KEREN LIMITED PARTNERSHIP,
Landlord
and
PROGENICS PHARMACEUTICALS, INC.,
Tenant
--------------------
LEASE
--------------------
The Landmark at Eastview
Towns of Greenburgh
and Mount Pleasant
Westchester County, New York
TABLE OF CONTENTS
Article Page
------- ----
1 Demise and Rent and Definitions ....................... 1
2 Use ................................................... 5
3 Condition of Premises ................................. 6
4 Intentionally Omitted ................................. 6
5 Intentionally Omitted ................................. 6
6 Subordination, Notice to Superior
Lessors and Superior Mortgagees ....................... 6
7 Quiet Enjoyment ....................................... 9
8 Assignment, Subletting and Mortgaging ................. 9
9 Compliance With Legal and Insurance Requirements ...... 16
10 Insurance ............................................. 18
11 Rules and Regulations ................................. 20
12 Alterations ........................................... 20
13 Landlord's and Tenant's Property ...................... 23
14 Repairs and Maintenance ............................... 24
15 Electric Energy ....................................... 24
16 Heat, Ventilation and Air-Conditioning ................ 25
17 Other Services; Service Interruption .................. 26
18 Access and Name of Project ............................ 27
19 Notice of Occurrences ................................. 29
20 Non-Liability and Indemnification ..................... 29
21 Damage or Destruction ................................. 30
22 Eminent Domain ........................................ 32
23 Surrender and Holding Over ............................ 33
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24 Default ............................................... 34
25 Re-entry by Landlord .................................. 36
26 Damages ............................................... 37
27 Affirmative Waivers ................................... 39
28 No Waivers ............................................ 39
29 Curing Tenant's Defaults .............................. 40
30 Broker ................................................ 40
31 Notices ............................................... 40
32 Estoppel Certificates ................................. 41
33 Execution and Delivery of Lease ....................... 41
34 Recording of Lease .................................... 42
35 Parking ............................................... 42
36 Environmental Compliance .............................. 42
37 Signs ................................................. 43
38 Approval Contingency .................................. 43
39 Intentionally Omitted ................................. 43
40 Partnership or Multi-Person Tenant .................... 43
41 Miscellaneous ......................................... 44
EXHIBITS
Exhibit A - Rules and Regulations
Exhibit B - Parking Area
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LEASE, dated as of _______ __ 1994, between KEREN LIMITED PARTNERSHIP, a
Delaware limited partnership having an office at 000 Xxx Xxx Xxxx Xxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000-0000 (herein called "Landlord"), and PROGENICS
PHARMACEUTICALS, INC., a New York corporation having an office at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (herein called "Tenant").
WITNESSETH:
ARTICLE 1 - Demise and Rent and Definitions
1.01. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises (as defined in Section 1.02) in the building known as the
"Silicones Building" (herein called the "Building") on Landlord's land (herein
called "Land") located along Old Saw Mill River Road, partly in the Town of
Greenburgh and partly in the Town of Mount Pleasant, in the County of
Westchester and State of New York and called "The Landmark at Eastview."
Landlord intends to and shall have the right at any time to cause part or parts
of the Land to become a separate tax lot or separate tax lots in connection with
future development thereof. If Landlord does so, any separate tax lots that do
not include the Premises shall be excluded from the Land and "Land" shall mean
only the land in the tax lot of which the Premises are a part. The Land and all
of the buildings and other improvements presently and hereafter located thereon
are herein collectively called the "Project." The buildings and other
improvements presently and hereafter located on the Land are herein collectively
called the "Improvements."
1.02. The premises (herein called the "Premises") leased to Tenant consist
of the same space as shall constitute, as of December 30, 1997, the "Premises"
demised under and defined in that certain Tarrytown Sublease Agreement dated as
of July 13, 1988 between Union Carbide Corporation and Tenant, as amended by
amendments dated November 17, 1988, June 1, 1989, December 1, 1989, November 20,
1991 and June __, 1994 (the "Sublease"), true, correct and complete copies of
which Tenant represents and warrants it has heretofore delivered to Landlord.
Tenant shall have, as appurtenant to the Premises, the non-exclusive right to
use in common with others, subject to the terms and conditions of this Lease,
including the Rules and Regulations (as hereinafter defined): (a) the common
lobbies, corridors, stairways and elevators of the Building, if any, and (b) if
the Premises includes less than the rentable floor area of any floor, the common
toilets, corridors and lobby, if any, of such floor.
1.03. Subject to Sections 1.11 and 1.12, the term of this Lease (herein
called the "Term") shall commence on January 1, 1998 (herein called the
"Commencement Date") and shall end at 11:59 p.m. on April 30, 1998, or on such
earlier date upon which
the Term shall expire or be cancelled or terminated pursuant to any of the
conditions or covenants of this Lease or pursuant to law. If for any reason the
Commencement Date shall be other than the specific date set forth above, then,
promptly following the Commencement Date the parties hereto shall enter into an
agreement in form and substance satisfactory to Landlord setting forth the
Commencement Date. If this Lease contains any renewal option or options, then
upon the valid exercise of any renewal option, the word "Term" shall be deemed
to include the renewal period for which said option or options was or were
exercised.
1.04. The rents shall be and consist of (a) fixed rent (herein called the
"Fixed Rent") at the rate of THIRTY DOLLARS ($30.00) per annum multiplied by the
number of square feet of gross rentable area in the Premises, which shall be
payable in equal monthly installments in advance on the first day of each and
every calendar month during the Term, and (b) additional charges (herein called
the "Additional Charges") consisting of all other sums of money as shall become
due from and payable by Tenant to Landlord hereunder; all the Fixed Rent and
Additional Charges shall be paid in lawful money of the United States to
Landlord at its office c/o Keren Developments Inc., 000 Xxx Xxx Xxxx Xxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000-0000, Attention: Accounts Receivable, or such other
place, or to Landlord's agent and at such other place, as Landlord shall
designate by notice to Tenant.
1.05. Tenant shall pay the Fixed Rent and Additional Charges promptly when
due without notice or demand therefor and without any abatement, deduction or
setoff for any reason whatsoever, except as may be expressly provided for in
this Lease or by law. If the Commencement Date occurs on a day other than the
first day of a calendar month, the Fixed Rent for the partial calendar month at
the commencement of the Term shall be prorated.
1.06. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Fixed Rent or Additional Charges shall be deemed
to be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this Lease or provided at law.
1.07. Tenant shall pay the Fixed Rent and Additional Charges as above and
as herein provided, by good and sufficient check (subject to collection) drawn
on a New York City bank which is a member of the New York Clearing House or a
successor thereto.
1.08. If Tenant fails to make any payment of Fixed Rent or Additional
Charges on or before the due date thereof,
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Tenant shall pay to Landlord a late charge of 1% of the amount such payment and,
in addition, such unpaid amount shall bear interest at a rate (herein called the
"Lease Interest Rate") equal to the lesser of (a) the rate announced by
Citibank, N.A. or its successor from time to time as its prime or base rate,
plus 2%, or (b) the maximum applicable legal rate, if any, from the date such
amount became due and payable to the date of payment thereof by Tenant. Such
late charge and interest shall be due and payable on demand.
1.09. If any of the Fixed Rent or Additional Charges shall be or become
uncollectible, reduced or required to be refunded because of any Legal
Requirements (as defined in Section 1.10(i)), Tenant shall enter into such
agreement(s) and take such other steps (without additional expense to Tenant) as
Landlord may request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of such
legal rent restriction may be legally permissible (and not in excess of the
amounts reserved therefor under this Lease). Upon the termination of such legal
rent restriction, (a) the rent shall become and thereafter be payable in
accordance with the amounts reserved herein for the periods following such
termination and (b) Tenant shall pay to Landlord, to the maximum extent legally
permissible, an amount equal to (i) the rent which would have been paid pursuant
to this Lease but for such legal rent restriction, less (ii) the rent actually
paid by Tenant during the period such legal rent restriction was in effect.
1.10. The following terms, whenever used in this Lease, shall have the
meanings indicated:
(a) The term "and/or" when applied to two or more matters or things
shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(b) The term "Business Days" shall mean all days except Saturdays,
Sundays and days observed by the Federal or the state governments as legal
holidays.
(c) The term "Business Hours" shall mean 6:00 a.m. to 7:00 p.m.
(d) Intentionally deleted.
(e) The terms "herein" and "hereunder," and words of similar import,
shall be construed to refer to this Lease as a whole, and not to any
particular Article or Section, unless expressly so stated.
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(f) The term "Insurance Requirements" shall mean the rules,
regulations, orders and requirements of the New York Board of Underwriters
and/or the New York Fire Insurance Rating Organization and/or any other
similar body performing the same or similar functions and having
jurisdiction or cognizance over the Building and/or the Premises, whether
now or hereafter in force, and the requirements of any insurance policy
maintained by Landlord.
(g) The term "Landlord" shall mean only the owner at the time in
question of the Building or of a lease of the Building, so that in the
event of any transfer or transfers of title to the Building or of
Landlord's interest in a lease of the Building, the transferor shall be
and hereby is relieved and freed of all obligations of Landlord under this
Lease accruing after such transfer, and it shall be deemed, without
further agreement that such transferee has assumed and agreed to perform
and observe all obligations of Landlord herein during the period it is the
holder of Landlord's interest under this Lease.
(h) The term "Lease Year" shall mean the 12-month period beginning
on the Commencement Date or commencing on any anniversary of the
Commencement Date.
(i) The term "Legal Requirements" shall mean laws and ordinances of
any or all of the federal, state, city, town, county, borough and village
governments and rules, regulations, orders and directives of any and all
departments, subdivisions, bureaus, agencies or offices thereof, and of
any other governmental, public or quasi-public authorities having
jurisdiction over the Building and/or the Premises, and the direction of
any public officer pursuant to law, whether now or hereafter in force.
(j) The term "person" shall mean any natural person or persons, a
partnership, a corporation, and any other form of business or legal
association or entity.
(k) The term "Tenant" shall mean the Tenant herein named or any
assignee or other successor in interest (immediate or remote) of the
Tenant herein named, which at the time in question is the owner of the
Tenant's estate and interest granted by this Lease; but the foregoing
provisions of this subsection shall not be construed to permit any
assignment of this Lease or to relieve the Tenant herein named or any
assignee or other successor in interest (whether immediate or
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remote) of the Tenant herein named from the full and prompt payment,
performance and observance of the covenants, obligations and conditions to
be paid, performed and observed by Tenant under this Lease.
1.11. The Term shall not commence if, prior to December 30, 1997, (a) the
Sublease is terminated (i) for a reason other than Tenant's default and (ii)
other than as a consequence of the entry by Tenant into an agreement with the
Sublessor surrendering the Premises, terminating the Sublease or modifying the
Sublease to shorten the term thereof, and (b) Tenant has vacated the Premises in
accordance with the Sublease.
1.12. Tenant shall have the option to terminate this Lease, at its
election, by giving to Landlord notice of such election on or before December
31, 1996, in which event the Term shall not commence.
ARTICLE 2 - Use
2.01. Tenant shall use the Premises for executive and sales office and
pharmaceutical development purposes involving protein chemistry, molecular
genetics and cellular biophysics, and for any other lawful purpose incidental
thereto, but for no other purpose.
2.02. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business in the Premises or any part
thereof (other than the present certificate of occupancy for the Premises or for
the Building), Tenant, at its expense, shall duly procure and thereafter
maintain such license or permit and submit the same to Landlord for inspection.
Tenant shall at all times comply with the terms and conditions of each such
license or permit. Tenant shall not at any time use or occupy, or suffer or
permit anyone to use or occupy, the Premises, or any part thereof, in any manner
(a) which violates the certificate of occupancy for the Premises or for the
Building or any other permit or license issued pursuant to any Legal
Requirements; (b) which causes or is liable to cause injury to the Building or
any equipment, facilities or systems therein; (c) which constitutes a violation
of the Legal Requirements or Insurance Requirements; (d) which impairs or tends
to impair the character, reputation or appearance of the Building as a first
class office building; (e) which impairs or tends to impair the proper and
economic maintenance, operation and repair of the Building and/or its equipment,
facilities or systems; or (f) which annoys or inconveniences or tends to annoy
or inconvenience other tenants or occupants of the Project. Tenant shall not at
any time use or occupy, or suffer or permit anyone to use or occupy, the
Premises, or any part thereof, for (i) the production or
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disposal of any toxic chemicals, (ii) a banking, trust company, or safe deposit
business, or (iii) a restaurant and/or bar.
2.03. No use of the Premises by Tenant prior to the Commencement Date (a)
shall be deemed a breach of any covenant in this Lease or the Rules and
Regulations (as defined in Section 11.01) relating to the use of the Premises by
Tenant or (b) shall expose Tenant to charges by Landlord for increased insurance
premiums or other costs or expenses.
