and reasonable, complies with all laws, regulations and statutes, and
constitutes an agreement between Landlord and Tenant as to the
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compensation for costs and administrative expenses incurred by Landlord due to
the late payment of rent to Landlord by tenant. Tenant further agrees that the
late charge assessed pursuant to this lease is not interest, and the late charge
assessed does not constitute a lender or borrower/creditor relationship between
Landlord and Tenant.
NO WAIVER
32. No act or thing done by Landlord or Landlord's agents during the
term hereby Demised shall be deemed an acceptance of a surrender of said demised
Premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or of Landlord's agent shall
have any power to accept the keys of said Demised Premises prior to the
termination of this lease. The delivery of keys to any employee of Landlord or
of Landlord's agents shall not operate as a termination of this lease or a
surrender of the Demise Premises. In the event of Tenant at any time desiring to
have Landlord underlet the demised Premises for Tenant's account, Landlord or
Landlord's agents are authorized to received said keys for such purposes without
releasing Tenant from any of the obligations under this lease, and Tenant hereby
relieves Landlord of any liability for loss of or damage to any of Tenants
effects in connections with such underletting. The failure of Landlord to seek
redress for violation of, or to insist upon the strict performance of, any
covenants or conditions of this lease, or any of the Rules and Regulations
annexed hereto and made a part hereof 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 annexed hereto and made a part hereof,
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 then the monthly Rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated Rent nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
Rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlords' right to recover the balance of such
Rent or pursue any other remedy in this lease provided.
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33. To the extent such waiver is permitted by law, Landlord and Tenant
hereby waive trial by jury in any action, proceeding or counterclaim brought by
Landlord or Tenant against the other on any matter whatsoever arising out of or
in any way connected with this lease, the relationship of landlord and tenant,
the use or occupancy of the Demised Premises by Tenant or any person claiming
through or under Tenant, any claim of injury or damage, and any emergency or
other statutory remedy. The provisions of the foregoing sentence shall survive
the expiration or any sooner termination of the Demised Term. If Landlord
commences any summary proceeding for nonpayment of Rent, Tenant agrees not to
interpose any counterclaim of whatever nature or description in any such
proceeding.
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's 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.
XXXX AND NOTICES
34. Except as otherwise expressly provided in this lease, any bills,
statements, notices, demands, requests or other communications given or required
to be given under this lease shall be effective only if rendered or given in
writing, sent by registered or certified mail (return receipt requested),
addressed (A) to Tenant (i) at Tenant's address set forth in this lease if
mailed prior to Tenant's taking possession of the Demised Premises, or (ii) at
the Building if mailed subsequent to Tenant's taking possession of the Demised
Premises, or (iii) at any place where Tenant or any agent or employee of Tenant
may be found if mailed subsequent to Tenant's vacating, deserting, abandoning or
surrendering the Demised Premises, or (B) to Landlord at Landlord's address set
forth in this lease, or (C) addressed to such other address as either Landlord
or Tenant may designate as its new address for such purpose by notice given to
the other in accordance with the provisions of this Article. Any such bills,
statements, notices, demands, requests or other communications shall be deemed
to have been rendered or given on the date when it shall have been mailed as
provided in this Article.
INABILITY TO PERFORM
35. (A) If, by reason of strikes or other labor disputes, fire or other
casualty (or reasonable delays in adjustments of insurance), accidents, orders
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or regulations of any Federal, State, County or Municipal authority, or any
other cause beyond Landlord's reasonable control, whether or not such other
cause shall be similar in nature to those hereinbefore enumerated, Landlord is
unable to furnish or is delayed in furnishing any utility or service required to
be furnished by Landlord under the provisions of this lease or any collateral
instrument, or is unable to perform or make or is delayed in performing or
making any installations, decorations, repairs, alterations, additions or
improvements, whether or not required to be performed or made under this lease,
or under any collateral instrument, or is unable to fulfill or is delayed in
fulfilling any of Landlord's other obligations under this lease, or any
collateral instrument, no such inability or delay shall constitute an actual or
constructive eviction, in whole or in part or entitle Tenant to any abatement or
diminution of rent, or relieve Tenant from any of its obligations under this
lease, or impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise. Notwithstanding anything to the contrary elsewhere
contained herein, the Landlord covenants that it will use its best efforts to
restore service to the Premises or remedy the conditions as soon as is
reasonably possible.
INTERRUPTION OF SERVICE
(B) Landlord reserves the right to stop the services of the air
conditioning, elevator, plumbing, electrical or other mechanical systems or
facilities in the building when necessary by reason of accident or emergency, or
for repairs, alterations, replacements or improvements, which, in the judgement
of Landlord are desirable or necessary, until said repairs, alterations,
replacements or improvements shall have been completed. Landlord agrees to give
Tenant reasonable notice of any interruption of service, except in an emergency.
The exercise of such rights by Landlord shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution or rent, or relieve Tenant from any of its obligations under this
lease, or impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business or otherwise.
