EXHIBIT 10.28
AGREEMENT OF LEASE
Between
FIRST LEXINGTON CORPORATION,
Owner
and
BION ENVIRONMENTAL TECHNOLOGIES, INC.,
Tenant
Premises
Portion Seventeenth (17th) Floor
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Dated as of June ___, 2006
TABLE OF CONTENTS
ARTICLE 1 Demised Premises, Term, Rents
ARTICLE 2 Use and Occupancy
ARTICLE 3 Alterations
ARTICLE 4 Ownership of Improvements
ARTICLE 5 Repairs
ARTICLE 6 Compliance With Laws
ARTICLE 7 Subordination, Attornment, Etc.
ARTICLE 8 Property Loss, Etc.
ARTICLE 9 Destruction-Fire or Other Casualty
ARTICLE 10 Eminent Domain
ARTICLE 11 Assignment and Subletting
ARTICLE 12 Existing Conditions
ARTICLE 13 Access to Demised Premises
ARTICLE 14 Vault Space
ARTICLE 15 Certificate of Occupancy
ARTICLE 16 Default
ARTICLE 17 Remedies
ARTICLE 18 Damages
ARTICLE 19 Fees and Expenses; Indemnity
ARTICLE 20 Entire Agreement
ARTICLE 21 End of Term
ARTICLE 22 Quiet Enjoyment
ARTICLE 23 Escalation
ARTICLE 24 No Waiver
ARTICLE 25 Mutual Waiver of Trial by Jury
ARTICLE 26 Inability to Perform
ARTICLE 27 Notices
ARTICLE 28 Partnership Tenant
ARTICLE 29 Utilities and Services
ARTICLE 30 Table of Contents, Etc.
ARTICLE 31 Miscellaneous Definitions, Severability and Interpretation
Provisions
ARTICLE 32 Adjacent Excavation
ARTICLE 33 Building Rules
ARTICLE 34 Broker
ARTICLE 35 Security
ARTICLE 36 Arbitration, Etc.
ARTICLE 37 Parties Bound
SCHEDULE A Building Rules
EXHIBIT 1 Plan of Demised Premises
EXHIBIT 2 Form of Letter of Credit
LEASE dated as of the ___ day of June, 2006, between FIRST LEXINGTON
CORPORATION, a New York corporation having its principal office at 000 Xxxx
Xxxxxx, Xxxxxxx of Manhattan, City, County, and State of New York, 10154, as
landlord (referred to as "Owner"), and BION
ENVIRONMENTAL TECHNOLOGIES, INC., a _____________ corporation, having its
principal office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as tenant
(referred to as "Tenant").
W I T N E S S E T H:
Owner and Tenant hereby covenant and agree as follows:
ARTICLE 1
DEMISED PREMISES, TERM, RENTS
Section 1.01. Demised Premises: Owner hereby leases to Tenant and Tenant
hereby hires from Owner a portion of seventeenth (17th) floor, as more
particularly delineated by outlining and diagonal markings on the floor plan
annexed hereto and made a part hereof as Exhibit "1," in the building known as
000 Xxxxxxxxx Xxxxxx, in the Borough of Manhattan, City of New York (said
building is referred to as the "Building", and the Building together with the
plot of land upon which it stands is referred to as the "Real Property"), at
the annual rental rate or rates set forth in Section 1.03, and upon and
subject to all of the terms, covenants and conditions contained in this Lease.
The premises leased to Tenant, together with all appurtenances, fixtures,
improvements, additions and other property attached thereto or installed
therein at the commencement of, or at any time during, the term of this Lease,
other than Tenant's Personal Property (as defined in Article 4), are referred
to, collectively, as the "Demised Premises".
Section 1.02. Demised Term: A. The Demised Premises are leased for a term
(referred to as the "Demised Term") to commence on the date of this Lease and
to end on the last day of calendar month in which the seven (7) year, four (4)
month anniversary of the Commencement Date (as hereinafter defined) shall
occur, unless the Demised Term shall sooner terminate pursuant to any of the
terms, covenants or conditions of this Lease or pursuant to law.
B. The date upon which the Demised Term shall commence pursuant to
Subsection A of this Section is referred to as the "Commencement Date", and
the date fixed pursuant to said Subsection A as the date upon which the
Demised Term shall end is referred to as the "Expiration Date".
C. Tenant waives any right to rescind this Lease under Section 223-a of
the New York Real Property Law or any successor statute of similar import then
in force and further waives the right to recover any damages which may result
from Owner's failure to deliver possession of the Demised Premises on the date
set forth in Subsection A of this Section, or in any notice given pursuant to
Subsection B of this Section, for the commencement of the Demised Term.
D. After the determination of the Commencement Date, Tenant agrees, upon
demand of Owner, to execute, acknowledge and deliver to Owner, an instrument,
in form reasonably satisfactory to Owner, setting forth said Commencement Date
and the Expiration Date.
Section 1.03. Fixed Rent: A. The Lease is made at the following annual
rental rates (referred to as "Fixed Rent"):
1. ELEVEN THOUSAND FOUR HUNDRED SIXTY-THREE and 00/100 ($11,463.00)
DOLLARS with respect to the period (referred to as the "First Rent Period")
from the Commencement Date to and including the day immediately preceding the
four (4) month anniversary of the Commencement Date; and
2. ONE HUNDRED SEVENTY-ONE THOUSAND NINE HUNDRED FORTYFIVE and 00/100
($171,945.00) DOLLARS with respect to the next five (5) years of the Demised
Term (referred to as the "Second Rent Period"); and
3. ONE HUNDRED EIGHTY-THREE THOUSAND FOUR HUNDRED EIGHT and 00/100
($183,408.00) DOLLARS with respect to the remainder of the Demised Term
(referred to as the "Third Rent Period").
B. The Fixed Rent, any increases in the Fixed Rent and any additional
rent payable pursuant to the provisions of this Lease shall be payable by
Tenant to Owner at its office (or at such other place as Owner may designate
in a notice to Tenant) in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment or by Tenant's good check drawn on a bank or trust company which is
a member of The Clearing House Association L.L.C. without prior demand
therefor and without any offset or deduction whatsoever except as otherwise
specifically provided in this Lease. Notwithstanding the foregoing, Tenant may
pay the monthly installments of Fixed Rent set forth in this Section 1.03B,
and any increases in Fixed Rent pursuant to Article 23 which are billed to
Tenant at the same time as such monthly installments of Fixed Rent, and any
additional rent then due and payable by wire transfer to the account of Owner,
provided that (a) Tenant shall give Owner thirty (30) days" prior written
notice of Tenant's intent to pay such sums via wire transfer at the time
Tenant first elects to do same, (b) Tenant shall give a confirmation of such
wire transfer as soon as possible to Owner's e-mail address xxxxxxxx@xxxxx.xxx
(or any other e-mail address of which Owner gives Tenant notice), and (c) such
wire transfer shall be received by Owner no later than two (2) days after the
date upon which such sums are due and payable. The Fixed Rent shall be payable
in equal monthly installments in advance, on the first (1st) day of each month
during the Demised Term (except as otherwise provided in Subsection C of this
Section) as follows:
1. NINE HUNDRED FIFTY-FIVE and 00/100 ($955.00) DOLLARS with respect to
the First Rent Period; and
2. FOURTEEN THOUSAND THREE HUNDRED TWENTY-EIGHT and 75/100 ($14,328.75)
DOLLARS with respect to the Second Rent Period; and
3. FIFTEEN THOUSAND TWO HUNDRED EIGHTY-FOUR and 00/100 ($15,284.00)
DOLLARS with respect to the Third Rent Period.
C. The sum of FOURTEEN THOUSAND THREE HUNDRED TWENTY-EIGHT and 75/100
($14,328.75) DOLLARS, representing the installment of Fixed Rent for the first
(1st) full calendar month of the Second Rent Period is due and payable at the
time of the execution and delivery of this Lease. In the event that the first
day of the Second Rent Period shall occur on a date other than the first (1st)
day of any calendar month, Tenant shall pay to Owner, on the first (1st) day
of the month next succeeding the month during which the first day of the
Second Rent Period shall occur, a sum equal to FOUR HUNDRED SEVENTY-SEVEN and
63/100 ($477.63) DOLLARS, multiplied by the number of calendar days in the
period from the first day of the Second Rent Period to the last day of the
month in which the first day of the Second Rent Period shall occur, both
inclusive. Such payment, together with the sum paid by Tenant upon the
execution of this Lease, shall constitute payment of the Fixed Rent for the
period from the first day of the Second Rent Period to and including the last
day of the next succeeding calendar month.
D. If Tenant shall use or occupy all or any part of the Demised Premises
prior to the Commencement Date, such use or occupancy shall be deemed to be
under all of the terms, covenants and conditions of this Lease, including,
without limitation, the covenant to pay Fixed Rent for the period from the
commencement of said use or occupancy to and including the date immediately
preceding the Commencement Date, without, however, affecting the Expiration
Date. The provisions of the foregoing sentence shall not be deemed to give to
Tenant any right to use or occupy all or any part of the Demised Premises
prior to the Commencement Date without the consent of Owner.
Section 1.04. Tenant's General Covenant: Tenant covenants (i) to pay the
Fixed Rent, any increases in the Fixed Rent, and any additional rent payable
pursuant to the provisions of this Lease, and (ii) to observe and perform, and
to permit no violation of, the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed.
Section 1.05. Partial Rent Credit Amount: Tenant acknowledges that the
Fixed Rent for the First Rent Period reflects an aggregate conditional rent
credit in the sum of FIFTY-THREE THOUSAND FOUR HUNDRED NINETY-FOUR and 00/100
($53,494.00) DOLLARS (i.e., $13,373.50 per month) (such aggregate rent credit
referred to herein as the "Fixed Rent Credit Amount"), so that only an amount
equal to the Electrical Inclusion Factor (as defined herein) is to be paid by
Tenant during such First Rent Period as set forth in Section 1.03 hereof.
ARTICLE 2
USE AND OCCUPANCY
Section 2.01. General Covenant of Use: Tenant shall use and occupy the
Demised Premises for the following purpose: general and executive offices and
for no other purposes.
Section 2.02. No Adverse Use: Tenant shall not use or occupy, or permit
the use or occupancy of, the Demised Premises or any part thereof, for any
purpose other than the purpose specifically set forth in Section 2.01, or in
any manner which, in Owner's reasonable judgment, (a) shall adversely affect
or interfere with (i) any services required to be furnished by Owner to Tenant
or to any other tenant or occupant of the Building, or (ii) the proper and
economical rendition of any such service, or (iii) the use or enjoyment of any
part of the Building by any other tenant or occupant, or (b) shall tend to
impair the character or dignity of the Building.
Section 2.03. Pantry: Tenant may not undertake any "cooking" activities
in the Demised Premises or have a kitchen therein, but Tenant may have a
pantry in the Demised Premises and may use therein a dishwasher (provided the
use of an ordinary kitchen grade type dishwasher shall be considered ordinary
water consumption, but the use of an industrial or commercial type dishwasher
shall not be considered ordinary water consumption) hot plates, refrigerators,
freezers, sinks, toaster ovens and microwave ovens, provided that no such use
shall require use of a flue or other means of venting, a rotoclone, or similar
type equipment by reason of cooking, frying or otherwise and that Tenant also
make such Alterations as are necessary in Owner's reasonable judgment to
prevent noise, vibrations, water, or odors from such equipment from
interfering with the Building systems or use or occupancy or enjoyment of the
Building by Owner or other tenants.
ARTICLE 3
ALTERATIONS
Section 3.01. General Alteration Covenants: Tenant shall not make or
perform, or permit the making or performance of, any alterations,
installations, decorations, improvements, additions or other physical changes
in or about the Demised Premises (referred to collectively, as "Alterations"
and individually as an "Alteration") without Owner's prior consent in each
instance. Owner agrees not unreasonably to withhold its consent to any non-
structural Alterations proposed to be made by Tenant to adapt the Demised
Premises for Tenant's business purposes. Notwithstanding the foregoing
provisions of this Section or Owner's consent to any Alterations, all
Alterations shall be made and performed in conformity with and subject to the
following provisions:
A. All Alterations shall be made and performed at Tenant's sole cost and
expense and at such time and in such manner as Owner may, from time to time,
reasonably designate;
B. No Alteration shall adversely affect the structural integrity of the
Building;
C. Alterations shall be made only by contractors or mechanics approved by
Owner, such approval not unreasonably to be withheld (notwithstanding the
foregoing, all Alterations requiring mechanics in trades with respect to which
Owner has adopted or may hereafter adopt a list or lists of approved
contractors shall be made only by contractors selected by Tenant from such
list or lists and Owner shall have sole discretion with respect to the
contractor performing connections to the Building Class E Fire Alarm and
Communication system);
D. No Alteration shall affect any part of the Building other than the
Demised Premises or adversely affect any service required to be furnished by
Owner to Tenant or to any other tenant or occupant of the Building (including,
without limitation, the Building-wide standard systems required to provide
elevator, heat, ventilation, air-conditioning and electrical and plumbing
services in the Building);
E. No Alteration shall reduce the value or utility of the Building or any
portion thereof;
F. No Alteration shall affect the Certificate of Occupancy for the
Building or the Demised Premises;
G. No Alteration shall affect the outside appearance of the Building or
the color or style of any venetian blinds (except that Tenant may remove any
venetian blinds provided that they are promptly replaced by Tenant with
Building standard blinds);
H. All business machines and mechanical equipment shall be placed and
maintained by Tenant in settings sufficient, in Owner's judgment, to absorb
and prevent vibration, noise and annoyance to other tenants or occupants of
the Building;
I. Tenant shall submit to Owner detailed plans and specifications stamped
by Tenant's architect (including layout, architectural, mechanical and
structural drawings) for each proposed Alteration and shall not commence any
such Alteration without first obtaining Owner's approval of such plans and
specifications and following the completion of each Alteration, Tenant shall
submit to Owner a computerized "as built" drawing file for the Demised
Premises (or if the Demised Premises comprise more than one (1) floor, for
each floor of the Demised Premises being altered); such file will be in DXF
format and contain, on a separate layer, all ceiling-height partitions and
doors within the Demised Premises (or if the Demised Premises comprise more
than one (1) floor, within each floor of the Demised Premises being altered);
J. Prior to the commencement of each proposed Alteration, Tenant shall
have procured and paid for and exhibited to Owner, so far as the same may be
required from time to time, all permits, approvals and authorizations of all
Governmental Authorities (as defined in Section 6.01.) having or claiming
jurisdiction;
K. Prior to the commencement of each proposed Alteration, Tenant shall
furnish to Owner duplicate original policies of workmen's compensation
insurance covering all persons to be employed in connection with such
Alteration, including those to be employed by all contractors and
subcontractors, and of comprehensive public liability insurance (including
property damage coverage) in which Owner, its agents, the holder of any
Mortgage (as defined in Section 7.01.) and any lessor under any Superior Lease
(as defined in Section 7.01.) shall be named as parties insured, which
policies shall be issued by companies, and shall be in form and amounts,
satisfactory to Owner and shall be maintained by Tenant until the completion
of such Alteration;
L. In the event Owner or its agents employ any independent architect or
engineer to examine any plans or specifications submitted by Tenant to Owner
in connection with any proposed Alteration, Tenant agrees to pay to Owner a
sum equal to any reasonable fees incurred by Owner in connection therewith;
M. All fireproof wood test reports, electrical and air conditioning
certificates, and all other permits, approvals and certificates required by
all Governmental Authorities shall be timely obtained by Tenant and submitted
to Owner;
N. All Alterations, once commenced, shall be made promptly and in a good
and workmanlike manner;
O. Notwithstanding Owner's approval of plans and specifications for any
Alteration, all Alterations shall be made and performed in full compliance
with all Legal Requirements (as defined in Section 6.01.) and with all
applicable rules, orders, regulations and requirements of the New York Board
of Fire Underwriters and the New York Fire Insurance Rating Organization or
any similar body;
P. All Alterations shall be made and performed in accordance with the
Building Rules and Building Rules for Alterations;
Q. All materials and equipment to be installed, incorporated or located
in the Demised Premises as a result of all Alterations shall be new and first
quality;
R. No materials or equipment shall be subject to any lien, encumbrance,
chattel mortgage or title retention or security agreement of any kind;
S. Tenant, before commencement of each Alteration, shall furnish to Owner
a performance bond or other security satisfactory to Owner, in an amount at
least equal to the estimated cost of such Alteration, guaranteeing the
performance and payment thereof. The provisions of this Subsection S shall not
apply to Tenant's Initial Installation or to the performance by Tenant of any
Alterations constituting a single project and estimated to cost no more than
SEVENTY-FIVE THOUSAND and 00/100 ($75,000.00) DOLLARS;
T. No Alteration shall be commenced unless any preceding Alteration shall
have been fully paid for and proof of such payment furnished to Owner;
U. All Alterations in or to the electrical facilities in or serving the
Demised Premises shall be subject to the provisions of Subsection C(1) of
Section 29.05 (relating to increases in the Fixed Rent);
V. Following the completion of each Alteration, Tenant, at Tenant's
expense, shall obtain certificates of final approval of such Alteration
required by any Governmental Authority and shall furnish Owner with copies
thereof; and
W. Tenant agrees that Tenant will not install, affix, add or paint in or
on, nor permit, any work of visual art (as defined in the Federal Visual
Artists" Rights Act of 1990 or any successor law of similar import) or other
Alteration to be installed in or on, or affixed, added to, or painted on, the
interior or exterior of the Demised Premises, or any part thereof, including,
but not limited to, the walls, floors, ceilings, doors, windows, fixtures and
on land included as part of the Demised Premises, which work of visual art or
other Alteration would, under the provisions of the Federal Visual Artists"
Rights Act of 1990, or any successor law of similar import, require the
consent of the author or artist of such work or Alteration before the same
could be removed, modified, destroyed or demolished.
Section 3.02. No Consent to Contractor/No Mechanics Lien: Nothing in this
Lease shall be deemed or construed in any way as constituting the consent or
request of Owner, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialmen, for the performance of any
labor or the furnishing of any material for any specific Alteration to, or
repair of, the Demised Premises, the Building, or any part of either. Any
mechanic's or other lien filed against the Demised Premises or the Building or
the Real Property for work claimed to have been done for, or materials claimed
to have been furnished to, Tenant or any person claiming through or under
Tenant or based upon any act or omission or alleged act or omission of Tenant
or any such person shall be discharged by Tenant, at Tenant's sole cost and
expense, within thirty (30) days after the filing of such lien.
Section 3.03. Labor Harmony: Tenant shall not, at any time prior to or
during the Demised Term, directly or indirectly employ, or permit the
employment of, any contractor, mechanic or laborer in the Demised Premises,
whether in connection with any Alteration or otherwise, if such employment
will interfere or cause any conflict with other contractors, mechanics, or
laborers engaged in the construction, maintenance or operation of the Building
by Owner, Tenant or others. In the event of any such interference or conflict,
Tenant, upon demand of Owner, shall cause all contractors, mechanics or
laborers causing such interference or conflict to leave the Building
immediately.
Section 3.04. Compliance with Fire Safety: Without in any way limiting
the generality of the provisions of Section 3.01, all Alterations shall be
made and performed in full compliance with all standards and practices adopted
by Owner for fire safety in the Building. No Alteration shall affect all or
any part of any Class E Fire Alarm and Communication system installed in the
Demised Premises, except that in connection with any such Alteration Tenant
may relocate certain components of such system, provided (i) such relocation
shall be performed in a manner first approved y Owner, (ii) the new location
of any such component shall be first approved by Owner, (iii) prior to any
such relocation Tenant shall submit to Owner detailed plans and specifications
therefor which shall be first approved by Owner and (iv) Owner shall have the
election of relocating such components either by itself or by its contractors,
in which event all expenses incurred by Owner shall be reimbursed by Tenant
upon demand of Owner, as additional rent.
Section 3.05. Sprinklers: In the event that Tenant performs any
Alterations in the Demised Premises, Tenant, as part of such Alterations,
shall be required to (x) install a sprinkler system in the Demised Premises to
the extent not theretofor installed and (y) make all modifications to any
existing sprinkler system necessary in connection with such Alterations, and
in connection with the foregoing the following provisions of this Section
shall apply: (i) such sprinkler system and/or modifications thereto shall
comply with all applicable laws, orders, rules and regulations; (ii) the
supplying and installing of any such sprinkler system and/or modifications
thereto shall be made in accordance with the provisions of this Lease,
including but not limited to the provisions of this Article and Article 6 and
the type, brand, location and manner of installation of such sprinkler system
and/or modifications thereto shall be subject to Owner's prior approval; and
(iii) Tenant shall make all repairs and replacements, as and when necessary,
to such sprinkler system including any modifications thereto and any
replacements thereof. Notwithstanding the aforesaid provisions of this
Section, Owner shall have the election of supplying and installing such
sprinkler system and/or modifications thereto either by itself or by its
agents or contractors, in which event all costs and expenses incurred by Owner
in connection with supplying and installing such sprinkler system and/or
modifications thereto and any repairs or replacements of such sprinkler system
as the same may be modified and any replacements thereof made by Owner, at
Owner's election, shall be paid by Tenant to Owner within ten (10) days next
following the rendition of a statement thereof by Owner to Tenant. In addition
to paying all costs and expenses in connection with the supplying, installing
and modifying of such sprinkler system, Tenant shall pay to Owner, for each
floor of the Building on which any portion of the Demised Premises is located,
a fee equal to Tenant's pro rata share of all of the costs and expenses
incurred by Owner, if any, in supplying and installing a "common sprinkler
header" on such floor which pro rata share shall be a fraction in which the
numerator shall be the number of rentable square feet of that portion of the
Demised Premises located on such floor and the denominator shall be the number
of rentable square feet on such floor, provided however, that notwithstanding
anything contained in this Section to the contrary, Owner shall have no
obligation to install such "common sprinkler header" on any floor of the
Building which shall be entirely demised to Tenant. Such fee shall be payable
to Owner within ten (10) days next following the rendition of a statement
thereof by Owner to Tenant. Notwithstanding anything contained in this Lease
to the contrary, such sprinkler system, or any replacement thereof and any
modifications and/or installations in connection therewith, whether made by
Tenant or Owner, shall upon expiration or sooner termination of the Demised
Term be deemed the property of Owner. Notwithstanding anything contained in
this Section 3.05 to the contrary, Owner has advised Tenant that the Demised
Premises initially leased on the Commencement Date shall contain a sprinkler
system which shall comply with all Legal Requirements in effect as of the date
hereof.
Section 3.06 Asbestos or Other Asbestos Containing Materials:
A. In the event that, at any time during the Demised Term, in connection
with any Alterations proposed to be performed by Tenant in the Demised
Premises Tenant is unable to obtain a New York City Department of
Environmental Protection Form ACP5 dated 2/01 (or any successor form), signed
by a certified asbestos investigator, or any other form or approval required
by Federal, State, County or Municipal authorities, indicating that said
Alterations do not constitute an asbestos project, Owner agrees, upon notice
from Tenant to such effect, to perform such work as shall be required to
enable Tenant to obtain any such form or approval.
B. If any Legal Requirements (as defined in Section 6.01) require that
any asbestos or other asbestos containing material contained in or about the
Demised Premises be removed or dealt with in any particular manner, then it
shall be Owner's obligation, at Owner's expense, to remove or so deal with
such asbestos or other asbestos containing material in accordance with such
Legal Requirements (as defined in Section 6.01).
C. Notwithstanding the provisions of Subsections A and B of this Section,
in the event any work performed by Owner pursuant to the provisions of either
or both of such Subsections is in any way disturbed or damaged by Tenant or
any person claiming through or under Tenant, or asbestos or other asbestos
containing material is installed in the Demised Premises by or on behalf of
Tenant, or any person claiming through or under Tenant, Owner shall have no
responsibility in connection therewith and no obligation to perform any work
with respect thereto, but it shall be Tenant's obligation, at Tenant's
expense, to (i) perform such work as shall be required to enable Tenant to
obtain any form or approval referred to in Subsection A, and (ii) remove or so
deal with such asbestos or other asbestos containing material in accordance
with all such Legal Requirements (as defined in Section 6.01) referred to in
Subsection B. Any work required to be performed by Tenant pursuant to the
provisions of the foregoing sentence is referred to as the "Compliance Work".
In the event Tenant is required to perform any Compliance Work then,
notwithstanding anything to the contrary contained in this Subsection C,
Owner, at Owner's election, shall have the option to itself perform any
Compliance Work and, in such event, Tenant shall pay to Owner all of Owner's
reasonable, out-of-pocket costs in connection therewith within thirty (30)
days next following the rendition of a statement thereof by Owner to Tenant.
D. Since current Legal Requirements state that no New York City
Department of Environmental Protection Form ACP-5 dated 2/01 (or any successor
form) may be issued without plans and specifications for the Alterations in
question, wherever in this Lease Owner has agreed to supply Tenant with a New
York City Department of Environmental Protection form ACP-5 dated 2/01 (or any
successor form), Owner's obligation to supply such form shall be conditioned
on the requirement that Tenant has delivered to Owner such plans and
specifications for the Alterations in question to enable Owner to obtain such
form.