ARTICLE 3 - Condition of Premises
3.01. Tenant is leasing the Premises "as is" on the date hereof, except
for (i) reasonable wear and tear, (ii) the rights of the present occupant(s) of
the Premises to remove its or their trade fixtures and other property from the
Premises and (iii) wear and tear, damage, alterations and other changes caused
or suffered by Tenant as subtenant of the Premises, to the extent not the
responsibility of Landlord under the "Prime Lease" referred to in the Sublease.
3.02. If Tenant is not already in, and Landlord is unable to give,
possession of the Premises on the Commencement Date, because of fire or other
casualty or the occurrence of any of the events described in Section 41.04),
Landlord shall not be subject to any liability for failure to give possession on
the Commencement Date and the validity of this Lease shall not be impaired under
such circumstances, nor shall the same be construed in any way to extend the
Term, but the Fixed Rent and Additional Charges payable hereunder shall be
abated (provided Tenant is not responsible for the inability to obtain
possession) until Landlord tenders possession to Tenant. Tenant hereby waives
the provisions of Section 223-a of the Real Property Law of the State of New
York, and agrees that the provisions of this Article are intended to constitute
"an express provision to the contrary" within the meaning of said Section 223-a.
ARTICLE 4 - Intentionally Omitted
ARTICLE 5 - Intentionally Omitted
ARTICLE 6 - Subordination, Notice to Superior
Lessors and Superior Mortgagees
6.01. The holder of any mortgage which may now or hereafter affect the
Land and/or the Building and/or any Superior Lease (as hereinafter defined) may
elect that this Lease and all rights of Tenant hereunder shall have priority
over such mortgage and, upon notification by such holder to
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Tenant, this Lease shall be deemed to have priority over such mortgage, whether
this Lease is dated prior to or subsequent to the date of such mortgage. Except
for any mortgage where the holder gave the aforesaid notification that this
Lease shall have priority over such mortgage, this Lease, and all rights of
Tenant hereunder, are and shall be subject and subordinate to all ground leases,
overriding leases and underlying leases of the Land and/or the Improvements now
or hereafter existing and to all mortgages which may now or hereafter affect the
Land and/or the Improvements and/or any of such leases, including, without
limitation, that certain Mortgage Consolidation, Modification, Extension and
Spreader Agreement dated as of September 30, 1987, between Landlord, as
Mortgagor, and Swiss Bank Corporation, New York Branch (herein called "Swiss
Bank"), as Mortgagee, and that certain Restated Mortgage dated as of September
30, 1987, between Landlord, as Mortgagor, and Union Carbide Corporation (now
known as Union Carbide Chemicals and Plastics Company Inc.) (herein called
"Carbide"), as Mortgagee, whether or not such mortgages shall also cover other
lands and/or buildings and/or leases, to each and every advance made or
hereafter to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages. This Section shall be self-operative and no
further instrument of subordination or priority (as described in the first
sentence of this Section) shall be required. In confirmation of such
subordination or priority (as described in the first sentence of this Section),
Tenant shall promptly execute, acknowledge and deliver any instrument that
Landlord, the lessor under any such lease or the holder of any such mortgage or
any of their respective successors in interest may reasonably request to
evidence such subordination or priority. Any lease to which this Lease is, at
the time referred to, subject and subordinate is herein called a "Superior
Lease," and the lessor of a Superior Lease or its successor in interest, at the
time referred to, is herein called a "Superior Lessor" and any mortgage (a) to
which this Lease is, at the time referred to, subject and subordinate or (b) to
which this Lease shall have priority due to the effect of the first sentence of
this Section is herein called a "Superior Mortgage" and the holder of a Superior
Mortgage is herein called a "Superior Mortgagee."
6.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such
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notice and following the time when such Superior Mortgagee or Superior Lessor
shall have become entitled under such Superior Mortgage or Superior Lease, as
the case may be, to remedy the same (which reasonable period shall in no event
be less than the longer of 180 days or the period to which Landlord would be
entitled under this Lease or otherwise, after similar notice, to effect such
remedy), provided such Superior Mortgagee or Superior Lessor shall with due
diligence give Tenant notice of intention to, and commence and continue to,
remedy such act or omission. The current address of Swiss Bank, a Superior
Mortgagee, is Swiss Bank Tower, 15th Floor, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Real Estate Department, Xx. Xxx Xxxx, Director,
Restructuring. The current address of Carbide, a Superior Mortgagee, is 00 Xxx
Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000, Attention of Xx. Xxxxx X.
Xxxxxx, Director of General Services.
6.03. If any Superior Mortgagee or Superior Lessor shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights (herein called a "Successor Landlord"), Tenant
shall attorn to and recognize such Successor Landlord as Tenant's landlord under
this Lease and shall promptly execute and deliver any instrument that such
Successor Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; (c) be
obligated to complete any work to prepare the Premises for Tenant's occupancy;
(d) be obligated to make any payment to or on behalf of Tenant; (e) be required
to account for any security deposit other than any actually delivered to the
Successor Landlord; or (f) be bound by any previous modification of this Lease
or by any previous prepayment of more than one month's Fixed Rent, unless such
modification or prepayment shall have been expressly approved in writing by the
lessor of the Superior Lease or the holder of the Superior Mortgage through or
by reason of which the Successor Landlord shall have succeeded to the rights of
Landlord under this Lease.
6.04. If any prospective or actual Superior Mortgagee or Superior Lessor
requires any modification of this Lease, Tenant shall, upon notice thereof from
Landlord, promptly execute and deliver to Landlord the instrument accompanying
said notice from Landlord to effect such modification if such instrument does
not adversely affect in
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any respect any of Tenant's rights under this Lease and does not increase in any
respect any of Tenant's obligations under this Lease.
6.05. Landlord represents to Tenant that, as of the date hereof, the only
Superior Mortgagees are Swiss Bank and Carbide. Notwithstanding any provision to
the contrary in Section 6.01, this Lease shall not be subordinate to any
mortgage unless Tenant receives a non-disturbance agreement from the holder of
such mortgage, in such holder's standard form thereof. Tenant agrees to execute,
acknowledge and deliver each such non-disturbance agreement. If Landlord fails
to obtain and deliver to Tenant, within 60 days after the date hereof, such a
non-disturbance agreement from each of Swiss Bank and Carbide, then Tenant shall
have the right, at its option, to terminate this Lease by written notice given
to Landlord at any time after such 60-day period (but prior to the delivery to
Tenant of such non-disturbance agreements).
ARTICLE 7 - Quiet Enjoyment
7.01. So long as Tenant pays all of the Fixed Rent and Additional Charges
and performs all of Tenant's other obligations hereunder, Tenant shall peaceably
and quietly have, hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord or any person lawfully claiming through or under
Landlord, subject, nevertheless, to the provisions of this Lease and to any
Superior Leases and Superior Mortgages. This covenant shall be construed as a
covenant running with the Land, and is not, nor shall it be construed as, a
personal covenant of Landlord, except to the extent of Landlord's interest in
this Lease and only so long as such interest shall continue, and thereafter this
covenant shall be binding only upon subsequent successors in interest of
Landlord's interest in this Lease, to the extent of their respective interests,
as and when they shall acquire the same, and so long as they shall retain such
interest.
ARTICLE 8 - Assignment, Subletting and Mortgaging
8.01. Except as permitted by Section 8.02, Tenant shall not, whether
voluntarily, involuntarily, or by operation of law or otherwise (a) assign or
otherwise transfer this Lease, or offer or advertise to do so, (b) sublet the
Premises or any part thereof, or offer or advertise to do so, or allow the same
to be used, occupied or utilized by anyone other than Tenant, or (c) mortgage,
pledge, encumber or otherwise hypothecate this Lease or the Premises or any part
thereof in any manner whatsoever, without in each instance obtaining the prior
consent of Landlord and all Superior Mortgagees which consent, subject to the
requirements of Section 8.10, shall not be unreasonably withheld or delayed.
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8.02. If and so long as Tenant is a corporation or a partnership, one or
more voluntary sales or transfers of stock or partnership interests, or the
issuance of new stock or partnership interests, which, in either case, results
in an aggregate of more than 50% of Tenant's stock or partnership interests
being vested in a party or parties who are not stockholders or partners as of
the date hereof, shall be deemed to be an assignment of this Lease under Section
8.01 prohibited by said Section unless either (a) Tenant obtains the prior
consent of Landlord and all Superior Mortgagees pursuant to Section 8.01, or (b)
such transfer(s) or issuance is made for a legitimate business purpose and not
primarily to circumvent the restrictions on assignment of this Lease contained
in this Article 8. Without limiting the generality of the exception set forth in
the foregoing clause (b), the provisions of this Section shall not apply to any
corporation all the outstanding voting stock of which is listed on a national
securities exchange (as defined in the Securities Exchange Act of 1934, as
amended) or is traded in the over-the-counter market with quotations reported by
the National Association of Securities Dealers through its automated system for
reporting quotations. Also, Tenant shall have the right, without the consent of
Landlord or any Superior Mortgagee, to assign this Lease or sublet the Premises
or any part thereof to any corporation or partnership which controls, or is
controlled by, or is under common control with Tenant, or to any entity
succeeding to all or substantially all of Tenant's assets, and Sections 8.07,
8.08, 8.09, 8.10 and 8.14 and the first two sentences of Section 8.12 shall not
apply to such an assignment or subletting.
8.03. If this Lease is assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof are sublet or used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such default, collect
rent from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the Fixed Rent and Additional Charges herein reserved, but
no such assignment, subletting, occupancy or collection shall be deemed a waiver
of any of the provisions of Section 8.01, or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord and any
Superior Mortgagee to assignment, mortgaging, subletting or use or occupancy by
others shall not in any way be considered to relieve Tenant from obtaining the
consent of Landlord and all Superior Mortgagees to any other or further
assignment, mortgaging, subletting or use or occupancy by others not expressly
permitted by this Article. References in this Lease to use or occupancy by
others (that is, anyone other
10
than Tenant) shall not be construed as limited to subtenants and those claiming
under or through subtenants but as including also licensees and others claiming
under or through Tenant, immediately or remotely.
8.04. Any assignment or transfer, whether made with Landlord's and all
Superior Mortgagees' consent pursuant to Section 8.01 or without the requirement
of Landlord's and all Superior Mortgagees' consent pursuant to Section 8.02,
shall be made only if, and shall not be effective until, the assignee shall
execute, acknowledge and deliver to Landlord an agreement in form and substance
reasonably satisfactory to Landlord and all Superior Mortgagees whereby the
assignee shall assume the obligations of this Lease on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
in Section 8.01 shall, notwithstanding such assignment or transfer, continue to
be binding upon it in respect of all future assignments and transfers.
Notwithstanding any assignment or transfer, whether or not in violation of the
provisions of this Lease, and notwithstanding the acceptance of the Fixed Rent
or Additional Charges by Landlord from an assignee, transferee, or any other
party, the original named Tenant shall remain fully liable for the payment of
the Fixed Rent and Additional Charges and for the other obligations of this
Lease on the part of Tenant to be performed or observed.
8.05. The liability of Tenant and any immediate or remote successor in
interest of Tenant and the due performance of the obligations of this Lease on
Tenant's part to be performed or observed shall not be discharged, released or
impaired in any respect by any agreement or stipulation made by Landlord with
the then Tenant extending the time of, or modifying any of the obligations of,
this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations of this Lease.
8.06. Neither the listing of any name other than that of Tenant, whether
on the door of the Premises or on any directory, or otherwise, nor the
acceptance by Landlord of any check not drawn by Tenant in payment of Fixed Rent
or Additional Charges, shall operate to vest any right or interest in this Lease
or in the Premises, nor shall it be deemed to be the consent of Landlord to any
assignment or transfer of this Lease or to any sublease of the Premises or to
the use or occupancy thereof by others.
8.07. Except as specifically provided to the contrary in this Article 8,
if Tenant shall at any time or times during the Term desire to assign this Lease
or sublet all or any part of the Premises, Tenant shall give notice thereof to
Landlord and all Superior Mortgagees, which notice shall be
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accompanied by (a) a conformed or photostatic copy of the proposed assignment or
sublease, the effective or commencement date of which shall be at least 60 days
after the giving of such notice, (b) a statement setting forth in reasonable
detail the identity of the proposed assignee or subtenant, the nature of its
business and its proposed use of the Premises, and (c) current financial
information with respect to the proposed assignee or subtenant, including,
without limitation, its most recent financial report. Such notice shall be
deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's
designee) may, at its option, (i) sublease such space from Tenant upon the terms
and conditions hereinafter set forth or (ii) terminate this Lease (if the
proposed transaction is an assignment or a sublease of all or substantially all
of the Premises). Said options may be exercised by Landlord by notice to Tenant
at any time within 60 days after such notice has been given by Tenant to
Landlord; and during such 60-day period Tenant shall not assign this Lease or
sublet such space to any person.