CONDITIONS OF LANDLORD'S LIABILITY
(C) (i) Tenant shall not be entitled to claim a constructive eviction
from the Demised Premises unless Tenant Shall have first notified Landlord of
the condition or conditions giving rise thereto, and if the complaints be
justified, unless Landlord shall have failed to remedy such conditions within a
reasonable time after receipt of such notice.
(ii) If Landlord shall be unable to give possession of the Demised
Premises on any date specified for the commencement of the term by
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reason of the fact that the Premises have not been sufficiently completed to
make the premises ready for occupancy, or for any other reason, Landlord shall
not be subject to any liability for the failure to give possession on said date,
nor shall such failure in any way affect the validity of this lease or the
obligations of Tenant hereunder.
TENANT'S TAKING POSSESSION
(D) (i) Tenant by entering into occupancy of the Premises shall be
conclusively deemed to have agreed that Landlord up to the time of such
occupancy had performed all of its obligations hereunder and that the Premises
were in satisfactory condition as of the date of such occupancy, unless within
thirty (30) days after such date Tenant shall have given written notice to
Landlord specifying the respects in which the same were not in such condition.
(ii) If Tenant shall use or occupy all or any part of the
Demised Premises for the conduct of business prior to the Term Commencement
Date, such use or occupancy shall be deemed to be under all of the terms,
covenants and conditions of this lease, including the covenant to pay rent for
the period from the commencement of said use or occupancy to the Term
Commencement Date.
(iii) In the event Landlord does not substantially complete
the Premises by March 30, 1992, plus such additional time caused by Tenant
Delays, Tenant shall have the right to serve a fifteen (15) day notice of
termination. In the event the Premises are not substantially completed within
said fifteen (15) days, this lease shall be null and void and neither party
shall have any further rights or obligations to the other.
ENTIRE AGREEMENT
36. This lease (including the Schedules and Exhibits annexed hereto)
contains the entire agreement between the parties and all prior negotiations and
agreements are merged herein. Neither Landlord nor Landlord's agent or
representative has made any representations or statements, or promises, upon
which Tenant has relied regarding any matter or thing relating to the Building,
the land allocated to it (including the parking area) or the Demised Premises,
or any other matter whatsoever, except as is expressly set forth in this lease,
including but without limiting the generality of the foregoing, any statement,
representation or promise as to the fitness of the Demised Premises for any
particular use, the services to be rendered to the Demised Premises or the
prospective amount of any item of additional rent. No oral or written statement,
representation or promise whatsoever with respect to the foregoing or any other
matter made by Landlord, its agents or any broker, whether contained in an
affidavit, information circular, or otherwise shall be binding upon the Landlord
unless expressly set forth in this lease. No rights, easements or licenses are
or shall be acquired by Tenant by implication or otherwise unless expressly set
forth in this lease. This lease may not be changed, modified or discharged, in
whole or in part, orally and no executory agreement shall be effective to
change, modify or discharge, in whole or in part, this lease or any obligations
under this lease, unless such agreement is set forth in a written instrument
executed by the party against whom enforcement of the change, modification or
discharge is sought. All references in this lease to the consent or approval of
Landlord shall be deemed to mean
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the written consent of Landlord, or the written approval of Landlord, as the
case may be, and no consent or approval of Landlord shall be effective for any
purpose unless such consent or approval is set forth in a written instrument
executed by Landlord.
DEFINITIONS
37. The words "re-enter', "re-entry", and "re-entered" as used in this
lease are not restricted to their technical legal meanings. The term "business
days" as used in this lease shall exclude Saturdays (except such portion thereof
as is covered by specific hours in Article 6 hereof), Sundays and all days
observed by the State or Federal Government as legal holidays. The term "person"
and "persons" as used in this lease shall be deemed to include natural persons,
firms, corporations, associations and any other private or public entities,
whether any of the foregoing are acting on their behalf or in a representative
capacity. The various terms which are defined in other Articles of this lease or
are defined in Schedules or Exhibits annexed hereto, shall have the meanings
specified in such other Articles, Exhibits and Schedules for all purposes of
this lease and all agreements supplemental thereto, unless the context clearly
indicates the contrary.
PARTNERSHIP TENANT
38. If Tenant is a partnership (or is comprised of two (2) or more
persons, individually and as co-partners of a partnership) or if Tenant's
interest in this lease shall be assigned to a partnership (or to two (2) or more
persons, individually and as co-partners of a partnership) pursuant to Article
20 (any such partnership and such persons are referred to in this Section as
"Partnership Tenant"), the following provisions of this Section as shall apply
to such Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, and (b) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any modifications of this lease which may hereafter be made and by any
notices, demands, requests or other communications which may hereafter be given
by Partnership Tenant or by any of the parties comprising Partnership Tenant,
and (c) any bills, statements, notices, demands, requests and other
communications given or rendered to Partnership Tenant or to any of the parties
comprising Partnership Tenant shall be deemed given or rendered to Partnership
Tenant and to all such parties and shall be binding upon Partnership Tenant and
all such parties, and (d) if Partnership Tenant shall admit new partners, all of
such new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms, covenants and conditions of this
lease in Tenant's part to be observed and performed, and (e) Partnership Tenant
shall give prompt notice to Landlord of the admission of any such new partners,
and upon demand of Landlord shall cause each such new partner to execute and
deliver to Landlord and agreement in form
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satisfactory to Landlord, wherein each such new partner shall assume performance
of all of the terms, covenants and conditions of this lease on Tenant's part to
be observed and performed (but neither Landlord's failure to request any such
agreement nor the failure of any such new partner to execute or deliver any such
agreement to Landlord shall vitiate the provisions of subdivision (d) of this
Section).