Section 3.07. Dispute Resolution: Any dispute with respect to the
reasonability of any failure or refusal of Owner to grant its consent or
approval to any request for such consent or approval pursuant to the
provisions of Section 3.01 with respect to which request Owner has agreed, in
such Section not unreasonably to withhold such consent or approval, shall be
determined by arbitration in accordance with the provisions of Article 36.
Section 3.08. Tenant's Initial Installation/ Owner's Work Contribution:
A. Promptly after the Commencement Date, Tenant shall, at Tenant's cost
and expense, perform various Alterations in the Demised Premises required to
prepare the Demised Premises for Tenant's initial occupancy and use and
conduct of its business therein. Such Alterations (referred to as "Tenant's
Initial Installation") shall be made and performed in accordance with the
provisions of this Lease, including, without limitation, the provisions of
Articles 3 and 6 hereof. Tenant shall prosecute Tenant's Initial Installation
to completion with all reasonable diligence.
B. Subject to the provisions and requirements of this Section 3.08, and
provided that Tenant is not then in default under any of the terms, covenants
or conditions of this Lease on the part of Tenant to be observed or performed,
Owner shall contribute the sum of not more than SEVENTY-SIX THOUSAND FOUR
HUNDRED TWENTY and 00/100 ($76,420.00) DOLLARS in the aggregate toward the
cost and expense actually incurred by Tenant with respect to Tenant's Initial
Installation. Owner's contribution on account of Tenant's Initial Installation
is referred to as "Owner's Work Contribution". Irrespective of the actual cost
and expense of Tenant's Initial Installation, in no event shall Owner's Work
Contribution exceed the aggregate sum of SEVENTY-SIX THOUSAND FOUR HUNDRED
TWENTY and 00/100 ($76,420.00) DOLLARS.
C. Provided that Tenant is not then in default under any of the terms,
covenants or conditions of this Lease on Tenant's part to be observed and
performed, Owner shall distribute Owner's Work Contribution on account of
Tenant's Initial Installation upon the date Tenant shall occupy the Demised
Premises for the conduct of business, provided that Tenant shall have
submitted to Owner (i) paid receipts and cancelled checks or other evidence of
payment, in form reasonably acceptable to Owner, for the total cost and
expense of Tenant's Initial Installation, (ii) proof reasonably satisfactory
to Owner that all consents, approvals, or signoffs to be obtained by Tenant
under any Legal Requirements or as required by any Governmental Authority have
been obtained, and (iii) final waivers of mechanic's liens from all
contractors, subcontractors, materialmen and laborers who were hired to
perform any services or deliver any materials in connection with Tenant's
Initial Installation, along with a certificate executed by an officer of
Tenant stating that such lien waivers are on account of all such costs and
expenses incurred with respect to Tenant's Initial Installation, provided
however, that Owner shall not be required to pay more than the cost of the
work in place plus any Soft Costs (as hereinafter defined) incurred by Tenant
nor make payment prior to the completion of Tenant's Initial Installation, and
provided further that any such work shall substantially comply with any plans
and specifications previously approved by Owner and shall otherwise comply
with the requirements of this Lease and Tenant's request for distribution
shall be accompanied by a certification of Tenant's architect or designer
stating that such work so substantially complies with such plans and
specifications (which certification may be provided on AIA Form G704
Certificate of Substantial Completion). For purposes of the immediately
preceding sentence, "Soft Costs" shall mean those so-called "soft" costs and
expenses incurred by Tenant in connection with Tenant's Initial Installation,
including, without limitation, the cost of all consultant, architectural,
engineering and designers fees and all permit fees and moving expenses (as
opposed to so-called "hard costs" of Tenant's Initial Installation that shall
become permanently affixed to the Demised Premises). Notwithstanding anything
to the contrary herein, the distribution of Owner's Work Contribution shall be
made within thirty (30) days following the date of Tenant's required
submissions hereunder and compliance with the terms and conditions of this
Subsection C. Tenant's request for the disbursement of Owner's Work
Contribution shall also include written information in reasonable detail
provided on AIA Form G702 Application for Payment with Continuation Sheet AIA
Form 703 attached, so that Owner can readily determine the type, class and
respective amounts of the expenditures made with such sums requested (ie: the
type of "hard costs" or "soft costs" etc.), and Tenant shall reasonably
cooperate with Owner to provide Owner with further information in the event
that Owner has any inquiries with respect to the same.
D. The making of the Owner's Work Contribution by Owner shall constitute
a single nonrecurring obligation on the part of Owner. In the event this Lease
is renewed or extended for a further term by agreement or operation of law,
Owner's obligation to give Owner's Work Contribution or any part thereof shall
not apply to any such renewal or extension.
E. Tenant acknowledges and agrees that Owner is merely acting on behalf
of Tenant in connection with the disbursement of the Owner's Work Contribution
in accordance with the provisions of this Section 3.08 to Tenant for the
contractors, suppliers and materialmen employed in connection with Tenant's
Initial Installation, and that Owner shall have no obligation, liability or
responsibility to any of the contractors, suppliers or materialmen seeking any
of the Owner's Work Contribution pursuant to any of the aforesaid contracts or
agreements with such contractors, suppliers or materialmen or otherwise,
provided that Owner shall be obligated to disburse such Owner's Work
Contribution only as expressly provided by the provisions of this Section
3.08. Nothing contained in this Section 3.08 shall relieve Tenant of any
obligations or liabilities to such contractors, suppliers or materialmen under
such contracts, agreements or otherwise. Nothing contained in this Section
3.08 shall relieve any obligations of Tenant under Sections 3.02 or 3.03 of
this Lease. Tenant shall indemnify Owner and Owner's Indemnitees from all
loss, cost, liability and expense, including but not limited to reasonable
counsel fees, incurred in connection with, or arising from, any claims or
actions by any contractors, suppliers or materialmen employed in connection
with Tenant's Initial Installation.
ARTICLE 4
OWNERSHIP OF IMPROVEMENTS
Section 4.01. General Rights of Owner and Tenant: All appurtenances,
fixtures, improvements, additions and other property attached to or installed
in the Demised Premises, whether by Owner or Tenant or others, and whether at
Owner's expense, or Tenant's expense, or the joint expense of Owner and
Tenant, shall be and remain the property of Owner, except that any such
fixtures, improvements, additions and other property installed at the sole
expense of Tenant with respect to which Tenant has not been granted any credit
or allowance by Owner, and which are removable without material damage to the
Demised Premises shall be and remain the property of Tenant and are referred
to as "Tenant's Personal Property". Any replacements of any property of Owner,
whether made at Tenant's expense or otherwise, shall be and remain the
property of Owner.
ARTICLE 5
REPAIRS
Section 5.01. Tenant's Repair Obligations: Tenant shall take good care of
the Demised Premises (including, but not limited to, any Class E Fire Alarm
and Communication system and any sprinkler system installed therein and any
installations made or equipment installed therein as a result of any
requirement of New York City Local Law #16 of 1984 or any successor law or
like import) and, at Tenant's sole cost and expense, shall make all repairs
and replacements, structural and otherwise, ordinary and extraordinary,
foreseen and unforeseen as and when needed to preserve the Demised Premises
(including, but not limited to, any Class E Fire Alarm and Communication
system and any sprinkler system installed therein and any installations made
or equipment installed therein as a result of any requirement of New York City
Local Law #16 of 1984 or any successor law of like import) in good and safe
working order and in first class repair and condition, except that Tenant
shall not be required to make any structural repairs or structural
replacements to the Demised Premises unless necessitated or occasioned by the
acts, omissions or negligence of Tenant or any person claiming through or
under Tenant or any of their servants, employees, contractors, agents,
visitors or licensees, or by the manner of use or occupancy of the Demised
Premises by Tenant or any such person (in contradistinction to the mere use of
the Demised Premises as "offices"). For the purposes of this Article, the
installation, maintenance, repair and replacement of a sprinkler system or
part thereof or any work pertaining to such sprinkler system or any repairs or
work involving asbestos or other hazardous materials or involving compliance
with Local Laws #5 of 1973, #16 of 1984, #58 of 1987 and the Americans With
Disabilities Act and any successor laws of like import shall be deemed to be
non-structural repairs or replacements. Without affecting Tenant's obligations
set forth in the preceding sentence, Tenant, at Tenant's sole cost and
expense, shall also (i) make all repairs and replacements, and perform all
maintenance as and when necessary, to the lamps, tubes, ballasts, and starters
in the lighting fixtures installed in the Demised Premises, (ii) make all
repairs and replacements, as and when necessary, to Tenant's Personal Property
and to any Alterations made or performed by or on behalf of Tenant or any
person claiming through or under Tenant, and (iii) if the Demised Premises
shall include any space on any ground, street, mezzanine or basement floor in
the Building, make all replacements, as and when necessary, to all windows and
plate and other glass in, on or about such space, and obtain and maintain,
throughout the Demised Term, plate glass insurance policies issued by
companies, and in form and amounts, satisfactory to Owner, in which Owner, its
agents and any lessor under any ground or underlying lease shall be named as
parties insured, and (iv) perform all maintenance and make all repairs and
replacements, as and when necessary, to any air conditioning equipment,
private elevators, escalators, conveyors or mechanical systems (other than the
Building's standard equipment and systems) which may be installed in the
Demised Premises by Owner, Tenant or others. However, the provisions of the
foregoing sentence shall not be deemed to give to Tenant any right to install
air conditioning equipment, elevators, escalators, conveyors or mechanical
systems. All repairs and replacements made by or on behalf of Tenant or any
person claiming through or under Tenant shall be made and performed in
conformity with, and subject to the provisions of Article 3 and shall be at
least equal in quality and class to the original work or installation. The
necessity for, and adequacy of, repairs and replacements pursuant to this
Article 5 shall be measured by the standard which is appropriate for first
class office buildings of similar construction and class in the Borough of
Manhattan, City of New York.
ARTICLE 6
COMPLIANCE WITH LAWS
Section 6.01. General Tenant Covenants: Tenant, at Tenant's sole cost and
expense, shall comply with all Legal Requirements (hereinafter defined) which
shall impose any duty upon Owner or Tenant with respect to the Demised
Premises or the use or occupation thereof, including, but not limited to, the
installation of, modification to and/or maintenance of a sprinkler system to
serve the Demised Premises or any part thereof and any requirement that
asbestos or other hazardous material be removed or dealt with in any
particular manner, except that Tenant shall not be required to make any
structural Alterations in order so to comply unless such Alterations shall be
necessitated or occasioned, in whole or in part, by the acts, omissions, or
negligence of Tenant or any person claiming through or under Tenant, or any of
their servants, employees, contractors, agents, visitors or licensees, or by
the use or occupancy or manner of use or occupancy of the Demised Premises by
Tenant or by any such person. For all purposes of this Lease the term "Legal
Requirements" shall mean all present and future laws, codes, ordinances,
statutes, requirements, orders and regulations, ordinary and extraordinary,
foreseen and unforeseen (including, but not limited to, the New York State
Energy Conservation Construction Code, New York City Local Laws #5 of 1973,
#16 of 1984 and #58 of 1987 and the Americans with Disabilities Act, and any
successor laws of like import) of any Governmental Authority (hereinafter
defined) and all directions, requirements, orders and notices of violations
thereof. For all purposes of this Lease, the term "Governmental Authority"
shall mean the United States of America, the State of New York, the County of
New York, the Borough of Manhattan, the City of New York, any political
subdivision thereof and any agency, department, commission, board, bureau or
instrumentality of any of the foregoing, now existing or hereafter created,
having jurisdiction over Owner, Tenant, this Lease or the Real Property or any
portion thereof. Any work or installations made or performed by or on behalf
of Tenant or any person claiming through or under Tenant pursuant to the
provisions of this Article shall be made in conformity with, and subject to
the provisions of Article 3. For the purposes of this Article, the
installation and maintenance of a sprinkler system or part thereof or any work
pertaining to such sprinkler system or any requirement that any asbestos or
other hazardous material be removed or dealt with in any particular manner or
any Alterations required to comply with Local Law #5 of 1973, #16 of 1984, #58
of 1987 and the Americans With Disabilities Act and any successor laws of like
import shall be deemed to be a nonstructural Alteration. Any work with respect
to a sprinkler system shall be made in conformity with the provisions of
Section 3.05. Compliance with any requirement regarding asbestos or other
asbestos containing material shall be made in conformity with the provisions
of Section 3.06. Tenant's obligations under this Section 6.01 and Section 6.02
below shall be subject to Owner's obligations under Section 3.06.
Section 6.02. Tenant's Compliance with Owner's Fire Insurance: Tenant
shall not do anything, or permit anything to be done, in or about the Demised
Premises which shall (i) invalidate or be in conflict with the provisions of
any fire and/or other insurance policies covering the Building or any property
located therein, or (ii) result in a refusal by fire insurance companies of
good standing to insure the Building or any such property in amounts
reasonably satisfactory to Owner, or (iii) subject Owner to any liability or
responsibility for injury to any person or property by reason of any business
operation being conducted in the Demised Premises, or (iv) cause any increase
in the fire insurance rates applicable to the Building or property located
therein at the beginning of the Demised Term or at any time thereafter.
Tenant, at Tenant's expense, shall comply with all present and future rules,
orders, regulations and/or requirements of the New York Board of Fire
Underwriters and the New York Fire Insurance Rating Organization or any
similar body and the issuer of any insurance obtained by Owner covering the
Building and/or the Real Property, whether ordinary or extraordinary, foreseen
or unforeseen, including, but not limited to, the installation and
maintenance of, or any other work pertaining to, any sprinkler system to serve
the Demised Premises or any part thereof, any requirement that asbestos or
other hazardous material be removed or dealt with in any particular manner and
any requirement of New York City Local Law #5 of 1973, #16 of 1984, #58 of
1987 and the Americans With Disabilities Act or any successor laws of like
import.
Section 6.03. Fire Insurance Rates: In any action or proceeding wherein
Owner and Tenant are parties, a schedule or "make up" of rates applicable to
the Building or property located therein issued by the New York Fire Insurance
Rating Organization, or other similar body fixing such fire insurance rates,
shall be conclusive evidence of the facts therein stated and of the several
items and charges in the fire insurance rates then applicable to the Building
or property located therein.
ARTICLE 7
SUBORDINATION, ATTORNMENT, ETC.
Section 7.01. Lease Subordination: This Lease and all rights of Tenant
under this Lease are, and shall remain, unconditionally subject and
subordinate in all respects to all ground and underlying leases now or
hereafter in effect affecting the Real Property or any portion thereof, and to
all mortgages which may now or hereafter affect such leases or the Real
Property, and to all advances made or hereafter to be made under such
mortgages, and to all renewals, modifications, consolidations, correlations,
replacements and extensions of, and substitutions for, such leases and
mortgages (such leases as above described are referred to herein collectively
as the "Superior Lease" and such mortgages as above described are referred to
herein collectively as the "Mortgage"). The foregoing provisions of this
Section shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall execute
and deliver promptly any certificate or other instrument which Owner, or any
lessor under any Superior Lease, or any holder of any Mortgage may request,
and Tenant hereby, irrevocably constitutes and appoints Owner and all such
lessors and holders, acting jointly or severally, as Tenant's agent and
attorney-in-fact to execute any such certificate or other instrument for or on
behalf of Tenant. If, in connection with obtaining financing with respect to
the Building, the Real Property, or the interest of the lessee under any
Superior Lease, any recognized lending institution shall request reasonable
modifications of this Lease as a condition of such financing, Tenant covenants
not unreasonably to withhold or delay its agreement to such modifications,
provided that such modifications do not materially increase the obligations,
or materially and adversely affect the rights, of Tenant under this Lease. No
act or failure to act on the part of Owner which would entitle Tenant under
the terms of this Lease, or by law, to be relieved of Tenant's obligations
hereunder or to terminate this Lease shall result in a release or termination
of such obligations or a termination of this Lease unless (i) Tenant shall
have first given written notice of Owner's act or failure to act to the holder
or holders of any Mortgage and/or the lessor under any Superior Lease of whom
Tenant has been given written notice, specifying the act or failure to act on
the part of Owner which could or would give basis to Tenant's rights; and (ii)
the holder or holders of such Mortgage and/or the lessors under any Superior
Lease, after receipt of such notice, have failed or refused to correct or cure
the condition complained of within a reasonable time thereafter, but nothing
contained in this sentence shall be deemed to impose any obligation on any
such holder or lessor to correct or cure any such condition. "Reasonable time"
as used above means and includes a reasonable time to obtain possession of the
Building if any such holder or lessor elects to do so (provided such holder or
lessor institutes proceedings to obtain possession within a reasonable time
after notice from Tenant pursuant to the foregoing provisions and conducts
such proceedings with reasonable diligence) and a reasonable time after so
obtaining possession to correct or cure the condition if such condition is
determined to exist (provided such holder or lessor commences said cure within
ten (10) days after obtaining possession and prosecutes the work required to
cure with reasonable diligence).
Section 7.02. Tenant Attornment: If, at any time prior to the expiration
of the Demised Term, any Superior Lease under which Owner then shall be the
lessee shall terminate or be terminated for any reason, or the holder of any
Mortgage comes into possession of the Real Property or the Building or the
estate created by any Superior Lease by a receiver or otherwise, Tenant
agrees, at the election and upon demand of any owner of the Real Property, or
of the holder of any Mortgage so in possession, or of any lessor under any
Superior Lease covering the premises which include the Demised Premises, to
attorn, from time to time, to any such owner, holder, or lessor, upon the then
executory terms and conditions of this Lease, for the remainder of the term
originally demised in this Lease, provided that such owner, holder or lessor,
as the case may be, shall then be entitled to possession of the Demised
Premises. The provisions of this Section shall enure to the benefit of any
such owner, holder, or lessor, shall apply notwithstanding that, as a matter
of law, this Lease may terminate upon the termination of any Superior Lease,
shall be self-operative upon any such demand, and no further instrument shall
be required to give effect to said provisions. Tenant, however, upon demand of
any such owner, holder, or lessor, agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this Section,
satisfactory to any such owner, holder, or lessor, acknowledging such
attornment and setting forth the terms and conditions of its tenancy. Nothing
contained in this Section shall be construed to impair any right otherwise
exercisable by any such owner, holder, or lessor. Notwithstanding anything to
the contrary set forth in this Article no such owner, holder or lessor shall
be bound by (i) any payment of any installment of Fixed Rent or increases
therein or any additional rent which may have been made more than thirty (30)
days before the due date of such installment, or (ii) any amendment or
modification to this Lease which is made without its consent, except for any
amendment or modification for which such holder's or lessor's consent is not
required under the applicable Mortgage or Superior Lease.
Section 7.03. Tenant Estoppel Certificate: From time to time, within
fifteen (15) days next following Owner's request, Tenant shall deliver to
Owner a written statement executed and acknowledged by Tenant, in form
satisfactory to Owner, (i) stating that this Lease is then in full force and
effect and has not been modified (or if modified, setting forth the specific
nature of all modifications), and (ii) setting forth the date to which the
Fixed Rent has been paid, and (iii) stating whether or not, to the best
knowledge of Tenant, Owner is in default under this Lease, and, if Owner is in
default, setting forth the specific nature of all such defaults and (iv)
stating that Tenant has accepted and occupied the Demised Premises and all
improvements required to be made by Owner pursuant to the provisions of this
Lease, have been made, if such be the case. Tenant acknowledges that any
statement delivered pursuant to this Section may be relied upon by any
purchaser or owner of the Building, or of the Real Property, or any part
thereof, or of Owner's interest in the Building or the Real Property or any
Superior Lease, or by the holder of any Mortgage, or by any assignee of the
holder of any Mortgage, or by any lessor under any Superior Lease.
Section 7.04. Owner Assignment of Lease and Rents: If Owner assigns its
interest in this Lease, or the rents payable hereunder, to the holder of any
Mortgage or the lessor under any Superior Lease, whether the assignment shall
be conditional in nature or otherwise, Tenant agrees that (a) the execution
thereof by Owner and the acceptance by such holder or lessor shall not be
deemed an assumption by such holder or lessor of any of the obligations of the
Owner under this Lease unless such holder or lessor shall, by written notice
sent to Tenant, specifically otherwise elect; and (b) except as aforesaid,
such holder or lessor shall be treated as having assumed Owner's obligations
hereunder only upon the foreclosure of such holder's Mortgage or the
termination of such lessor's Superior Lease and the taking of possession of
the Demised Premises by such holder or lessor, as the case may be.
ARTICLE 8
PROPERTY LOSS, ETC.
Section 8.01. Any Building employee to whom any property shall be
entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Owner nor Owner's agents shall
be liable for any loss of or damage to any such property by theft or
otherwise. Neither (i) the performance by Owner, Tenant or others of any
decorations, repairs, alterations, additions or improvements in or to the
Building or the Demised Premises, nor (ii) the failure of Owner or others to
make any such decorations, repairs, alterations, additions or improvements,
nor (iii) any damage to the Demised Premises or to the property of Tenant, nor
any injury to any persons, caused by other tenants or persons in the Building,
or by operations in the construction of any private, public or quasi-public
work, or by any other cause, nor (iv) any latent defect in the Building or in
the Demised Premises, nor (v) any temporary or permanent closing, darkening or
bricking up of any windows of the Demised Premises for any reason whatsoever
including, but not limited to, Owner's own acts, nor (vi) any inconvenience or
annoyance to Tenant or injury to or interruption of Tenant's business by
reason of any of the events or occurrences referred to in the foregoing
subdivisions (i) through (v), shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or
diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Owner, or its agents, or any lessor under
any Superior Lease, other than such liability as may be imposed upon Owner by
law for Owner's negligence or intentional misconduct or the negligence or
intentional misconduct of Owner's agents, servants or employees in the
operation or maintenance of the Building or for the breach by Owner of any
express covenant of this Lease on Owner's part to be performed. Tenant's
taking possession of the Demised Premises shall be conclusive evidence, as
against Tenant, that, at the time such possession was so taken, the Demised
Premises and the Building were in good and satisfactory condition.
ARTICLE 9
DESTRUCTION-FIRE OR OTHER CASUALTY
Section 9.01. Owner's Repair Obligations: If the Demised Premises shall
be damaged by fire or other casualty and if Tenant shall give prompt notice to
Owner of such damage, Owner, at Owner's expense, shall repair such damage.
However, Owner shall have no obligation to repair any damage to, or to
replace, Tenant's Personal Property, or any Alterations made to the Demised
Premises by or on behalf of Tenant, including without limitation, any of
Tenant's Alterations (whether or not paid for in whole or in part with an
Owner's work contribution) or any other property or effects of Tenant (all of
such Tenant's Personal Property, Alterations, and other property are further
collectively referred to as "Tenant's Property Interest"). Except as otherwise
provided in Section 9.03, if the entire Demised Premises shall be rendered
untenantable by reason of any such damage, the Fixed Rent shall xxxxx for the
period from the date of such damage to the date when such damage shall have
been repaired, and if only a part of the Demised Premises shall be so rendered
untenantable, the Fixed Rent shall xxxxx for such period in the proportion
which the area of the part of the Demised Premises so rendered untenantable
bears to the total area of the Demised Premises (except that with respect to
any period(s) in which the Demised Premises shall be comprised of spaces which
are then leased at different per square foot rental rates, then with respect
to any such periods, the Fixed Rent shall xxxxx equitably for such period(s)
on the basis of the area of the part of the Demised Premises so rendered
untenantable and the Fixed Rent applicable thereto). However, if, prior to the
date when all of such damage shall have been repaired, any part of the Demised
Premises so damaged shall be rendered tenantable and shall be used or occupied
by Tenant or any person or persons claiming through or under Tenant, then the
amount by which the Fixed Rent shall xxxxx shall be equitably apportioned for
the period from the date of any such use or occupancy to the date when all
such damage shall have been repaired. Tenant hereby expressly waives the
provisions of Section 227 of the New York Real Property Law, and of any
successor law of like import then in force, and Tenant agrees that the
provisions of this Article shall govern and control in lieu thereof.
Notwithstanding the foregoing provisions of this Section, if, prior to or
during the Demised Term, (i) the Demised Premises shall be totally damaged or
rendered wholly untenantable by fire or other casualty, and if Owner shall
decide not to restore the Demised Premises, or (ii) the Building shall be so
damaged by fire or other casualty that, in Owner's opinion, substantial
alteration, demolition, or reconstruction of the Building shall be required
(whether or not the Demised Premises shall have been damaged or rendered
untenantable), then, in any of such events, Owner, at Owner's option, may give
to Tenant, within ninety (90) days after such fire or other casualty, a five
(5) days" notice of termination of this Lease and, in the event such notice is
given, this Lease and the Demised Term shall come to an end and expire
(whether or not said term shall have commenced) upon the expiration of said
five (5) days with the same effect as if the date of expiration of said five
(5) days were the Expiration Date, the Fixed Rent shall be apportioned as of
such date and any prepaid portion of Fixed Rent for any period after such date
shall be refunded by Owner to Tenant.