8.08. If Landlord exercises its option to terminate this Lease in the case
where Tenant desires either to assign this Lease or sublet all or substantially
all of the Premises, then this Lease shall end and expire on the date that such
assignment or sublet was to be effective or commence, as the case may be, and
the Fixed Rent and Additional Charges shall be paid and apportioned to such
date.
8.09. If Landlord exercises its option to sublet the Premises which Tenant
desires to sublet, such sublease to Landlord or its designee (as subtenant)
shall be at the lower of (i) the rental rate per rentable square foot of the
Fixed Rent and Additional Charges then payable pursuant to this Lease or (ii)
the rentals set forth in the proposed sublease, and shall be for the same term
as that of the proposed subletting, and:
(a) the sublease shall be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease except such as
are irrelevant or inapplicable, and except as otherwise expressly set
forth to the contrary in this Section;
(b) such sublease shall be upon the same terms and conditions as
those contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary
in this Section;
(c) such sublease shall give the sublessee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease
or any interest therein
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and/or to further sublet the Premises or any part or parts thereof and to
make any and all changes, alterations, and improvements in the Premises;
(d) such sublease shall provide that any assignee or further
subtenant of Landlord or its designee may, at the election of Landlord, be
permitted to make alterations, decorations and installations in such space
or any part thereof and shall also provide in substance that any such
alterations, decorations and installations in such space therein made by
any assignee or subtenant of Landlord or its designee may be removed, in
whole or in part, by such assignee or subtenant, at its option, prior to
or upon the expiration or other termination of such sublease provided that
such assignee or subtenant, at its expense, shall repair any damage and
injury to such space so sublet caused by such removal; and
(e) such sublease shall provide that (i) the parties to such
sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties,
(ii) any assignment or further subletting by Landlord or its designee (as
the sublessor) may be for any purpose or purposes that Landlord, in
Landlord's uncontrolled discretion, shall deem suitable or appropriate,
and (iii) at the expiration of the term of such sublease, Tenant will
accept the space covered by such sublease in its then existing condition,
subject to the obligations of the subtenant to make such repairs thereto
as may be necessary to preserve the premises demised by such sublease in
good order and condition, ordinary wear and tear and damage by fire or
other casualty excepted.
8.10. If Landlord does not exercise its options pursuant to Section 8.07
to so sublet the Premises or terminate this Lease and providing that Tenant is
not in default of any of Tenant's obligations under this Lease, Landlord's
consent (which shall be in form reasonably satisfactory to Landlord) to the
proposed assignment or sublease shall not be unreasonably withheld, provided and
upon condition that:
(a) Tenant shall have complied with the provisions of Section 8.07
and Landlord shall not have exercised any of its options under said
Section 8.07 within the time permitted therefor;
(b) in Landlord's judgment the proposed assignee or subtenant is
engaged in a business and the Premises will be used in a manner which (i)
is in keeping with the then standards of the Building, (ii) is limited to
the use expressly permitted under Section 2.01, and (iii) will not
13
violate any negative covenant as to use contained in any other lease of
space in the Project;
(c) the proposed assignee or subtenant is a reputable person of good
character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable
proof thereof;
(d) neither (i) the proposed assignee or sublessee nor (ii) any
person which, directly or indirectly, controls, is controlled by, or is
under common control with, the proposed assignee or sublessee or any
person who controls the proposed assignee or sublessee, is then an
occupant of any part of the Project or any other building in the County of
Westchester owned or operated under a ground or underlying lease by
Landlord or any person which, directly or indirectly, controls, is
controlled by, or is under common control with Landlord or any person who
controls Landlord;
(e) the proposed assignee or sublessee is not a person with whom
Landlord is then negotiating or in the prior six-month period was
negotiating to lease space in the Project;
(f) the form of the proposed sublease (if Tenant proposes to
sublease all of the Premises) shall be in form reasonably satisfactory to
Landlord and shall comply with the applicable provisions of this Article;
and
(g) the consent of any Superior Mortgagee whose Superior Mortgage
requires the consent of the Superior Mortgagee shall have been obtained.
8.11. Tenant shall reimburse Landlord on demand for any costs that may be
incurred by Landlord in connection with any proposed assignment or sublease,
whether consented to by Landlord or not, including, without limitation, the
costs of making investigations as to the acceptability of the proposed assignee
or subtenant, and legal costs incurred in connection with the granting of any
requested consent.
8.12. The amount of the aggregate rent per rentable square foot to be paid
by a proposed subtenant under a proposed sublease shall not be less than the
then current market rent per rentable square foot for the Premises as though the
Premises were vacant. The rental and other terms and conditions of any actual
sublease shall be the same as those contained in the proposed sublease furnished
to Landlord pursuant to Section 8.07. Tenant shall not (a) advertise or
publicize in any way the availability of the Premises without
14
prior notice to and approval by Landlord, or (b) list the Premises for
subletting, whether through a broker, agent, representative or otherwise at a
rental rate less than the Fixed Rent and Additional Charges at which Landlord is
then offering to lease comparable space in the Project.
8.13. Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article, each subletting pursuant to this
Article shall be subject to all of the covenants, agreements, terms, provisions
and conditions contained in this Lease. Notwithstanding any such subletting to
Landlord or any such subletting to any other subtenant and/or acceptance of rent
or additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of the Fixed Rent and Additional Charges due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions and conditions contained in this Lease on the part of Tenant
to be performed and all acts and omissions of any licensee or subtenant or
anyone claiming under or through any subtenant which shall be in violation of
any of the obligations of this Lease, and any such violation shall be deemed to
be a violation by Tenant. Tenant further agrees that notwithstanding any such
subletting, no other and further subletting of the Premises by Tenant or any
person claiming through or under Tenant (except as provided in Section 8.09)
shall or will be made except upon compliance with and subject to the provisions
of this Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its options under
Section 8.07, Tenant shall indemnify, defend and hold harmless Landlord against
and from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
8.14. If (a) Landlord fails to exercise all of its options under Section
8.07 and Landlord consents to a proposed assignment or sublease, and (b) Tenant
fails to execute and deliver the assignment or sublease to which Landlord
consented within 45 days after the giving of such consent, then Tenant shall
again comply with all of the provisions and conditions of Section 8.07 before
assigning this Lease or subletting all or any part of the Premises.
8.15. With respect to each and every sublease or subletting authorized by
Landlord under the provisions of this Lease, it is further agreed that:
15
(a) no subletting shall be for a term ending later than one day
prior to the expiration date of this Lease;
(b) no sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord; and
(c) each sublease shall provide that it is subject and subordinate
to this Lease and to the matters to which this Lease is or shall be
subordinate, and that in the event of termination, reentry or dispossess
by Landlord under this Lease Landlord may, at its option, take over all of
the right, title and interest of Tenant, as sublessor, under such
sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord pursuant to the then executory provisions of such sublease,
except that Landlord shall not (i) be liable for any previous act or
omission of Tenant under such sublease, (ii) be subject to any offset
which theretofore accrued to such subtenant against Tenant, or (iii) be
bound by any previous modification of such sublease or by any previous
prepayment of more than one month's rent.
8.16. Intentionally deleted.
ARTICLE 9 - Compliance With Legal and Insurance Requirements
9.01. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any Legal Requirements or Insurance Requirements
with respect to the Premises or the use or occupation thereof. Tenant shall, at
Tenant's expense, comply with all Legal Requirements and Insurance Requirements
which shall, in respect of the Premises or the use and occupation thereof, or
the abatement of any nuisance in, on or about the Premises, impose any
violation, order or duty on Landlord or Tenant, arising from (a) Tenant's use of
the Premises, (b) the manner of conduct of Tenant's business or operation of its
installations, equipment or other property therein, (c) any cause or condition
created by or at the instance of Tenant, or (d) breach of any of Tenant's
obligations hereunder, and Tenant shall pay all the costs, expenses, fines,
penalties and damages which may be imposed upon Landlord or any Superior Lessor
or Superior Mortgagee by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section. However,
Tenant need not comply with any such Legal Requirements and Insurance
Requirements so long as Tenant is contesting the validity thereof, or the
applicability thereof to the Premises, in accordance with Section 9.02. Subject
to the provisions of Section 9.03, Landlord, at its expense, shall
16
comply with all other Legal Requirements and Insurance Requirements as shall
affect the Premises, but may similarly defer compliance so long as Landlord
shall be contesting the validity or applicability thereof.
9.02. Tenant, at its expense, after notice to Landlord, may contest, by
appropriate proceedings prosecuted diligently and in good faith, the validity,
or applicability to the Premises, of any Legal Requirements and Insurance
Requirements, provided that (a) neither Landlord nor any Superior Mortgagee or
Superior Lessor shall be subject to criminal penalty or to prosecution for a
crime, nor shall the Premises or any part thereof be subject to being condemned
or vacated, by reason of noncompliance or otherwise by reason of such contest;
(b) before the commencement of such contest, Tenant shall furnish to Landlord
such security as shall be satisfactory to Landlord and all Superior Mortgagees,
and Tenant shall indemnify Landlord and any Superior Mortgagees and Superior
Lessors against the cost thereof and against all liability for damages,
interest, penalties and expenses (including reasonable attorneys' fees and
expenses), resulting from or incurred in connection with such contest or
noncompliance; (c) such noncompliance or contest shall not constitute or result
in any violation of any Superior Lease or Superior Mortgage, or if any such
Superior Lease Superior Mortgage shall permit such noncompliance or contest on
condition of the taking of action or furnishing of security by Landlord, such
action shall be taken and such security shall be furnished at the expense of
Tenant; and (d) Tenant shall keep Landlord advised as to the status of such
proceedings. Without limiting the application of the above, Landlord and/or a
Superior Mortgagee and/or Superior Lessor shall be deemed subject to prosecution
for a crime if Landlord or the Superior Mortgagee or Superior Lessor or any
managing agent for the Project, or any officer, director, partner, shareholder
or employee of Landlord or a Superior Mortgagee or Superior Lessor or any
managing agent for the Project, as an individual, is charged with a crime of any
kind or degree whatever, whether by service of a summons or otherwise, unless
such charge is withdrawn before Landlord or the Superior Mortgagee or Superior
Lessor or any managing agent for the Project, or such officer, director,
partner, shareholder or employee of Landlord or the Superior Mortgagee or
Superior Lessor or any managing agent for the Project (as the case may be) is
required to plead or answer thereto.
9.03. Intentionally deleted.
17
ARTICLE 10 - Insurance
10.01. Tenant shall not violate, or permit the violation of, any Insurance
Requirements and shall not do, or permit anything to be done, or keep or permit
anything to be kept in the Premises which would subject Landlord or any Superior
Mortgagee or Superior Lessor to any liability or responsibility for bodily
injury or death or property damage, or which would increase any insurance rate
in respect of insurance maintained by or for the benefit of Landlord over the
rate which would otherwise then be in effect or which would result in insurance
companies of good standing refusing to insure all or any part of the Project or
any contents thereof in amounts reasonably satisfactory to Landlord, or which
would result in the cancellation of or the assertion of any defense by the
insurer in whole or in part to claims under any policy of insurance in respect
of the Project.
10.02. If, by reason of any failure of Tenant to comply with the
provisions of Section 9.01 or Section 10.01, the premiums on insurance
maintained by or for the benefit of Landlord shall be higher than they otherwise
would be, Tenant shall reimburse Landlord, on demand, for that part of such
premiums attributable to such failure on the part of Tenant. A schedule or "make
up" of rates for insurance maintained by or for the benefit of Landlord issued
by the New York Fire Insurance Rating Organization or other similar body making
rates for such insurance shall be conclusive evidence of the facts therein
stated and of the several items and charges in the insurance rate then
applicable to such insurance.
10.03. Tenant, at its expense, shall maintain at all times during the Term
(a) "all risk" property insurance covering the Tenant's Property (hereinafter
defined) with a limit of not less than 80% of the replacement cost thereof, and
(b) commercial general liability insurance, including a contractual liability
endorsement, in respect of the Premises and the conduct or operation of business
therein, with Landlord and its managing agent, if any, and any Superior Lessors
and Superior Mortgagees, including, without limitation, Swiss Bank and Carbide,
whose names and addresses shall have been furnished to Tenant, as additional
insureds, with limits of not less than $5,000,000 combined single limit bodily
injury and property damage liability. The limits of such insurance shall not
limit the liability of Tenant hereunder. Tenant shall deliver to Landlord and
any additional insureds certificates and copies of the binders for such
insurance in form reasonably satisfactory to Landlord issued by the insurance
company or its authorized agent no later than 10 days before the Commencement
Date and prior to the commencement of any work by Tenant. Tenant shall procure
and pay for renewals of such insurance from time to time before the expiration
thereof, and Tenant
18
shall deliver to Landlord and any additional insureds certificates and copies of
the binders for such renewal policy issued by the insurance company or its
authorized agent at least 30 days before the expiration of any existing policy.