SUCCESSORS, ASSIGNS, ETC.
39. The terms, covenants, conditions and agreements contained in this
lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and,
except as otherwise provided in this lease, their respective assigns.
BROKER
40. Tenant represents that this lease was brought about by Commercial
Industrial Associates Inc., as broker and all negotiations with respect to this
Lease were conducted exclusively with said broker. Tenant agrees that if any
claim is made for commissions by any other broker through or on account of any
acts of Tenant, Tenant will hold Landlord free and harmless from any and all
liabilities and expenses in connection therewith including Landlord's reasonable
attorney's fees.
CAPTIONS
41. The captions are included 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 provisions thereof.
RENEWAL OPTION
42. The Tenant shall have the right to be exercised as hereinafter
provided, to extend the term of this Lease for one period of five (5) years upon
the following terms and conditions:
(A) That at the time of the exercise of such right the Tenant
shall not be in default in the performance of any of the material terms,
covenants or conditions herein contained with respect to a matter as to which
notice of default has been given hereunder and which has not been remedied
within the time limited in this Lease.
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(B) That said extension shall be upon the same terms,
covenants and conditions as in this lease provided, except that (a) there shall
be no further privilege or extension for the term of this Lease beyond the one
period referred to above; (b) during the said extension period the basic annual
rent shall be ninety (90%) percent of the then market rental being charged by
Landlord for comparable space in the Building, but in no event less than the
Rent, plus escalations paid by Tenant in the last year of the term.
(C) Notwithstanding anything in this paragraph "42" contained
to the contrary, the Tenant shall not be entitled to said extension if at the
time of the commencement of the extended period the Tenant shall be in default
under any of the material terms, covenants or conditions of this Lease with
respect to a matter as to which notice of default has been hereunder and which
has not been remedied within the time limited in this Lease, or if this Lease
shall have terminated prior to the commencement of said period.
(D) The Tenant shall exercise its rights to said extension of
the term of this Lease by notifying the Landlord of the Tenant's election to
exercise such right at least nine (9) months prior to the expiration of the term
of this Lease. Upon the giving of any such notice, this Lease shall be deemed
extended for the specified period, subject to the provisions of this paragraph
"42" without execution of any further instrument.
(E) This option is personal to the Tenant named herein only.
In the event of an assignment of the lease to the Premises by the Tenant named
herein, this option shall be null and void and have no force and effect.
(F) This option shall be null and void in the event the option
for Additional Space or Second Additional Space, as Article "43" and "44".
ADDITIONAL SPACE
43. A. After January 1, 1996, if the Lease shall be in full force and
effect and tenant shall not be in default beyond the applicable cure period, in
the payment of Rent, Additional Rent or any other sums or charges provided to be
paid by Tenant under this Lease, Tenant shall have the right to lease
approximately 12,00 square feet ("Additional Space") in place and instead of the
Premises under this Lease for a term to commence on "Substantial Completion" of
the Additional Space, and expire on the last day of the month which is ten (10)
years after Substantial Completion of the Additional Space, unless such term
shall sooner cease and expire pursuant to any of the terms, covenants or
conditions of this Lease or pursuant to law. Subject to the foregoing, the exact
location and exact size of the Additional Space shall be at Landlord sole
discretion. Such right to lease the Additional Space shall be exercised, if at
all, by Tenant's notice to Landlord ("Tenant's Notice") on or before December
31, 2001, and Tenant's failure duly to give the Tenant's Notice shall be deemed
a waiver of such right to lease the Additional Space.
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B. If Tenant shall effectively exercise its right to lease the
Additional Space as set forth in Section A hereof, then, effective on and after
"Substantial Completion" of all leasehold improvements within the Additional
Space, this Lease shall be amended as follows:
(i) the Additional Space shall be deemed to be the Premises
demised under the Lease with the same force and effect as if originally demised
under the Lease, and the terms "Premises", "premises", and "demised premises" as
used in the Lease shall be the Additional Space;
(ii) the Rent shall be an amount equal to the product of the
number of rentable square feet of Additional Space, multiplied by the per square
foot rental rate being paid by Tenant to Landlord on the date of the
Commencement of the Term of the Additional Space; and the Rent as shall
thereafter be further subject to increase at the rate of $1.12 per year for each
year thereafter for the balance of the term; and
(iii) Article (1A) shall be amended to reflect the new square
footage leased to Tenant and the Tenant's proportionate share shall be adjusted
to the new proportion.