Section 9.02. Owner's Subrogation Waiver Provisions: Owner shall attempt
to obtain and maintain, throughout the Demised Term, in Owner's fire insurance
policies covering the Building, provisions to the effect that such policies
shall not be invalidated should the insured waive, in writing, prior to a
loss, any or all right of recovery against any party for loss occurring to the
Building. In the event that at any time Owner's fire insurance carriers shall
exact an additional premium for the inclusion of such or similar provisions,
Owner shall give Tenant notice thereof. In such event, if Tenant agrees, in
writing, to reimburse Owner for such additional premium for the remainder of
the Demised Term, Owner shall require the inclusion of such or similar
provisions by Owner's fire insurance carriers. As long as such or similar
provisions are included in Owner's fire insurance policies then in force,
Owner hereby waives (i) any obligation on the part of Tenant to make repairs
to the Demised Premises necessitated or occasioned by fire or other casualty
that is an insured risk under such policies, and (ii) any right of recovery
against Tenant, any other permitted occupant of the Demised Premises, and any
of their servants, employees, agents or contractors, for any loss occasioned
by fire or other casualty which is an insured risk under such policies. In the
event that at any time Owner's fire insurance carriers shall not include such
or similar provisions in Owner's fire insurance policies, the waivers set
forth in the foregoing sentence shall, upon notice given by Owner to Tenant,
be deemed of no further force or effect.
Section 9.03. Tenant Negligence: Except to the extent expressly provided
in Section 9.02, nothing contained in this Lease shall relieve Tenant of any
liability to Owner or to its insurance carriers which Tenant may have under
law or the provisions of this Lease in connection with any damage to the
Demised Premises or the Building caused by fire or other casualty.
Notwithstanding the provisions of Section 9.01, if any such damage, occurring
after any date when the waivers set forth in Section 9.02 are no longer in
force and effect, is due to the fault or neglect of Tenant, any person
claiming through or under Tenant, or any of their servants, employees,
agents, contractors, visitors or licensees, then there shall be no abatement
of Fixed Rent by reason of such damage. Supplementing the provisions of
Section 9.02, if any damage to the Demised Premises or the Building by fire or
other casualty occurring after any date when the waivers set forth in Section
9.02 are no longer in force and effect, is due to the fault or negligence of
Tenant, any person claiming through or under Tenant, or any of their servants,
employees, agents, contractors, visitors or licensees, and if Owner shall have
rent insurance policies in force at that time covering the loss of Fixed Rent
for the Demised Premises, and if such policies shall not be affected by the
following provisions of this Section, then notwithstanding anything contained
in this Section 9.03 to the contrary, the Fixed Rent shall xxxxx in accordance
with the provisions of Section 9.01, but only to the extent of any proceeds
received by Owner under such rent insurance policies with respect to the
Demised Premises and the Demised Term.
Section 9.04. Tenant Subrogation Waiver Provisions: Tenant acknowledges
that it has been advised that Owner's insurance policies do not cover Tenant's
Property Interest; accordingly, it shall be Tenant's obligation to obtain and
maintain insurance covering Tenant's Property Interest and loss of profits
including, but not limited to, water damage coverage and business interruption
insurance. Tenant shall attempt to obtain and maintain, throughout the Demised
Term, in Tenant's fire and other insurance policies covering Tenant's Property
Interest, and Tenant's use and occupancy of the Demised Premises, and/or
Tenant's profits (and shall cause any other permitted occupants of the Demised
Premises to attempt to obtain and maintain, in similar policies), provisions
to the effect that such policies shall not be invalidated should the insured
waive, in writing, prior to a loss, any or all right of recovery against any
party for loss occasioned by fire or other casualty which is an insured risk
under such policies. In the event that at any time the fire insurance carriers
issuing such policies shall exact an additional premium for the inclusion of
such or similar provisions, Tenant shall give Owner notice thereof. In such
event, if Owner agrees, in writing, to reimburse Tenant or any person claiming
through or under Tenant, as the case may be, for such additional premium for
the remainder of the Demised Term, Tenant shall require the inclusion of such
or similar provisions by such insurance carriers. As long as such or similar
provisions are included in such insurance policies then in force, Tenant
hereby waives (and agrees to cause any other permitted occupants of the
Demised Premises to execute and deliver to Owner written instruments waiving)
any right of recovery against Owner, any lessors under any Superior Leases,
the holders of any Mortgage, and all other tenants or occupants of the
Building, and any servants, employees, agents or contractors of Owner, or of
any such lessor, or holder or of any such other tenants or occupants, for any
loss occasioned by fire or other casualty which is an insured risk under such
policies. In the event that at any time such insurance carriers shall not
include such or similar provisions in any such insurance policy, the waiver
set forth in the foregoing sentence (or in any written instrument executed by
any other permitted occupant of the Demised Premises) shall, upon notice given
by Tenant to Owner, be deemed of no further force or effect with respect to
any insured risks under such policy from and after the giving of such notice.
During any period while any such waiver of right of recovery is in effect,
Tenant, or any other permitted occupant of the Demised Premises, as the case
may be, shall look solely to the proceeds of such policies to compensate
Tenant or such other permitted occupant for any loss occasioned by fire or
other casualty which is an insured risk under such policies.
Section 9.05. Tenant's Casualty Termination Right:
A. Supplementing the provisions of Section 9.01(including, without
limitation, Tenant's right to the abatement in Fixed Rent contemplated
thereunder), in the event (a) the Demised Premises or Building shall be
damaged by fire or other casualty and Tenant shall be unable to use the
Demised Premises as a result of such damage and (b) Owner shall not exercise
the right to terminate this Lease in accordance with the provisions of Section
9.01 and shall, accordingly, be obligated to repair any such damage, then, if
such damage is not repaired within the Casualty Restoration Period (as
defined herein), Tenant shall have the following options: (i) to give to
Owner, within ten (10) days next following the expiration of the Casualty
Restoration Period, a five (5) days" notice of termination of this Lease, or
(ii) to extend the Casualty Restoration Period for a further period of six (6)
months by notice given to Owner within ten (10) days after the expiration of
the initial Casualty Restoration Period. In the event Tenant shall have given
such notice to Owner extending the initial Casualty Restoration Period and if
such damage shall not have been repaired by Owner within any extended Casualty
Restoration Period, Tenant shall have the options to (a) further extend the
Casualty Restoration Period for further successive periods of six (6) months,
by notice given to Owner within ten (10) days after the expiration of any
extended Casualty Restoration Period or (b) to give Owner, within ten (10)
days after the expiration of any such extended Casualty Restoration Period a
five (5) days" notice of termination of this Lease. The term "Casualty
Restoration Period" shall mean two (2) years after the date of such fire or
other casualty.
B. Notwithstanding anything to the contrary contained in the provisions
of Subsection A of this Section 9.05, in the event (a) the Demised Premises or
Building shall be damaged by fire or other casualty and Tenant shall be unable
to use the Demised Premises as a result of such damage and (b) Owner shall not
exercise the right to terminate this Lease in accordance with the provisions
of Section 9.01, and (c) Owner, in Owner's opinion, shall determine that the
repair of such damage to the Demised Premises or Building will reasonably
require a period longer than three (3) years, Owner may within one hundred
twenty (120) days after the date of such fire or casualty, give a notice to
Tenant extending the initial Casualty Restoration Period to the date upon
which Owner estimates that such repair to the Demised Premises or Building
shall be completed. In the event Owner shall give such a notice under this
Subsection B, then, the initial Casualty Restoration Period set forth in
Paragraph A of this Section 9.05, shall be so extended and (b) Tenant shall
have the further option to give to Owner a five (5) days" notice of
termination of this Lease within ten (10) days next following the giving of
such notice under this Subsection B by Owner to Tenant extending the initial
Casualty Restoration Period.
C. Time is of the essence with respect to the giving by Tenant to Owner
of any notice in accordance with the provisions of Subsections A and B of this
Section 9.05 and in the event that Tenant shall fail to give any such notice
within the time periods set forth therein, Tenant shall be deemed to have
given to Owner a notice pursuant to subdivision (ii) of Subsection A of this
Section 9.05 extending the Casualty Restoration Period provided, however, that
any five (5) days" notice of termination given by Tenant pursuant to the
provisions of Subsection A or B of this Section 9.05 beyond the ten (10) day
period provided therein shall be void and of no force and effect.
D. In the event that Tenant shall give to Owner within the applicable
time periods set forth in the foregoing provisions of this Section a five (5)
days" notice of termination of this Lease, this Lease and the Demised Term
shall come to an end and expire upon the expiration of said five (5) days with
the same effect as if the date of expiration of said five (5) days were the
Expiration Date, the Fixed Rent and all increases thereof shall be apportioned
as of such date, and any prepaid portion of Fixed Rent and increases thereof
for any period after such date shall be refunded by Owner to Tenant.
E. Nothing contained in the foregoing provisions of this Section 9.05
shall be deemed to affect the rights of Owner to give to Tenant a five (5)
days" notice of termination of this Lease in accordance with the provisions of
Subdivision (i) of the last sentence of Section 9.01 and the provisions of
Subdivision (ii) of the last sentence of Section 9.01.
ARTICLE 10
EMINENT DOMAIN
Section 10.01. Taking of the Demised Premises: If the whole of the
Demised Premises shall be acquired for any public or quasi-public use or
purpose, whether by condemnation or by deed in lieu of condemnation, this
Lease and the Demised Term shall end as of the date of the vesting of title
with the same effect as if said date were the Expiration Date. If only a part
of the Demised Premises shall be so acquired or condemned then, except as
otherwise provided in this Section, this Lease and the Demised Term shall
continue in force and effect but, from and after the date of the vesting of
title, the Fixed Rent shall be reduced in the proportion which the area of the
part of the Demised Premises so acquired or condemned bears to the total area
of the Demised Premises immediately prior to such acquisition or condemnation
(except that with respect to any period(s) in which the Demised Premises shall
be, or would have been, absent such acquisition or condemnation, comprised of
spaces which are or would be then leased at different per square foot rental
rates, then with respect to any such periods, the Fixed Rent shall be reduced
equitably on the basis of the area of the Demised Premises so condemned and
the Fixed Rent applicable thereto). If only a part of the Real Property shall
be so acquired or condemned, then (i) whether or not the Demised Premises
shall be affected thereby, Owner, at Owner's option, may give to Tenant,
within sixty (60) days next following the date upon which Owner shall have
received notice of vesting of title, a five (5) days" notice of termination of
this Lease, and (ii) if the part of the Real Property so acquired or condemned
shall contain more than ten (10%) percent of the total area of the Demised
Premises immediately prior to such acquisition or condemnation, or if, by
reason of such acquisition or condemnation, Tenant no longer has reasonable
means of access to the Demised Premises, Tenant, at Tenant's option, may give
to Owner, within sixty (60) days next following the date upon which Tenant
shall have received notice of vesting of title, a five (5) days" notice of
termination of this Lease. In the event any such five (5) days" notice of
termination is given, by Owner or Tenant, this Lease and the Demised Term
shall come to an end and expire upon the expiration of said five (5) days with
the same effect as if the date of expiration of said five (5) days were the
Expiration Date. If a part of the Demised Premises shall be so acquired or
condemned and this Lease and the Demised Term shall not be terminated pursuant
to the foregoing provisions of this Section, Owner, at Owner's expense, shall
restore that part of the Demised Premises not so acquired or condemned to a
self-contained rental unit. In the event of any termination of this Lease and
the Demised Term pursuant to the provisions of this Section, the Fixed Rent
shall be apportioned as of the date of such termination and any prepaid
portion of Fixed Rent for any period after such date shall be refunded by
Owner to Tenant.
Section 10.02. Condemnation Award or Claims: In the event of any such
acquisition or condemnation of all or any part of the Real Property, Owner
shall be entitled to receive the entire award for any such acquisition or
condemnation, Tenant shall have no claim against Owner or the condemning
authority for the value of any unexpired portion of the Demised Term and
Tenant hereby expressly assigns to Owner all of its right in and to any such
award. Nothing contained in this Section shall be deemed to prevent Tenant
from making a claim in any condemnation proceedings for the value of any items
of Tenant's Personal Property which are compensable, in law, as trade
fixtures.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
Section 11.01. General Covenant: Except as expressly provided in this
Article 11, Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, covenants that,
without the prior consent of Owner in each instance, it shall not (i) assign
(whether by merger, consolidation or otherwise, except as expressly provided
in Section 11.06), mortgage or encumber its interest in this Lease, in whole
or in part, or (ii) sublet, or permit the subletting of, the Demised Premises
or any part thereof, or (iii) permit the Demised Premises or any part thereof
to be occupied, or used for desk space, mailing privileges or otherwise, by
any person other than Tenant. The sale, pledge, transfer or other alienation
of (a) a controlling interest in any of the issued and outstanding capital
stock of any corporate Tenant (unless such stock is publicly traded on a
recognized security exchange or over-the counter market) or (b) a controlling
interest in any partnership, limited liability company or joint venture or
other business entity comprising Tenant, however accomplished, directly or
indirectly and whether in a single transaction or in a series of related
and/or unrelated transactions, shall be deemed for the purposes of this
Section as an assignment of this Lease which shall require the prior consent
of Owner in each instance. For purposes of this Section 11.01 and Section
11.03(D), the word "controlling" shall mean the possession of the power to
direct or cause the direction of the management or policies of such
corporation, partnership, limited liability company, joint venture or other
business entity, whether through the ownership of voting securities or
contract.
Section 11.02. Owner's Rights Upon Assignment: If Tenant's interest in
this Lease is assigned, whether or not in violation of the provisions of this
Article, Owner may collect rent from the assignee; if the Demised Premises or
any part thereof are sublet to, or occupied by, or used by, any person other
than Tenant, whether or not in violation of this Article, Owner, after default
by Tenant under this Lease, may collect rent from the subtenant, user or
occupant. In either case, Owner shall apply the net amount collected to the
rents reserved in this Lease, but neither any such assignment, subletting,
occupancy, or use, whether with or without Owner's prior consent, nor any such
collection or application, shall be deemed a waiver of any term, covenant or
condition of this Lease or the acceptance by Owner of such assignee,
subtenant, occupant or user as tenant. The consent by Owner to any assignment,
subletting, occupancy or use shall not relieve Tenant from its obligation to
obtain the express prior consent of Owner to any further assignment,
subletting, occupancy or use. If this Lease is assigned to any person or
entity pursuant to any proceeding of the type referred to in Subsections
16.01(c) and 16.01(d), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Owner, shall be and remain the exclusive property of Owner and
shall not constitute property of Tenant or of the estate of Tenant within the
meaning of any proceeding of the type referred to in Subsections 16.01(c) and
16.01(d). Any and all monies or other considerations constituting Owner's
property under the preceding sentence not paid or delivered to Owner shall be
held in trust for the benefit of Owner and shall be promptly paid to or turned
over to Owner. Any person or entity to which this Lease is assigned pursuant
to any proceeding of the type referred to in Subsections 16.01(c) and 16.01(d)
shall be deemed without further act or deed to have assumed all of the
obligations arising under this Lease on and after the date of such assignment.
Any such assignee shall execute and deliver to Owner upon demand an instrument
confirming such assumption. The listing of any name other than that of Tenant
on any door of the Demised Premises or on any directory or in any elevator in
the Building, or otherwise, shall not operate to vest in the person so named
any right or interest in this Lease or in the Demised Premises, or the
Building, or be deemed to constitute, or serve as a substitute for, any prior
consent of Owner required under this Article, and it is understood that any
such listing shall constitute a privilege extended by Owner which shall be
revocable at Owner's will by notice to Tenant. Tenant agrees to pay to Owner
reasonable counsel fees incurred by Owner in connection with any proposed
assignment of Tenant's interest in this Lease or any proposed subletting of
the Demised Premises or any part thereof. Neither any assignment of Tenant's
interest in this Lease nor any subletting, occupancy or use of the Demised
Premises or any part thereof by any person other than Tenant, nor any
collection of rent by Owner from any person other than Tenant as provided in
this Section, nor any application of any such rent as provided in this Section
shall, in any circumstances, relieve Tenant of its obligation fully to observe
and perform the terms, covenants and conditions of this Lease on Tenant's part
to be observed or performed.
Section 11.03. Sublet Rights:
A. (1) As long as Tenant is not then in default (x) under any of the non-
monetary terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed (beyond the applicable notice and grace periods set
forth in this Lease or (y) of the monetary terms, covenants or conditions of
this Lease, on Tenant's part to be observed or performed, Owner agrees not to
unreasonably withhold Owner's prior consent to a subletting by Tenant of the
entire Demised Premises to one (1) subtenant for undivided occupancy by such
subtenant, for the use expressly permitted in this Lease.
(2) Without Owner's prior consent, Tenant shall not (a) negotiate or
enter into a proposed subletting with any tenant, subtenant or occupant of any
space in the Building or (b) list or otherwise publicly advertise the Demised
Premises or any part thereof for subletting at a rental lower than the higher
of (i) the Fixed Rent then in effect under this Lease, or (ii) the rental at
which the Owner is then offering to rent comparable space in the Building.
(3) At least thirty (30) days prior to any proposed subletting, Tenant
shall submit to Owner a statement (the "Proposed Sublet Statement") containing
the name and address of the proposed subtenant, the nature of the proposed
subTenant's business and its current financial status, if such status is
obtained by Tenant, and all of the principal terms and conditions of the
proposed subletting including, but not limited to, the proposed commencement
and expiration dates of the term thereof.
(4) Owner may arbitrarily withhold consent to a proposed subletting if,
(a) in Owner's reasonable judgment, the occupancy of the proposed subtenant
will tend to impair the character or dignity of the Building or impose any
additional burden upon Owner in the operation of the Building, or (b) the
proposed subtenant shall be a person or entity with whom Owner is then
negotiating or discussing to lease space in the Building.
(5) In the event of any dispute between Owner and Tenant as to the
reasonableness of Owner's failure or refusal to consent to any subletting,
such dispute shall be submitted to arbitration in accordance with the
provisions of Article 36.
(6) Any Sublease consented to by Owner must conform to the information
contained in the Proposed Sublet Statement and shall expressly provide that
(a) the subtenant shall obtain the provisions in its insurance policies to the
effect that such policies shall not be invalidated should the insured waive,
in writing, prior to a loss, any or all right of recovery against any party
for loss occasioned by fire or other casualty which is an insured risk under
such policies, as set forth in Section 9.04, and (b) in the event of the
termination, re-entry or dispossess of Tenant by Owner under this Lease, Owner
may, at its option, take over all of the right, title and interest of Tenant,
as sublessor under the sublease, and such subtenant shall, at Owner's option,
attorn to Owner pursuant to the then executory provisions of such sublease,
except that Owner shall not (i) be liable for any previous act or omission of
Tenant under such sublease, (ii) be subject to any offset which accrued to
such subtenant against Tenant, (iii) be bound by any previous modification of
such sublease or by any previous prepayment of more than one month's rent
unless such modification or prepayment was previously approved by Owner, (iv)
be bound by any covenant to undertake or complete any construction of the
premises, or any portion thereof, demised by such sublease and (v) be bound by
any obligation to make any payment to or on behalf of the subtenant, except
for services, repairs, maintenance and restoration provided for under the
sublease to be performed after the date of such termination, re-entry or
dispossess by Owner under this Lease and to which Owner is expressly required
to perform under this Lease with respect to the subleased space at Owner's
expense, it being expressly understood, however, that Owner shall not be bound
by any obligation to make payment to or on behalf of a subtenant with respect
to construction performed by or on behalf of such subtenant in the subleased
premises. Tenant shall reimburse Owner on demand for any costs or expense that
may be incurred by Owner's review of any Proposed Sublet Statement or in
connection with any sublease consented to by Owner, including, without
limitation, any reasonable processing fee, reasonable attorneys" fees and
disbursements and the reasonable costs of making investigations as to the
acceptability of the proposed subtenant.
B. Notwithstanding the foregoing provisions of this Section 11.03, Owner
shall have the following rights with respect to each proposed subletting by
Tenant:
(1) in the event Tenant proposes to sublet the Demised Premises, whether
or not such subletting is for all or substantially all of the remainder of the
Demised Term, Owner, at Owner's option, may give to Tenant, within thirty (30)
days after the submission by Tenant to Owner of the Proposed Sublet Statement,
a notice terminating this Lease on the date (referred to as the "Earlier
Termination Date") immediately prior to the proposed commencement date of the
term of the proposed subletting, as set forth in such Proposed Sublet
Statement, and, in the event such notice is given, this Lease and the Demised
Term shall come to an end and expire on the Earlier Termination Date with the
same effect as if it were the Expiration Date, the Fixed Rent shall be
apportioned as of said Earlier Termination Date and any prepaid portion of
Fixed Rent for any period after such date shall be refunded by Owner to
Tenant; or
(2) In the event Tenant proposes to sublet the Demised Premises for less
than substantially all of the remainder of the Demised Term, Owner, at Owner's
option, may give to Tenant, within sixty (60) days after the submission by
Tenant to Owner, of the Proposed Sublet Statement required to be submitted in
connection with such proposed subletting, a notice electing to recapture the
Demised Premises during the period (referred to as the "Recapture Period")
commencing on the date (referred to as "Recapture Date") immediately prior to
the proposed commencement date of the term of the proposed subletting, as set
forth in the Proposed Sublet Statement, and ending on the proposed expiration
date of the term of the proposed subletting, as set forth in the Proposed
Sublet Statement, and in the event such notice is given the following shall
apply:
(a) The Demised Premises shall be recaptured by Owner during the
Recapture Period;
(b) Tenant shall surrender the Demised Premises to Owner on or prior to
the Recapture Date in the same manner as if said Date were the Expiration
Date;
(c) During the Recapture Period Tenant shall have no rights with respect
to the Demised Premises nor any obligations with respect to the Demised
Premises, including, but not limited to, any obligations to pay Fixed Rent or
any increases therein or any additional rent, and any prepaid portion of Fixed
Rent allocable to the Recapture Period shall be refunded by Owner to Tenant;
(d) There shall be an equitable apportionment of any increase in the
Fixed Rent pursuant to Article 23 for the Escalation Year and Tax Escalation
Year (as defined in Article 23) in which said Recapture Date shall occur;
(e) Upon the expiration of the Recapture Period, the Demised Premises, in
its then existing condition, shall be deemed restored to Tenant and Tenant
shall have all rights with respect to the Demised Premises which are set forth
in this Lease and all obligations with respect to the Demised Premises which
are set forth in this Lease, including, but not limited to, the obligations
for the payment of Fixed Rent and any increases therein and any additional
rent (as they would have been adjusted if Tenant occupied the Demised Premises
during the Recapture Period) during the period (referred to as the "Recapture
Restoration Period") commencing on the date next following the expiration of
the Recapture Period and ending on the Expiration Date, except in the event
that Owner is unable to give Tenant possession of the Demised Premises at the
expiration of the Recapture Period by reason of the holding over or retention
of possession of any tenant or other occupant, in which event (x) the
Recapture Restoration Period shall not commence and the Demised Premises shall
not be deemed available for Tenant's occupancy and Tenant shall not be
required to comply with the obligations of Tenant under this Lease until the
date upon which Owner shall give Tenant possession of the Demised Premises
free of occupancies, (y) neither the Expiration Date nor the validity of this
Lease nor the obligations of Tenant under this Lease shall be affected
thereby, and (z) Tenant waives any rights to rescind this Lease and to recover
any damages which may result from the failure by Owner to deliver possession
of the Demised Premises at the end of the Recapture Period; Owner agrees to
institute, within thirty (30) days after the expiration of the Recapture
Period, possession proceedings against any tenants and occupants who have not
so vacated and surrendered all or any portions of the Demised Premises and
agrees to prosecute such proceedings with reasonable diligence; and
(f) There shall be an equitable apportionment of any increase in the
Fixed Rent pursuant to Article 23 for the Escalation Year and Tax Escalation
Year in which the Recapture Restoration Period shall commence.
At the request of Owner, Tenant shall execute and deliver an instrument or
instruments, in form satisfactory to Owner, setting forth any modifications to
this Lease contemplated in or resulting from the operation of the foregoing
provisions of this Subsection 11.03; however, neither Owner's failure to
request any such instrument nor Tenant's failure to execute or deliver any
such instrument shall vitiate the effect of the foregoing provisions of this
Section. The failure by Owner to exercise any option under this Section 11.03
with respect to any subletting shall not be deemed a waiver of such option
with respect to any extension of such subletting or any subsequent subletting
of the premises affected thereby or any other portion of the Demised Premises.