All such policies shall be issued by companies licensed to do business in New
York State and reasonably satisfactory to Landlord. All such policies shall be
noncancellable in respect of Landlord and any additional insureds unless 30
days' prior written notice is given to Landlord and all additional insureds and
all such policies shall provide that no act or omission of Tenant shall affect
or limit the obligations of the insurer in respect of Landlord and the
additional insureds.
10.04. Each party agrees to have included in each of its insurance
policies (insuring the Building and Landlord's property therein in the case of
Landlord, and insuring the Tenant's Property in the Premises 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 during the Term
or, if such waiver is unobtainable or unenforceable, (a) an express agreement
that such policy shall not be invalidated if the insured waives the right of
recovery against any party responsible for a casualty covered by the policy
before the casualty, or (b) any other form of permission for the release of the
other party. If such waiver, agreement or permission shall not be, or shall
cease to be, obtainable from either party's then current insurance company, the
insured party shall so notify the other party promptly after learning thereof,
and shall use its best efforts to obtain the same from another insurance company
described in Section 10.03. If such waiver, agreement or permission is
obtainable only by payment of an additional charge, the insured party shall so
notify the other party promptly after learning thereof, and the insured party
shall not be required to obtain said waiver, agreement or permission unless the
other party pays the additional charge therefor. Each party hereby releases the
other, in respect of any claim (including a claim for negligence) which it might
otherwise have against the other for loss, damage or destruction in respect of
its property occurring during the Term to the extent to which it is insured
under a policy or policies containing a waiver of subrogation or permission to
release liability, as provided in the preceding sentences of this Section.
Nothing contained in this Section shall be deemed to relieve either party of any
duty imposed elsewhere in this Lease to repair, restore or rebuild or to nullify
any abatement of rents provided for elsewhere in this Lease.
10.05. Landlord may, by notice to Tenant given prior to the Commencement
Date, require that the amount of commercial general liability insurance to be
maintained by Tenant under
19
Section 10.03 be reasonably increased, so that the amount thereof adequately
protects Landlord's interest.
10.06. During the Term, Landlord shall carry full replacement cost
insurance (subject to a commercially reasonable deductible), with extended
coverage, on the Building.
ARTICLE 11 - Rules and Regulations
11.01. Tenant and its employees and agents shall faithfully observe and
comply with the rules and regulations attached hereto as Exhibit A, and such
reasonable changes therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter makes and communicates to Tenant, which,
in Landlord's reasonable judgment, shall be necessary for the reputation,
safety, care and appearance of the Project, or the preservation of good order
therein, or the operation or maintenance of the Project or its equipment and
fixtures, and which do not unreasonably affect the conduct of Tenant's business
in the Premises (such rules and regulations as changed from time to time being
herein called the "Rules and Regulations"); provided, however, that in case of
any conflict or inconsistency between the provisions of this Lease and any of
the Rules and Regulations, the provisions of this Lease shall control.
11.02. Nothing in this Lease shall be construed to impose upon Landlord
any duty or obligation to enforce the Rules and Regulations against any other
tenant or any employees or agents of any other tenant, and Landlord shall not be
liable to Tenant for violation of the Rules and Regulations by any other tenant
or its employees, agents, invitees or licensees.
ARTICLE 12 - Alterations
12.01. Tenant may from time to time, at its expense, make alterations
(herein called the "Alterations") in and to the Premises, excluding structural
changes, provided and upon condition that: (a) the outside appearance of the
Building shall not be affected; (b) the Alterations are nonstructural and the
strength of the Building shall not be affected; (c) the Alterations are to the
interior of the Premises and no part of the Building outside of the Premises
shall be affected; (d) the proper functioning of the mechanical, electrical,
sanitary and other service systems of the Building shall not be adversely
affected and the usage of such systems by Tenant shall not be increased; (e)
before proceeding with any Alteration, Tenant shall submit to Landlord for
Landlord's approval (which shall not be unreasonably withheld if the approval of
all Superior Mortgagees whose Superior Mortgages require the approval of the
Superior Mortgagee shall have been obtained) two sets of plans
20
and specifications for the work to be done, and Tenant shall not proceed with
such work until it obtains such approval; (f) Tenant shall pay to Landlord upon
demand the reasonable cost and expense of Landlord in (i) reviewing said plans
and specifications and (ii) inspecting the Alterations to determine whether the
same are being performed in accordance with the approved plans and
specifications and all Legal Requirements and Insurance Requirements, including,
without limitation, the fees or cost of any architect, engineer or draftsman,
including the cost, based upon the actual salaries and fringe benefits of
architects, engineers or draftsmen who are employees of Landlord, for such
purposes; (g) before proceeding with any Alteration which will cost more than
$50,000 (exclusive of the costs of decorating work and items constituting the
Tenant's Property), as estimated, at Tenant's expense, by a reputable contractor
reasonably satisfactory to Landlord and all Superior Mortgagees, Tenant shall
obtain and deliver to Landlord such security as shall be satisfactory to
Landlord and all Superior Mortgagees; and (h) Tenant shall fully and promptly
comply with and observe the Rules and Regulations of Landlord then in force with
respect to the making of the Alterations. Tenant agrees that any review or
approval by Landlord of any plans and/or specifications with respect to any
Alterations is solely for Landlord's benefit, and without any representation or
warranty whatsoever to Tenant with respect to the adequacy, correctness or
efficiency thereof or otherwise.
12.02. Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of the Alterations
and for final approval thereof upon completion, and shall cause the Alterations
to be performed in compliance therewith and with all applicable Legal
Requirements and Insurance Requirements. The Alterations shall be diligently
performed in a good and workmanlike manner, using new materials and equipment at
least equal in quality and class to the original installations. The Alterations
shall be performed by contractors first approved by Landlord under the
supervision of a licensed architect. The Alterations shall be performed in such
a manner as not to violate union contracts affecting the Project, or create any
work stoppage, picketing, labor disruption or dispute or any interference with
the business of Landlord or any tenant of the Project. In addition, the
Alterations shall be performed in such a manner as not to otherwise unreasonably
interfere with or delay and as not to impose any additional expense upon
Landlord in the construction, maintenance, repair, operation or cleaning of the
Project, and if any such additional expense shall be incurred by Landlord as a
result of Tenant's performance of the Alterations, Tenant shall pay such
additional expense to Landlord on demand. Throughout the performance of the
Alterations, Tenant shall carry, or cause its contractors to carry, workers'
compensation insurance in
21
statutory limits, "Builder's Risk" insurance reasonably satisfactory to
Landlord, and commercial general liability insurance, with completed operation
endorsement, for any occurrence in or about the Project, under which Landlord
and its managing agent and any Superior Lessors and Superior Mortgagees, whose
names and addresses were furnished to Tenant shall be named as additional
insureds, in such limits as Landlord may reasonably require, with insurers
reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect before the
commencement of the Alterations and, on request, at reasonable intervals during
the continuance of the Alterations. If any Alterations involve the removal of
any fixtures, equipment or other property in the Premises which are not Tenant's
Property, such fixtures, equipment or other property shall be replaced prior to
the end of the Term at Tenant's expense with new fixtures, equipment or other
property of like utility and at least equal value. Upon completion of any
Alterations (other than mere decorations) Tenant shall deliver to Landlord
scaled and dimensioned reproducible mylars of "as-built" plans for such
Alteration.
12.03. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with the Alterations, or any other work, labor, services
or materials done for or supplied to Tenant, or any person claiming through or
under Tenant, which shall be issued by the County of Westchester or the Town of
Greenburgh or the Town of Mount Pleasant or any other public authority having or
asserting jurisdiction. Tenant shall indemnify and save harmless Landlord and
any Superior Mortgagees and Superior Lessors from and against any and all
mechanics' and other liens and encumbrances filed in connection with the
Alterations, or any other work, labor, services or materials done for or
supplied to Tenant, or any person claiming through or under Tenant, including,
without limitation, security interests in any materials, fixtures or articles so
installed in and constituting part of the Premises and against all costs,
expenses and liabilities incurred in connection with any such lien or
encumbrance or any action or proceeding brought thereon. Tenant, at its expense,
shall procure the satisfaction or discharge of record of all such liens and
encumbrances within 10 days after the filing thereof. However, nothing herein
contained shall prevent Tenant from contesting, in good faith and at its own
expense, any notice of violation, provided that Tenant shall comply with the
provisions of Section 9.02.
22
ARTICLE 13 - Landlord's and Tenant's Property
13.01. All fixtures, equipment, improvements and appurtenances, including,
without limitation, utility lines and equipment, attached to or built into the
Premises at the commencement of or during the Term, whether or not by or at the
expense of Tenant, shall be and remain a part of the Premises, shall be deemed
the property of Landlord and shall not be removed by Tenant, except as provided
in Section 13.02. Further, any carpeting or other personal property in the
Premises on the Commencement Date, unless installed and paid for by Tenant,
shall be and shall remain Landlord's property and shall not be removed by
Tenant.
13.02. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment, whether or not
attached to or built into the Premises, which are installed in the Premises by
or for the account of Tenant without expense to Landlord and can be removed
without structural damage to the Building, and all furniture, furnishings and
other articles of movable personal property owned by Tenant and located in the
Premises (herein collectively called the "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Premises or to the
Building resulting from the installation and/or removal thereof. Any equipment
or other property for which Landlord shall have granted any allowance or credit
to Tenant shall not be deemed to have been installed by or for the account of
Tenant without expense to Landlord, shall not be considered the Tenant's
Property, and shall be deemed the property of Landlord.
13.03. At or before the expiration date of this Lease, or within 15 days
after the date of any earlier termination of this Lease, Tenant, at its expense,
shall remove from the Premises all of the Tenant's Property, and Tenant shall
repair any damage to the Premises or the Building resulting from any
installation and/or removal of the Tenant's Property. Any other items of the
Tenant's Property which shall remain in the Premises after Tenant's vacation of
the Premises and the expiration date of this Lease, or after a period of 15 days
following Tenant's vacation of the Premises and an earlier termination date,
may, at the option of Landlord, be deemed to have been abandoned, and in such
case such items may be retained by Landlord as its property or disposed of by
Landlord, without accountability, in such manner as Landlord shall determine at
Tenant's expense.
23
ARTICLE 14 - Repairs and Maintenance
14.01. Tenant shall be responsible for all repairs and replacements,
interior and exterior, structural and nonstructural, ordinary and extraordinary,
in and to the Premises and the Building and the facilities and systems thereof,
the need for which arises out of (a) the performance of any work by Tenant or
Alterations, (b) the installation, use or operation of the Tenant's Property in
the Premises, (c) the moving of the Tenant's Property in or out of the Premises
or the Building, or (d) the act, omission, misuse or neglect of Tenant or any of
its subtenants or its or their employees, agents, contractors or invitees.
Tenant shall promptly make, at Tenant's expense, all repairs in or to the
Premises for which Tenant is responsible. Any repairs required to be made by
Tenant to the mechanical, electrical, sanitary, heating, ventilating,
air-conditioning or other systems of the Building shall be performed only by
contractor(s) approved by Landlord. Any other repairs in or to the Building and
the facilities and systems thereof for which Tenant is responsible, may be
performed by Landlord at Tenant's expense.
14.02. Landlord shall make all repairs and replacements, structural and
otherwise, interior and exterior, as and when needed in or about the Premises,
except for those repairs and replacements for which Tenant is responsible
pursuant to any of the provisions of this Lease.
14.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease, or required by law, to make in or to any portion of the Building
or the Premises, or in or to the fixtures, equipment or appurtenances of the
Building or the Premises.
ARTICLE 15 - Electric Energy
15.01. Subject to the provisions of this Article, Landlord shall furnish
the electric energy that Tenant shall reasonably require in the Premises for the
purposes permitted under this Lease.
15.02. Landlord shall not be liable in any event to Tenant for any failure
or defect in the supply or character of electric energy furnished to the
Premises by reason of any requirement, act or omission of the public utility
serving the Building with electric energy or for any other reason not
24
attributable solely to Landlord's willful misconduct or gross negligence.