(iv) Article 9 shall be amended to reflect that new parking
spaces shall be at the rate of four (4) spaces per 1,000 square feet of rentable
area of Additional Space.
C. If Tenant shall effectively exercise its right to lease the
Additional Space, as set forth in Section (A) of this Article, Tenant shall
accept the Additional Space and Landlord shall perform the work therein in
accordance with the specifications set forth in Schedule "A". All such work
shall be substantially completed prior to the commencement of Rent for such
space.
D. If Landlord is unable to give possession of the Additional Space,
Landlord shall not be subject to any liability for failure to give possession on
said date and the validity of the Lease shall not be impaired under any
circumstances, nor shall the same be construed in any wise to extend the term of
the Lease, but the rent payable hereunder for the Additional Space shall be
abated (provided Tenant is not responsible for the delay) until after Landlord
shall have given Tenant written notice that the Additional Space is
substantially ready for Tenant's occupancy.
E. The provisions of this Article are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law.
F. In the event Tenant exercises its option for Second Additional
Space, pursuant to Article "44" of this Lease, the provisions of this Article
"43" shall be null and void.
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SECOND ADDITIONAL SPACE
44. A. Provided the Lease shall be in full force and effect and Tenant
shall not be in default beyond the applicable cure period in the payment of Rent
or Additional Rent, or any other sums or charges provided to be paid by Tenant
under this Lease after January 1, 1997, Tenant shall have the right to lease
approximately 24,000 square feet ("Second Additional Space") in place and
instead of the Premises under this Lease for a term to commence on "Substantial
Completion" and expire on the last day of the month which is ten (10) years
after completion of the Second Additional Space, unless such term shall sooner
cease and expire pursuant to any of the terms, covenants or conditions of this
Lease or pursuant to law. The exact location and exact size of the Second
Additional Space shall be at Landlord's sole discretion. Such right to lease the
Additional Space shall be exercised, if at all, by Tenant's notice to Landlord
("Tenant's Notice") prior to December 31, 2001 and Tenant's failure duly to give
the Tenant's Notice shall be deemed a waiver of such right to lease the Second
Additional Space.
B. If Tenant shall effectively exercise its right to lease the Second
Additional Space as set forth in Section A hereof, then, effective on and after
"Substantial Completion" of all leasehold improvements within the Additional
Space, this Lease shall be amended as follows:
(i) the Second Additional Space shall be deemed to be the Premises
demised under the Lease with the same force and effect as if originally
demised under the Lease, and the terms "Premises", "premises", and demised
premises" as used in the Lease shall be the Second Additional Space;
(ii) the Rent shall be an amount equal to the product of the number of
rentable square feet of Second Additional Space, multiplied by the square
foot rental rate being paid by Tenant to Landlord on the date of the
Commencement of the Term of the Second Additional Space and the Rent as shall
thereafter be further subject to increase at the rate of $1.12 per year for
each year thereafter for the balance of the term.
(iii) Article (1A) shall be amended to reflect the new square footage
leased to Tenant and the Tenant's proportionate share shall be adjusted to
the new proportion.
(iv) Article 9 shall be amended to reflect that new parking spaces shall
be at the rate of four (4) spaces per 1,000 square feet of rentable area of
Second Additional Space.
C. If Tenant shall effectively exercise its right to lease the Second
Additional Space, as set forth in Section (A) of this Article, Tenant shall
accept the Second Additional Space and Landlord shall perform the work therein
in accordance with the specifications set forth in Schedule "A". All such work
shall be substantially completed prior to the commencement of Rent for such
space.
D. If Landlord is unable to give possession of the Second Additional Space,
Landlord shall not be subject to any liability for failure to give possession on
said date and the validity of the Lease shall not be impaired under any
circumstances, nor shall the same be construed in any wise to extend the term of
the Lease, but the rent payable hereunder for the Second Additional Space shall
be abated (provided Tenant is not responsible for the inability to obtain
possession or complete construction) until after Landlord shall have given
Tenant written notice that the Second Additional Space is substantially ready
for Tenant's occupancy.
E. The provisions of this Article are intended to constitute "an express
provision to the contrary" within the meaning of Section 223-a of the New York
Real Property Law.
F. In the event Tenant exercises its option for Additional Space, pursuant
to Article "43" of this Lease, the provisions of this Article "44" shall be null
and void.
THIRD ADDITIONAL SPACE
45. A. Provided the Lease shall be in full force and effect and Tenant
shall not be in default beyond the applicable cure period in the payment of Rent
or Additional Rent, or any other sums or charges provided to be paid by Tenant
under this Lease after February 1, 1992, Tenant shall have the right to lease
approximately 5,017 square feet ("Third Additional Space") for a term to
commence on "Substantial Completion" and expire on the last day of the month
which is ten (10) years after completion of the Third Additional Space, unless
such term shall sooner cease and expire pursuant to any of the terms, covenants
or conditions of this Lease or pursuant to law. The exact location and exact
size of the Third Additional Space shall be adjacent. Such right to lease the
Additional Space shall be exercised, if at all, by Tenant's notice to Landlord
("Tenant's Notice") prior to February 1, 1992 and Tenant's failure duly to give
the Tenant's Notice shall be deemed a waiver of such right to lease the Third
Additional Space.