Tenant shall indemnify Owner from all loss, cost, liability, damage and
expense, including, but not limited to, reasonable counsel fees and
disbursements, arising from any claims against Owner by any broker or other
person, for a brokerage commission or other similar compensation in connection
with any such proposed subletting, in the event (a) Owner shall (i) fail or
refuse to consent to any proposed subletting, or (ii) exercise any of its
options under this Section 11.03, or (b) any proposed subletting shall fail to
be consummated for any reason whatsoever.
C. Tenant agrees that if Owner shall fail to exercise its option to
sooner terminate this Lease or its option to recapture the Demised Premises in
connection with any proposed subletting by Tenant, or if any subtenant or
other person claiming through or under Tenant shall sublet all or any portion
of the Demised Premises, Tenant shall pay to Owner a sum equal to fifty (50%)
percent of any Subletting Profit, as such term is hereinafter defined. All
rentals and other sums (including, but not limited to, sums payable for the
sale or rental of any fixtures, leasehold improvements, equipment, furniture
or other personal property, less, in the case of the sale thereof, the then
net unamortized [on a straight-line basis over the term of this Lease or, in
the event of a further subletting, over the term of the initial sublease, as
the case may be] cost thereof, which were provided and installed in the sublet
premises at the sole cost and expense of Tenant or such subtenant or other
person claiming through or under Tenant and for which no allowance or other
credit has been given by Owner) payable by any subtenant to Tenant or to any
subtenant or other person claiming through or under Tenant in connection with
any subletting in excess of the Fixed Rent then payable by Tenant to Owner
under this Lease are referred to, in the aggregate, as "Subletting Profit"; in
computing any Subletting Profit it shall be deemed that the rental reserved
under any such subletting shall commence to accrue as of the commencement of
the term of such subletting even if such rental actually commences to accrue
as of a date subsequent to such commencement and there shall be deducted a
reasonable single brokerage commission, if any such commission shall be paid
by Tenant or any such subtenant or other person claiming through or under
Tenant in connection with such subletting, and reasonable attorneys" fees in
connection with consummating the sublease, which deduction for such reasonable
single brokerage commission and such reasonable attorneys" fees shall be
amortized on a straight line basis over the entire term of such subletting.
Owner and Tenant agree that if Tenant, or any subtenant or other person
claiming through or under Tenant, shall assign or have assigned its interest
as Tenant under this Lease or its interest as subtenant under any sublease as
the case may be, whether or not such assignment shall be effected with court
approval in a proceeding of the types described in Subsections 16.01(c) or
(d), or in any similar proceeding, or otherwise, Tenant shall pay to Owner a
sum equal to any consideration paid to Tenant or any subtenant or other person
claiming through or under Tenant for such assignment. All sums payable
hereunder to Tenant shall be paid to Owner as additional rent immediately upon
such sums being paid to Tenant or to any subtenant or other person claiming
through or under Tenant and, if requested by Owner, Tenant shall promptly
enter into a written agreement with Owner setting forth the amount of such
sums to be paid to Owner, however, neither Owner's failure to request the
execution of such agreement nor Tenant's failure to execute such agreement
shall vitiate the provisions of this Section. For the purposes of this
Section, a trustee, receiver or other representative of the Tenant's or any
subTenant's estate under any federal or state bankruptcy act shall be deemed a
person claiming through or under Tenant.
D. Neither Owner's consent to any subletting nor anything contained in
this Section shall be deemed to grant to any subtenant or other person
claiming through or under Tenant the right to sublet all or any portion of the
Demised Premises or to permit the occupancy of all or any portion of the
Demised Premises by others. Neither any subtenant referred to in this Section
nor its heirs, distributees, executors, administrators, legal
representatives, successors nor assigns, without the prior consent of Owner in
each instance, shall (i) assign, whether by merger, consolidation or
otherwise, mortgage or encumber its interest in any sublease, in whole or in
part, or (ii) sublet, or permit the subletting of, that part of the Demised
Premises affected by such subletting or any portion thereof, or (iii) permit
such part of the Demised Premises affected by such subletting or any part
thereof to be occupied or used for desk space, mailing privileges or
otherwise, by any person other than such subtenant and any sublease shall
provide that any violation of the foregoing provisions of this sentence shall
be an event of default thereunder. The sale, pledge, transfer or other
alienation of (a) a controlling interest in the issued and outstanding capital
stock of any corporate subtenant (unless such stock is publicly traded on any
recognized security exchange or over-the-counter market) or (b) a controlling
interest in any partnership or joint venture subtenant, however accomplished,
and whether in a single transaction or in a series of related or unrelated
transactions, shall be deemed for the purposes of this Section to be an
assignment of such sublease which shall require the prior consent of Owner in
each instance and any sublease shall so provide.
Section 11.04. Owner's Rights Upon Lease Disaffirmance:
A. In the event that, at any time after Tenant may have assigned Tenant's
interest in this Lease, this Lease shall be disaffirmed or rejected in any
proceeding of the types described in Subsections 16.01(c) and (d), or in any
similar proceeding, or in the event of termination of this Lease by reason of
any such proceeding or by reason of lapse of time following notice of
termination given pursuant to Section 16.01 based upon any of the Events of
Default set forth in said Subsections, Tenant, upon request of Owner given
within thirty (30) days next following any such disaffirmance, rejection or
termination (and actual notice thereof to Owner in the event of a
disaffirmance or rejection or in the event of termination other than by act of
Owner), shall (i) pay to Owner all Fixed Rent, additional rent and other
charges due and owing by the assignee to Owner under this Lease to and
including the date of such disaffirmance, rejection or termination, and (ii)
as "tenant", enter into a new lease with Owner of the Demised Premises for a
term commencing on the effective date of such disaffirmance, rejection or
termination and ending on the Expiration Date unless sooner terminated as in
such lease provided, at the same Fixed Rent and then executory terms,
covenants and conditions as are contained in this Lease, except that (a)
Tenant's rights under the new lease shall be subject to the possessory rights
of the assignee under this Lease and the possessory rights of any person
claiming through or under such assignee or by virtue of any statute or of any
order of any court, and (b) such new lease shall require all defaults existing
under this Lease to be cured by Tenant with due diligence, and (c) such new
lease shall require Tenant to pay all increases in the Fixed Rent reserved in
this Lease which, had this Lease not been so disaffirmed, rejected or
terminated, would have accrued under the provisions of Article 23 of this
Lease after the date of such disaffirmance, rejection or termination with
respect to any period prior thereto. In the event Tenant shall default in its
obligation to enter into said new lease for a period of thirty (30) days next
following Owner's request therefor, then, in addition to all other rights and
remedies by reason of such default, either at law or in equity, Owner shall
have the same rights and remedies against Tenant as if Tenant had entered into
such new lease and such new lease had thereafter been terminated as at the
commencement date thereof by reason of Tenant's default thereunder. Nothing
contained in this Section shall be deemed to grant to Tenant any right to
assign Tenant's interest in this Lease.
B. If Tenant assumes this Lease in any proceeding of the types described
in Subsections 16.01(c) and (d), or in any similar proceeding and proposes to
assign the same pursuant to said proceeding to any person or entity who shall
have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to the Tenant, then notice of such proposed assignment shall be
given to Owner by Tenant no later than twenty (20) days after receipt by
Tenant of such offer, but in any event no later than ten (10) days prior to
the date that Tenant shall make application to a court of competent
jurisdiction for authority and approval to enter into such assignment and
assumption. Such notice shall set forth (a) the name and address of such
person, (b) all of the terms and conditions of such offer, and (c) adequate
assurance of future performance by such person under the Lease, including,
without limitation, the assurance referred to in Section 365(b)(3) of the
United States Bankruptcy Code or any provisions in substitution thereof. Owner
shall have the prior right and option, to be exercised by notice to Tenant
given at any time prior to the effective date of such proposed assignment, to
accept an assignment of this Lease upon the same terms and conditions and for
the same consideration, if any, as the bona fide offer made by such person,
less any brokerage commissions which would otherwise be payable by Tenant out
of the consideration to be paid by such person in connection with the
assignment of this Lease.
C. The term "adequate assurance of future performance" as used in this
Lease shall mean that any proposed assignee shall, among other things, (a)
deposit with Owner on the assumption of this Lease the sum of nine (9) months
of the then Fixed Rent and increases therein pursuant to Article 23 as
security for the faithful performance and observance by such assignee of the
terms and obligations of this Lease, (b) furnish Owner with financial
statements of such assignee for the prior three (3) fiscal years, as finally
determined after an audit and certified as correct by a certified public
accountant, which financial statements shall show a net worth of at least six
(6) times the Fixed Rent and increases therein pursuant to Article 23 then
payable for each of such three (3) years, (c) grant to Owner a security
interest in such property of the proposed assigned as Owner shall deem
necessary to provide adequate assurance of the performance by such assignee of
its obligations under the Lease.
Section 11.05. Subsidiaries/Affiliates:
A. As long as Tenant is not in default under any of the terms, covenants
or conditions of this Lease on Tenant's part to be observed and performed,
Bion Environmental Technologies, Inc., Tenant named herein, shall have the
right, without the prior consent of Owner, to assign its interest in this
Lease, for the use permitted in this Lease, to any subsidiary or affiliate of
Tenant named herein, which is in the same general line of business as Tenant
named herein and only for such period as it shall remain a subsidiary or
affiliate of Tenant named herein and in such line of business. For the
purposes of this Article: (a) a "subsidiary" of Tenant named herein shall mean
any corporation not less than fifty-one (51%) percent of whose outstanding
voting stock at the time shall be owned by Tenant named herein, and (b) an
"affiliate" of Tenant named herein shall mean any corporation, partnership or
other business entity which controls or is controlled by, or is under common
control with Tenant. For the purpose of the definition of "affiliate" the word
"control" (including, "controlled by" and "under common control with") as used
with respect to any corporation, partnership or other business entity, shall
mean the possession of the power to direct or cause the direction of the
management and policies of such corporation, partnership or other business
entity, whether through the ownership of voting securities or contract. No
such assignment shall be valid or effective unless, within ten (10) days after
the execution thereof, Tenant shall deliver to Owner all of the following: (I)
a duplicate original instrument of assignment, in form and substance
satisfactory to Owner, duly executed by Tenant, in which Tenant shall (a)
waive all notices of default given to the assignee, and all other notices of
every kind or description now or hereafter provided in this Lease, by statute
or rule of law, and (b) acknowledge that Tenant's obligations with respect to
this Lease shall not be discharged, released or impaired by (i) such
assignment, (ii) any amendment or modification of this Lease, whether or not
the obligations of Tenant are increased thereby, (iii) any further assignment
or transfer of Tenant's interest in this Lease, (iv) any exercise, non-
exercise or waiver by Owner of any right, remedy, power or privilege under or
with respect to this Lease, (v) any waiver, consent, extension, indulgence or
other act or omission with respect to any other obligations of Tenant under
this Lease, (vi) any act or thing which, but for the provisions of such
assignment, might be deemed a legal or equitable discharge of a surety or
assignor, to all of which Tenant shall consent in advance, and (c) expressly
waive and surrender any then existing defense to its liability hereunder it
being the purpose and intent of Owner and Tenant that the obligations of
Tenant hereunder as assignor shall be absolute and unconditional under any and
all circumstances, and (II) an instrument, in form and substance satisfactory
to Owner, duly executed by the assignee, in which such assignee shall assume
the observance and performance of, and agree to be personally bound by, all of
the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed. The provisions of Subsection C of Section 11.03
relating to Owner's rights to assignment consideration shall not be applicable
to any proposed assignment to any such subsidiary or affiliate of Tenant
pursuant to the provisions of this Subsection A of Section 11.05.
B. As long as Tenant is not in default under any of the terms, covenants
or conditions of this Lease on Tenant's part to be observed and performed,
Bion Environmental Technologies, Inc., Tenant named herein, shall have the
right, without the prior consent of Owner, to sublet to, or permit the use or
occupancy of, all or any part of the Demised Premises by any subsidiary or
affiliate (as said terms are defined in Subsection A above) of Tenant named
herein for the use permitted in this Lease provided that such subsidiary or
affiliate is in the same general line of business as the Tenant named herein
and only for such period as it shall remain a subsidiary or affiliate of, and
in the same general line of business as, the Tenant named herein. However, no
such subletting shall be valid unless, prior to the execution thereof, Tenant
shall give notice to Owner of the proposed subletting, and within ten (10)
days prior the commencement of said subletting, Tenant shall deliver to Owner
an agreement, in form and substance satisfactory to Owner, duly executed by
Tenant and said subtenant, in which said subtenant shall assume performance of
and agree to be personally bound by, all of the terms, covenants and
conditions of this Lease which are applicable to said subtenant and such
subletting. Tenant shall give prompt notice to Owner of any such use or
occupancy of all or any part of the Demised Premises and such use or occupancy
shall be subject and subordinate to all of the terms, covenants and conditions
of this Lease. No such use or occupancy shall operate to vest in the user or
occupant any right or interest in this Lease or the Demised Premises. For the
purposes of determining the number of subtenants or occupants in the Demised
Premises pursuant to Section 11.03, the occupancy of any such permitted
subsidiary or affiliate of Tenant shall be deemed the occupancy of Tenant and
such subsidiary or affiliate shall not be counted as a subtenant or occupant
and the provisions of Subsection B of Section 11.03 relating to Owner's option
to terminate this Lease or recapture the portions of the Demised Premises
proposed to be sublet and the provisions of Subsection C of Section 11.03
relating to Owner's rights to Subletting Profits shall not be applicable to
any proposed subletting to any such subsidiary or affiliate of Tenant pursuant
to the provisions of this Subsection B of Section 11.05.
Section 11.06. Merger/Consolidation/ Asset Sale: As long as Tenant is not
in default under any of the terms, covenants or conditions of this Lease on
Tenant's part to be observed and performed, Bion Environmental Technologies,
Inc., the Tenant named hereunder, shall have the right, without the prior
consent of Owner, to assign Tenant's interest in this Lease to any person,
corporation, partnership, or other business entity which is a successor of
Tenant, either by (i) merger or consolidation or (ii) the purchase of all or
substantially all of the (x) assets or stock, and (y) business and goodwill of
Tenant, provided that said person, corporation, partnership or other business
entity which shall be Tenant following such merger, consolidation or asset
purchase or Tenant following the transfer of stock, as the case may be, (the
"Proposed Assignee") shall have a tangible net worth, as determined in
accordance with generally accepted accounting principles consistently applied
following the consummation of such transaction, at least equal to the greater
of (x) that of Tenant named hereunder as of the date of this Lease and (y)
that of Tenant immediately prior to such transaction (such required net worth,
the "Required Net Worth") and provided further that such Proposed Assignee
shall continue to operate the same business conducted by Tenant in the Demised
Premises immediately prior to the transaction and the interest of Tenant in
this Lease is not the sole or principal asset of Tenant named herein and such
assignment shall be for a bone fide business purpose and shall not be intended
to circumvent the restrictions on assignment set forth in this Lease. At the
time of said proposed assignment, Tenant shall deliver to Owner a reasonably
detailed statement of the financial condition of the aforesaid Proposed
Assignee, prepared in accordance with generally accepted accounting principles
applied on a consistent basis, sworn to by an executive officer or principal
or partner of Tenant and the Proposed Assignee, and certified without
qualification by a firm of reputable independent certified public accountants
which statement shall reflect the financial condition of the aforesaid
proposed assignee at that time after taking into account the consummation of
the assignment of this Lease and any other transactions related thereto.
Notwithstanding anything contained in this Section to the contrary, such
assignment shall not be valid if the Proposed Assignee shall not have a
tangible net worth following the consummation of such transaction, consisting
of assets and liabilities in types and amounts reasonably satisfactory to
Owner, at least equal to the Required Net Worth or the interest of Tenant
named herein in this Lease is the sole or principal asset of Tenant named
herein or such assignment is not made for a bona fide business purpose.
Furthermore, no such assignment in connection with an asset sale shall be
valid, unless, within ten (10) days after the execution thereof, Tenant shall
deliver to Owner (I) a duplicate original instrument of assignment in form and
substance reasonably satisfactory to Owner duly executed by Tenant,
acknowledged before a notary public, in which Tenant shall (a) waive all
notices of default given to the assignee and all other notices of every kind
or description, now or hereafter provided in this Lease, by statute or by rule
of law; (b) acknowledge that Tenant's obligations with respect to this Lease
shall not be discharged, released or impaired by (i) such assignment; (ii) any
amendment or modification of this Lease (whether or not the obligations of
Tenant are increased thereby); (iii) any further assignment or transfer of
Tenant's interest in this Lease; (iv) any exercise, non- exercise or waiver by
Owner of any right, remedy, power or privilege under or with respect to this
Lease; (v) any waiver, consent, extension, indulgence or other act or omission
with respect to any of the obligations of Tenant under this Lease; (vi) any
act or thing which, but for the provisions of such assignment, might be deemed
a legal or equitable discharge of a surety or assignor, to all of which Tenant
shall consent in advance; and (c) expressly waive and surrender any then
existing defense to its liability thereunder; it being the purpose and intent
of Owner and Tenant that the obligations of Tenant hereunder as assignor shall
be absolute and unconditional under any and all circumstances; and (II) an
instrument in form and substance reasonably satisfactory to Owner, duly
executed by the Proposed Assignee, acknowledged before a notary public, in
which such Proposed Assignee shall assume observance and performance of, and
agree to be personally bound by, all of the terms, covenants and conditions of
this Lease on Tenant's part to be performed. In addition, no such assignment
in connection with a merger, consolidation or sale of stock or other equity
interests in Tenant shall be valid unless within ten (10) business days after
the consummation thereof, Tenant shall deliver to Owner (xx) a copy of the
certificate of merger or consolidation which was filed in the relevant
jurisdiction, in the event the assignment was in connection with a merger or
consolidation, or (yy) a statement identifying the purchaser(s) of the stock
or other equity interests in Tenant, in the event the assignment was in
connection with a sale of the stock or other equity interests in Tenant. The
provisions of Subsection C of Section 11.03 relating to assignment
consideration shall not be applicable to any proposed assignment of this Lease
made in accordance with the provisions of this Section 11.06. In the event of
any dispute between Owner and Tenant as to the validity of any such assignment
such dispute shall be determined by arbitration in the City of New York in
accordance with the provisions of Section 36.01. Any such determination shall
be final and binding upon the parties whether or not a judgment shall be
entered in any court. If the determination of any such arbitration shall be
adverse to Owner, Owner, nevertheless, shall not be liable to Tenant and
Tenant's sole remedy in such event shall be to have the proposed assignment
deemed valid.
Section 11.07. Permitted Occupants: Supplementing the provisions of this
Article 11 and notwithstanding anything contained herein to the contrary,
Tenant shall have the right from time to time, without prior consent of Owner
to permit undivided occupancy of various portions of the Demised Premises
during the Demised Term by businesses owned by or affiliated with Xxxxxxxxx
Xxxxx and/or Xxxxxxx Xxxxxxx (any such businesses referred to individually and
collectively as "Permitted Occupants"), provided that no rent or use fee shall
be paid with respect to such occupancy. The occupancy by any Permitted
Occupant shall be conditioned upon the agreement that such arrangement will
terminate automatically upon the termination of this Lease. No such use or
occupancy by any such persons shall operate to give any such persons any right
or interest in this Lease or the Demised Premises other than the right to
occupy such portion of the Demised Premises during the Demised Term, and such
use or occupancy shall be subject and subordinate to all of the terms,
covenants and condition of this Lease. Tenant shall deliver to Owner a notice
prior to any such occupancy advising Owner of the name of such Permitted
Occupant and the character and nature of the business to be conducted by the
Permitted Occupant in the Demised Premises and the expected duration of the
same, and upon Owner's request, a copy of any executed license or use
agreement with the Permitted Occupant with respect to the Demised Premises.
ARTICLE 12
EXISTING CONDITIONS
Section 12.01. "As Is": Tenant acknowledges that Owner has made no
representations to Tenant with respect to the condition of the Demised
Premises and Tenant agrees to accept possession of the Demised Premises in the
condition which shall exist on the Commencement Date "as is" and further
agrees that Owner shall have no obligation to perform any work or make any
installations in order to prepare the Demised Premises for Tenant's occupancy,
except that the Demised Premises shall be delivered to Tenant on the
Commencement Date "broom clean."
ARTICLE 13
ACCESS TO DEMISED PREMISES
Section 13.01. Owner's Right to Enter: Owner and its agents shall have
the following rights in and about the Demised Premises: (i) to enter the
Demised Premises at all times to examine the Demised Premises or for any of
the purposes set forth in this Article or for the purpose of performing any
obligation of Owner under this Lease or exercising any right or remedy
reserved to Owner in this Lease, or complying with any Legal Requirement which
Owner is obligated to comply with hereunder, and if Tenant, its officers,
partners, agents or employees shall not be personally present or shall not
open and permit an entry into the Demised Premises at any time when such entry
shall be necessary or permissible, to use a master key or to forcibly enter
the Demised Premises; (ii) to erect, install, use and maintain pipes, ducts
and conduits in and through the Demised Premises; (iii) to exhibit the Demised
Premises to others; (iv) to make such decorations, repairs, alterations,
improvements or additions, or to perform such maintenance, including, but not
limited to, the maintenance of all heating, air conditioning, ventilating,
elevator, plumbing, electrical, telecommunication and other mechanical
facilities, as Owner may deem necessary or desirable; (v) to take all
materials into and upon the Demised Premises that may be required in
connection with any such decorations, repairs, alterations, improvements,
additions or maintenance; and (vi) to alter, renovate and decorate the
Demised Premises at any time during the Demised Term if Tenant shall have
removed all or substantially all of Tenant's property from the Demised
Premises. The lessors under any Superior Lease and the holders of any Mortgage
shall have the right to enter the Demised Premises from time to time through
their respective employees, agents, representatives and architects to inspect
the same or to cure any default of Owner or Tenant relating thereto. Owner
shall have the right, from time to time, to change the name, number or
designation by which the Building is commonly known which right shall include,
without limitation, the right to name the Building after any tenant of the
Building.
Section 13.02. Owner's Reservation of Rights to Portions of the Building:
All parts (except surfaces facing the interior of the Demised Premises) of all
walls, windows and doors bounding the Demised Premises (including exterior
Building walls, core corridor walls, doors and entrances), all balconies,
terraces and roofs adjacent to the Demised Premises, all space in or adjacent
to the Demised Premises used for shafts, stacks, stairways, chutes, pipes,
conduits, ducts, fan rooms, heating, air conditioning, ventilating, plumbing,
electrical, telecommunication and other mechanical facilities, closets,
service closets and other Building facilities, and the use thereof, as well as
access thereto through the Demised Premises for the purposes of operation,
maintenance, alteration and repair, are hereby reserved to Owner. Owner also
reserves the right at any time to change the arrangement or location of
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
and other public parts of the Building, provided any such change does not
permanently and unreasonably obstruct Tenant's access to the Demised Premises.
Nothing contained in this Article shall impose any obligation upon Owner with
respect to the operation, maintenance, alteration or repair of the Demised
Premises or the Building.
Section 13.03. Access to Third Parties: Owner and its agents shall have
the right to permit access to the Demised Premises, whether or not Tenant
shall be present, to any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshal or court officer entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, any property of Tenant or any other occupant of the Demised
Premises, or for any other lawful purpose, or by any representative of the
fire, police, building, sanitation or other department of the City, State or
Federal Governments. Neither anything contained in this Section, nor any
action taken by Owner under this Section, shall be deemed to constitute
recognition by Owner that any person other than Tenant has any right or
interest in this Lease or the Demised Premises.
Section 13.04. No Actual or Constructive Eviction: The exercise by Owner
or its agents or by the lessor under any Superior Lease or by the holder of
any Mortgage of any right reserved to Owner in this Article shall not
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of
its obligations under this Lease, or impose any liability upon Owner, or its
agents, or upon any lessor under any Superior Lease or upon the holder of any
Mortgage, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
Section 13.05. Limitations on Owner's Right to Enter: Supplementing the
provisions of Section 13.01, Owner agrees that except in cases of emergency,
any entry upon the Demised Premises pursuant to the provisions of said Section
shall be made at reasonable times, and only after reasonable advance notice
(which may be oral, mailed, delivered or left at the Demised Premises
notwithstanding any contrary provisions of Article 27) and any work performed
or installation made pursuant to said Section shall be made with reasonable
diligence and any such entry, work or installations shall be made in a manner
designed to minimize interference with Tenant's normal business operations
(however, nothing contained in this Section shall be deemed to impose upon
Owner any obligation to employ contractors or labor at so-called overtime or
other premium pay rates). Owner shall make all repairs to the Demised Premises
required as a result of Owner or its agents failure to use reasonable care to
protect the Demised Premises when exercising any right of entry pursuant to
Section 13.01 of this Lease.
