EXHIBIT 10.14
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MENDIK REAL ESTATE LIMITED PARTNERSHIP,
Landlord
and
ICON CAPITAL CORP.,
Tenant
STANDARD FORM LEASE
Dated July , 1992
INDEX
Page
Access................................................................ 12
Additional Rent....................................................... 3
Adjoining Building.................................................... 1
Air-Conditioning...................................................... 10
Antenna............................................................... 39
Assignment............................................................ 25
Attornment............................................................ 30
Base Rent............................................................. 13
Base Tax Year......................................................... 1
Base Year............................................................. 1
Brokerage............................................................. 31
Cafeteria............................................................. 37
Changes in the Building............................................... 12
Commencement Date..................................................... 16
Construction.......................................................... 36
Costs of Operation.................................................... 7
Continuation Term..................................................... 38
Curing Tenant's Defaults.............................................. 31
Damage and Destruction................................................ 18
Damages............................................................... 34
Default Provisions.................................................... 24
Definitions and Term.................................................. 1
Demise and Premises................................................... 3
Electrical Energy..................................................... 16
Electric Inclusion Charge............................................. 1
Eminent Domain........................................................ 17
Estoppel Certificate.................................................. 24
Events of Default..................................................... 24
Expiration Date....................................................... 1
Failure to Enforce Terms.............................................. 35
Guarantor............................................................. 2
Heat.................................................................. 10
Indemnification....................................................... 33
Insurance............................................................. 19
Interest Rate......................................................... 2
Landlord's Contribution............................................... 2
Laws and Requirements of Public Authorities........................... 11
Miscellaneous Provisions.............................................. 37
Modifications......................................................... 35
Mortgaging............................................................ 25
Name of Building...................................................... 10
No Other Representations.............................................. 36
Non-Liability......................................................... 33
Non-Recourse.......................................................... 33
Notices...............................................................30, 33
Other Tenants......................................................... 10
Preparing the Demised Premises........................................ 4
Quiet Enjoyment....................................................... 30
Ready for Occupancy................................................... 6
Real Estate Tax Changes............................................... 13
Recording............................................................. 24
Re-Entry by Landlord.................................................. 31
Rent.................................................................. 3
Rent Adjustments Based Upon Costs of Operation........................ 7
Rent Adjustments Based Upon Taxes..................................... 13
Repairs and Maintenance............................................... 17
Rules and Regulations................................................. 33
Security Deposit...................................................... 2, 28
Services - Landlord's................................................. 14
Shoring............................................................... 36
Storage Space......................................................... 38
Subletting............................................................ 25
Subordination......................................................... 30
Successors and Assigns................................................ 36
Surrender............................................................. 23
Tenant's Changes...................................................... 21
Tenant Identification................................................. 10
Tenant's Property..................................................... 23
Termination of Lease.................................................. 24
Terms and Definitions................................................. 1
Use................................................................... 10
Ventilating........................................................... 10
Waivers............................................................... 35
EXHIBITS
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EXHIBIT
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A - Floor Plan(s)
A-1 - Tenant's Plans
B - Building Standard Work/Work Charge
C - Rules and Regulations
D - General Cleaning Specifications
E - Parking Plan
STANDARD FORM
OF LEASE AGREEMENT
LEASE AGREEMENT, made as of the ____ day of July, 1992, between "Landlord"
(as hereinafter defined) and ICON CAPITAL CORP. (hereinafter called the
"Tenant"), a corporation organized under the laws of the State of New York
having its principal office at one Xxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000.
ARTICLE 1
Definitions and Certain Terms
1.01 The following terms shall have the meanings set forth opposite each of
them, provided that if "None" is set forth opposite any term then the provisions
of the Lease applicable to such term shall be considered deleted and of no force
and effect. Where alternative definitions are set forth, only the definition
following the marked set of parenthesis shall apply.
"Adjoining Building":
That building known as 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx.