B. If Tenant shall effectively exercise its right to lease the Third
Additional Space as set forth in Section A hereof, then, effective on and after
"Substantial Completion" of all leasehold improvements within the Additional
Space, this Lease shall be amended as follows:
(i) the Third Additional Space shall be deemed to be the Premises demised
under the Lease with the same force and effect as if originally demised under
the Lease, and the terms "Premises", "premises", and demised premises" as
used in the Lease shall be the Third Additional Space;
(ii) the Rent shall be an amount equal to the product of the number of
rentable square feet of Third Additional Space, multiplied by the
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square foot rental rate being paid by Tenant to Landlord on the date of the
Commencement of the Term of the Third Additional Space and the Rent as shall
thereafter be further subject to increase at the rate of $1.12 per year for
each year thereafter for the balance of the term.
(iii) Article (1A) shall be amended to reflect the new square footage
leased to Tenant and the Tenant's proportionate share shall be adjusted to
the new proportion.
(iv) Article 9 shall be amended to reflect that new parking spaces shall
be at the rate of four (4) spaces per 1,000 square feet of rentable area of
Third Additional Space.
C. If Tenant shall effectively exercise its right to lease the Third
Additional Space, as set forth in Section (A) of this Article, Tenant shall
accept the Third Additional Space and Landlord shall perform the work therein in
accordance with the specifications set forth in Schedule "A". All such work
shall be substantially completed prior to the commencement of Rent for such
space.
D. If Landlord is unable to give possession of the Third Additional Space,
Landlord shall not be subject to any liability for failure to give possession on
said date and the validity of the Lease shall not be impaired under any
circumstances, nor shall the same be construed in any wise to extend the term of
the Lease, but the rent payable hereunder for the Third Additional Space shall
be abated (provided Tenant is not responsible for the inability to obtain
possession or complete construction) until after Landlord shall have given
Tenant written notice that the Third Additional Space is substantially ready for
Tenant's occupancy.
E. The provisions of this Article are intended to constitute "an express
provision to the contrary" within the meaning of Section 223-a of the New York
Real Property Law.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
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sealed this lease as of the day and year first above written.
Witness for Landlord: HMCC ASSOCIATES by
RECKSON ASSOCIATES
_________________________________ By: _________________________________
Partner
Witness for Tenant: MEDE AMERICA, INC.
_________________________________ By: _________________________________
STATE OF NEW YORK)
ss.:)
COUNTY OF SUFFOLK)
On the 15th day of October, 1991, before me personally came Xxxxxxxx
Rerhler, to me known, who, being by me duly sworn, did depose and say that he is
a general partner of RECKSON ASSOCIATES which is a general partner of HMCC
ASSOCIATES the limited partnership described in, and which executed the
foregoing instrument; that he signed his names thereto and executed said
instrument for and on behalf of and with the authority of said partnership for
the uses and purposes therein mentioned.
/s/__________________________________
Notary Public
STATE OF NEW YORK)
ss.:)
COUNTY OF NASSAU)
On this 15th day of October, 1991, before me personally came Xxxxxxxx
Di|Diamond to me known, who being by me duly sworn, did depose and say that he
resides at 000 Xxx Xx. Xxxxxx Xxxx, XX 00000 that he is the President of MEDE
AMERICA, INC., the corporation described in and which executed the foregoing
instrument as "Tenant"; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by order of the Board of Directors of said corporation, and that he signed his
name thereto by like order.
/s/________________________________
Notary Public
Reg# 4958822
Exp: 11/13/91
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SCHEDULE "A"
LANDLORD'S INITIAL CONSTRUCTION
1. Initial Office Finishing Schedule
At the Tenant's option, Landlord will design or follow Tenant's plans annexed
hereto in preparing Tenant's office area at Landlord's cost to the following
specifications:
Erect the necessary demising walls constructed of metal stud, 5/8" Fire X gypsum
board, with xxxxx of 3" fiberglass for sound attenuation. Finish exterior walls
with 1/2" sheetrock. Erect per approved plan dry-wall participating of 2 1/2"
metal studs with 1/2" gypsum board on each side to underside of hung ceiling.
Spackle and tape walls three coats to a smooth and true finish. Paint walls two
coats flat latex and doors and trim coats matching enamel.
Install in executive offices, main conference room and reception area, over
padding, executive grade 30 ounce cut pile carpet. Balance of space shall be
carpeted with building standing 22 ounce loop pile carpet installed glued down.
Building standard vinyl reinforced tile may be installed in place of carpet.