ARTICLE 14
VAULT SPACE
Section 14.01. The Demised Premises do not contain any vaults, vault
space or other space outside the boundaries of the Real Property,
notwithstanding anything contained in this Lease or indicated on any sketch,
blueprint or plan. Owner makes no representation as to the location of the
boundaries of the Real Property. All vaults and vault space and all other
space outside the boundaries of the Real Property which Tenant may be
permitted to use or occupy are to be used or occupied under a revocable
license, and if any such license shall be revoked, or if the amount of such
space shall be diminished or required by any Federal, State or Municipal
Authority or by any public utility company, such revocation, diminution or
requisition shall not constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of rent, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Owner. Any fee, tax or charge imposed by any governmental
authority for any such vault, vault space or other space shall be paid by
Tenant.
ARTICLE 15
CERTIFICATE OF OCCUPANCY
Section 15.01. Tenant will not at any time use or occupy, or permit the
use or occupancy of, the Demised Premises in violation of any Certificate(s)
of Occupancy covering the Demised Premises. Owner agrees that a temporary or
permanent Certificate(s) of Occupancy covering the Demised Premises will be in
force on the Commencement Date permitting the Demised Premises to be used as
"offices". However, neither such agreement, nor any other provision of this
Lease, nor any act or omission of Owner, its agents or contractors, shall be
deemed to constitute a representation or warranty that the Demised Premises,
or any part thereof, may be lawfully used or occupied for any particular
purpose or in any particular manner, in contradistinction to mere "office"
use.
ARTICLE 16
DEFAULT
Section 16.01. Events of Default: Upon the occurrence, at any time prior
to or during the Demised Term, of any one or more of the following events
(referred to herein, singly, as an "Event of Default" and collectively as
"Events of Default"):
(a) if Tenant shall default in the payment when due of any installment of
Fixed Rent or any increase in the Fixed Rent or in the payment when due of any
additional rent and such default shall continue for a period of five (5) days
after notice by Owner to Tenant of such default; or
(b) if Tenant shall default in the observance or performance of any term,
covenant or condition of this Lease on Tenant's part to be observed or
performed (other than the covenants for the payment of Fixed Rent, any
increase in the Fixed Rent and additional rent) and Tenant shall fail to
remedy such default within twenty (20) days after notice by Owner to Tenant of
such default, or if such default is of such a nature that it cannot be
completely remedied within said period of twenty (20) days and Tenant shall
not commence, promptly after receipt of such notice, or shall not thereafter
diligently prosecute to completion, all steps necessary to remedy such
default; or
(c) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, or shall make an assignment for the
benefit of creditors, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all or any
part of Tenant's property; or
(d) if, within thirty (30) days after the commencement of any proceeding
against Tenant, whether by the filing of a petition or otherwise, seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal
bankruptcy act or any other present or future applicable federal, state or
other statute or law, such proceeding shall not have been dismissed, or if,
within thirty (30) days after the appointment of any trustee, receiver or
liquidator of Tenant, or of all or any part of Tenant's property, without the
consent or acquiescence of Tenant, such appointment shall not have been
vacated or otherwise discharged, or if any execution or attachment shall be
issued against Tenant or any of Tenant's property pursuant to which the
Demised Premises shall be taken or occupied or attempted to be taken or
occupied; or
(e) if Tenant shall default in the observance or performance of any term,
covenant or condition on Tenant's part to be observed or performed under any
other lease with Owner of space in the Building or under any other lease of
space in a Xxxxx Building (as defined in Section 31.01), and such default
shall continue beyond any grace period set forth in such other lease for the
remedying of such default; or
(f) if the Demised Premises shall become vacant except in connection with
a casualty, any permitted Alterations, or situation where Tenant is reasonably
trying to sublease the same, or abandoned; or
(g) if (i) Tenant's interest in this Lease shall devolve upon or pass to
any person, whether by operation of law or otherwise, or (ii) there shall be
any sale, pledge, transfer or other alienation described in Section 11.01 of
this Lease which is deemed an assignment of this Lease for purposes of said
Section 11.01, except as expressly permitted under Article 11; or
(h) any transfer of all or any substantial portion of the assets of
Tenant (except as expressly permitted under Section 11.05 and 11.06), or the
incurrence of a material obligation by Tenant other than in the ordinary
course of business, which in either event would impair Tenant's ability to
comply with its obligations under this Lease, unless such transfer or
obligation is undertaken or incurred in good faith for equivalent
consideration;
then, during such time as such Event(s) of Default is/are continuing (whether
prior to or during the Demised Term), Owner may at any time, at Owner's
option, give to Tenant a five (5) days" notice of termination of this Lease
and, in the event such notice is given, this Lease and the Demised Term shall
come to an end and expire (whether or not said term shall have commenced) upon
the expiration of said five (5) days with the same effect as if the date of
expiration of said five (5) days were the Expiration Date, but Tenant shall
remain liable for damages and all other sums payable pursuant to the
provisions of Article 18.
Section 16.02. "Tenant"/Moneys Received: If, at any time (i) Tenant shall
be comprised of two (2) or more persons, or (ii) Tenant's obligations under
this Lease shall have been guaranteed by any person other than Tenant, or
(iii) Tenant's interest in this Lease shall have been assigned, the word
"Tenant", as used in Subsections (c) and (d) of Section 16.01, shall be deemed
to mean any one or more of the persons primarily or secondarily liable for
Tenant's obligations under this Lease. Any monies received by Owner from or on
behalf of Tenant during the pendency of any proceeding of the types referred
to in said Subsections (c) and (d) shall be deemed paid as compensation for
the use and occupation of the Demised Premises and the acceptance of any such
compensation by Owner shall not be deemed an acceptance of rent or a waiver on
the part of Owner of any rights under Section 16.01.
ARTICLE 17
REMEDIES
Section 17.01. Owner's Right of Re-Entry and Right to Relet: If Tenant
shall default beyond the expiration of the applicable notice and grace period
set forth Section 16.01(a) of this Lease in the payment when due of any
installment of Fixed Rent or in the payment when due of any increase in the
Fixed Rent or any additional rent, or if this Lease and the Demised Term shall
expire and come to an end as provided in Article 16:
(a) Owner and its agents and servants may immediately, or at any time
after such default or after the date upon which this Lease and the Demised
Term shall expire and come to an end, re-enter the Demised Premises or any
part thereof, without notice, either by summary proceedings or by any other
applicable action or proceeding, or by force or otherwise (without being
liable to indictment, prosecution or damages therefor), and may repossess the
Demised Premises and dispossess Tenant and any other persons from the Demised
Premises and remove any and all of their property and effects from the Demised
Premises; and
(b) Owner, at Owner's option, may relet the whole or any part or parts of
the Demised Premises, from time to time, either in the name of Owner or
otherwise, to such tenant or tenants, for such term or terms ending before, on
or after the Expiration Date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as Owner, in
its sole discretion, may determine. Owner shall have no obligation to relet
the Demised Premises or any part thereof and shall in no event be liable for
refusal or failure to relet the Demised Premises or any part thereof, or, in
the event of any such reletting, for refusal or failure to collect any rent
due upon any such reletting, and no such refusal or failure shall operate to
relieve Tenant of any liability under this Lease or otherwise to affect any
such liability; Owner, at Owner's option, may make such repairs, replacements,
alterations, additions, improvements, decorations and other physical changes
in and to the Demised Premises as Owner, in its sole discretion, considers
advisable or necessary in connection with any such reletting or proposed
reletting, without relieving Tenant of any liability under this Lease or
otherwise affecting any such liability.
Section 17.02. Waiver of Right to Redeem, etc.: Tenant hereby waives the
service of any notice of intention to re-enter or to institute legal
proceedings to that end which may otherwise be required to be given under any
present or future law. Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does further hereby
waive any and all rights which Tenant and all such persons might otherwise
have under any present or future law to redeem the Demised Premises, or to re-
enter or repossess the Demised Premises, or to restore the operation of this
Lease, after (i) Tenant shall have been dispossessed by a judgment or by
warrant of any court or judge, or (ii) any re-entry by Owner, or (iii) any
expiration or termination of this Lease and the Demised Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law
or pursuant to the provisions of this Lease. The words "re-enter", "re-entry"
and "re-entered" as used in this Lease shall not be deemed to be restricted to
their technical legal meanings. In the event of a breach or threatened breach
by Tenant, or any persons claiming through or under Tenant, of any term,
covenant or condition of this Lease on Tenant's part to be observed or
performed, Owner shall have the right to enjoin such breach and the right to
invoke any other remedy allowed by law or in equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for
such breach. The right to invoke the remedies hereinbefore set forth in this
Lease is cumulative and shall not preclude Owner from invoking any other
remedy allowed by law or in equity. Owner agrees that the first sentence of
this Section 17.02 shall not be deemed a waiver of Tenant's right to be served
with any notice of petition and petition in any summary proceedings under the
provisions of the Real Property Actions and Proceedings Law of the State of
New York and any successor law of like import then in force.
ARTICLE 18
DAMAGES
Section 18.01. Amount of Owner's Damages: If this Lease and the Demised
Term shall expire and come to an end as provided in Article 16, or by or under
any summary proceeding or any other action or proceeding, or if Owner shall
re-enter the Demised Premises as provided in Article 17, or by or under any
summary proceeding or any other action or proceeding, then, in any of said
events:
(a) Tenant shall pay to Owner all Fixed Rent, additional rent and other
charges payable under this Lease by Tenant to Owner to the date upon which
this Lease and the Demised Term shall have expired and come to an end or to
the date of re-entry upon the Demised Premises by Owner, as the case may be;
and
(b) Tenant shall also be liable for and shall pay to Owner, as damages,
any deficiency (referred to as a "Deficiency") between the Fixed Rent reserved
in this Lease for the period which otherwise would have constituted the
unexpired portion of the Demised Term and the net amount, if any, of rents
collected under any reletting effected pursuant to the provisions of Section
17.01 for any part of such period (first deducting from the rents collected
under any such reletting all of Owner's expenses in connection with the
termination of this Lease or Owner's re-entry upon the Demised Premises and
with such reletting including, but not limited to, all repossession costs,
brokerage commissions, legal expenses, attorneys" fees, alteration costs and
other expenses of preparing the Demised Premises for such reletting). Any such
Deficiency shall be paid in monthly installments by Tenant on the days
specified in this Lease for payment of installments of Fixed Rent, Owner shall
be entitled to recover from Tenant each monthly Deficiency as the same shall
arise, and no suit to collect the amount of the Deficiency for any month shall
prejudice Owner's right to collect the Deficiency for any subsequent month by
a similar proceeding. Solely for the purposes of this Subsection (b), the term
"Fixed Rent" shall mean the Fixed Rent in effect immediately prior to the date
upon which this Lease and the Demised Term shall have expired and come to an
end, or the date of re-entry upon the Demised Premises by Owner, as the case
may be, adjusted, from time to time, to reflect any increases which would have
been payable pursuant to any of the provisions of this Lease including, but
not limited to, the provisions of Article 23 of this Lease if the term hereof
had not been terminated; and
(c) At any time after the Demised Term shall have expired and come to an
end or Owner shall have re-entered upon the Demised Premises, as the case may
be, whether or not Owner shall have collected any monthly Deficiencies as
aforesaid, Owner shall be entitled to recover from Tenant, and Tenant shall
pay to Owner, on demand, as and for liquidated and agreed final damages, a sum
equal to the amount by which the Fixed Rent reserved in this Lease for the
period which otherwise would have constituted the unexpired portion of the
Demised Term exceeds the then fair and reasonable rental value of the Demised
Premises for the same period, both discounted to present worth at the rate of
four (4%) percent per annum. If, before presentation of proof of such
liquidated damages to any court, commission or tribunal, the Demised Premises,
or any part thereof, shall have been relet by Owner for the period which
otherwise would have constituted the unexpired portion of the Demised Term, or
any part thereof, the amount of rent reserved upon such reletting shall be
deemed, prima facie, to be the fair and reasonable rental value for the part
or the whole of the Demised Premises so relet during the term of the
reletting. Solely for the purposes of this Subsection (c), the term "Fixed
Rent" shall mean the Fixed Rent in effect immediately prior to the date upon
which this Lease and the Demised Term shall have expired and come to an end,
or the date of reentry upon the Demised Premises by Owner, as the case may be,
adjusted to reflect any increases pursuant to the provisions of Article 23 for
the Escalation Year and Tax Escalation Year immediately preceding such event.
Section 18.02. Rents Under Reletting: If the Demised Premises, or any
part thereof, shall be relet together with other space in the Building, the
rents collected or reserved under any such reletting and the expenses of any
such reletting shall be equitably apportioned for the purposes of this Article
18. Tenant shall in no event be entitled to any rents collected or payable
under any reletting, whether or not such rents shall exceed the Fixed Rent
reserved in this Lease. Nothing contained in Articles 16, 17 or this Article
shall be deemed to limit or preclude the recovery by Owner from Tenant of the
maximum amount allowed to be obtained as damages by any statute or rule of
law, or of any sums or damages to which Owner may be entitled in addition to
the damages set forth in Section 18.01.
ARTICLE 19
FEES AND EXPENSES; INDEMNITY
Section 19.01. Owner's Right to Cure Tenant's Default: If Tenant shall
default in the observance or performance of any term, covenant or condition of
this Lease on Tenant's part to be observed or performed, Owner, at any time
thereafter and without notice, may remedy such default for Tenant's account
and at Tenant's expense, without thereby waiving any other rights or remedies
of Owner with respect to such default.
Section 19.02. Tenant's Indemnity and Liability Insurance Obligations:
A. Tenant agrees to indemnify and save Owner and "Owner's Indemnitees"
(as hereinafter defined) harmless of and from all loss, cost, liability,
damage and expense including, but not limited to, reasonable counsel fees,
penalties and fines, incurred in connection with or arising from (i) any
default by Tenant in the observance or performance of any of the terms,
covenants or conditions of this Lease on Tenant's part to be observed or
performed, or (ii) the breach or failure of any representation or warranty
made by Tenant in this Lease, or (iii) the use or occupancy or manner of use
or occupancy of the Demised Premises by Tenant or any person claiming through
or under Tenant, or (iv) any acts, omissions or negligence of Tenant or any
such person, or the contractors, agents, servants, employees, visitors or
licensees of Tenant or any such person, in or about the Demised Premises or
the Building either prior to, during, or after the expiration of, the Demised
Term, including, but not limited to, any acts omissions or negligence in the
making or performing of any Alterations. Tenant further agrees to indemnify
and save harmless Owner and Owner's Indemnitees of and from all loss, cost,
liability, damage and expense, including, but not limited to, reasonable
counsel fees and disbursements, incurred in connection with or arising from
any claims by any persons by reason of injury to persons or damage to property
occasioned by any use, occupancy, act, omission or negligence referred to in
the preceding sentence. "Owner's Indemnitees" shall mean the Owner, the
shareholders, members, or the partners comprising Owner and its and their
partners, members, shareholders, officers, directors, employees, agents
(including without limitation, any leasing and managing agents) and
contractors together with the lessor under any Superior Lease and the holder
of any Mortgage. If any action or proceeding shall be brought against Owner or
Owner's Indemnitees based upon any such claim and if Tenant, upon notice from
Owner, shall cause such action or proceeding to be defended at Tenant's
expense by counsel acting for Tenant's insurance carriers in connection with
such defense or by other counsel reasonably satisfactory to Owner, without any
disclaimer of liability by Tenant or such insurance carriers in connection
with such claim, Tenant shall not be required to indemnify Owner and Owner's
Indemnitees for counsel fees in connection with such action or proceeding.
B. Throughout the Demised Term Tenant shall maintain commercial general
liability insurance against any claims by reason of bodily and personal
injury, death and property damage (including water damage)occurring in or
about the Demised Premises covering, without limitation, the operation of any
private air conditioning equipment and any private elevators, escalators or
conveyors in or serving the Demised Premises or any part thereof, whether
installed by Owner, Tenant or others, and shall furnish to Owner duplicate
original policies of such insurance at least ten (10) days prior to the
Commencement Date and at least ten (10) days prior to the expiration of the
term of any such policy previously furnished by Tenant, in which policies
Owner, and Owner's Indemnitees shall be named as parties insured, which
policies shall be issued by companies, and shall be in form and amounts,
reasonably satisfactory to Owner. Such policy or certificate shall initially
have limits of liability of not less than Five Million ($5,000,000.00) Dollars
combined single limit coverage on a per occurrence basis, including property
damage. Owner may from time to time require such amount be increased provided
such increased amounts required are reasonable for similar sized premises in
firstclass office buildings in midtown Manhattan.
Section 19.03. Payments: Tenant shall pay to Owner, within thirty (30)
days next following rendition by Owner to Tenant of bills or statements
therefor: (i) sums equal to all expenditures made and monetary obligations
incurred by Owner including, but not limited to, expenditures made and
obligations incurred for reasonable counsel fees and disbursements, in
connection with the remedying by Owner, for Tenant's account pursuant to the
provisions of Section 19.01, of any default of Tenant, and (ii) sums equal to
all losses, costs, liabilities, damages and expenses referred to in Section
19.02, and (iii) sums equal to all expenditures made and monetary obligations
incurred by Owner including, but not limited to, expenditures made and
obligations incurred for reasonable counsel fees and disbursements, in
collecting or attempting to collect the Fixed Rent, any additional rent or any
other sum of money accruing under this Lease or in enforcing or attempting to
enforce any rights of Owner under this Lease or pursuant to law, whether by
the institution and prosecution of summary proceedings or otherwise; and (iv)
all other sums of money (other than Fixed Rent) accruing from Tenant to Owner
under the provisions of this Lease. Any sum of money (other than Fixed Rent)
accruing from Tenant to Owner pursuant to any provision of this Lease whether
prior to or after the Commencement Date, may, at Owner's option, be deemed
additional rent, and Owner shall have the same remedies for Tenant's failure
to pay any item of additional rent when due as for Tenant's failure to pay any
installment of Fixed Rent when due. Tenant's obligations under this Article
shall survive the expiration or sooner termination of the Demised Term.
Section 19.04. Tenant's Late Payments - Late Charges: If Tenant shall
fail to make payment of any installment of Fixed Rent or any increase in the
Fixed Rent or any additional rent within ten (10) days after the date when
such payment is due, Tenant shall pay to Owner, in addition to such
installment of Fixed Rent or such increase in the Fixed Rent or such
additional rent, as the case may be, as a late charge and as additional rent,
a sum equal to three (3%) percent per annum above the then current prime rate
(as the term "prime rate" is defined in Section 31.03) charged by JPMorgan
Chase Bank or its successor of the amount unpaid computed from the date such
payment was due to and including the date of payment.
ARTICLE 20
ENTIRE AGREEMENT
Section 20.01. Entire Agreement: This Lease contains the entire agreement
between the parties and all prior negotiations and agreements are merged in
this Lease. Neither Owner nor Owner's agents have made any representations or
warranties with respect to the Demised Premises, the Building, the Real
Property or this Lease except as expressly set forth in this Lease and no
rights, easements or licenses are or shall be acquired by Tenant by
implication or otherwise unless expressly set forth in this Lease. This Lease
may not be changed, modified or discharged, in whole or in part, orally and no
executory agreement shall be effective to change, modify or discharge, in
whole or in part, this Lease or any provisions of this Lease, unless such
agreement is set forth in a written instrument executed by the party against
whom enforcement of the change, modification or discharge is sought. All
references in this Lease to the consent or approval of Owner shall be deemed
to mean the written consent of Owner, or the written approval of Owner, as the
case may be, and no consent or approval of Owner shall be effective for any
purpose unless such consent or approval is set forth in a written instrument
executed by Owner.
ARTICLE 21
END OF TERM
Section 21.01. End of Term: On the date upon which the Demised Term shall
expire and come to an end, whether pursuant to any of the provisions of this
Lease or by operation of law, and whether on or prior to the Expiration Date,
Tenant, at Tenant's sole cost and expense, (i) shall quit and surrender the
Demised Premises to Owner, broom clean and in good order and condition,
ordinary wear excepted, and (ii) shall remove all of Tenant's Personal
Property and all other property and effects of Tenant and all persons claiming
through or under Tenant (including, but not limited to, removal of all
vertical wiring which extends into conduit and/or the Building risers and
shafts regardless of at whose expense such vertical wiring was installed
except as otherwise provided in Section 21.02) from the Demised Premises and
the Building, and (iii) shall repair all damage to the Demised Premises
occasioned by such removal and (iv) shall, at Owner's election, exercisable
within six (6) months following the expiration or earlier termination of the
Demised Term, remove any Specialty Alterations (as defined herein) and/or
private interior staircases constructed by or on behalf of Tenant in the
Demised Premises or connecting the Demised Premises or any part thereof with
any other space (referred to herein as the "Other Space") in the Building
occupied by Tenant, and restore those portions of the Demised Premises, the
Other Space and the Building affected by any such Specialty Alterations and/or
staircases (including, but not limited to, the slabbing over of any openings)
to the condition of each which existed prior to the installation of any such
Specialty Alterations and/or staircases, and repair any damage to the Demised
Premises, Other Space and the Building occasioned by such removal.
Notwithstanding the provisions of subdivision (iv) of the foregoing sentence,
in the event Owner does not elect to have removed any such staircase or other
Specialty Alteration referred to therein, any such staircase or other
Specialty Alteration shall be and remain the property of Owner at no cost or
expense to Owner. Owner shall have the right to retain any property and
effects which shall remain in the Demised Premises after the expiration or
sooner termination of the Demised Term, and any net proceeds from the sale
thereof, without waiving Owner's rights with respect to any default by Tenant
under the foregoing provisions of this Section. 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 successor law of like import
then in force, in connection with any holdover summary proceedings which Owner
may institute to enforce the foregoing provisions of this Article. If said
date upon which the Demised Term shall expire and come to an end shall fall on
a Sunday or holiday, then Tenant's obligations under the first sentence of
this Section shall be performed on or prior to the Saturday or business day
immediately preceding such Sunday or holiday. For purposes of this Section
21.01, the term "Specialty Alterations" shall mean Alterations consisting of
any kitchens (but excluding any pantry), executive or private bathrooms,
raised computer floors, vaults, any steel plates or reinforcement installed by
Tenant (including without limitation, in connection with libraries or file
systems), dumbwaiters, pneumatic tubes, horizontal transportation systems, and
any other Alterations of a similar character to those enumerated in this
sentence, and the installation of any equipment outside of the Demised
Premises. Tenant's obligations under this Section shall survive the expiration
or sooner termination of the Demised Term.
Section 21.02. Notwithstanding anything to the contrary set forth in
Section 21.01, Owner, at Owner's option, exercised by notice given (a) at
least 30 days prior to the Expiration Date, or (b) on or prior to any sooner
termination of the Demised Term, may require Tenant to leave all vertical
wiring referred to in Section 21.01 in place, in which event all such vertical
wiring shall remain in the Demised Premises and the Building and become the
property of Owner, at no cost and expense to Owner.
ARTICLE 22
QUIET ENJOYMENT
Section 22.01. Quiet Enjoyment: Owner covenants and agrees with Tenant
that upon Tenant paying the Fixed Rent and additional rent reserved in this
Lease and observing and performing all of the terms, covenants and conditions
of this Lease on Tenant's part to be observed and performed, Tenant may
peaceably and quietly enjoy the Demised Premises during the Demised Term,
subject, however, to the terms, covenants and conditions of this Lease
including, but not limited to, the provisions of Section 37.01, and subject to
the Superior Lease and the Mortgage referred to in Section 7.01.
ARTICLE 23
ESCALATION
Section 23.01. Definitions: Owner and Tenant agree that the term "Demised
Premises Area" shall mean 3,821square feet.
Section 23.02. Escalation Payments: A. For the purposes of this Article,
the term "Escalation Year" shall mean the period from Commencement Date to and
including the last day of the calendar month in which the day immediately
preceding the first anniversary of the Commencement Date shall occur and each
succeeding period of twelve (12) months thereafter. For the second (2nd) and
each succeeding Escalation Year, Tenant shall pay to Owner, as additional
rent, and in addition to any other sums payable pursuant to this Lease, an
annual amount obtained by use of the following formula:
(X) multiplying (x) the sum of (i) the Fixed Rent set forth in Section
1.03 for the Escalation Year immediately preceding the applicable Escalation
Year (subject to clause (Z) below, and as the same may be increased by virtue
of Tenant leasing additional space and as the same may be adjusted pursuant to
any of the terms and conditions of the Lease, including without limitation any
option to renew the Lease, if any) plus (ii) the total amount owing in the
previous Escalation Year pursuant to this Section 23.04 by (y) one hundred
four percent (104%) and then
(Y) subtracting from such product the Fixed Rent set forth in Section
1.03 (as the same may be increased or adjusted as aforesaid, and which Fixed
Rent shall be equal to the same Fixed Rent amount referred to in clause (x)
(i) above), with it understood that
(Z) the amount of the Fixed Rent used in the foresaid formula shall not
include the portion thereof attributable to the Electrical Inclusion Factor,
provided however that solely for purposes of determining the amounts payable
pursuant to this Section 23.04, the Fixed Rent with respect to the first
Escalation Year shall be deemed to be equal to the Fixed Rent payable for the
Second Rent Period.