"Base Rent":
(As adjusted in accordance with Articles 3, 6, 10, and 12 hereof):
- For the 1st Rent Year, $408,680.00, payable in monthly installments
of $34,056.67 per month;
- For the 2nd Rent Year, $420,700.00, payable in monthly installments
of $35,058.33;
- For the 3rd Rent Year, $438,730.00, payable in monthly installments
of $36,560.83;
- For each of the 4th and 5th Rent Years, $255,925.81. payable in
monthly Installments of $36,560.83 for each of the last 7 months, and no
monthly Installments of Base Rent shall be payable during each of the first
5 months;
- For the 6th Rent Year, $299,170.33, payable in monthly Installments
of $40,066.67 for each of the last 7 months, $18,703.64 for the fifth month
and no monthly installments of Base Rent shall be payable during each of
the first 4 months
- For each of the 7th and 8th Rent: Years, $480,800.00, payable in
monthly installments of $40,066.67 per month;
- For each of the 9th and 10th Rent Years, $504,840.00, payable in monthly
installments of $42,070.00 per month; and
- For each of the 11th and 12th Rent Years, $540,900.00, payable in
monthly installments of $45,075.00 per month.
"Base Tax Year":
July 1, 1992 through June 30, 1993.
"Base Year":
The period commencing on the Commencement Date and ending on the day
preceding the first anniversary thereof.
"Building"
The building erected at 000 Xxxxxxxxxx Xxxxxx, in the Town of
Harrison, in the County of Westchester, State of New York.
"Commencement Date":
The date on which the Demised Premises are ready for occupancy as
provided
in Article 5 hereof.
"Demised Premises":
That space on the fourth floor of the Building delineated on the floor
plan(s) attached hereto an Exhibit "A", the total area of which in the
Leased Floor Space.
"Electric Inclusion Charge":
None.
"Expiration Date":
The last day of the calendar month in which occurs the end of a 12
year period from the Commencement Date (if the Commencement Date shall
occur on a day other than the first day of a calendar month such period
shall run and be measured from the first day of the calendar month
following the Commencement Date) or ending on an earlier date on which this
Lease may expire or be cancelled or terminated pursuant to the terms of
this Lease.
"Guarantor":
None.
"Interest Rate":
The annual rate of interest equal to two (2) percentage points above
the interest rate then most recently announced by any of Citibank, N.A.,
The Chase Manhattan Bank, N.A. and Bankers Trust Company (to be chosen by
Landlord), or their successors, as their corporate base lending rate, which
rate may change from time to time during the Term, which rate shall be
deemed additional rent.
"Landlord":
MENDIK REAL ESTATE LIMITED PARTNERSHIP, a New York limited partnership
having an office c/o Mendik Realty Corp., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, of which the present general partners are Mendik Corporation,
having an office at the same address, and Xxxxxx Real Estate Services XV,
Inc., having an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Landlord's Contribution":
None.
"Leased Floor Space":
The total number of rentable square feet of space in the Demised
Premises, which Landlord represents has been computed in accordance with
accepted measurement standards and which, for purposes of this Lease, the
parties agree and stipulate is 24,040 square feet.
"Leasing Broker":
Xxxxxxxxxx-Xxxxx Company, Inc.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
"Parking Spaces":
Approximately 848 parking spaces located in the Building parking lot
for use in common by all tenants of the Building and the Adjoining
Building.
"Permitted Use":
Insofar as the Leased Floor space is concerned, only as executive and
administrative offices; and insofar as the Storage Space is concerned, as
storage space for Tenant's files and equipment as permitted by applicable
law.
"Prepayment":
$34,056.67 to be applied toward the first full monthly installment of
Base Rent.
"Proportionate Share":
20.18%, which is the percentage resulting from dividing the Leased
Floor Space by the Total Floor Space.
"Rent Year":
The period commencing on the first day of the Term and ending with the
day preceding the first anniversary of such first day, and each twelve-
month period thereafter measured from each anniversary date, except that if
the Period between the last such anniversary and the Expiration Date is
less than twelve months, then the last Rent Year shall be such lesser
period.
"Security Deposit":
$950,000.00 deposited pursuant to Article 23 hereof.
"Standard Business Hours":
8:30 a.m. to 5:30 p.m. on Mondays through Fridays, except the days
when the following six legal holidays are observed: New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas
Day.
"Term":
The period beginning on the Commencement Date and ending at noon on
the
Expiration Date.
"Total Floor Space":
The total number of square feet of space in the Building which
Landlord represents has been computed in accordance with accepted
measurement standards and which, for purposes of this Lease, the parties
agree and stipulate is 119,112 square feet.
"After Hours Heating Charge":
$150.00 per hour as provided in Section 7.01 hereof.
"After Hours Cooling Charge":
$175.00 per hour as provided in Section 7.01 hereof.
"After Hours Ventilating Charge":
$100.00 per hour as provided in Section 7.01 hereof.