Install a 2'0" x 2'0" Xxxxxxxxx Cortege Minatone acoustical tile ceiling with a
Xxxx Fineline DXF-29 Suspension System.
Provide interior 3'0" x 8'0" stain grade solid core birch wood doors with hollow
metal bucks.
2. Lavatory Area -- Public Spaces
a) Separate male and female toilet facilities. 3. Landscaping
The building will be extensively landscaped with trees, plantings and other
materials. An underground sprinkler system will be provided with a time clock to
maintain proper watering.
4. Electrical Specifications
All electrical work shall be installed in accordance with the National
Electrical Code, and the local building code. A "Certificate of Compliance
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shall be obtained from the New York Board of Fire Underwriters at the completion
of the project.
Lighting throughout the entire finished office area shall be obtained by the use
of recessed 2'0" by 4'0" fluorescent fixtures with parabolic lenses, not to
exceed one (l) fixture for each eighty (80) square feet of usable space. Local
wall switches shall be provided for control of lighting. Toilet, corridor, lobby
and other similar areas shall be lit to 50 foot candles.
Exit light lighting for all paths of egress shall be provided in accordance with
local building department regulations, if required.
All branch circuit wiring shall be above hung ceiling or within dry-wall
construction in finished areas and shall be type BX. All exposed conduits in
non-finished areas shall be thin-walled "EMT".
Wall mounted duplex convenience outlets shall be provided on the basis of one
duplex outlet for each 120 square feet of rentable area. This formula shall be
used to establish the quantity of outlets. However, the exact location of each
outlet shall be coordinated with the Tenant's furniture layout. All duplex
outlets are to be considered as normal convenience outlets and shall be wired up
with an average of 5 to 8 outlets on one 20 ampere, 120 volt circuit. Panel
capacity shall be adequate to handle all tenant lighting and equipment load,
providing such equipment load does not exceed 2 xxxxx per square foot of usable
area.
No credits given for installation less than standard installation.
5. Heating, Ventilation and Air Conditioning Specifications
GENERAL
The intent of this specification is to define a design concept for the subject
area.
DESIGN CRITERIA
Central air conditioning with modular systems with individual zone control shall
be capable of the following performance when the criteria noted are not
exceeded;
A) Between September 1 and June 1, the "heating system" shall be operative and
maintain a minimum of 70|SD FDB when the outdoor temperature is 0|SD FDB and the
prevailing wind velocity does not exceed 15 mph.
B) Between April 15 and October 14, the "cooling system" shall be operative and
maintain a maximum of 78|SD FDB and 55% relative humidity when the outdoor
temperature is 95|SD FDB and 75|SD FDB with the prevailing wind velocity not
exceeding 13 mph.
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C) During the overlapping seasons (April 15 - June 1 and September 1 - October
15) both systems shall be operative (cooling and heating).
D) Zoning temperature and balancing controls shall be operated solely by the
Landlord to assure the conditions above.
E) Maintenance of the foregoing temperature conditions is conditioned upon the
following criteria, which shall not be exceeded by the Tenant in any room, or
area, within the demised premises:
a) Population Density ........................... 1 person per 150 square feet
b) Lighting and Electrical Load Density ......... 4 xxxxx per square foot
c) Exhaust and Ventilation Load ................. 5 cfm per person
6. Ventilation
Bathroom and similar areas to be ventilated per code using rooftop fans.
7. System Design
Exterior Perimeter Zones
Heating/cooling of exterior offices and areas provided by variable air volume
terminals with integrated thermostats to meet Tenant's requirements for
individual control.
Interior Zones
Heating/cooling provided by variable air volume system terminals with integrated
thermostats for areas 2,000 square feet.
SCHEDULE "B"
LANDLORD'S CLEANING SERVICES AND MAINTENANCE OF PREMISES
(to be performed on all business days except those which are union holidays of
the employees performing cleaning services and maintenance in the Building and
grounds or on days on which the building is closed)
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I. CLEANING SERVICE - PUBLIC SPACES:
A. Floor of entrance lobby and public corridors will be vacuumed or swept and
washed nightly and waxed as necessary.
B. Entranceway glass and metal work will be washed and rubbed down daily.
C. Wall surfaces and elevator cabs will be kept in polished condition.
D. Lighting fixtures will be cleaned and polished annually. Bulbs will be
replaced as needed.
E. Elevators and restrooms will be washed and disinfected once a day. The floors
will be mopped as many times as required. All brightwork and mirrors will be
kept in polished condition. Dispensers will be continuously checked and
receptacles continuously emptied.
F. Exterior surfaces and all windows of the building will be cleaned quarterly.
II. CLEANING SERVICES - TENANT SPACES:
A. Floors will be swept and spot cleaned nightly. Carpets will be swept daily
and carpet sweeper and vacuumed weekly.
B. Office equipment, telephones, etc, will be dusted nightly.
C. Normal office waste in receptacles and ashtrays will be emptied nightly.
D. Interior surface of windows and xxxxx will be washed and blinds dusted
quarterly.