15.03. Landlord shall furnish and install all replacement lighting tubes,
lamps, bulbs and ballasts required in the Premises, and Tenant shall pay to
Landlord or its designated contractor upon demand the then established charges
therefor of Landlord or its designated contractor, as the case may be.
15.04. Tenant's use of electric energy in the Premises shall not at any
time exceed the capacity of any of the electrical conductors and equipment in or
otherwise serving the Premises. In order to insure that such capacity is not
exceeded and to avert possible adverse effect upon the Building's distribution
of electricity via the Building's electric system, Tenant shall not, without
Landlord's prior consent in each instance (which shall not be unreasonably
withheld, based upon availability of electric energy in the Building as
allocated by Landlord to various areas of the Building) connect any fixtures,
appliances or equipment (other than normal business machines which do not
materially increase Tenant's electrical consumption) to the Building's electric
system or make any alterations or additions to the electric system of the
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
Landlord shall have the right to require Tenant to pay sums on account of such
cost prior to the installation of any such risers or equipment.
ARTICLE 16 - Heat, Ventilation and Air-Conditioning
16.01. Landlord shall maintain and operate the heating, ventilating and
air-conditioning systems serving the Premises, and shall furnish heat,
ventilating and air-conditioning in the Premises as may be reasonably required
(except as otherwise provided in this Lease) (a) for reasonably comfortable
occupancy of the Premises during Business Hours of Business Days, with a minimum
of 12 air changes per hour during such Business Hours, and (b) for six air
changes per hour at all other times. If Tenant shall require heat, ventilating
or air-conditioning service in addition to the foregoing, Landlord shall furnish
such service for such times ("Overtime Hours") upon not less than 48 hours
advance notice from Tenant, and Tenant shall pay Landlord for such overtime
heat, ventilating and air-conditioning as Additional Charges, within ten days
after Landlord bills Tenant therefor, which bills shall be rendered not more
often than monthly. The amount of such Additional Charges for a given period of
time shall be equal to Tenant's HVAC Percentage (as hereinafter defined) of the
total
25
cost to Landlord of generating steam and chilled water for the Project for the
Overtime Hours of Tenant in such period. "Tenant's HVAC Percentage" for such
period shall mean the percentage that represents a fraction the numerator of
which is the sum of the respective BTU ratings of all of the air handlers in or
serving the Premises during such period, and the denominator of which is the sum
of the respective BTU ratings of all the air handlers in the Project during such
period.
16.02. Intentionally deleted.
ARTICLE 17 - Other Services; Service Interruption
17.01. Landlord shall furnish adequate hot and cold water to the Premises.
17.02. Landlord shall cause the Premises, including the exterior and the
interior of the windows thereof, to be cleaned in a manner standard to the
Building. Tenant shall pay to Landlord on demand the costs incurred by Landlord
for (a) extra cleaning work in the Premises required because of misuse or
neglect on the part of Tenant or its subtenants or its or their employees or
visitors; and (b) removal from the Premises and the Building of any refuse or
rubbish of Tenant in excess of that ordinarily accumulated in business office
occupancy or at times other than Landlord's standard cleaning times.
17.03. Landlord, its cleaning contractor and their employees shall have
access to the Premises after 5:30 p.m. and before 8:00 a.m. and shall have the
right to use, without charge therefor, all light, power and water in the
Premises reasonably required to clean the Premises as required under Section
17.02.
17.04. If Landlord shall furnish either gas or steam to the Premises,
Landlord shall not be liable in any event to Tenant for any failure or defect in
the supply or character of the gas or steam furnished to the Premises by reason
of any requirement, act or omission of the public utility serving the Building
with steam or for any other reason not attributable solely to Landlord's willful
misconduct or gross negligence. Tenant's use of gas or steam in the Premises
shall not at any time exceed the capacity of any of the gas lines and equipment
or steam lines and equipment in or otherwise then serving the Premises.
17.05. Landlord reserves the right, without any liability to Tenant and
without affecting Tenant's covenants and obligations hereunder, to stop or
interrupt or reduce service of any of the heating, ventilating,
air-conditioning, electric, sanitary, elevator, gas, steam, water or other
26
Building systems serving the Premises, or to stop or interrupt or reduce any
other services required of Landlord under this Lease (whether or not specified
in Article 16 or this Article 17), whenever and for so long as may be necessary,
by reason of (a) accidents, emergencies, strikes or the occurrence of any of the
other events described in Section 41.04, (b) the making of repairs or changes
which Landlord is required or is permitted by this Lease or by law to make or in
good xxxxx xxxxx necessary, (c) difficulty in securing proper supplies of fuel,
gas, steam, water, electricity, labor or supplies, or (d) any other cause beyond
Landlord's reasonable control, whether similar or dissimilar. Landlord shall use
reasonable efforts to minimize the effect of the foregoing on Tenant.
ARTICLE 18 - Access and Name of Project
18.01. Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the Premises, all of the Building,
including, without limitation, exterior Building walls, core corridor walls and
doors and any core corridor entrances, any terraces or roofs adjacent to the
Premises and any space in or adjacent to the Premises used for shafts, stacks,
pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, and the use thereof, as well as reasonable access thereto
through the Premises for the purposes of operation, maintenance, decoration and
repair, are reserved to Landlord.
18.02. Landlord reserves the right, and Tenant shall permit Landlord, to
install, erect, use and maintain pipes, ducts and conduits in and through the
Premises; provided that Landlord uses reasonable efforts to minimize the extent
to which the same interferes with Tenant's use of the Premises.
18.03. Landlord and its agents shall have the right to enter and/or pass
through the Premises at any time or times (a) to examine the Premises and to
show them to actual and prospective Superior Lessors, Superior Mortgagees, or
prospective purchasers, mortgagees or lessees of the Building and (b) to make
such repairs, alterations, additions and improvements in or to the Premises
and/or in or to the Building or its facilities and equipment as Landlord is
required or desires to make. Landlord shall be allowed to take all materials
into and on the Premises that may be required in connection therewith, without
any liability to Tenant and without any reduction of Tenant's covenants and
obligations hereunder. Landlord shall use reasonable efforts to minimize the
effect of the foregoing on Tenant.
18.04. If at any time any windows of the Premises are temporarily darkened
or obstructed by reason of any repairs, improvements, maintenance and/or
cleaning in or about
27
the Building, or if any part of the Building, other than the Premises, is
temporarily or permanently closed or inoperable, the same shall be without any
reduction or diminution of Tenant's obligations under this Lease.
18.05. During the period of 18 months prior to the expiration date of this
Lease, Landlord and its agents may exhibit the Premises to prospective tenants.
18.06. Intentionally deleted.
18.07. Landlord reserves the right, at any time, without incurring any
liability to Tenant therefor, and without affecting or reducing or diminishing
any of Tenant's obligations hereunder, to make such changes, alterations,
additions and improvements in or to the Building and the fixtures and equipment
thereof, as well as in or to the entrances, doors, halls, passages, elevators,
escalators and stairways thereof, and other public parts of the Building, as
Landlord shall deem necessary or desirable. Landlord shall use reasonable
efforts to minimize the extent to which the making of such changes, alterations,
additions and improvements interferes with Tenant's use of the Premises.
18.08. Landlord may adopt any name for the Project. Landlord reserves the
right to change the name and/or address of the Project at any time.
18.09. Landlord and its agents shall have the right to permit access to
the Premises at any time, whether or not Tenant shall be present, (a) by any
receiver, trustee, sheriff, marshal or other public official entitled to, or
purporting to be entitled to, such access for any lawful purpose, or (b) by any
representative of the fire, police, building, sanitation or other department or
instrumentality of any town, county, city, state or federal government. Nothing
contained in, nor any action taken by Landlord under this Section, shall be
deemed to constitute recognition by Landlord that any person other than Tenant
has any right or interest in this Lease or the Premises.
18.10. If Tenant is not present when for any reason entry into the
Premises is necessary or permissible, Landlord or Landlord's agents may enter
same by a master key, or may forcibly enter same, without rendering Landlord or
such agents liable therefor (if during such entry Landlord or such agents accord
reasonable care to the Tenant's Property), and such entry shall not be deemed an
actual or constructive eviction and shall have no effect upon Tenant's
obligations under this Lease.
28
ARTICLE 19 - Notice of Occurrences
19.01. Tenant shall give prompt notice to Landlord of (a) any occurrence
in or about the Premises for which Landlord might be liable, (b) any fire or
other casualty in the Premises, (c) any damage to or defect in the Premises,
including the fixtures, equipment and appurtenances thereof, for the repair of
which Landlord might be responsible, and (d) any damage to or defect in any part
or appurtenance of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator or other systems located in or passing through the
Premises or any part thereof.
ARTICLE 20 - Non-Liability and Indemnification
20.01. Neither Landlord nor any Superior Lessor or Superior Mortgagee
shall be liable to Tenant for any loss, injury or damage to Tenant or to any
other person, or to its or their property, irrespective of the cause of such
injury, damage or loss, unless caused by or resulting from the negligence or
willful misconduct of Landlord or the Superior Lessor or Superior Mortgagee, in
the operation or maintenance of the Premises or the Project. Neither Landlord
nor any Superior Lessor or Superior Mortgagee shall be liable even if resulting
from negligence or willful misconduct, for consequential damages of Tenant or
any subtenant or licensee of Tenant.
20.02. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Project (or the net
proceeds of the sale or refinancing thereof) in the event of any claim against
Landlord or any partner, director, officer, agent or employee of Landlord
arising out of or in connection with this Lease, the relationship of Landlord
and Tenant or Tenant's use of the Premises, and the liability of Landlord
arising out of or in connection with this Lease, the relationship of Landlord
and Tenant or Tenant's use of the Premises, shall be limited to such estate and
property of Landlord (or the net proceeds of the sale or refinancing thereof).
No other properties or assets of Landlord or any partner, director, officer,
agent or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgment (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of or
in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Premises, and if Tenant acquires a lien on or interest in
any other properties or assets by judgment or otherwise, Tenant shall promptly
release such lien on or interest in such other properties and assets by
executing, acknowledging and delivering to Landlord an instrument to that effect
prepared by Landlord's attorneys. Tenant hereby waives
29
the right of specific performance and any other remedy allowed in equity if
specific performance or such other remedy could result in any liability of
Landlord for the payment of money to Tenant or any court or governmental
authority (by way of fines or otherwise) for Landlord's failure or refusal to
perform or observe a judicial decree or determination.
20.03. Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and all Superior Mortgagees, including, without limitation, Swiss Bank
and Carbide, and its and their respective partners, directors, officers, agents
and employees from and against any and all claims arising from or in connection
with (a) the conduct or management of the Premises or of any business therein,
or any work or thing whatsoever done, or any condition created (other than by
Landlord) in or about the Premises during the Term or during the period of time,
if any, prior to the Commencement Date that Tenant may have been given access to
the Premises; (b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their employees or contractors; (c) any
accident, injury or damage whatever (unless caused by Landlord's negligence or
willful misconduct) occurring in, at or upon the Premises; (d) any breach or
default by Tenant in the full and prompt payment and performance of Tenant's
obligations under this Lease; and (e) the failure of Tenant or any of its
subtenants or licensees or its or their employees or contractors to comply with
all Legal Requirements and Insurance Requirements; together with all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
attorneys' fees and expenses. In case any action or proceeding is brought
against Landlord and/or any Superior Lessor or Superior Mortgagee and/or its or
their partners, directors, officers, agents and/or employees by reason of any
such claim, Tenant, upon notice from Landlord or such Superior Lessor or
Superior Mortgagee, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord).
ARTICLE 21 - Damage or Destruction
21.01. If the Building or the Premises shall be partially or totally
damaged or destroyed by fire or other casualty (and if this Lease shall not be
terminated as provided in this Article) Landlord shall repair the damage and
restore and rebuild the Building and/or the Premises (except for the Tenant's
Property) with reasonable dispatch after notice to it of the damage or
destruction and the collection of the insurance proceeds attributable to such
damage.
21.02. Subject to the provisions of Section 21.05, if all or part of the
Premises is damaged or destroyed or rendered completely or partially
untenantable on account of
30
fire or other casualty, the Fixed Rent shall be reduced in the proportion that
the untenantable area of the Premises bears to the total area of the Premises,
for the period from the date of the damage or destruction to (a) the date the
damage to the Premises is substantially repaired, or (b) if the Building and not
the Premises is so damaged or destroyed, the date on which the Premises is made
tenantable; provided, however, should Tenant reoccupy a portion of the Premises
during the period the repair work is taking place and prior to the date the
Premises are substantially repaired or made tenantable the Fixed Rent allocable
to such reoccupied portion, based upon the proportion which the area of the
reoccupied portion of the Premises bears to the total area of the Premises,
shall be payable by Tenant from the date of such occupancy.