1.02 Electrical energy consumed by Tenant In the Demised Premises shall be
( ) at the "Electric Inclusion Charge" as defined in, and as provided under,
Section 12-04 hereof, or ( ) measured by a sub-meter, furnished and Installed
at Tenant's cost and expense. and as otherwise provided in Section 12.05 hereof,
or ( X ) separately metered at Landlord's cost and expense pursuant to Section
12.06, and purchased by Tenant from the utility supplying electricity to the
Building.
1.03 Intentionally omitted.
1.04 "Tenant's Plans" (as defined in Section 4.01A) and engineering plans
and drawings shall be prepared by ( X ) Tenant or ( ) Landlord; and the
cost thereof shall be borne ( ) all by Tenant, or ( X ) all by Landlord, or (
) by Landlord to the extent of $_________ per square foot of Leased Floor Space
and the balance by Tenant.
ARTICLE 2
Demise and Premises
2.01 The general location, size and layout of the Demised Premises are
outlined on Exhibit "A", but Exhibit "A" shall not be deemed to be a warranty,
representation or agreement on the part of Landlord that the Demised Premises
and the Building will be exactly as indicated an Exhibit "A".
2.02 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises for the Term, for the rents hereinafter reserved
and upon and subject to the conditions (including limitations, restrictions, and
reservations) and covenants hereinafter provided. Each party hereto agrees to
observe and perform all of the conditions and covenants herein contained on its
part to be observed and performed.
2.03 Nothing herein contained shall be construed as a grant or demise by
Landlord to Tenant of the roof or exterior walls of the Building, of the space
between the ceiling or drop ceiling and the floor or roof above (although Tenant
may use such space for wiring and cabling for Tenant's equipment so long an
Tenant complies with all applicable codes and such use does not interfere with
Landlord's use of such space), below the floor of the Demised Premises, of the
parcel of land on which the Demised Premises are located, and/or of any parking
or other areas adjacent to the Building.
ARTICLE 3
Base Rent and Additional Rent
3.01 Whenever used in this Lease, the term (insofar as it pertains to this
Lease) "fixed rent", "minimum rent", "base rent" or "basic rent", or any such
term using the word "rental", "rents" or "rentals" in lieu of "rent", shall mean
Base Rent; and whenever used in this Lease, the term (insofar as it pertains to
this Lease) "rent", "rentals", "Rent", or the plural of any of them, shall mean
Base Rent and additional rent.
3.02 Tenant shall pay to Landlord without notice or demand and without
abatement, deduction or set-off, in lawful money of the United States of
America, at the office of the Landlord as specified in Article 1 hereof or at
such other place as Landlord may designate, the Base Rent reserved under this
Lease for each Lease Year of the Term, payable in equal monthly installments in
advance on the first day of each and every calendar month during the Term; and
additional rent consisting of all such other sums of money as shall become due
from and payable by Tenant to Landlord hereunder (for default in payment of
which Landlord shall have the same remedies as for a default in payment of Base
Rent). If any check tendered by Tenant, for any payment due, shall be
dishonored by the payor bank, Tenant shall pay Landlord, without prejudice to
any of Landlord's rights and remedies, in compensation for the additional
administrative, bookkeeping and collection expenses incurred by reason of such
dishonored check, the sum of $100. If during any Rent Year two or more checks
tendered by Tenant, for any payment due, shall be dishonored by the payor bank,
all future payments of rent by Tenant shall be made by certified or official
bank checks drawn on banks having a banking office in Westchester County, or, if
Landlord requests, by Federal Reserve wired funds into Landlord's account.
3.03 Tenant shall pay the Base Rent and additional rent herein reserved
promptly as and when the same shall become due and payable under this Lease. If
the commencement of the first Rent Year shall occur on a day other than the
first day of a calendar month the Base Rent and additional rent shall be
prorated for the period from such commencement date to the last day of the said
calendar month and shall be due and payable on said commencement date.
Notwithstanding the provisions of the next preceding sentence, Tenant shall pay
on account toward the first full calendar monthly installment of Base Rent, on
the execution of this Lease, the repayment specified in Article 1 hereof.