E. There shall be regularly scheduled visits by a qualified exterminator.
III. EXTERIOR SERVICES:
A. Parking fields will be regularly swept, cleared of snow in excess of two
inches and generally maintained so as to be well drained, properly surfaced and
striped.
B. All landscaping, gardening, exterior lighting and irrigation systems will
have regular care and servicing.
IV. EQUIPMENT SERVICE:
A. All air-conditioning and heating equipment and elevators will be regularly
serviced and maintained.
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B. Plumbing and electrical facilities, doors, hinges and locks will be repaired
as necessary.
C. All appurtenances, such as rails, stairs, etc. will be maintained in a safe
condition.
V - EXTRA CLEANING SERVICES
Tenant shall pay to Landlord, on demand, Landlord's charges for (a) cleaning
work in the Premises required because of (i) misuse or neglect on the part of
Tenant or its employees or visitors, (ii) use of portions of the Premises for
preparation, serving or consumption of food or beverages, or other special
purposes requiring greater or more difficult cleaning work than office areas;
(iii) unusual quantity of interior glass surfaces; or (iv) non-building standard
materials or finishes installed by Tenant or at its request; (v) increases in
frequency or scope in any item set forth in Schedule B as shall have been
requested by Tenant; and (b) removal from the Premises and Building of (i) so
much of any refuse and rubbish of Tenant as shall exceed that normally
accumulated daily in the routine of ordinary business office activity and (ii)
all of the refuse and rubbish of any eating facility requiring special handling
(wet garbage).
SCHEDULE "C"
1. Landlord shall provide at the rates hereinafter set forth and Tenant
shall purchase from Landlord "energy service" for Tenant's requirements. There
shall be the following categories of energy service:
A) NORMAL SERVICE: NORMAL SERVICE is energy consumed during Working Hours
as defined in Article 6 whose power demands do not exceed 4 xxxxx per rentable
square foot of the Demised Premises, or part thereof, per Working Hour. Of this
amount, two xxxxx are allocated to Landlord supplied lighting. Two xxxxx are
allocated for Tenant's usual office equipment ("TENANT'S ALLOWABLE USE").
B) EXCESS SERVICE: EXCESS SERVICE is energy demanded, regardless of hours,
in excess of ALLOWABLE USE.
C) OVERTIME SERVICE; OVERTIME SERVICE is energy consumed at all other hours
than WORKING HOURS ("OVERTIME HOURS"). For the purpose of OVERTIME SERVICE, the
Demised Premises may be separated into zones of use. The minimum practical size
of these zones is 2500 square feet. Zones less than 2500 square feet will be
billed at the rate applicable to 2500 square feet.
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2. Charges for NORMAL SERVICE: The charge for NORMAL SERVICE is payable at
the rate of $2.25 per annum per rentable square foot of the Demised Premises and
is subject to escalation as hereinafter provided. The charged for NORMAL SERVICE
is included in the monthly rent set forth in Article 3. Any escalation shall be
payable as additional rent. After this, the charge to change "WORKING HOURS"
shall be $25.00 per zone.
3. Charges for OVERTIME SERVICE: Subject to escalation as hereinafter
provided the Landlord's monthly charge for Tenant's OVERTIME SERVICE, payable in
addition to any additional charges for NORMAL SERVICE and EXCESS SERVICE if
applicable, shall be derived as follows:
A) Full Energy OVERTIME SERVICE: An amount equal to the number of OVERTIME
HOURS in the month, multiplied by rentable square feet of the zones in use,
multiplied by $.0022.
B) OVERTIME charges shall be increased by the same percentage the EXCESS
SERVICE (if applicable) exceeds the ALLOWABLE USE for NORMAL SERVICE.
C) Equipment Energy: Any energy use in the Tenant's space, outside of
NORMAL SERVICE and OVERTIME SERVICE, shall be charged an amount equal to $1.28
per year, multiplied by the connected xxxxx (or part thereof), computed and
adjusted to the nearest 100th).
These amounts shall be billed at least once every three months and shall be
payable during the month in which billed as additional rent
4. Charges for EXCESS SERVICE: The Landlord's monthly charges for Tenant's
EXCESS SERVICE payable in addition to any charges for NORMAL SERVICE and
OVERTIME SERVICE, if applicable, shall be an amount derived as follows: The
excess above the TENANT'S ALLOWABLE USE shall be charged to tenant at the rate
of $0.625 per square foot per year, for each excess watt (or part thereof,
computed and adjusted to the nearest 100th).
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5. Escalation of Charges for NORMAL SERVICE, EXCESS SERVICE AND OVERTIME
SERVICE AND TWENTY-FOUR HOUR SERVICE: The rates referred to in this Schedule "C"
are based upon current rates promulgated by the utility company during the month
prior to the "Commencement Date." All of the rates, fuel and adjustment costs,
state and local government taxes, and all other component parts of the utility
company charges referred to in this Schedule "C" are subject to increase to
reflect changes in rate or classification or other component parts of the xxxx
employed by the utility company providing services to the building. Tenant
agrees to pay such increase in utility company charges. Landlord shall give due
notice to Tenant of any such increase or change in charge. Tenant shall not be
or become entitled to a reduction in rent, additional rent or to other
reimbursement in the event it uses less energy than contemplated by this
Schedule "C".