21.03. If the Premises shall be materially (i.e. 30% or more) damaged or
destroyed by fire or other casualty, or if the Building shall be so damaged or
destroyed by fire or other casualty (whether or not the Premises are damaged or
destroyed) that its repair or restoration requires the expenditure (as estimated
by a reputable contractor or architect designated by Landlord) of more than 20%
of the full insurable value of the Building immediately prior to the casualty,
then in either such case Landlord may terminate this Lease by giving Tenant
notice to such effect within 180 days after the date of the fire or other
casualty and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of the date of termination.
21.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Premises or of the Building pursuant to this Article. Landlord
shall use its best efforts to make such repair or restoration promptly and in
such manner as not unreasonably to interfere with Tenant's use and occupancy of
the Premises, but Landlord shall not be required to do such repair or
restoration work except during Business Hours on Business Days.
21.05. Notwithstanding any of the foregoing provisions of this Article, if
by reason of some act or omission on the part of Tenant or any of its subtenants
or its or their partners, directors, officers, servants, employees, agents or
contractors, Landlord or any Superior Lessor or any Superior Mortgagee shall be
unable to collect all or substantially all of the insurance proceeds (including,
without limitation, rent insurance proceeds) applicable to damage or destruction
of the Premises or the Building by fire or other casualty, then, without
prejudice to any other remedies which may be available against Tenant, there
shall be no reduction of the Fixed Rent or Additional Charges.
31
21.06. Landlord will not carry insurance of any kind on the Tenant's
Property and shall not be obligated to repair any damage to or replace the
Tenant's Property.
21.07. The provisions of this Article shall be deemed an express agreement
governing any case of damage or destruction of the Premises 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 an express agreement, and any
other law of like import, now or hereafter in force, shall have no application
in such case.
ARTICLE 22 - Eminent Domain
22.01. Except as otherwise provided in Section 22.05, if the whole of the
Building or the Premises shall be taken by condemnation or in any other manner
for any public or quasi-public use or purpose, this Lease shall terminate as of
the date of vesting of title on such taking (herein called the "Date of the
Taking"), and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of such date.
22.02. Except as otherwise provided in Section 22.05,if any part of the
Building or the Land shall be so taken, this Lease shall be unaffected by such
taking, except that (a) Landlord may, at its option, terminate this Lease by
giving Tenant notice to that effect within 90 days after the Date of the Taking,
and (b) if 20% or more of the Premises shall be so taken and the remaining area
of the Premises shall not be reasonably sufficient for Tenant to continue
feasible operation of its business, Tenant may terminate this Lease by giving
Landlord notice to that effect within 90 days after the Date of the Taking. This
Lease shall terminate on the date that such notice from Landlord or Tenant to
the other shall be given, and the Fixed Rent and Additional Charges shall be
prorated and adjusted as of such termination date. Upon such partial taking and
this Lease continuing in force as to any part of the Premises, the Fixed Rent
and Additional Charges shall be adjusted according to the rentable area
remaining.
22.03. Except as otherwise provided in Section 22.05, Landlord shall be
entitled to receive the entire award or payment in connection with any taking
without deduction therefrom for any estate vested in Tenant by this Lease and
Tenant shall receive no part of such award. Tenant hereby expressly assigns to
Landlord all of its right, title and interest in and to every such award or
payment.
22.04. Except as otherwise provided in Section 22.05, in the event of any
taking of less than the whole of the Building and/or the Land which does not
result in termination of this Lease, Landlord, at its expense, and whether or
not any
32
award or awards shall be sufficient for the purpose, shall proceed with
reasonable diligence to repair the remaining parts of the Building and the
Premises (other than those parts of the Premises which are the Tenant's
Property) to substantially their former condition to the extent that the same
may be feasible (subject to reasonable changes which Landlord shall deem
desirable) and so as to constitute complete and tenantable the Building and the
Premises.
22.05. If the temporary use or occupancy of all or any part of the
Premises is taken by condemnation or in any other manner for any public or
quasi-public use or purpose, this Lease and the Term shall remain unaffected by
such taking and Tenant shall continue to be responsible for all of its
obligations under this Lease (except to the extent prevented from so doing by
reason of such taking). In such event Tenant shall be entitled to claim, prove
and receive the entire award unless the period of temporary use or occupancy
extends beyond the expiration date of this Lease, in which event Landlord shall
be entitled to claim, prove and receive that portion of the award attributable
to the restoration of the Premises, and the balance of such award shall be
apportioned between Landlord and Tenant as of the expiration date of this Lease.
If such temporary use or occupancy terminates prior to the expiration date of
this Lease, Tenant, at its own expense, shall restore the Premises as nearly as
possible to its condition prior to the taking.
ARTICLE 23 - Surrender and Holding Over
23.01. On the last day of the Term, or upon any earlier termination of
this Lease, or upon any reentry by Landlord upon the Premises, Tenant shall quit
and surrender the Premises to Landlord "broom-clean" and in good order,
condition and repair, except for ordinary wear and tear and such damage or
destruction as Tenant is not required to repair or restore under this Lease, and
Tenant shall remove all of the Tenant's Property therefrom except as otherwise
expressly provided in this Lease. No act or thing done by Landlord or its agents
shall be deemed an acceptance of a surrender of the Premises, and no agreement
to accept such surrender shall be valid unless in writing and signed by
Landlord.
23.02. If Tenant remains in possession of the Premises after the
termination of this Lease without the execution of a new lease, Tenant, at the
option of Landlord, shall be deemed to be occupying the Premises as a tenant
from month to month, subject to all of the other terms and conditions of this
Lease insofar as the same are applicable to a month-to-month tenancy, but at a
monthly rental equal to the greater of (a) two times the monthly Fixed Rent last
payable by Tenant hereunder, plus all Additional Charges payable
33
hereunder, and (b) Landlord's then asking price, on a monthly basis, for
comparable space in the Building (or, if Landlord has no asking price, the
monthly rental equal to the prevailing rate for comparable space in comparable
buildings in the vicinity of the Building). Nothing contained in this Section
shall (i) imply any right of Tenant to remain in the Premises after the
termination of this Lease without the execution of a new lease, (ii) imply any
obligation of Landlord to grant a new lease or (iii) be construed to limit any
right or remedy that Landlord has against Tenant as a holdover tenant or
trespasser.
23.03. 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 and of any similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may institute to enforce
the terms and conditions of this Lease.
ARTICLE 24 - Default
24.01. This Lease and the Term are subject to the limitation that whenever
Tenant makes an assignment for the benefit of creditors, or files a voluntary
petition under any bankruptcy or insolvency law, or an involuntary petition
alleging an act of bankruptcy or insolvency is filed against Tenant under any
bankruptcy or insolvency law, or whenever a petition is filed by or against
Tenant under the reorganization provisions of the United States Bankruptcy Act
or under the provisions of any law of like import, or whenever a petition is
filed by Tenant under the arrangement provisions of the United States Bankruptcy
Act or under the provisions of any law of like import, or whenever a permanent
receiver of Tenant, or of or for the property of Tenant is appointed, then
Landlord (a) if such event occurs without the acquiescence of Tenant, as the
case may be, at any time after the event continues for 60 days, or (b) in any
other case at any time after the occurrence of any such event, may give Tenant a
notice of intention to end the Term at the expiration of five days from the date
of service of such notice of intention, and upon the expiration of said five-day
period this Lease, whether or not the Term shall theretofore have commenced,
shall terminate with the same effect as if that day were the expiration date of
this Lease, but Tenant shall remain liable for damages as provided in Article
26.
24.02. This Lease is subject to the further limitations that:
(a) if Tenant defaults in the payment of any Fixed Rent or
Additional Charges, and such default
34
continues for five days after notice from Landlord to Tenant, or
(b) if Tenant, whether by action or inaction, is in default of any
of its obligations under this Lease (other than a default in the payment
of Fixed Rent or Additional Charges) and such default continues and is not
remedied within 15 days after Landlord gives to Tenant a notice specifying
the same, or, in the case of a default which cannot with due diligence be
cured within a period of 15 days and the continuance of which for the
period required for cure will not (i) subject Landlord or any Superior
Lessor or Superior Mortgagee to prosecution for a crime (as more
particularly described in Section 9.02) or (ii) result in the termination
of any Superior Lease or foreclosure of any Superior Mortgage, if Tenant
does not, (1) within said 15-day period advise Landlord of Tenant's
intention to take all steps necessary to remedy such default, (2) duly
commence within said 15-day period, and thereafter diligently prosecute to
completion all steps necessary to remedy the default and (3) complete such
remedy within a reasonable time after the date of said notice of Landlord,
or
(c) if any event occurs or any contingency arises whereby this Lease
or the estate hereby granted or the unexpired balance of the Term would,
by operation of law or otherwise, devolve upon or pass to any person, firm
or corporation other than Tenant, except as expressly permitted by Article
8, or
(d) if Tenant (or any person which, directly or indirectly,
controls, is controlled by, or is under common control with Tenant)
defaults under any other lease with Landlord (or any person which,
directly or indirectly, controls, is controlled by, or is under common
control with Landlord) and such default is not remedied within the
applicable grace period, if any, provided therefor under such other lease,
or
(e) if the Sublease is terminated prior to December 30, 1997 and
Tenant is not entitled to exercise the option to terminate this Lease
pursuant to Section 1.11,
then in any of said cases Landlord may give to Tenant a notice of intention to
end the Term at the expiration of five days from the date of the service of such
notice of intention, and upon the expiration of said five days this Lease,
whether or not the Term theretofore had commenced, shall terminate with the same
effect as if that day were the expiration date of this
35
Lease, but Tenant shall remain liable for damages as provided in Article 26.
ARTICLE 25 - Re-entry by Landlord
25.01. If Tenant defaults in the payment of any Fixed Rent or Additional
Charges, and such default continues for five days, or if this Lease terminates
as provided in Article 24, Landlord or Landlord's agents and employees may
immediately or at any time thereafter re-enter the Premises, or any part
thereof, either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
person therefrom, to the end that Landlord may have, hold and enjoy the
Premises. The word "re-enter," as used herein, is not restricted to its
technical legal meaning. If this Lease is terminated under the provisions of
Article 24, or if Landlord re-enters the Premises under the provisions of this
Article 25, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord the Fixed Rent and Additional Charges payable up to
the time of such termination of this Lease, or of such recovery of possession of
the Premises by Landlord, as the case may be, and shall also pay to Landlord
damages as provided in Article 26.
25.02. In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
25.03. If this Lease terminates under the provisions of Article 24, or if
Landlord re-enters the Premises under the provisions of this Article, or in the
event of the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant, Landlord shall be entitled to retain
all monies, if any, paid by Tenant to Landlord, whether as advance rent,
security or otherwise, but such monies shall be credited by Landlord against any
Fixed Rent or Additional Charges due from Tenant at the time of such termination
or re-entry or, at Landlord's option, against any damages payable by Tenant
under Article 26 or pursuant to law.
36
ARTICLE 26 - Damages
26.01. If this Lease is terminated under the provisions of Article 24, or
if Landlord re-enters the Premises under the provisions of Article 25, or in the
event of the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant1 Tenant shall pay to Landlord as
damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be, represents
the then value of the excess, if any, of (i) the aggregate amount of the
Fixed Rent which would have been payable by Tenant for the period
commencing with such earlier termination of this Lease or the date of any
such re-entry, as the case may be, and ending with the date contemplated
as the expiration date hereof if this Lease had not so terminated or if
Landlord had not so re-entered the Premises, over (ii) the aggregate
rental value of the Premises for the same period, or
(b) sums equal to the Fixed Rent and the Additional Charges which
would have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Premises, payable upon the due dates
therefor specified herein following such termination or such re-entry and
until the date contemplated as the expiration date hereof if this Lease
had not so terminated or if Landlord had not so re-entered the Premises,
provided, however, that if Landlord shall relet the Premises during said
period, landlord shall credit Tenant with the net rents received by
Landlord from such reletting, such net rents to be determined by first
deducting from the gross rents as and when received by Landlord from such
reletting the expenses incurred or paid by Landlord in terminating this
Lease or in re-entering the Premises and in securing possession thereof,
as well as the expenses of reletting, including, without limitation,
altering and preparing the Premises for new tenants, brokers' commissions,
legal fees, and all other expenses properly chargeable against the
Premises and the rental therefrom, it being understood that any such
reletting may be for a period shorter or longer than what would have been
the remaining Term, but in no event shall Tenant be entitled to receive
any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the collection of
damages pursuant to this subdivision to a credit in respect of any net
rents from a reletting, except to the extent
37
that such net rents are actually received by Landlord. If the Premises or
any part thereof should be relet in combination with other space, then
proper apportionment on a square foot basis shall be made of the rent
received from such reletting and of the expenses of reletting.