3.04 If the Base Rent or any additional rent shall be or become
uncollectible, reduced or required to be refunded by virtue of any law,
governmental order or regulation, or direction of any public officer or body
pursuant to law, (of the nature of a rent freeze or rent restriction) Tenant
shall enter into such agreement(s) and take such other action (without
additional expense to Landlord) as Landlord may reasonably request, and as may
be legally permissible, to permit Landlord to collect the maximum Base Rent and
additional rent which may from time to time during the continuance of such legal
rent restriction be legally permissible, but not in excess of the amounts of
Base Rent or additional rent payable under this Lease. Upon the termination of
such rent restriction prior to the Expiration Date, (a) the Base Rent and
additional rent shall become and thereafter be payable under this Lease in the
amount of the Base Rent and additional rent set forth in this Lease for the
period following such termination, and (b) Tenant shall pay to
Landlord, to the maximum extent legally permissible, an amount equal to (1) the
Base Rent and additional rent which would have been payable pursuant to this
Lease, but for such legal rent restriction, less (2) the Base Rent and
additional rent paid by Tenant during the period that such legal rent
restriction was in effect.
3.05 If Tenant shall fail to pay when due any installment or payment of
Base Rent or additional rent (following 5 days notice of such failure from
Landlord to Tenant with respect to two of such failures in any Rent Year),
Tenant shall be required to pay a late charge of $.01 for each $1.00 which
remains so unpaid. Such charge shall be imposed only once insofar as any
specific installment or payment is concerned. Such late charge is intended to
compensate Landlord for additional expenses incurred by Landlord in processing
such late payments. Tenant agrees that the late charge imposed is fair and
reasonable, complies with all laws, regulations and statutes, and constitutes an
agreement between Landlord and Tenant as to the estimated compensation for costs
and administrative expenses incurred by Landlord due to the late payment of rent
to Landlord by Tenant. Tenant further agrees that the late charge assessed
pursuant to this Lease is not interest, and the late charge assessed does not
constitute a lender/borrower relationship between Landlord and Tenant. Nothing
herein shall be intended to violate any applicable law, code or regulation, and
in all instances all such charges shall be automatically reduced to any maximum
applicable legal rate or charge.
3.06 The receipt or acceptance by Landlord of Base Rent and/or additional
rent with knowledge of breach by Tenant of any term, agreement, covenant,
condition or obligation of this Lease shall not be deemed a waiver of such
breach.
3.07 No payment by Tenant or receipt by Landlord of a lesser amount than
the correct Base Rent or additional rent due hereunder shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be deemed to effect or
evidence an accord and satisfaction, unless waived in writing by Landlord, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
ARTICLE 4
Preparing the Demised Premises
4.01 A. Tenant's final working plans, specifications and drawings
covering all work to be performed in the Demised Premises ("Tenant's Plans") are
described on Exhibit A-1. Tenant's Plans shall be in compliance with all laws,
codes and regulations and shall be sufficient to obtain a building permit for
all work shown thereon. Landlord shall pay Xxxxxx Xxxxxx, Architects, for
preparation of Tenant's Plans and for preparation of any changes in Tenant's
Plans required to effect such compliance.
"Landlord's Work" shall mean upgrading of elevator cab consistent with
the re-
design of the Building and with a contemporary look, including, without
limitation, replacement of wall panels (of the same or similar materials but of
a different color to be selected by Landlord's architect) in elevator cabs and
compliance with the Americans for Disabilities Act insofar as areas of the "Real
Property" (as defined in Article 10) not leased to tenants are concerned.
"Tenant's Work" shall mean all work as shown an Tenant's Plans, as
well as (unless presently existing), the supply and installation of a direct
electric meter to measure consumption of electricity in the Demised Premises and
floor patching, where necessary for levelling, prior to installation of
carpeting, except that the following shall not be part of Tenant's Work:
personal property, furniture, work stations, trade fixtures and equipment, and
any work necessary for telephone, telecommunications and computer power
requirements, conduit, wire, outlets and systems (collectively sometimes called
"Excluded Tenant's Work").
Landlord approves Tenant's Plans, but no approval thereof shall be
deemed an agreement by Landlord that the work included therein is in compliance
with any legal requirements or is otherwise feasible or is the only work
necessary to use and occupy the Demised Premises and obtain a certificate of
occupancy therefor. Landlord shall not be required to commence any work until
Tenant's Plans have been received, receipted and approved as provided herein.
B. Landlord's work shall be performed and completed, at Landlord's
cost and expense, simultaneously with the performance of Tenant's Work.