6. Landlord's energy management system will be conclusive evidence of the
computation of Normal Service, Excess Service, Overtime Service and Twenty-four
Hour Service. However, Landlord hereby reserves to itself the right, from time
to time, to cause a reputable electric engineering company (the "Engineer") to
make a survey of Tenant's energy usage requirements to determine whether the
Tenant's Allowable Use limitation has been exceeded and, if so, to what extent.
If these surveys indicate at the time that the cost to Landlord by reason
thereof, computed on an annual basis at rates which would be charged by a public
utility company servicing the Building for such purposes, is in excess of the
initial cost similarly computed, then the additional rent provided for in this
Schedule shall be increased as provided for herein, commencing with the first
day of the month immediately following the computation of such survey and the
submission of a copy thereof to Tenant.
7. Landlord shall have full and unrestricted access to all air-conditioning
and heating equipment, and to all other utility installations servicing the
Building and the Demised Premises. Landlord reserves the right temporarily to
interrupt, curtail, stop or suspend air-conditioning and heating service, and
all other utility, or other services, because of Landlord's inability to obtain,
or difficulty or delay in obtaining, labor or materials necessary therefor, or
in order to comply with governmental restrictions in connection therewith, or
for any other cause beyond Landlord's reasonable control. No diminution or
abatement of Basic Rent, Additional Rent, or other compensation shall or will be
claimed by Tenant, nor shall this Lease or any of the obligations of Tenant
hereunder be affected or reduced by reason of such interruptions, stoppages or
curtailments, the causes of which are herein above enumerated, nor shall the
same give rise to a claim in Tenant's favor that such failure constitutes actual
or constructive, total or partial eviction from the Demised Premises, unless
such interruptions, stoppages or curtailments have been due to the arbitrary,
willful or negligent act, or failure to act, of Landlord.
8. Telephone and service shall be the responsibility of Tenant. Tenant
shall make all arrangements for telephone service with the company supplying
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said service, including the deposit requirement for the furnishing of service.
Landlord shall not be responsible for any delays occasioned by failure of the
telephone company to furnish service.
SCHEDULE "D"
1. The sidewalk, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress to and egress from
the Demised Premises and for delivery of merchandise and equipment in a prompt
and efficient manner using elevators and passageways designated for such
delivery by Landlord. There shall not be used in any space, or in the public
hall of the building, either by any Tenant or by jobbers or other in the
delivery or receipt of merchandise, any hand trucks, except those equipped with
rubber tires and safeguards.
2. The water and wash closets and plumbing fixtures shall not be used or
any purpose other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No Tenant shall sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the building, and
Tenant shall not use, keep or permit to be used or keep any vending machine,
burner, microwave oven, or oven, or noxious gas or substance in the Demised
Premises, or permit or suffer the Demised Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the Building
by reason of noise, odors and/or vibrations, or interfere in any way with other
tenants or those having business therein, not shall any animals or birds be kept
in or about the building. Smoking or carrying lighted cigars or cigarettes in
the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of the Landlord.
5. No sign, advertisement, notice or other lettering and/or window
treatment shall be exhibited, inscribed, painted or affixed by any Tenant on
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any part of the outside of the Demised Premises or the Building or on the inside
of the Demised Premises if the same is visible from the outside of the Demised
Premises without the prior written consent of Landlord. 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 Tenant or
Tenants violating this rule. Interior signs on doors and directory tables shall
be inscribed, painted or affixed for each Tenant by Landlord at the expense of
such Tenant, and shall be of a size, color and style acceptable to Landlord.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any part
of the Demised Premises or the Building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as Landlord may direct. No Tenant shall lay linoleum,
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.
7. 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 mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Landlord all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Landlord the cost
thereof. Landlord consents to Tenant installing a lock on the computer room
door. Landlord shall have no obligation to clean said room.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the premises only through
the service entrances and corridors, and only during hours and in a manner
approved by Landlord. 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.
9. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall co-operate to prevent the same.
10. Landlord reserves the right to exclude from the building between the
hours of 6:00 P.M. and 8:00 A.M. and at all hours on Sundays, and legal holidays
all persons who do not present a pass to the Building signed by Landlord.
Landlord will furnish passes to persons for whom any Tenant requires
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same in writing. Each Tenant shall be responsible for all persons for whom he
requests such a pass and shall be liable to Landlord for all acts of such
persons.
11. Landlord shall have the right to prohibit any advertising by any Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as an office building, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
Premises, any inflammable, combustible or explosive fluid, material, chemical or
substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the
Premises.
13. Tenant agrees to keep all entry doors closed at all times and to abide
by all rules and regulations issued by the Landlord with respect to such
services.
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