If the Premises or any part thereof is or are relet by Landlord for what would
have been the unexpired portion of the Term, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Premises, or part thereof, so relet during the
term of the reletting. Landlord shall not be liable in any way whatsoever for
its failure or refusal to relet the Premises or any part thereof, or if the
Premises or any part thereof are relet, for its failure to collect the rent
under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant's liability for damages or otherwise
under this Lease.
26.02. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the Term would have expired if it had not been so terminated
under the provisions of Article 24, or under any provisions of law, or had
Landlord not re-entered the Premises. Nothing herein contained shall be
construed to limit or preclude recovery by Landlord against Tenant of any sums
or damages to which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the part
of Tenant. Nothing herein contained shall be construed to limit or prejudice the
right of Landlord to prove for and obtain as damages by reason of the
termination of this Lease or re-entry on the Premises for the default of Tenant
under this Lease an amount equal to the maximum allowed by any statute or rule
of law in effect at the time when, and governing the proceedings in which, such
damages are to be proved whether or not such amount be greater than, equal to,
or less than any of the sums referred to in Section 26.01. However, Tenant shall
not be liable to Landlord for any indirect, special or consequential damages.
26.03. In addition, if this Lease is terminated under the provisions of
Article 24, or if Landlord re-enters the Premises under the provisions of
Article 25, Tenant agrees that:
(a) the Premises then shall be in the same condition as that in
which Tenant has agreed to surrender the same to Landlord at the
expiration of the Term;
38
(b) Tenant shall have performed prior to any such termination any
covenant of Tenant contained in this Lease for the making of any
Alteration or for restoring or rebuilding the Premises or the Building, or
any part thereof; and
(c) for the breach of any covenant of Tenant set forth above in this
Section 26.03, Landlord shall be entitled immediately, without notice or
other action by Landlord, to recover, and Tenant shall pay, as and for
liquidated damages therefor, the reasonable cost of performing such
covenant (as estimated by an independent contractor selected by Landlord).
ARTICLE 27 - Affirmative Waivers
27.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Premises or to have a continuance of this Lease after
being dispossessed or ejected therefrom by process of law or under the terms of
this Lease or after the termination of this Lease as provided in this Lease.
27.02. If Tenant is in arrears in payment of Fixed Rent or Additional
Charges, Tenant waives Tenant's right, if any, to designate the items to which
any payments made by Tenant are to be credited, and Landlord may apply any
payments made by Tenant to such items as Landlord sees fit, irrespective of and
notwithstanding any designation or request by Tenant as to the items to which
any such payments shall be credited.
27.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
including, without limitation, any claim of injury or damage, and any emergency
and other statutory remedy with respect thereto.
27.04. Tenant shall not interpose any counterclaim of any kind in any
summary proceeding commenced by Landlord to recover possession of the Premises
and shall not seek to consolidate such proceeding with any action which may have
been or will be brought by Tenant or any other person.
ARTICLE 28 - No Waivers
28.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or
39
more of the obligations of this Lease, or to exercise any election herein
contained, shall not be construed as a waiver or relinquishment for the future
of the performance of such one or more obligations of this Lease or of the right
to exercise such election, but the same shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission. The receipt
by Landlord of Fixed Rent or Additional Charges with knowledge of breach by
Tenant of any obligation of this Lease shall not be deemed a waiver of such
breach.
ARTICLE 29 - Curing Tenant's Defaults
29.01. If Tenant defaults in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of 15 days from the date
Landlord gives Tenant notice of the default.
29.02. Bills for any expenses incurred by Landlord in connection with any
such performance by it for the account of Tenant, and bills for all costs,
expenses and disbursements, including reasonable counsel fees, involved in
collecting or endeavoring to collect the Fixed Rent or Additional Charges or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, including any cost, expense and disbursement involved in
instituting and prosecuting summary proceedings or in recovering possession of
the Premises after default by Tenant or upon the expiration or sooner
termination of this Lease, and interest on all sums advanced by Landlord under
this Section and/or Section 29.01 at the Lease Interest Rate may be sent by
Landlord to Tenant monthly, and such amounts shall be due and payable in
accordance with the terms of such bills.
ARTICLE 30 - Broker
30.01. Tenant represents that no broker was instrumental in bringing about
or consummating this Lease and that Tenant had no conversations or negotiations
with any broker concerning the leasing of the Premises. Tenant shall indemnify
and hold harmless Landlord against and from any claims for any brokerage
commissions and all costs, expenses and liabilities in connection therewith,
including, without limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by Tenant with any broker.
ARTICLE 31 - Notices
31.01. Any notice, consent, approval or other communication required or
permitted to be given, rendered or
40
made by either party to the other shall be in writing (whether or not so stated
elsewhere in this Lease) and shall be deemed to have been properly given,
rendered or made only if either (a) sent by registered or certified mail, return
receipt requested, posted in a United States post office station or letter box
in the continental United States, or (b) hand delivered, in either event
addressed to the other party at the address hereinabove set forth, to the
attention of "Vice President" in the case of Tenant, and shall be deemed to
have been given, rendered or made either (i) on the first day after the day so
mailed, unless mailed outside of the State of New York, in which case it shall
be deemed to have been given, rendered or made on the third business day after
the day so mailed, or (ii) on the day received if so hand delivered. Either
party may, by notice as aforesaid, designate a different address or addresses
for notices, statements, demands, consents, approvals or other communications
intended for it. A duplicate original of any notice given to Landlord shall be
simultaneously and similarly sent by Tenant to the attention of Executive Vice
President, Keren Developments, Inc., 000 Xxx Xxx Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx
Xxxx 00000-0000.
ARTICLE 32 - Estoppel Certificates
32.01. Each party shall, at any time and from time to time, if requested
by the other party with not less than 10 days' prior notice, execute and deliver
to the other a statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), certifying the
dates to which the Fixed Rent and Additional charges have been paid, stating
whether or not, to the best knowledge of the signer, the other party is in
default in performance of any of its obligations under this Lease, and, if so,
specifying each such default of which the signer shall have knowledge, and
stating whether or not, to the best knowledge of the signer, any event has
occurred which with the giving of notice or passage of time, or both, would
constitute such a default, and, if so, specifying each such event, it being
intended that any such statement delivered pursuant hereto shall be deemed a
representation and warranty to be relied upon by the party requesting the
certificate and by others with whom such party may be dealing, regardless of
independent investigation. Tenant also shall include in any such statement such
other information concerning this Lease as Landlord may reasonably request.
ARTICLE 33 - Execution and Delivery of Lease
33.01. Submission by Landlord of the within Lease for review and execution
by Tenant shall confer no rights nor impose any obligations on either party
unless and until both
41
Landlord and Tenant shall have executed this Lease and duplicate originals
thereof shall have been delivered to the respective parties.
ARTICLE 34 - Recording of Lease
34.01. At the request of Landlord, Tenant shall promptly execute,
acknowledge and deliver to Landlord a memorandum in respect of this Lease and/or
any amendment or modification of this Lease sufficient for recording, setting
forth only the matters required to be set forth pursuant to Section 291-c of the
New York Real Property Law. Such memorandum shall not in any circumstance be
deemed to change or otherwise affect any of the terms of this Lease. Tenant
shall not record this Lease or said memorandum or any other document related
hereto.
ARTICLE 35 - Parking
35.01. Landlord shall, without charge to Tenant, provide and maintain, for
the non-exclusive use of Tenant's employees and invitees, parking areas
sufficient to accommodate at least 66 standard size automobiles in the area(s)
shown as "parking" on the plan attached hereto as Exhibit B. In the event
Landlord utilizes such parking areas for Landlord's development purposes,
Landlord will provide Tenant with substantially equivalent parking facilities.
ARTICLE 36 - Environmental Compliance
36.01. Tenant assumes sole and full responsibility for compliance with all
applicable Federal, state and local environmental statutes, regulations and
ordinances (including licensing and permitting) (herein called the
"Environmental Laws") in respect of its use of the Premises and agrees to
indemnify, defend, save and hold harmless Landlord and all Superior Lessors and
Superior Mortgagees, and its and their respective partners, directors, officers,
agents and employees from and against any and all claims, demands, losses and
liability (including reasonable attorneys' fees) resulting from any alleged or
actual violation thereof by Tenant or any of its subtenants or licensees or its
or their employees or contractors. Tenant assumes sole and full responsibility
for all present and future acts or omissions of Tenant or any of its subtenants
or licensees or its or their employees or contractors while at, near or on the
Project and covenants and agrees to indemnify, defend, save and hold harmless
Landlord and all Superior Lessors and Superior Mortgagees, and its and their
respective partners, directors, officers, agents and employees, from and against
any and all claims, demands, losses, and liability (including reasonable
attorneys' fees) resulting from any alleged or actual violation thereof,
42
including, but not limited to, personal injury (and death resulting therefrom),
property damage, damage to natural resources, and strict liability under
Environmental Laws resulting from such acts. The provisions of this Section
36.01 shall survive the expiration or termination of this Lease.
ARTICLE 37 - Signs
37.01. Tenant may not place signs anywhere in the Project, including on
the exterior of the Building, without the prior written consent of Landlord.
ARTICLE 38 - Approval Contingency
38.01. This Lease shall not be effective until and unless approved in
writing by Swiss Bank and Carbide. If Swiss Bank or Carbide disapproves this
Lease, then this Lease shall be deemed null and void and of no effect. Landlord
shall promptly forward to Tenant a copy of any such approval and disapproval. If
either Swiss Bank or Carbide does not give its approval or disapproval within 60
days after the date hereof, either party may give notice of cancellation of this
Lease to the other after said 60-day period but prior to the giving of said
approval, and if either party gives such cancellation notice timely, this Lease
shall be deemed null and void and of no effect.
ARTICLE 39 - Intentionally Omitted
ARTICLE 40 - Partnership or Multi-Person Tenant
40.01. If the original Tenant herein named is a partnership (or is
comprised of two or more persons, individually or as co-partners of a
partnership) or if Tenant's interest in this Lease is assigned to a partnership
(or to two or more persons, individually or as co-partners of a partnership),
the following provisions shall apply: (a) the liability of each of the persons
at any time comprising Tenant shall be joint and several, (b) each of the
persons at any time comprising Tenant shall be bound by (i) any written
instrument executed by Tenant or any successor Tenant changing, modifying,
extending or discharging this Lease, in whole or in part, or surrendering all or
any part of the Premises to Landlord, (ii) any Notices given by Tenant or by any
of the persons comprising Tenant, and (iii) any statement executed by Tenant or
any of the persons comprising Tenant, pursuant to Section 32.01, (c) any notices
given to Tenant or to any of such persons shall be binding on Tenant and all
such persons, (d) if Tenant admits new partners, all of such new partners shall,
by their admission to Tenant, be deemed to have assumed joint and several
liability for the performance of all of Tenant's obligations under this Lease,
(e) Tenant shall give prompt
43
notice to Landlord of the admission of any such new partners, and on demand of
Landlord shall cause each such new partner to execute and deliver to Landlord an
agreement in form satisfactory to Landlord wherein each such new partner assumes
joint and several liability for the performance of all of Tenant's obligations
under this Lease (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 clause (d) of this Section), and (f)
the death, adjudication of incompetency or withdrawal of an individual
comprising Tenant or of an individual partner shall not relieve him or his
personal representatives of any liability for the performance of Tenant's
obligations under this Lease.
ARTICLE 41 - Miscellaneous
41.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement which may be made between the parties concurrently with the
execution and delivery of this Lease and which expressly refer to this Lease.
All understandings and agreements heretofore had between the parties are merged
in this Lease and any other written agreements made concurrently herewith, which
alone fully and completely express the agreement of the parties and which are
entered into after full investigation, neither party relying upon any statement
or representation not embodied in this Lease or any other written agreements
made concurrently herewith.
41.02. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing, refers expressly to this Lease and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of the abandonment is
sought. If Tenant shall at any time request Landlord to relet the Premises for
Tenant's account, Landlord or its agent is authorized to receive keys for such
purpose without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Landlord of any liability for loss or damage to any
of the Tenant's Property in connection with such reletting.
41.03. Except as otherwise expressly provided in this Lease, the
obligations of this Lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; provided, however, that (a) no
44
violation of the provisions of Article 8 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Article shall not
be construed as modifying the conditions of limitation contained in Article 24.
No provision in this Lease shall be construed for the benefit of any third party
except as expressly provided herein.