The sum to be paid by Tenant to Owner pursuant to this Subsection A of
Section 23.02, from time to time, is referred to as the "Additional Escalation
Payment(s).
B. The parties agree that with respect to the leasing of the Demised
Premises as initially constituted in this Lease for the original Demised Term
set forth herein, the Additional Escalation Payment(s) during the original
Demised Term which Tenant shall make pursuant to Subsection A above are equal
to the amounts set forth below opposite the applicable period of time so
listed:
Escalation Year Amount Per Annum Amount Per Month
2nd $6,419.28 $534.94
3rd $13,095.33 $1,091.28
4th $20,038.42 $1,669.87
5th $27,259.24 $2,271.60
6th $34,768.89 $2,897.41
7th $43,037.45 $3,586.45
8th $51,636.75 $4,303.06
C. Unless the Demised Term shall expire on the last day of a calendar
month, the Additional Escalation Payment for such calendar month in which the
Demised Term shall expire shall be apportioned in that percentage which the
number of days in the period from the commencement of such calendar month to
such date of expiration, both inclusive, bears to the total number of days in
such calendar month.
D. The Additional Escalation Payments payable pursuant to the provisions
of Subsection A of this Section 23.02, shall be payable in equal monthly
installments in advance, as additional rent, together with the payment of the
monthly installments of Fixed Rent, beginning with the first day of the first
month of the applicable Escalation Year and the obligations of Tenant therefor
shall survive the expiration or sooner termination of the Demised Term.
Section 23.03. Collection of Increases in Fixed Rent: The obligations of
Owner and Tenant under the provisions of this Article with respect to any
increase in the Fixed Rent, or any credit to which Tenant may be entitled,
shall survive the expiration or any sooner termination of the Demised Term.
All sums payable by Tenant under this Article shall be collectible by Owner in
the same manner as Fixed Rent.
ARTICLE 24
NO WAIVER
Section 24.01. Owner's Termination Not Prevented: Neither any option
granted to Tenant in this Lease or in any collateral instrument to renew or
extend the Demised Term, nor the exercise of any such option by Tenant, shall
prevent Owner from exercising any option or right granted or reserved to Owner
in this Lease or in any collateral instrument or which Owner may have by
virtue of any law, to terminate this Lease and the Demised Term or any renewal
or extension of the Demised Term either during the original Demised Term or
during the renewed or extended term. Any termination of this Lease and the
Demised Term shall serve to terminate any such renewal or extension of the
Demised Term and any right of Tenant to any such renewal or extension, whether
or not Tenant shall have exercised any such option to renew or extend the
Demised Term. Any such option or right on the part of Owner to terminate this
Lease shall continue during any extension or renewal of the Demised Term. No
option granted to Tenant to renew or extend the Demised Term shall be deemed
to give Tenant any further option to renew or extend.
Section 24.02. No Termination by Tenant/No Waiver: No act or thing done
by Owner or Owner's agents during the Demised Term shall constitute a valid
acceptance of a surrender of the Demised Premises or any remaining portion of
the Demised Term except a written instrument accepting such surrender,
executed by Owner. No employee of Owner or of Owner's agents shall have any
authority to accept the keys of the Demised Premises prior to the termination
of this Lease and the Demised Term, and the delivery of such keys to any such
employee shall not operate as a termination of this Lease or a surrender of
the Demised Premises; however, if Tenant desires to have Owner sublet the
Demised Premises for Tenant's account, Owner or Owner's agents are authorized
to receive said keys for such purposes without releasing Tenant from any of
its obligations under this Lease, and Tenant hereby relieves Owner of any
liability for loss of, or damage to, any of Tenant's property or other effects
in connection with such subletting. The failure by Owner to seek redress for
breach or violation of, or to insist upon the strict performance of, any term,
covenant or condition of this Lease on Tenant's part to be observed or
performed, shall not prevent a subsequent act or omission which would have
originally constituted a breach or violation of any such term, covenant or
condition from having all the force and effect of an original breach or
violation. The receipt by Owner of rent with knowledge of the breach or
violation by Tenant of any term, covenant or condition of this Lease on
Tenant's part to be observed or performed shall not be deemed a waiver of such
breach or violation. Owner's failure to enforce any Building Rule against
Tenant or against any other tenant or occupant of the Building shall not be
deemed a waiver of any such Building Rule. No provision of this Lease shall be
deemed to have been waived by Owner or Tenant unless such waiver shall be set
forth in a written instrument executed by the waiving party. No payment by
Tenant or receipt by Owner of a lesser amount than the aggregate of all Fixed
Rent and additional rent then due under this Lease shall be deemed to be other
than on account of the first accruing of all such items of Fixed Rent and
additional rent then due, no endorsement or statement on any check and no
letter accompanying any check or other rent payment in any such lesser amount
and no acceptance of any such check or other such payment by Owner shall
constitute an accord and satisfaction, and Owner may accept any such check or
payment without prejudice to Owner's right to recover the balance of such rent
or to pursue any other legal remedy.
ARTICLE 25
MUTUAL WAIVER OF TRIAL BY JURY
Section 25.01. Owner and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by Owner or Tenant against the other on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of landlord and tenant, the use or occupancy of the Demised
Premises by Tenant or any person claiming through or under Tenant, any claim
of injury or damage, and any emergency or other statutory remedy; however, the
foregoing waiver shall not apply to any action for personal injury or property
damage. The provisions of the foregoing sentence shall survive the expiration
or any sooner termination of the Demised Term. If Owner commences any summary
proceeding, or any other proceeding of like import, Tenant agrees: (i) not to
interpose any counterclaim of whatever nature or description in any such
summary proceeding, or any other proceeding of like import, unless failure to
interpose such counterclaim would preclude Tenant from asserting such claim in
a separate action or proceeding; and (ii) not to seek to remove to another
court or jurisdiction or consolidate any such summary proceeding, or other
proceeding of like import, with any action or proceeding which may have been,
or will be, brought by Tenant. In the event that Tenant shall breach any of
its obligations set forth in the immediately preceding sentence, Tenant agrees
(a) to pay all of Owner's attorneys" fees and disbursements in connection with
Owner's enforcement of such obligations of Tenant and (b) in all events, to
pay all accrued, present and future Fixed Rent and increases therein and
additional rent payable pursuant to the provisions of this Lease.
Section 25.02.
A. Owner and Tenant each hereby submits itself to the jurisdiction of the
State of New York in any action or proceeding arising out of or under this
Lease, and Owner and Tenant each agrees that this Lease shall be governed,
construed and interpreted in accordance with the laws of the State of New York
which shall apply in any such action or proceeding.
B. All judicial actions, suits or proceedings brought by or against
Tenant with respect to its obligations, liabilities or any other matter under
or arising out of or in connection with this Lease or for recognition or
enforcement of any judgment rendered in any such proceedings may be brought in
any state or federal court of competent jurisdiction in the City of New York.
By execution and delivery of this Lease, Owner and Tenant each accepts,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts and irrevocably agrees to be bound by any final judgment rendered
thereby in connection with this Lease from which no appeal has been taken or
is available. Tenant hereby irrevocably waives any objection to the laying of
venue or based on the grounds of forum non conveniens which it may now or
hereafter have to the bringing of any such action or proceeding in any such
jurisdiction. Nothing herein shall limit the right of Owner to bring any
action, suit or proceeding against Tenant in any other court of competent
jurisdiction. Tenant acknowledges that final, non-appealable judgment against
it in any action, suit or proceeding referred to in this Article shall be
conclusive and may be enforced in any other jurisdiction, by suit on the
judgment, a certified or exemplified copy of which shall be conclusive
evidence of the fact and of the amount of any such judgment against Tenant.
ARTICLE 26
INABILITY TO PERFORM
Section 26.01. If, by reason of strikes or other labor disputes, fire or
other casualty (or reasonable delays in adjustment of insurance), accidents,
any Legal Requirements, any orders of any Governmental Authority or any other
cause beyond Owner's reasonable control, whether or not such other cause shall
be similar in nature to those hereinbefore enumerated, Owner is unable to
furnish or is delayed in furnishing any utility or service required to be
furnished by Owner under the provisions of Article 29 or any other Article of
this Lease or any collateral instrument, or is unable to perform or make or is
delayed in performing or making any installations, decorations, repairs,
alterations, additions or improvements, whether or not required to be
performed or made under this Lease or under any collateral instrument, or is
unable to fulfill or is delayed in fulfilling any of Owner's other obligations
under this Lease or any collateral instrument, no such inability or delay
shall constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
ARTICLE 27
NOTICES
Section 27.01. Except as otherwise expressly provided in this Lease, any
bills, statements, notices, demands, requests or other communications given or
required to be given under this Lease (sometimes collectively referred to as a
"Notice") shall be effective only if rendered or given in writing, sent by
registered or certified mail (return receipt requested optional), or sent by
nationally recognized courier service (e.g. Federal Express) providing dated
evidence of receipt or refusal to accept delivery by the addressee, addressed
as follows:
(a) To Tenant (i) at Tenant's address set forth in this Lease, Attention:
Xxxxxxxxx X. Xxxxx, if mailed prior to Tenant's taking possession of the
Demised Premises, or (ii) at the Building if mailed subsequent to Tenant's
taking possession of the Demised Premises, or (iii) at any place where Tenant
or any agent or employee of Tenant may be found if mailed subsequent to
Tenant's vacating, deserting, abandoning or surrendering the Demised Premises,
in each case with a copy to Xxxxxx X. Xxxxx, Esq., Xxxxxx, Xxxx &Light, LLP,
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
(b) To Owner at Owner's address set forth in this Lease, Attention:
Xxxxxxx X. Xxxxx with a copy to Xxxxxxxx & Fleece, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Partner-in-Charge, Xxxxx Management, or
(c) addressed to such other address as either Owner or Tenant may
designate as its new address for such purpose by notice given to the other in
accordance with the provisions of this Section. Any such xxxx, statement,
notice, demand, request or other communication shall be deemed to have been
rendered or given (x) if mailed: on the date when it shall have been mailed or
(y) if sent by nationally recognized courier: on the date when it shall have
been delivered by such courier service or when delivery by such courier
service was refused by the addressee. Refusal to accept delivery of any Notice
shall not limit or negate delivery of such Notice or limit, negate or render
ineffective any such Notice.
Nothing contained in this Section 27.01 shall preclude, limit or modify
Owner's service of any notice, statement, demand or other communication in the
manner required by law, including, but not limited to, any demand for rent
under Article 7 of the New York Real Property Actions and Proceedings Law or
any successor laws of like import.
ARTICLE 28
PARTNERSHIP TENANT
Section 28.01. If Tenant is a partnership or professional corporation or
limited liability company (or is comprised of two (2) or more persons,
individually and as co-partners of a partnership or shareholders of a
professional corporation or members of a limited liability company) or if
Tenant's interest in this Lease shall be assigned to a partnership or
professional corporation or limited liability company (or to two (2) or more
persons, individually and as co-partners of a partnership or shareholders of a
professional corporation or members of a limited liability company) pursuant
to Article 11 (any such partnership, professional corporation, limited
liability company and such persons are referred to in this Section as
"Partnership Tenant"), the following provisions of this Section shall apply to
such Partnership Tenant: (i) the liability of each of the persons comprising
Partnership Tenant shall be joint and several, individually and as a partner
or shareholder or member, with respect to all obligations of the Tenant under
this Lease whether or not such obligations arose prior to, during, or after
any period when any party comprising Partnership Tenant was a member or
shareholder of Partnership Tenant, and (ii) each of the persons comprising
Partnership Tenant, whether or not such person shall be one of the persons
comprising Tenant at the time in question, hereby consents in advance to, and
agrees to be bound by, any written instrument which may hereafter be executed,
changing, modifying or discharging this Lease, in whole or in part, or
surrendering all or any part of the Demised Premises to Owner, and by any
notices, demands, requests or other communications which may hereafter be
given by Partnership Tenant or by any of the persons comprising Partnership
Tenant, and (iii) any bills, statements, notices, demands, requests or other
communications given or rendered to Partnership Tenant or to any of the
persons comprising Partnership Tenant shall be deemed given or rendered to
Partnership Tenant and to all such persons and shall be binding upon
Partnership Tenant and all such persons, and (iv) if Partnership Tenant shall
admit new partners or shareholders or members, all of such new partners or
shareholders or members, as the case may be, shall, by their admission to
Partnership Tenant, be deemed to have assumed performance of all of the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed, and shall be liable for such performance, together with all other
parties, jointly or severally, individually and as a partner or shareholder or
member, whether or not the obligation to comply with such terms, covenants or
conditions arose prior to, during or after any period when any party
comprising Partnership Tenant was a partner, member or shareholder of
Partnership Tenant and (v) Partnership Tenant shall give prompt notice to
Owner of the admission of any such new partners, or shareholders, or members,
as the case may be, and, upon demand of Owner, shall cause each such new
partner or shareholder or member to execute and deliver to Owner an agreement,
in form satisfactory to Owner, wherein each such new partner or shareholder or
member shall so assume performance of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed whether
or not the obligation to comply with such terms, covenants or conditions
arose prior to, during or after any period when any party comprising
Partnership Tenant was a member or shareholder of Partnership Tenant (but
neither Owner's failure to request any such agreement nor the failure of any
such new partner, shareholder or member to execute or deliver any such
agreement to Owner shall vitiate the provisions of subdivision (iv) or any
other provision of this Section).
ARTICLE 29
UTILITIES AND SERVICES
Section 29.01. Elevators: As long as this Lease is in full force and
effect, Owner, at Owner's expense, shall furnish necessary passenger elevator
facilities on business days (as defined in Section 31.01) from 8:00 A.M. to
6:00 P.M. and on Saturdays from 8:00 A.M. to 1:00 P.M. and shall have a
passenger elevator subject to call at all other times. Tenant shall be
entitled to the non-exclusive use of the freight elevator in common with other
tenants and occupants of the Building from 8:00 A.M. to 6:00 P.M. on business
days, subject to such reasonable rules as Owner may adopt for the use of the
freight elevator. At any time or times all or any of the elevators in the
Building may, at Owner's option, be automatic elevators, and Owner shall not
be required to furnish any operator service for automatic elevators. If Owner
shall, at any time, elect to furnish operator service for any automatic
elevators, Owner shall have the right to discontinue furnishing such service
with the same effect as if Owner had never elected to furnish such service.
Section 29.02. Heat: As long as this Lease is in full force and effect,
Owner, at Owner's expense, shall furnish heat to the Demised Premises, as and
when required by law, on business days from 8:00 A.M. to 6:00 P.M. and on
Saturdays from 8:00 A.M. to 1:00 P.M.
Section 29.03. Air Conditioning and Ventilation: As long as this Lease is
in full force and effect, Owner, at Owner's expense, shall furnish and
distribute to the Demised Premises (i) conditioned air at reasonable
temperatures, pressures and degrees of humidity and in reasonable volumes and
velocities, on business days from 8:00 A.M. to 6:00 P.M. and on Saturdays from
8:00 A.M. to 1:00 P.M., when required for the comfortable occupancy of the
Demised Premises during the months of April, May, June, July, August,
September, October and the period from November 1st to November 15th; and (ii)
except when conditioned air or heat is being furnished, mechanical ventilation
only through the Building air conditioning system on business days from 8:00
A.M. to 6:00 P.M. and on Saturdays from 8:00 A.M. to 1:00 P.M. throughout the
year. Notwithstanding the foregoing provisions of this Section, Owner shall
not be responsible if the normal operation of the Building air conditioning
system shall fail to provide conditioned air at reasonable temperatures,
pressures or degrees of humidity or in reasonable volumes or velocities in any
portions of the Demised Premises (a) which, by reason of any machinery or
equipment installed by or on behalf of Tenant or any person claiming through
or under Tenant, shall have an electrical load in excess of four (4) xxxxx per
square foot of usable area for all purposes (including lighting and power), or
which shall have a human occupancy factor in excess of one person per 100
square feet of usable area (the average electrical load and human occupancy
factors for which the Building air conditioning system is designed) or (b)
because of any rearrangement of partitioning or other Alterations made or
performed by or on behalf of Tenant or any person claiming through or under
Tenant. Whenever said air conditioning system is in operation, Tenant agrees
to cause all the windows in the Demised Premises to be kept closed and to
cause the venetian blinds in the Demised Premises to be kept closed if
necessary because of the position of the sun. Tenant agrees to cause all the
windows in the Demised Premises to be closed whenever the Demised Premises
are not occupied. Tenant shall cooperate fully with Owner at all times and
abide by all regulations and requirements which Owner may reasonably prescribe
for the proper functioning and protection of the air conditioning, ventilation
and heating systems. In addition to any and all other rights and remedies
which Owner may invoke for a violation or breach of any of the foregoing
provisions of this Section, Owner may discontinue heating, air conditioning
and ventilation service during the period of such violation or breach, and
such discontinuance shall not constitute an actual or constructive eviction,
in whole or in part, or entitle Tenant to any abatement or diminution of rent,
or relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Owner, or its agents, by reason of inconvenience or annoyance
to Tenant, or injury to or interruption of Tenant's business, or otherwise.
Section 29.04. Cleaning:
A. As long as this Lease is in full force and effect, and provided Tenant
shall keep the Demised Premises in order, Owner, at Owner's expense, shall
cause the office areas of the Demised Premises to be cleaned and shall cause
Tenant's ordinary office waste paper refuse to be removed, all at regular
intervals in accordance with standards and practices adopted by Owner for the
Building. Tenant shall cooperate with any waste and garbage recycling program
of the Building and shall comply with all reasonable rules and regulations of
Owner with respect thereto. Tenant acknowledges that Owner's obligation to
cause the office areas of the Demised Premises to be cleaned excludes any
portion of the Demised Premises not used as office areas (e.g., storage, mail
and computer areas, private lavatories and areas used for the storage,
preparation, service or consumption of food or beverages). Tenant shall pay
Owner at Building standard rates or, if there are no such rates, at reasonable
rates, for the removal of any of Tenant's refuse or rubbish, other than
ordinary office waste paper refuse, from the Building, and Tenant, at Tenant's
expense, shall cause all portions of the Demised Premises used for the
storage, preparation, service or consumption of food or beverages to be
cleaned daily in a manner satisfactory to Owner, and to be exterminated
against infestation by vermin, roaches or rodents regularly and, in addition,
whenever there shall be evidence of any infestation.
B. Tenant acknowledges and is aware that the cleaning services required
to be furnished by Owner pursuant to this Section may be furnished by a
contractor or contractors employed by Owner and agrees that Owner shall not be
deemed in default of any of its obligations under this Section 29.04 unless
such default shall continue for an unreasonable period of time after notice
from Tenant to Owner setting forth the specific nature of such default.
C. Notwithstanding the provisions of Subsection A of this Section, Tenant
shall have the option to contract independently for the removal of such other
refuse and rubbish and for office cleaning services in addition to those
furnished by Owner. In the event Tenant exercises such option, the removal of
such other refuse and rubbish and the furnishing of office cleaning services
to Tenant by persons other than Owner and its contractors shall be performed
in accordance with such regulations and requirements as, in Owner's judgment,
are necessary for the proper operation of the Building, and Tenant agrees that
Tenant will not permit any person to enter the Demised Premises or the
Building for such purposes, or for the purpose of providing extermination
services required to be performed by Tenant pursuant to Subsection A of this
Section, other than persons first approved by Owner, such approval not
unreasonably to be withheld.
Section 29.05. Electricity: A. As long as this Lease is in full force and
effect, Owner, at Owner's expense, shall redistribute or furnish electrical
energy, on a demand load basis, to or for the use of Tenant in the Demised
Premises for the operation of the lighting fixtures and the electrical
receptacles installed in the Demised Premises on the Commencement Date. There
shall be no specific charge by way of measuring such electrical energy on any
meter or otherwise, as the charge for the service of redistributing or
furnishing such electrical energy has been included in the Fixed Rent on a
socalled "rent inclusion" basis. The parties agree that although the charge
for the service of redistributing or furnishing electrical energy is included
in the Fixed Rent on a so-called "rent inclusion" basis, the value to Tenant
of such service may not be fully reflected in the Fixed Rent. Accordingly,
Tenant agrees that Owner may cause an independent electrical engineer or
electrical consulting firm, selected by Owner and approved by Tenant, such
approval not to be unreasonably withheld, to make a determination, following
the commencement of Tenant's normal business activities in the Demised
Premises, of the full value to Tenant of such services supplied by Owner, to
wit: the potential electrical energy supplied to Tenant annually based upon
the estimated capacity of the electrical feeders, risers and wiring and other
electrical facilities serving the Demised Premises. Such engineer or
consulting firm shall certify such determination in writing to Owner and
Tenant. If it shall be determined that the full value to Tenant of such
service is in excess of ELEVEN THOUSAND FOUR HUNDRED SIXTY-THREE and 00/100
($11,463.00) DOLLARS per annum (such sum is referred to as the "Electrical
Inclusion Factor"), the parties shall enter into a written supplementary
agreement, in form satisfactory to Owner, modifying this Lease as of the
Commencement Date by increasing the Fixed Rent and the Electrical Inclusion
Factor for the entire Demised Term by an annual amount equal to such excess.
However, if it shall be so determined that the full value to Tenant of such
service does not exceed the Electrical Inclusion Factor, no such agreement
shall be executed and there shall be no increase or decrease in the Fixed Rent
or the Electrical Inclusion Factor by reason of such determination. If either
the quantity or character of electrical service is changed by the
corporation(s) and/or other entity(ies) selected by Owner to supply electrical
service to the Building or is no longer available or suitable for Tenant's
requirements, no such change, unavailability or unsuitability shall constitute
an actual or constructive eviction, in whole or in part, or entitle Tenant to
any abatement or diminution of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Owner, or its
agents, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
B. Owner represents that the electrical feeder or riser capacity serving
the Demised Premises on the Commencement Date shall be adequate to serve the
lighting fixtures and electrical receptacles installed in the Demised Premises
on the Commencement Date. Subject to the provisions of Subsection C(1) of this
Section 29.05, any additional feeders or risers to supply Tenant's additional
electrical requirements, and all other equipment proper and necessary in
connection with such feeders or risers, shall be installed by Owner or, at
Owner's election, by Tenant upon Tenant's request, at the sole cost and
expense of Tenant, provided that, in Owner's judgment, such additional feeders
or risers are necessary and are permissible under applicable laws (including,
but not limited to, the New York State Energy Conservation Construction Code)
and insurance regulations and the installation of such feeders or risers will
not cause permanent damage or injury to the Building or the Demised Premises
or cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations or repairs or interfere with or disturb other tenants
or occupants of the Building. Tenant covenants that at no time shall the use
of electrical energy in the Demised Premises exceed the capacity of the
existing feeders or wiring installations then serving the Demised Premises.
Tenant shall not make or perform, or permit the making or performance of, any
Alterations to wiring installations or other electrical facilities in or
serving the Demised Premises or any additions to the business machines, office
equipment or other appliances in the Demised Premises which utilize electrical
energy without the prior consent of Owner in each instance. Any such
Alterations, additions or consent by Owner shall be subject to the provisions
of Subsection C(1) of this Section 29.05, as well as to the other provisions
of this Lease including, but not limited to, the provisions of Article 3.
C. (1) If, at any time or times prior to or during the Demised Term,
electrical feeders, risers, wiring or other electrical facilities serving the
Demised Premises shall be installed by Owner, Tenant or others, on behalf of
Tenant or any person claiming through or under Tenant in addition to feeders,
risers, wiring or other electrical facilities necessary to serve the lighting
fixtures and electrical receptacles installed in the Demised Premises on the
Commencement Date, the Fixed Rent and the Electrical Inclusion Factor shall be
increased in an annual amount which shall reflect the value to Tenant of the
additional service to be furnished by Owner, to wit: the potential additional
electrical energy made available to Tenant annually based upon the estimated
capacity of such additional electrical feeders, risers, wiring or other
electrical facilities. The amount of any such increase in the Fixed Rent and
the Electrical Inclusion Factor shall be finally determined by an independent
electrical engineer or consulting firm selected by Owner and approved by
Tenant, such approval not to be unreasonably withheld, who shall certify such
determination in writing to Owner and Tenant. Following such determination,
Owner and Tenant shall enter into a written supplementary agreement, in form
satisfactory to Owner, modifying this Lease by increasing the Fixed Rent and
the Electrical Inclusion Factor for the remainder of the Demised Term in an
annual amount equal to the value of such additional service as so determined.
Any such increase shall be effective as of the date of the first availability
to Tenant of such additional service and shall be retroactive to such date if
necessary.