41.04. The obligations of Tenant hereunder shall not be affected, impaired
or excused, nor shall Landlord have any liability to Tenant, because (a)
Landlord is unable to fulfill, or is delayed in fulfilling, any of its
obligations under this Lease by reason of strike, other labor trouble,
governmental preemption of priorities or other controls in connection with a
national or other public emergency, or shortage of fuel, supplies or labor, or
any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b) of any failure or defect in the supply, quantity or character of
electricity, steam, oil, gas or water furnished to the Premises, by reason of
any requirement, act or omission of the public utility or other entity serving
the Building with electric energy, steam, oil, gas or water, or for any other
reason whether similar or dissimilar, beyond Landlord's reasonable control.
41.05. All references in this Lease to the consent or approval of Landlord
shall be deemed to mean only the written consent or approval of Landlord and no
consent or approval of Landlord shall be effective for any purpose unless such
consent or approval is set forth in a written instrument executed by Landlord.
If Tenant requests Landlord's consent and Landlord fails or refuses to give such
consent, Tenant shall not be entitled to any damages for any withholding by
Landlord of its consent, it being intended that Tenant's sole remedy shall be an
action for specific performance or injunction, and that such remedy shall be
available only in those cases where this Lease provides that Landlord may not
unreasonably withhold its consent or where as a matter of law Landlord may not
unreasonably withhold its consent.
41.06. If an excavation is made upon land adjacent to or under the
Building, or is authorized to be made, Tenant shall afford to the person causing
or authorized to cause such excavation, license to enter the Premises for the
purpose of performing such work as said person shall deem necessary or desirable
to preserve and protect the Building from injury or damage and to support the
same by proper foundations, without any claim for damages or liability against
Landlord and without reducing or otherwise affecting Tenant's obligations under
this Lease.
41.07. Tenant agrees that the exercise of its rights pursuant to the
provisions of Article 12 or of any other
45
provisions of this Lease or the Exhibits hereto shall not be done in a manner
which would violate Landlord's union contracts affecting the Project, nor create
any work stoppage, picketing, labor disruption or dispute or any interference
with the business of Landlord or any tenant or occupant of the Project.
41.08. Irrespective of the place of execution or performance, this Lease
shall be governed by and construed in accordance with the laws of the State of
New York. If any provision of this Lease or the application thereof to any
person or circumstances shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of that provision
to other persons or circumstances shall not be affected but rather shall be
enforced to the extent permitted by law. The table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. Each covenant, agreement, obligation or other
provision of this Lease on Tenant's part to be performed, shall be deemed and
construed as a separate and independent covenant of Tenant, not dependent on any
other provision of this Lease. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
46
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
LANDLORD:
KEREN LIMITED PARTNERSHIP
By: Keren Management Limited
Partnership, General Partner
By: Keren Developments Inc.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
TENANT:
PROGENICS PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. XxXxxxxx
---------------------------------
Name: XXXXXX X. XxXXXXXX
Title: (Vice) President
Tenant's Federal Identification Number
______________________________________
47
STATE OF NEW YORK )
: ss.:
COUNTY OF WESTCHESTER )
On the 30th day of June, 1994, before me personally came Xxxxx X. Xxxxxxxx
to me known, who, being by me duly sworn, did depose and say that he resides at
Red Fox Lane, Brewster, New York; that he is the Vice President of Keren
Developments Inc. which corporation is the general partner of Keren Management
Limited Partnership, which limited partnership is the general partner of KEREN
LIMITED PARTNERSHIP, the partnership described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of said corporation (Keren Developments Inc.) as general partner of
Keren Management Limited Partnership, as general partner of Keren Limited
Partnership.
/s/ Xxxx X. Xxxxx
--------------------------
Notary Public
XXXX X. LENNI
Notary Public, State of New York
No. 4700067
Appointed for Westchester County
Commission Expires 11/30/95
STATE OF NEW YORK )
: ss.:
COUNTY OF Westchester )
On the 28th day of June 1994, before me personally came XXXXXX X. XXXXXXXX
to me known, who, being by me duly sworn, did depose and say that he resides at
___________________________________,________________________; that he is the
(Vice) President of PROGENICS PHARMACEUTICALS, INC., the corporation described
in and which executed the foregoing instrument; and that he signed his name
thereto by order of the board of directors of said corporation.
/s/ Xxxxxx Xxxxx
--------------------------
Notary Public
XXXXXX XXXXX
Notary Public, State of New York
No 4895173
Qualified in Westchester County
Commission Expires May 18, [Illegible]
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors and elevators
servicing the Building are limited to ingress to and egress from such tenant's
premises for the tenant and its employees, licensees and invitees, and no tenant
shall use, or permit the use of, the entrances, corridors or elevators for any
other purpose. No tenant shall invite to the tenant's premises, or permit the
visit of, persons in such numbers or under such conditions as to interfere with
the use and enjoyment of any of the plazas, entrances, corridor, elevators and
other facilities of the Building by any other tenants. Fire exits and stairways
are for emergency use only, and they shall not be used for any other purpose by
the tenants, their employees, licensees or invitees. No tenant shall encumber or
obstruct, or permit the encumbrance or obstruction of any of the sidewalks,
plazas, entrances, corridors, elevators, fire exits or stairways of the
Building. Landlord reserves the right to control and operate the public portions
of the Building and the public facilities, as well as facilities furnished for
the common use of the tenants, in such manner as it in its reasonable judgment
deems best for the benefit of the tenants generally.
2. Landlord may refuse admission to the Building outside of Business Hours
on Business Days (as such terms are defined in the lease to which this Exhibit
is attached) to any person not known to the watchman in charge or not having a
pass issued by Landlord or the tenant whose premises are to be entered or not
otherwise properly identified, and Landlord may require all persons admitted to
or leaving the Building outside of Business Hours on Business Days to provide
appropriate identification. Landlord will supply identification cards and be
reimbursed by Tenant at Landlord's cost plus 5%. Tenant shall be responsible for
all persons for whom it issues any such pass and shall be liable to Landlord for
all acts or omissions of such persons. Tenant shall promptly notify Landlord in
writing of any lost identification cards and will reimburse Landlord at cost
plus 5% for replacement of identification cards. Any person whose presence in
the Building at any time shall, in the judgment of Landlord, be prejudicial to
the safety, character or reputation of the Building or of its tenants may be
denied access to the Building or may be ejected therefrom. During any invasion,
riot, public excitement or other commotion, Landlord may prevent all access to
the Building by closing the doors or otherwise for the safety of the tenants and
protection of property in the Building.
3. No tenant shall obtain or accept for use in its premises towel,
barbering, bootblacking, floor polishing,
EXHIBIT A
Page 1
cleaning or other similar services from any persons reasonably prohibited by
Landlord in writing from furnishing such services. Such services shall be
furnished only at such hours, and under such reasonable regulations, as may be
fixed by Landlord from time to time.
4. The cost of repairing any damage to the public portions of the Building
or the public facilities or to any facilities used in common with other tenants,
caused by a tenant or its employees, agents, contractors, licensees or invitees,
shall be paid by such tenant.
5. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds,' shades or screens which are different
from the standards adopted by Landlord for the Building shall be attached to or
hung in, or used in connection with, any exterior window or door of the premises
of any tenant, without the prior written consent of Landlord. Such curtains,
blinds, shades or screens must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
6. No lettering, sign, advertisement, notice or object shall be displayed
in or on the exterior windows or doors, or on the outside of any tenant's
premises, or at any point inside any tenant's premises where the same might be
visible outside of such premises, without the prior written consent of Landlord.
In the event of the violation of the foregoing by any tenant, Landlord may
remove the same without any liability, and may charge the expense incurred in
such removal to the tenant violating this rule. Interior signs, elevator cab
designations and lettering on doors and the Building directory shall, if and
when approved by Landlord, inscribed, painted or affixed for each tenant by
Landlord at the expense of such tenant, and shall be of a size, color and style
acceptable to Landlord.
7. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window xxxxx or on the
peripheral air conditioning enclosures, if any.
8. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
9. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by
EXHIBIT A
Page 2
any tenant. Nothing shall be done or permitted in the premises of any tenant
which would impair or interfere with the use or enjoyment by any other tenant of
any other space in the Building.
10. Additional locks or bolts of any kind which shall not be operable by
the Grand Master Key for the Building shall not be placed upon any of the doors
or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said Grand Master
Key. Additional keys for a tenant's premises and toilet rooms shall be procured
only from Landlord who may make a reasonable charge therefor. Each tenant shall,
upon the termination of its tenancy, turn over to Landlord all keys of stores,
offices and toilet rooms, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys furnished by Landlord, such
tenant shall pay to Landlord the cost thereof.
11. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators, and in such
manner as Landlord or its agent may determine from time to time. The persons
employed to move safes and other heavy objects shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a Master Rigger's license.
Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All labor and
engineering costs incurred by Landlord in connection with any moving specified
in this rule, including a reasonable charge for overhead and profit, shall be
paid by tenant to Landlord, on demand.
12. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or the lease of which
this Exhibit is a part. Landlord may require any person leaving the Building
with any package or other object or matter to submit a pass, listing such
package or object or matter, from the tenant from whose premises the package or
object or matter is being removed, but the establishment and enlargement of such
requirement shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of such tenant.
Landlord shall in no way be liable to any tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the premises
or the Building under the provisions of this Rule or of Rule 2 hereof.
EXHIBIT A
Page 3
13. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
storage, manufacture, or sale of liquor, narcotics, dope, tobacco in any form,
or as a xxxxxx, beauty or manicure shop, or as a school. No tenant shall use or
permit its premises or any part thereof to be used for manufacturing or the sale
at retail or auction of merchandise, goods or property of any kind.
14. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's reasonable judgment, tends
to impair the reputation of the Building or its desirability as a building for
others, and upon written notice from Landlord, such tenant shall refrain from
and discontinue such advertising or identifying sign.
15. Landlord shall have the right to prescribe the weight and position of
safes and other objects of excessive weight, and no safe or other object whose
weight exceeds the lawful load for the area upon which it would stand shall be
brought into or kept upon any tenant's premises. If, in the judgment of
Landlord, it is necessary to distribute the concentrated weight of any heavy
object, the work involved in such distribution shall be done at the expense of
the tenant and in such manner as Landlord shall determine.
16. No machinery or mechanical equipment may be installed or operated in
any tenant's premises so as to disturb other tenants; but machines and
mechanical equipment which may be permitted to be installed and used in a
tenant's premises shall be so equipped, installed and maintained by such tenant
as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
17. Landlord, its contractors, and their respective employees, shall have
the right to use, without charge therefor, all light, power and water in the
premises of any tenant while cleaning or making repairs or alterations in the
premises of such tenant.
18. No premises of any tenant shall be used for lodging or sleeping or for
any immoral or illegal purpose.
19. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
EXHIBIT A
Page 4
20. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
21. No tenant shall cause or permit any unusual or objectionable odors to
emanate from its premises which would annoy other tenants or create a public or
private nuisance. No cooking shall be done in the premises of any tenant except
as is expressly permitted in such tenant's lease.
22. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, ventilating, air conditioning, cleaning or other servicing of
the Building or the premises, or the use or enjoyment by any other tenant of any
other premises, nor shall there be installed by any tenant any ventilating,
air-conditioning, electrical or other equipment of any kind which, in the
reasonable judgment of Landlord, might cause any such impairment or
interference.
23. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenant who, or
whose servants, employees, agents, visitors or licensees shall have, caused the
same. Any cuspidors or containers or receptacles used as such in the premises of
any tenant or for garbage or similar refuse, shall be emptied, cared for and
cleaned by and at the expense of such tenant.
24. All entrance doors in each tenant's premises shall be left locked and
all windows shall be left closed by the tenant when the tenant's premises are
not in use. Entrance doors shall not be left open at any time. Each tenant,
before closing and leaving its premises at any time, shall turn out all lights.
25. Hand trucks not equipped with rubber tires and side guards shall not
be used within the Building.
26. All windows in each tenant's premises shall be kept closed, and all
blinds therein above the ground floor shall be lowered as reasonably required
because of the position of the sun, during the operation of the Building
air-conditioning system to cool or ventilate the tenant's premises.
EXHIBIT A
Page 5
If Landlord shall elect to install any energy saving film on the windows of any
premises or to install energy saving windows in place of the present windows,
each tenant shall cooperate with the reasonable requirements of Landlord in
connection with such installation and thereafter the maintenance and replacement
of the film and/or windows and permit Landlord to have access to the tenant's
premises at reasonable times during Business Hours to perform such work.
27. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its reasonable
judgment, it deems it necessary, desirable or proper for its best interest and
for the best interests of the tenants generally, and no alteration or waiver of
any rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. Landlord shall not be responsible to any
tenant for the nonobservance or violation by any other tenant of any of the
rules and regulations at any time prescribed for the Building.
EXHIBIT A
Page 6
EXHIBIT B
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