(2) If, at any time or times after April 14, 2006, the rates at which
Owner purchases electrical energy from the corporation(s) and/or other
entity(ies) Owner has selected to supply electrical service to the Building or
any charges incurred or taxes payable by Owner in connection therewith shall
be increased or decreased, the Fixed Rent and the Electrical Inclusion Factor
shall be increased or decreased, as the case may be, upon demand of either
party, in an annual amount which shall fairly and proportionately reflect the
estimated increase or decrease, as the case may be, in the annual cost to
Owner of purchasing electrical energy for the Building provided that
notwithstanding anything to the contrary contained in the provisions of this
Section 29.05 in no event shall (a) the Electrical Inclusion Factor ever be
decreased below the original amount thereof set forth in Subsection A of this
Section and (b) the Fixed Rent ever be decreased by more than such decrease in
the Electrical Inclusion Factor as so limited by the provisions of the
aforesaid Subdivision (a) of this Subsection C.(2). If, within ten (10) days
after any such demand, Owner and Tenant shall fail to agree upon the amount of
such increase or decrease, as the case may be, in the Fixed Rent and the
Electrical Inclusion Factor then, in lieu of such agreement, such estimated
increase or decrease, as the case may be, shall be finally determined by an
independent electrical engineer or consulting firm selected by Owner who shall
certify such determination in writing to Owner and Tenant. Any such increase
or decrease in the Fixed Rent and the Electrical Inclusion Factor shall be
effective as of the effective date of such increase or decrease, and shall be
retroactive to such date if necessary.
(3) Any increase in the Fixed Rent pursuant to the provisions of
Subsection A of this Section or this Subsection C with respect to the period
from the effective date of such increase to the last day of the month in which
such increase shall be fixed by agreement or determination shall be payable by
Tenant within twenty (20) days following demand of Owner. Any decrease in the
Fixed Rent pursuant to the provisions of this Subsection C with respect to the
period from the effective date of such decrease to the last day of the month
in which such decrease shall be fixed by agreement or determination shall be
credited to Tenant against the next monthly installment of the Fixed Rent. The
monthly installments of the Fixed Rent payable after the date upon which any
such increase or decrease is so fixed shall be proportionately adjusted to
reflect such increase or decrease in the Fixed Rent.
D. Owner may, at any time, elect to discontinue the redistribution or
furnishing of electrical energy. In the event of any such election by Owner,
(i) Owner agrees to give reasonable advance notice of any such discontinuance
to Tenant, (ii) Owner agrees to permit Tenant to receive electrical service
directly from the corporation(s) and/or other entity(ies) Owner has selected
to supply electrical service to the Building and to permit the existing
feeders, risers, wiring and other electrical facilities serving the Demised
Premises to be used by Tenant for such purpose to the extent they are suitable
and safely capable, (iii) Owner agrees to pay such charges and costs, if any,
as such corporation(s) and/or other entity(ies) may impose in connection with
the installation of Tenant's meters, (iv) the Fixed Rent shall be decreased,
as of the date of such discontinuance, by an amount equal to the Electrical
Inclusion Factor to reflect such discontinuance; and (v) this Lease shall
remain in full force and effect and such discontinuance shall not constitute
an actual or constructive eviction, in whole or in part, or entitle Tenant to
any abatement or diminution of rent except as expressly provided in
subdivision (iv) of this Subsection D, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Owner or its agents
by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
E. The following method of computation shall be employed by any
electrical engineer or electrical consulting firm selected by Owner pursuant
to the provisions of Subsection C(2) of this Section 29.05 in finally
determining any estimated increase or decrease in the Fixed Rent and the
Electrical Inclusion Factor, under the provisions of this Section resulting
from the corporation(s) and/or other entity(ies) Owner has selected to supply
electrical service to the Building (referred to individually and collectively
as "The Corporation") electrical rate and fuel charge changes and taxes
(collectively "Electrical Changes") payable in connection therewith:
(1) Owner's bills from The Corporation for the Building for the twelve
(12) month period immediately preceding the Electrical Change in question
shall be averaged for demand and consumption (Kw and Kwh) and the rate
structure in effect immediately prior to the Electrical Change in question
shall be applied to such average demand and consumption factors of Owner's
xxxxxxxx for the Building for said twelve (12) month period resulting in an
agreed determination of the cost to Owner of electricity for the Building
immediately prior to the Electrical Change in question; and
(2) The new rate structure pursuant to which Owner is billed by The
Corporation, i.e., the rate structure which includes the Electrical Change in
question, shall be applied to the average demand and consumption factors of
Owner's xxxxxxxx for the Building for said twelve (12) month period resulting
in an agreed estimate of the cost to Owner by reason of the Electrical Change
in question; and
(3) The difference in the costs determined pursuant to the foregoing
subdivisions (1) and (2) shall be deemed to be the amount of the estimated
annual change in cost and the amount of such estimated annual change in cost
shall be divided by the cost determined pursuant to the foregoing subdivision
(1); and
(4) The resulting quotient shall be applied to Tenant's then current
Electrical Inclusion Factor to produce the increase or decrease in the Fixed
Rent and Electrical Inclusion Factor.
(For example: Assume (1) an Electrical Change i.e. a rate increase; (2)
an application of the rate schedule in effect immediately prior to such
Electrical Change to the averaged electrical demand and consumption factors
shown on Owner's electrical bills for the twelve (12) month period immediately
preceding such Electrical Change resulting in an estimated annual cost of
$100,000.00; (3) an application of the new rate schedule to the averaged
electrical demand and consumption factors shown on the bills in question
resulting in an estimated annual cost of $110,000.00; (4) deduction of the sum
of $100,000.00 referred to in step (2) from said sum of $110,000.00 referred
to in step (3), resulting in a difference of $10,000.00; and (5) that Tenant's
Electrical Inclusion Factor was $3,000.00. The $10,000.00 annual estimated
increase for the Building, when divided by $100,000.00, the estimated annual
cost to Owner of electricity for the Building prior to the Electrical Change
in question, results in a quotient of 10% which, when applied to Tenant's
Electrical Inclusion Factor increases the Fixed Rent and the Electrical
Inclusion Factor by $300.00.)
F. Notwithstanding anything to the contrary set forth in this Lease, any
sums payable or granted in any way by the corporation(s) and/or other
entity(ies) Owner has selected to supply electricity to the Building resulting
from the installation in the Demised Premises of energy efficient xxxxxxx,
special supplemental heating, ventilation and air conditioning systems or any
other Alterations, which sums are paid or given by way of rebate, direct
payment, credit or otherwise, shall be and remain the property of Owner, and
Tenant shall not be entitled to any portion thereof, unless such xxxxxxx,
supplemental heating, ventilation and air conditioning systems or other
Alterations were installed by Tenant, solely at Tenant's expense, without any
contribution, credit or allowance by Owner, in accordance with all of the
provisions of this Lease. Nothing contained in the foregoing sentence,
however, shall be deemed to obligate Owner to supply or install in the Demised
Premises any such xxxxxxx, supplemental heating, ventilation and air
conditioning systems or other Alterations.
Section 29.06. Water: Owner shall provide reasonable quantities of water
for ordinary lavatory, pantry and drinking purposes at no additional cost to
Tenant. If Tenant requires, uses or consumes water for any purpose in addition
to ordinary lavatory, pantry and drinking purposes, Owner may install a hot
water meter and a cold water meter and thereby measure Tenant's consumption of
water for all purposes. Tenant shall pay to Owner the cost of any such meters
and their installation, and Tenant shall keep any such meters and any such
installation equipment in good working order and repair, at Tenant's cost and
expense. Tenant agrees to pay for water consumed as shown on said meters, and
sewer charges, taxes and any other governmental charges thereon, as and when
bills are rendered. In addition to any sums required to be paid by Tenant for
hot water consumed and sewer charges, taxes and any other governmental charges
thereon under the foregoing provisions of this Section, Tenant agrees to pay
to Owner, for the heating of said hot water, an amount equal to three (3X)
times the total of said sums required to be paid by Tenant for hot water and
sewer charges thereon. For the purposes of determining the amount of any sums
required to be paid by Tenant under this Section, all hot and cold water
consumed during any period when said meters are not in good working order
shall be deemed to have been consumed at the rate of consumption of such water
during the most comparable period when such meters were in good working order.
Section 29.07. Overtime Periods: The Fixed Rent does not reflect or
include any charge to Tenant for the furnishing or distributing of any
necessary elevator facilities, heat, conditioned air or mechanical ventilation
to the Demised Premises during periods (referred to as "Overtime Periods")
other than the hours and days set forth above in this Article for the
furnishing and distributing of such services. Accordingly, if Owner shall
furnish any such elevator facilities, heat, conditioned air or mechanical
ventilation to the Demised Premises at the request of Tenant during Overtime
Periods, Tenant shall pay Owner for such services at the standard rates then
fixed by Owner for the Building or, if no such rates are then fixed, at
reasonable rates. Owner shall not be required to furnish any such services
during Overtime Periods, unless Owner has received reasonable advance notice
from Tenant requesting such services. If Tenant fails to give Owner reasonable
advance notice requesting such services during any Overtime Periods, then,
whether or not the Demised Premises are habitable during such Overtime
Periods, failure by Owner to furnish or distribute any such services during
such Overtime Periods shall not constitute an actual or constructive eviction,
in whole or in part, or entitle Tenant to any abatement or diminution of rent,
or relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Owner or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business or otherwise.
Subject to union requirements, there is a four (4) hour minimum for Tenant's
request for overtime conditioned air, mechanical ventilation, heat, or freight
elevator service unless such overtime conditioned air, mechanical ventilation,
heat, or freight elevator service is requested for a period immediately
following the normal operating hours set forth in Section 29.01, Section 29.02
and Section 29.03 in which event there is a one (1) hour minimum.
Section 29.08. Owner's Right to Stop Service: Owner reserves the right to
stop the service of the heating, air conditioning, ventilating, elevator,
plumbing, electrical or other mechanical systems or facilities in the Building
when necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements, which, in the judgment of Owner are
desirable or necessary, until said repairs, alterations, replacements or
improvements shall have been completed. The exercise of such right by Owner
shall not constitute an actual or constructive eviction, in whole or in part,
or entitle Tenant to any abatement or diminution of rent, or relieve Tenant
from any of its obligations under this Lease, or impose any liability upon
Owner or its agents by reason of inconvenience or annoyance to Tenant, or
injury to or interruption of Tenant's business, or otherwise.
Section 29.09. Telecommunications: A. Owner shall have no obligation to
provide Tenant with any telecommunication services or facilities to or for the
Demised Premises or the use or occupancy thereof by Tenant or any person
through or under Tenant. With respect to Tenant's telecommunications
facilities and services, Tenant shall contract separately with all providers
of Tenant's telecommunications facilities and services (each of which is
referred to as a "Tenant's Telecommunications Service Provider") and pay each
Tenant's Telecommunications Service Provider for all services provided by it
to Tenant pursuant to a separate agreement between Tenant and Tenant's
Telecommunications Service Provider. Neither Tenant nor Tenant's
Telecommunications Service Provider shall use any portion of the Building,
including any risers, shafts, conduits or other facilities, to bring such
telecommunications services to the Demised Premises without the prior written
consent of Owner in each instance. Any such use, if granted, shall (i) be
subject to all of the rules and regulations imposed by Owner with respect to
the Building's shafts or other telecommunications facilities and the
installation, use, operation and maintenance of any telecommunications
facilities, and (ii) shall not interfere with any other tenant or occupant of
the Building.
B. Tenant acknowledges that Owner has installed a telecommunications
cable distribution system in the Building (referred to herein as the "Building
CDS System"). Accordingly, notwithstanding anything in Subsection A above to
the contrary, Tenant and Tenant's Telecommunications Service Provider shall
use such Building CDS System to bring telecommunication services to the
Demised Premises and shall not be permitted to use any other portion of the
Building, including any risers, shafts, conduits or other facilities, in
connection with such telecommunication services without the prior written
consent of Owner in each instance. To the extent that Owner shall as a matter
of Building practice or procedure, cause telecommunication providers to enter
into a license agreement with Owner for the use of such Building CDS System
and pay fees with respect thereto, Tenant acknowledges and agrees that
Tenant's Telecommunications Service Provider shall be required to enter into
such license agreement with Owner and pay such fees. If the Building CDS
System is owned or operated or managed by a separate cable distribution
service company in the Building (referred to as the "Telecommunications Cable
Distribution Company") for the supply, maintenance and distribution of
facilities in such Building CDS System, Tenant's Telecommunications Service
Provider shall also contract with such Telecommunications Cable Distribution
Company for the use of the facilities provided by such Building CDS System and
pay any fees with respect thereto. Owner shall have no obligation for Tenant
to allow Tenant's Telecommunications Service Provider into the Building unless
and until such Tenant's Telecommunications Provider shall execute said license
agreement with Owner and, if applicable, contract with such Telecommunications
Cable Distribution Company. If Tenant is unable to use a particular Tenant's
Telecommunication Service Provider because it fails to enter into an agreement
with Owner and/or the Telecommunications Cable Distribution Company and pay
any fees in connection therewith, no such inability shall constitute an actual
or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or release Tenant from any of its obligations
under this Lease, or impose any liability upon Owner or Owner's Indemnitees by
reason of inconvenience or annoyance to Tenant or interruption of Tenant's
business or otherwise. Tenant and Tenant's Telecommunications Service Provider
shall comply with all reasonable rules and regulations adopted by Owner and
the Telecommunications Cable Distribution Company with respect to the use of
the Building CDS System. Owner and "Owner's Indemnitees" (as defined in
Article 19) shall not be liable to Tenant, or anyone claiming through or under
Tenant, for any damages, including, but not limited to, special, incidental,
remote or consequential damages, including, without limitation, lost revenue,
lost profits and additional operating or personnel expenses arising from any
acts, omissions or negligence of Tenant's Telecommunications Service Provider
and the Telecommunications Cable Distribution Company. Nothing contained in
this Subsection shall obligate Owner (x) to cause to be installed such
Building CDS System or (y) to own such Building CDS System, which Tenant
acknowledges may be owned by a person not affiliated with Owner.
ARTICLE 30
TABLE OF CONTENTS, ETC.
Section 30.01. Table of Contents/Captions: The Table of Contents and the
captions following the Articles and Sections of this Lease have been inserted
solely as a matter of convenience and in no way define or limit the scope or
intent of any provision of this Lease.
ARTICLE 31
MISCELLANEOUS DEFINITIONS, SEVERABILITY AND INTERPRETATION PROVISIONS
Section 31.01. The term "business days" as used in this Lease shall
exclude Saturdays, Sundays and holidays, the term "Saturdays" as used in this
Lease shall exclude holidays and the term "holidays" as used in this Lease
shall mean all days observed as legal holidays by either the New ork State
Government or the Federal Government. The term "Xxxxx Building" shall mean a
building owned or managed by an entity of which at least fifty (50%) percent
is owned or controlled, either by voting rights, contract or otherwise, by the
families of Xxxxxx Xxxxx, his brothers and sisters, the lineal descendants of
any of the foregoing, including Xxxx Xxxxx, his children and the children of
Xxxxx Xxxxx, deceased and/or the spouses of any such persons and/or any
corporation, partnership, business entity or trust established for the benefit
of or controlled by the foregoing persons.
Section 31.02. The terms "person" and "persons" as used in this Lease
shall be deemed to include natural persons, firms, corporations, associations
and any other private or public entities, whether any of the foregoing are
acting on their own behalf or in a representative capacity. Section 31.03. The
term "prime rate" shall mean the rate of interest announced publicly by
JPMorgan Chase Bank, or its successor, from time to time, as JPMorgan Chase
Bank's or such successor's base rate, or if there is no such base rate, then
the rate of interest charged by JPMorgan Chase Bank or its successor to its
most credit worthy customers on commercial loans having a ninety (90) day
duration.
Section 31.04. If any term, covenant or condition of this Lease or any
application thereof shall be invalid or unenforceable, the remainder of this
Lease and any other application of such term, covenant or condition shall not
be affected thereby.
Section 31.05. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing
this Lease to be drafted. In the event of any action, suit, dispute or
proceeding affecting the terms of this Lease, no weight shall be given to any
deletions or striking out of any of the terms of this Lease contained in any
draft of this Lease and no such deletion or strike out shall be entered into
evidence in any such action, suit or dispute or proceeding given any weight
therein.
Section 31.06. Legal Event/Bankruptcy Event/Default Situation:
A. Notwithstanding anything contained in this Lease to the contrary, in
each instance in this Lease where (i) any Owner's rights or Tenant's
obligations arise or are applicable because of a Default Situation (as
hereinafter defined), and/or (ii) any Tenant's rights are conditioned upon the
absence of a Default Situation, then in each such instance, a Legal Event (as
hereinafter defined) and a Bankruptcy Event (as hereinafter defined) shall
also be considered a Default Situation upon which such Owner's rights or
Tenant's obligations arise or are applicable or such rights of Tenant are
conditioned, as the case may be.
B. As used herein, (i) the term "Legal Event" shall mean that at the
relevant point in time there shall be (x) a default by Tenant in the payment
of any Fixed Rent, any increases thereto, and any other additional rent or
other sums and charges then due Owner under this Lease, or in the performance
or observance of any of the non-monetary terms and conditions of this Lease on
Tenant's part to be observed and performed, and (y) a prohibition on Owner, by
virtue of Legal Requirements similar to or in the nature of the "automatic
stay" provisions which are applicable to a Bankruptcy Event, which either
prevents Owner from delivering a notice to Tenant demanding Tenant's
performance under this Lease or prevents Owner from delivering a notice to
Tenant stating that Tenant is in default of its obligations under this Lease,
(ii) the term "Bankruptcy Event" shall mean that at the relevant point in time
Tenant shall be voluntarily seeking or involuntarily being required to seek
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal
bankruptcy act or law or any other present or future applicable federal, state
or other statute, and (iii) the term "Default Situation" shall mean (xx) an
Event of Default (whether expressed as an Event of Default or as a default by
Tenant under any of the terms, covenants or conditions of this Lease on
Tenant's part to be observed or performed beyond the expiration of the
applicable notice and grace period) and/or (yy) a default by Tenant under any
of the terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed. The foregoing notwithstanding neither the occurrence of
a Legal Event nor the occurrence of a Bankruptcy Event shall, in and of
itself, entitle Owner to deliver a termination notice terminating this Lease
pursuant to the terms and conditions of Section 16.01 of this Lease, unless
Owner shall be entitled under Section 16.01 of this Lease (as opposed to under
this Section 31.06) to deliver such notice.
Section 31.07. Authority of Managing Agent: A. Unless Owner shall render
written notice to Tenant to the contrary in accordance with the provisions of
Article 27 hereof, Xxxxx Management Company, Inc., acting as the agent of
Owner shall have the following authority:
(i) Xxxxx Management Company, Inc., by anyone holding one of the
"Specified Offices of Xxxxx Management Company, Inc."(as defined herein) is
authorized on behalf of and as the agent of Owner to (x) execute and deliver
any and all lease documents affecting the Real Property, including without
limitation, all leases, licenses, lease and license modification agreements,
amendments, consents, termination agreements, surrender agreements,
stipulations and other like agreements and instruments regarding the use or
occupancy of the Real Property (collectively, the "Lease Documents") and (y)
commence and prosecute to completion, disposition or settlement any and all
actions, causes of actions, claims or proceedings necessary to enforce the
terms and provisions of any Lease Documents, including, without limitation,
the execution of all pleadings, petitions and instruments in connection
therewith (an "Enforcement Prosecution"); and
(ii) Xxxxx Management Company, Inc., by any officer thereof, is
authorized on behalf of and as the agent of Owner to execute and deliver all
notices (including, without limitation, commencement date notices, notices of
default, notices of event of default and notices of termination) contemplated
by this Lease or any other Lease Documents or in connection with any of the
respective rights or obligations of the parties hereunder (collectively, the
"Notices").
Any Lease Documents and Notices so executed by Xxxxx Management Company, Inc.,
in accordance with the foregoing provisions of this Section 31.07, or any such
Enforcement Prosecution so conducted by Xxxxx Management Company, Inc. in
accordance with the foregoing sentence, shall have the same force, effect and
authority as if executed or conducted by Owner. Tenant acknowledges that Xxxxx
Management Company, Inc. is acting solely as agent for Owner in connection
with the foregoing and neither Xxxxx Management Company, Inc., nor any of its
direct or indirect principals, officers, shareholders, directors or employees
shall have any liability to Tenant, or any person or entities acting or
claiming through or under Tenant, in connection with the performance of
Owner's obligations under this Lease and Tenant, and such person or entity,
waive any and all claims against any such parties arising out of, or in any
way connected with, this Lease, the Real Property, any Lease Documents, any
Enforcement Prosecution or any Notices.
B. The term 'specified Offices of Xxxxx Management Company, Inc." shall
mean any of the following: (a) President, (b) Chief Executive Officer; (c)
Executive Vice President; (d) Chief Operating Officer; (e) Chief Financial
Officer; (f) Secretary; and (g) General Counsel.
C. All persons or entities to whom are delivered any such Lease Documents
so executed by Xxxxx Management Company, Inc., or whom are subject to such
Enforcement Prosecution by Xxxxx Management Company, Inc., in either case, by
anyone holding one of the Specified Offices of Xxxxx Management Company, Inc.
shall be entitled to rely on such Lease Documents as if such Lease Documents
were executed by Owner or to recognize such Enforcement Prosecution as
conducted directly by Owner. All persons or entities to whom any Notices so
executed by Xxxxx Management Company, Inc, by an officer thereof, shall be
entitled to rely on such Notices as if the same were executed by Owner.
Section 31.08 Execution Counterparts: This Agreement may be executed in
one (1) or more multiple counterparts, each of which when taken together shall
constitute one and the same instrument.
ARTICLE 32
ADJACENT EXCAVATION
Section 32.01. If an excavation shall be made upon land adjacent to the
Real Property, or shall be authorized to be made, Tenant shall afford to the
person causing or authorized to cause such excavation license to enter upon
the Demised Premises for the purpose of doing such work as said person shall
deem necessary to preserve the walls and other portions of the Building from
injury or damage and to support the same by proper foundations and no such
entry shall constitute an actual or constructive eviction, in whole or in
part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Owner or said person.
ARTICLE 33
BUILDING RULES
Section 33.01. Tenant shall observe faithfully, and comply strictly with,
and shall not permit the violation of, the Building Rules set forth in
Schedule A annexed to and made a part of this Lease and such additional
reasonable Building Rules as Owner may, from time to time, adopt. All of the
terms, covenants and conditions of Schedule A are incorporated in this Lease
by reference and shall be deemed part of this Lease as though fully set forth
in the body of this Lease. The term "Building Rules" as used in this Lease
shall include those set forth in Schedule A and those hereafter made or
adopted as provided in this Section. In case Tenant disputes the
reasonableness of any additional Building Rule hereafter adopted by Owner, the
parties hereto agree to submit the question of the reasonableness of such
Building Rule for decision to the Chairman of the Board of Directors of the
Management Division of the Real Estate Board of New York, Inc., or its
successor (the "Chairman"), or to such impartial person or persons as the
Chairman may designate, whose determination shall be final and conclusive upon
Owner and Tenant. Tenant's right to dispute the reasonableness of any
additional Building Rule shall be deemed waived unless asserted by service of
a notice upon Owner within thirty (30) days after the date upon which Owner
shall give notice to Tenant of the adoption of any such additional Building
Rule. Owner shall have no duty or obligation to enforce any Building Rule, or
any term, covenant or condition of any other lease, against any other tenant
or occupant of the Building, and Owner's failure or refusal to enforce any
Building Rule or any term, covenant or condition of any other lease against
any other tenant or occupant of the Building shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under
this Lease, or impose any liability upon Owner or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise.
ARTICLE 34
BROKER
Section 34.01. Tenant represents and warrants to Owner that Bloom Real
Estate Group LLC is the sole broker with whom Tenant has negotiated or
otherwise dealt with in connection with the Demised Premises or in bringing
about this Lease. Tenant shall indemnify Owner from all loss, cost, liability,
damage and expenses, including, but not limited to, reasonable counsel fees
and disbursements, arising from any breach of the foregoing representation and
warranty.
ARTICLE 35
SECURITY
Section 35.01. Letter of Credit: (1) Tenant has deposited with Owner, at
the time of the execution and delivery of this Lease, an unconditional,
irrevocable letter of credit issued by a bank reasonably acceptable to Owner
(referred to as the "Bank"), in favor of Owner, in the sum of ONE HUNDRED
SEVENTY-ONE THOUSAND NINE HUNDRED FORTY-FIVE and 00/100 ($171,945.00) DOLLARS
(referred to as the "Security Amount") in funds available immediately or same
day funds in the City of New York, as security for the faithful observance and
performance by Tenant of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed. Such letter of credit is (x) for a
term of not less than one (1) year which term shall be automatically renewed
for successive one (1) year terms, unless the Bank gives not less than ninety
(90) days prior written notice that it will not so renew the letter of credit
for such successive term and the last term of the letter of credit shall end
not less than sixty (60) days after the Expiration Date and (y) in
substantially the same form as Exhibit 2 or in a form reasonably acceptable to
Owner, provided the same shall satisfy the requirements of this Article 35. If
such letter of credit is not automatically renewed as aforesaid, Tenant agrees
to cause the Bank to renew such letter of credit, from time to time, during
the Demised Term, at least sixty (60) days prior to the expiration of said
letter of credit or any renewal or replacement, upon the same terms and
conditions. In the event of any transfer of said letter of credit pursuant to
Section 35.05, and notice of such transfer to Tenant, Tenant, within thirty
(30) days thereafter, shall cause a new letter of credit or an amendment to
the existing letter of credit to be issued by said Bank to the transferee,
upon the same terms and conditions, in replacement of, or amending, the letter
of credit so transferred and Owner agrees that, in the event a new letter of
credit is so issued, simultaneously with the delivery of such new letter of
credit, it will return to said Bank the letter of credit being replaced. The
letter of credit deposited hereunder, and all renewals and replacements, are
referred to, collectively, as the "Letter of Credit". In amplification and not
in limitation of the foregoing, the Letter of Credit shall expressly provide
that (i) the Letter of Credit can be drawn down by presentation of a sight
draft only without any other documents or statements, (ii) partial drawings
are allowed and (iii) the Letter of Credit shall be transferable by Owner, as
beneficiary thereof, without restriction or limitation and with all fees paid
by Tenant.
(2) The Letter of Credit shall be held by Owner for the purposes set
forth in this Article and shall not be transferred except for transfer (a) to
an agent for collection, or (b) pursuant to the provisions of Section 35.05.
In the event Tenant defaults in the performance of its obligations to timely
issue a replacement Letter of Credit, or in the observance or performance of
Tenant's agreement to cause the Bank to renew the Letter of Credit, Owner, in
addition to all rights and remedies which Owner may have under this Lease or
at law, shall have the right to require the Bank to make payment to Owner of
the entire Security Amount or the undrawn portion thereof, as the case may be,
represented by the Letter of Credit, which sum may be held by Owner as Cash
Security (as said term is hereinafter defined) in accordance with the
provisions of this Article. If payment of the entire Security Amount or the
undrawn portion thereof is made to Owner by reason of Tenant's failure to
renew or replace the Letter of Credit in accordance with the foregoing
provisions of this Article, Owner shall have the right, at any time on behalf
of Tenant, to replace said Cash Security with a new Letter of Credit issued by
the Bank or any other bank selected by Owner, in Owner's sole discretion, and
Tenant hereby irrevocably constitutes and appoints Owner as Tenant's agent and
attorney-in-fact to cause the Bank or any such other bank selected by Owner to
issue such a replacement Letter of Credit. The Letter of Credit provides for
partial drawings.
(3) Upon the occurrence of an Event of Default, or if this Lease and the
Demised Term shall expire and come to an end as provided in Article 16 or by
or under any summary proceeding or any other action or proceeding, or if Owner
shall re-enter the Demised Premises as provided in Article 17, or by or under
any summary proceeding or any other action or proceeding, then Owner, in
addition to all rights and remedies which Owner may have under this Lease or
at law, may from time to time, draw on the Letter of Credit in one or more
drawings for the amount of any Fixed Rent or additional rent then due and for
any amount then due and payable to Owner under this Lease and pay such sum to
Owner's account. In the event of a partial drawing, as provided in the
immediately preceding sentence, Tenant shall, within five (5) days after
demand, cause the Bank to issue an amendment to the Letter of Credit restoring
the amount available thereunder to the Security Amount. In amplification and
not in limitation of the provisions of this Lease, a failure by Tenant to
cause the Bank to timely issue an amendment to the Letter of Credit restoring
the amount available thereunder to the Security Amount shall be deemed a
monetary default in the payment of Fixed Rent by Tenant under the terms,
covenants and conditions of this Lease. Notwithstanding anything to the
contrary set forth in this Lease, including, but not limited to, the foregoing
provisions of this Article, in addition to all rights granted to Owner
pursuant to the provisions of the Lease, if this Lease and the Demised Term
shall expire and come to an end as provided in Article 16, or by or under any
summary proceeding, or any other action or proceeding, or if Owner shall re-
enter the Demised Premises as provided in Article 17, or by or under any
summary proceeding or any other action or proceeding, Owner, in addition to
all rights and remedies which Owner may have under this Lease or at law, shall
have the right to require the Bank to make payment to Owner of the entire
Security Amount or the undrawn portion thereof, as the case may be,
represented by the Letter of Credit, which sum shall be held and applied by
Owner as Cash Security in accordance with the provisions of this Article.
Section 35.02. Application of Cash Security: Any proceeds of the Letter
of Credit held by Owner and not paid to Owner for Owner's account as provided
above shall be deemed held by Owner as Cash Security and is referred to herein
as "Cash Security". Upon the occurrence of an Event of Default, Owner may use,
apply or retain the whole or any part of any Cash Security held by Owner under
any of the provisions of Section 35.01, to the extent required for the payment
of any Fixed Rent, additional rent or any other sum with respect to which
Tenant is in default, or for the payment of any sum which Owner may expend or
incur because of Tenant's default in the observance or performance of any such
term, covenant or condition, including, but not limited to, the payment of any
damages or deficiency in the reletting of the Demised Premises, whether such
damage or deficiency accrued before or after summary proceedings or other re-
entry by Owner, without thereby waiving any other rights or remedies of Owner
with respect to such default, and Owner shall hold the remainder of such Cash
Security as security for the faithful performance and observance by Tenant of
the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed with the same rights as hereinabove set forth to use,
apply or retain all or any part of such remainder in the event of any further
default by Tenant under this Lease. Any sum held by Owner as Cash Security
shall be held subject to the provisions of Section 7- 103 of the General
Obligations Law or any similar statute successor thereto.
Section 35.03. Restoration of Cash Security: If Owner uses, applies or
retains the whole or any part of the Cash Security held by Owner under any of
the provisions of Section 35.01 or 35.02, Tenant, within five (5) days after
notice thereof, shall deliver to Owner, in cash or by a cashier's check, or
Tenant's certified check, in either case drawn by or on a bank which is a
member of the New York Clearing House Association and payable to the order of
Owner, the sum necessary to restore the Cash Security to the Security Amount.
In amplification and not in limitation of the provisions of this Lease, a
failure by Tenant to so replenish the Cash Security to the Security Amount
shall be deemed a monetary default by Tenant in the payment of Fixed Rent
under the terms, covenants and conditions of this Lease.
Section 35.04. Return of Security: The Letter of Credit and/or any
remaining portion of any Cash Security then held by Owner for the performance
of Tenant's obligations under this Lease as security shall be returned to
Tenant reasonably promptly after (i) the Expiration Date and (ii) the full
observance and performance by Tenant of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed,
including, but not limited to, the provisions of Article 21.
Section 35.05. Transfer of Letter of Credit: In the event of a sale or
other transfer of the Land and/or Building, or Owner's interest in this Lease,
Owner shall transfer the Letter of Credit and/or any remaining portion of any
Cash Security then held by Owner as security for the performance of Tenant's
obligations under this Lease to the transferee, and Owner shall thereupon be
released from all liability for the return of such security; Tenant agrees to
look solely to the transferee for the return of any such security and it is
agreed that the provisions of this sentence shall apply to every sale or
transfer of the Land and/or Building or Owner's interest in this Lease by
Owner named herein or its successors, and to every transfer or assignment made
of any such security. Any transferee shall be deemed to have agreed that any
Letter of Credit or Cash Security transferred to such transferee pursuant to
this Section shall be held in accordance with the provisions of this Article
for the purposes of this Article. A lease of the entire Building pursuant to
which the lessee shall be entitled to collect the rents hereunder shall be
deemed a transfer within the meaning of this Section.
Section 35.06. Deposit of Cash Security in Interest-Bearing Account:
Subject to Owner's right to replace the Cash Security with a new Letter of
Credit in accordance with the provisions of Section 35.01, Owner agrees that,
if not prohibited by law or the general policies of lending institutions in
New York City, Owner shall deposit any Cash Security held by Owner in an
interest-bearing savings account at a bank or banks selected by Owner, and all
interest accruing thereon shall be added to and become part of such Cash
Security and shall be retained by Owner under the same conditions as the
principal sum held as Cash Security. Notwithstanding anything to the contrary
set forth in this Article with respect to any Cash Security, Owner shall be
entitled to retain the one (1%) percent administrative fee permitted by law to
be retained by landlords with respect to cash security deposits.
Section 35.07. No Assignment of Security by Tenant: Tenant agrees that it
will not assign, mortgage or encumber, or attempt to assign, mortgage or
encumber, the Letter of Credit or any Cash Security held by Owner under this
Lease, and that neither Owner nor its successors or assigns shall be bound by
any such assignment, mortgage, encumbrance, attempted assignment, attempted
mortgage or attempted encumbrance. Owner shall not be required to exhaust its
remedies against Tenant before having recourse to the Letter of Credit, the
Cash Security or any other security held by Owner. Recourse by Owner to the
Letter of Credit, the Cash Security or any other security held by Owner shall
not affect any remedies of Owner which are provided in this Lease or which are
available in law or equity.
Section 35.08. Partial Return of Security:
A. Owner has agreed that Owner shall return to Tenant the sum of (i)
FORTY-TWO THOUSAND NINE HUNDRED EIGHTY-SIX and 25/100 ($42,986.25) DOLLARS of
such security reasonably promptly following the first (1st) anniversary of the
first date of the Second Rent Period; (ii) FORTY-TWO THOUSAND NINE HUNDRED
EIGHTY-SIX and 25/100 ($42,986.25) DOLLARS of such security reasonably
promptly following the second (2nd) anniversary of the first date of the
Second Rent Period; and (ii) TWENTY-EIGHT THOUSAND SIX HUNDRED FIFTY-SEVEN and
50/100 ($28,657.50) DOLLARS reasonably promptly following the third (3rd)
anniversary of the first day of the Second Rent Period (each such amount to be
returned by Owner, referred to as a "Reduction Amount" and each such date upon
which such return shall occur, referred to as a "Partial Return Date"),
provided Tenant is not then in default under any of the terms, covenants or
conditions of this Lease on Tenant's part to be observed and performed.
Accordingly, if on the applicable Partial Return Date Tenant shall not so be
in default, Tenant may replace the Letter of Credit with a Letter of Credit in
a sum reduced by the applicable Reduction Amount. In the event that at any
time Tenant shall be entitled to reduce such Letter of Credit as provided in
the foregoing provisions of this Article the security shall be held as Cash
Security then, in lieu of Tenant replacing any such Letter of Credit, Owner
shall return sums to Tenant equal to the amount by which the Letter of Credit
would have been reduced if it were in existence; however, in no event shall
the Letter of Credit or Cash Security ever be reduced below the sum of FIFTY-
SEVEN THOUSAND THREE HUNDRED FIFTEEN and 00/100 ($57,315.00) DOLLARS. The sum
of ONE HUNDRED SEVENTY-ONE THOUSAND NINE HUNDRED FORTY-FIVE and 00/100
($171,945.00) DOLLARS referred to in the previous Sections of this Article
shall be deemed reduced as the provisions of this Section 35.08 shall operate
to so reduce the Letter of Credit and/or Cash Security, as the case may be
B. Owner has agreed that Tenant shall have the right, following the
second (2nd) anniversary of the first day of the Second Rent Period, to
deliver to Owner a reasonably detailed statement of the then current financial
condition of Tenant, prepared in accordance with generally accepted accounting
principles applied on a consistent basis, sworn to by an executive officer or
principal or partner of Tenant, and certified without qualification by a firm
of reputable independent certified public accountants. If, following Owner's
review of such financial statements, Owner reasonably determines that a
reduction in the Letter of Credit in addition to the reductions contemplated
under Subsection A of this Section 35.08 is acceptable, and provided Tenant is
not then in default under any of the terms, covenants or conditions of this
Lease on Tenant's part to be observed and performed and provided Tenant has
not defaulted in its obligation to pay Fixed Rent pursuant to Section 16.01(a)
at any time during the Demised Term, then Owner shall advise Tenant of the
amount by which Tenant shall be allowed to so further reduce such Letter of
Credit. In the event that at such time the security shall be held as Cash
Security then, in lieu of Tenant replacing any such Letter of Credit, Owner
shall return sums to Tenant equal to the amount by which the Letter of Credit
would have been reduced if it were in existence.
Section 35.09. Limited Guaranty: Tenant has caused Xxx Xxxxx to deliver
to Owner a certain guaranty together with this Lease.
ARTICLE 36
ARBITRATION, ETC.
Section 36.01. Any dispute with respect to the reasonability of any
failure or refusal of Owner to grant its consent or approval to any request
for such consent or approval pursuant to the provisions of Sections 3.01 or
11.03 with respect to which request Owner has agreed, in such Sections, not
unreasonably to withhold such consent or approval, which is submitted to
arbitration shall be finally determined by arbitration in the City of New York
in accordance with the rules and regulations then obtaining of the American
Arbitration Association or its successor. Any such determination shall be
final and binding upon the parties, whether or not a judgment shall be entered
in any court. In making their determination, the arbitrators shall not
subtract from, add to, or otherwise modify any of the provisions of this
Lease. Owner and Tenant may, at their own expense, be represented by counsel
and employ expert witnesses in any such arbitration. Any dispute with respect
to the reasonability of any failure or refusal of Owner to grant its consent
or approval to any request for such consent or approval pursuant to any of the
provisions of this Lease (other than Sections 3.01 and 11.03) with respect to
which Owner has covenanted not unreasonably to withhold such consent or
approval, and any dispute arising with respect to the increases in Fixed Rent
due to the provisions of Section 23.02 shall be determined by applicable legal
proceedings. If the determination of any such legal proceedings, or of any
arbitration held pursuant to the provisions of this Section with respect to
disputes arising under Sections 3.01 and 11.03, shall be adverse to Owner,
Owner shall be deemed to have granted the requested consent or approval, or be
bound by any determination as to the increases in Fixed Rent pursuant to
Section 23.02, but that shall be Tenant's sole remedy in such event and Owner
shall not be liable to Tenant for a breach of Owner's covenant not
unreasonably to withhold such consent or approval, or otherwise. Each party
shall pay its own counsel and expert witness fees and expenses, if any, in
connection with any arbitration held pursuant to the provisions of this
Section and the parties will equitably share all other expenses and fees of
any such arbitration.
ARTICLE 37
PARTIES BOUND
Section 37.01. The terms, covenants and conditions contained in this
Lease shall bind and inure to the benefit of Owner and Tenant and, except as
otherwise provided in this Lease, their respective heirs, distributees,
executors, administrators, successors and assigns. However, the obligations of
Owner under this Lease shall no longer be binding upon Owner named herein
after the sale, assignment or transfer by Owner named herein (or upon any
subsequent Owner after the sale, assignment or transfer by such subsequent
Owner) of its interest in the Building as owner or lessee, and in the event of
any such sale, assignment or transfer, such obligations shall thereafter be
binding upon the grantee, assignee or other transferee of such interest, and
any such grantee, assignee or transferee, by accepting such interest, shall be
deemed to have assumed such obligations. A lease of the entire Building shall
be deemed a transfer within the meaning of the foregoing sentence. Neither the
partners (direct or indirect) comprising Owner, nor the shareholders (nor any
of the partners comprising same), partners, directors or officers of any of
the foregoing (collectively, the "Owner's Parties") shall be liable for the
performance of Owner's obligations under this Lease. Tenant shall look solely
to Owner to enforce Owner's obligations hereunder and shall not seek any
damages against any of the Owner's Parties. Notwithstanding anything contained
in this Lease to the contrary, Tenant shall look solely to the estate and
interest of Owner, its successors and assigns, in the Real Property and
Building for the collection or satisfaction of any judgment recovered against
Owner based upon the breach by Owner of any of the terms, conditions or
covenants of this Lease on the part of Owner to be performed, and no other
property or assets of Owner or any of Owner's Parties shall be subject to
levy, execution or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to either this Lease, the relationship
of landlord and tenant hereunder, or Tenant's use and occupancy of the Demised
Premises.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed
this Lease as of the day and year first above written.
OWNER:
FIRST LEXINGTON CORPORATION
By: Xxxxx Management Co., Inc., as Agent
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: EOP and COO
TENANT:
BION ENVIRONMENTAL
TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
State of New York )
:ss.:
County of ______ )
On the ______ day of ________, in the year _____, before me, the
undersigned, personally appeared __________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s)
whose name(s) is (are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), and that
by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.
_________________________________________
Signature and Office of individual taking
acknowledgment)
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Outside of New York State)
State, District of Columbia, Territory,
Possession or Foreign Country
___________________):ss.:
On the ___ day of ____________ in the year ____, before me, the
undersigned, personally appeared __________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s)
whose name(s) is (are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and
that such individual made such appearance before the undersigned in the
__________. (Insert the city or other political subdivision and the state or
country or other place the acknowledgment was taken.)
__________________________________________
(Signature and office of individual taking
acknowledgment)
SCHEDULE A
BUILDING RULES
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from
the premises demised to any tenant or occupant. Any tenant whose premises are
situate on the ground floor of the Building shall, at said Tenant's own
expense, keep the sidewalks and curb directly in front of said premises clean
and free from ice and snow.
2. No awnings or other projections shall be attached to the outside walls
or windows of the Building without the prior consent of Owner. No curtains,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of the premises demised to any tenant or
occupant, without the prior consent of Owner. Such awnings, projections,
curtains, blinds, shades, screens or other fixtures must be of a quality,
type, design and color, and attached in a manner, approved by Owner.
3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or inside
of the premises demised to any tenant or occupant or of the Building without
the prior consent of Owner. Interior signs on doors and directory tablets, if
any, shall be of a size, color and style approved by Owner.
4. 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, nor shall any bottles, parcels,
or other articles be placed on any window xxxxx.
5. 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,
vestibules or other public parts of the Building.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. No
tenant shall bring or keep, or permit to be brought or kept, any inflammable,
combustible or explosive fluid, material, chemical or substance in or about
the premises demised to such tenant.
7. No tenant or occupant shall xxxx, paint, drill into, or in any way
deface any part of the Building or the premises demised to such tenant or
occupant. No boring, cutting or stringing of wires shall be permitted, except
with the prior consent of Owner, and as Owner may direct. No tenant or
occupant shall install any resilient tile or similar floor covering in the
premises demised to such tenant or occupant except in a manner approved by
Owner.
8. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the premises demised to any tenant. No cooking shall be done
or permitted in the Building by any tenant without the approval of Owner. No
tenant shall cause or permit any unusual or objectionable odors to emanate
from the premises demised to such tenant.
9. No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or property of
any kind at auction.
10. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
or neighboring buildings or premises whether by the use of any musical
instrument, radio, television set or other audio device, unmusical noise,
whistling, singing, or in any other way. Nothing shall be thrown out of any
doors or windows.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows, nor shall any changes be made in locks or the mechanism
thereof. Each tenant must, upon the termination of its tenancy, restore to
Owner all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such tenant.
12. All removals from the Building, or the carrying in or out of the
Building or the premises demised to any tenant, of any safes, freight,
furniture or bulky matter of any description must take place at such time and
in such manner as Owner or its agents may determine, from time to time. Owner
reserves the right to inspect all freight to be brought into the Building and
to exclude from the Building all freight which violates any of the Building
Rules or the provisions of such Tenant's lease.
13. No tenant shall use or occupy, or permit any portion of the premises
demised to such tenant to be used or occupied, as an office for a public
stenographer or typist, or as a xxxxxx or manicure shop, or as an employment
bureau. No tenant or occupant shall engage or pay any employees in the
Building, except those actually working for such tenant or occupant in the
Building, nor advertise for laborers, giving an address at the Building.
14. No tenant or occupant shall purchase spring water, ice, food,
beverage, lighting maintenance, cleaning, towels, or other like service, from
any company or persons not approved by Owner, such approval not unreasonably
to be withheld.
15. Owner shall have the right to prohibit any advertising by any tenant
or occupant which, in Owner's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon notice from
Owner, such tenant or occupant shall refrain from or discontinue such
advertising.
16. Owner reserves the right to exclude from the Building, between the
hours of 6 P.M. and 8 A.M. on business days and at all hours on Saturdays,
Sundays and holidays, all persons who do not present a pass to the Building
signed by Owner. Owner will furnish passes to persons for whom any tenant
requests such passes. Each tenant shall be responsible for all persons for
whom it requests such passes and shall be liable to Owner for all acts of such
persons.
17. Each tenant, before closing and leaving the premises demised to such
tenant at any time, shall see that all entrance doors are locked and all
windows closed.
18. Each tenant shall, at its expense, provide artificial light in the
premises demised to such tenant for Owner's agents, contractors and employees
while performing janitorial or other cleaning services and making repairs or
alterations in said premises.
19. No premises shall be used, or permitted to be used, for lodging or
sleeping or for any immoral or illegal purpose.
20. The requirements of tenants will be attended to only upon application
at the office of Owner. Building employees shall not be required to perform,
and shall not be requested by any tenant or occupant to perform, any work
outside of their regular duties, unless under specific instructions from the
office of Owner.
21. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate in seeking their prevention.
22. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt of
merchandise, freight or other matter, any hand trucks or other means of
conveyance except those equipped with rubber tires, rubber side guards and
such other safeguards as Owner may require.
23. If the premises demised to any tenant become infested with vermin,
such tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Owner, and shall
employ such exterminators therefor as shall be approved by Owner.
24. No premises shall be used, or permitted to be used, at any time, as a
store for the sale or display of goods, wares or merchandise of any kind, or
as a restaurant, shop, booth, bootblack or other stand, or for the conduct of
any business or occupation which predominantly involves direct patronage of
the general public in the premises demised to such tenant, or for
manufacturing or for other similar purposes.
25. No tenant shall clean, or permit to be cleaned, any window of the
Building from the outside in violation of Section 202 of the New York Labor
Law or any successor law or statute, or of the rules of the Board of Standards
and Appeals or of any board or body having or asserting jurisdiction.
26. No tenant shall move, or permit to be moved, into or out of the
Building or the premises demised to such tenant, any heavy or bulky matter,
without the specific approval of Owner. If any such matter requires special
handling, only a person holding a Master Rigger's license shall be employed to
perform such special handling. No tenant shall place, or permit to be placed,
on any part of the floor or floors of the premises demised to such tenant, a
load exceeding the floor load per square foot which such floor was designed to
carry and which is allowed by law. Owner reserves the right to prescribe the
weight and position of safes and other heavy matter, which must be placed so
as to distribute the weight.
EXHIBIT 2
Form of Letter of Credit
[BANK LETTERHEAD]
[CLIENT]
c/o Rudin Management Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
RE: Irrevocable Letter of Credit No. ________________________________
Gentlemen:
BY ORDER OF OUR CLIENT, ____________________, WE HEREBY OPEN OUR IRREVOCABLE
LETTER OF CREDIT NO. ______________________ IN YOUR FAVOR FOR AN AMOUNT NOT TO
EXCEED IN THE AGGREGATE ______________DOLLARS, EFFECTIVE IMMEDIATELY AND
EXPIRING AT OUR [INSERT: ADDRESS] OFFICE, WITH OUR CLOSE OF BUSINESS ON
[INSERT: DATE ONE YEAR FROM DATE OF ISSUANCE].
FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR CLEAN
SIGHT DRAFT ON US MENTIONING THEREON OUR CREDIT NO. ___________________. NO
DOCUMENTS REQUIRED.
IF WE RECEIVE YOUR DRAFT AS MENTIONED ABOVE HERE AT OUR [INSERT: BANK STREET
ADDRESS] OFFICE, PRIOR TO OUR CLOSE OF BUSINESS ON [INSERT: DATE ONE (1) YEAR
FROM DATE OF ISSUANCE], AS SUCH DATE SHALL BE EXTENDED BY RENEWAL(S) OF THE
TERM OF THIS LETTER OF CREDIT, WE WILL PROMPTLY HONOR SAME. PARTIAL DRAWINGS
ARE PERMITTED.
THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY RENEWED FROM YEAR TO YEAR UNTIL
THE EARLIER OF (X) [INSERT: DATE WHICH IS NOT LESS THAN 60 DAYS FOLLOWING THE
EXPECTED EXPIRATION DATE OF THE LEASE] OR (Y) TERMINATION BY THE UNDERSIGNED
BY NOTICE TO YOU (AND AT YOUR OPTION, NOTICE TO AN ADDITIONAL PARTY DESIGNATED
BY YOU) OF NOT LESS THAN ONE HUNDRED TWENTY (120) DAYS PRIOR TO THE THEN
EXPIRATION DATE OF THIS LETTER OF CREDIT.
THIS LETTER OF CREDIT IS TRANSFERABLE MULTIPLE TIMES. ALL TRANSFER CHARGES ARE
FOR OUR CLIENT's ACCOUNT.
EXCEPT AS FAR AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS
SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993
REVISION) INTERNATIONAL CHAMBER OF COMMERCE PUBLICATIONS NO. 500.
[NAME OF BANK]
__________________________
AUTHORIZED SIGNATURE