4.02 A. Landlord shall perform Tenant's Work in a good and workmanlike
manner, at Landlord's cost and expense, to the extent of the quality and
quantity set forth in Exhibit A-1, except that labor and materials for the
following Tenant's work (sometimes called "Work Charge Tenant's Work") shall be
performed at the "Work Charge", as described in Paragraph IX of Exhibit B
attached hereto and made a part hereof: magnetic door openers/closers;
supplementary or auxiliary air-conditioning; sound baffling in more than 7
offices; all "millwork", which shall mean all wood walls, wood work in the
fourth floor lobby and all other wood work (including, without limitation, that
in the training center and conference room), if any, which, in accordance with
standard construction practice, must be custom-built or fabricated (as opposed
to purchased from ready-made stock), but specifically excluding laminated
countertops and laminated kitchen cabinets as shown on Tenant's Plans; and all
sconces (in excess of $125 per fixture) and all down lights (in excess of $100
per fixture). Also included within Work Charge Tenant's Work are installation
of all pantry appliances chosen by Tenant (towards which Landlord shall
contribute the lesser of the cost thereof and $3,500), and installation of the
security systems shown on Tenant's Plans in excess of four card readers; it is
understood that the first four card readers are part of Tenant's Work to be paid
for by Landlord.
B Within 30 days following the Commencement Date, Tenant shall pay
to Landlord $10,000 as partial reimbursement of Landlord's cost of performing
Tenant's Work. Unless otherwise specified on Exhibit A-1, work shall be deemed
"Building Standard" (which shall mean that quality and quantity of work set
forth in Paragraphs I through VIII of Exhibit B).
Work Charge Extra Work and work resulting from changes in Tenant's Plans shall
be performed at the "Work Charge".
C. Within 7 days of the "Execution Date" (as defined in Section
34.05), Landlord will order the following materials shown on Tenant's Plans:
wallcovering, carpeting, supplemental air-conditioning and marble, so long as
within that time Tenant has approved samples of such materials submitted by
Landlord and so long as such materials will not require substitution by
"Substitute Materials" (as defined in Section 4.07 hereof). As a covenant of
this Lease, Landlord shall, within 20 days of the Execution Date, (i) obtain
from the contractor or manufacturer confirmation of the approximate delivery
dates of the following items, as shown on Tenant's Plans: wallcovering,
carpeting, supplemental air-conditioning and marble, or (ii) if any such items
are unavailable or likely will result in a delay in the Demised Premises being
ready for occupancy, notify Landlord of Substitute Materials for such items.
4.03 Tenant shall be responsible for performing all Excluded Tenant's Work
required by Tenant. If Tenant requests, Landlord shall obtain estimates for
Tenant for Excluded Tenant's Work pursuant to details, requirements and from
parties requested of Landlord by Tenant. Notwithstanding the foregoing or any
contrary provision of this Lease, Landlord shall not be responsible for any
damages, or subject to any liability whatsoever, to Tenant or any other party
arising out of, as a consequence of, or related to the use or operation, manner
of installation or any Excluded Tenant's Work or the obtainment of any estimates
therefor in connection with the foregoing. If Tenant shall employ or use any
contractor or subcontractor other than Landlord in the performance of any work
in connection with Tenant's initial occupancy, all of Tenant's duties and
obligations set forth in Article 17 (relating to Tenant's duties and obligations
in making Tenant's Changes) shall be applicable to and binding upon Tenant with
respect to any such work except that Tenant shall not require Landlord's
approval for any work shown on Tenant's Plans. Such work by Tenant shall not
commence until 30 days prior to the Commencement Date. During the performance
by Tenant of any such work prior to it being ready for occupancy, Tenant and
Tenant's contractors shall not interfere with Landlord's contractors or with any
other tenant or its contractors and shall not cause any delays or labor
disputes; if Tenant does, immediately upon notice from Landlord or Landlord's
contractor Tenant shall cause such interference, delays and disputes to
terminate.
In addition to Tenant's contractors and subcontractors, Tenant's
employees (to the extent qualified and licensed, where required by applicable
laws or codes) may, in accordance with the foregoing paragraph, perform Excluded
Tenant's Work. In the event such employee performance shall cause any labor
disputes with Landlord's contractors, then Tenant shall immediately terminate
use of such employees and in lieu thereof use qualified contractors who will not
create such disputes, in which event, after prior notice to Landlord, Tenant
shall pay to Landlord $4.25 for each hour such qualified contractors devote to
completing such Excluded Tenant's Work, and Landlord shall pay the full costs to
such qualified contractors.
4.04 Landlord's agreement to do any work in the Demised Premises as set
forth herein shall not require it to incur overtime costs and expenses and shall
be subject to any delays due to acts of God, governmental restrictions or
guidelines, strikes, labor disturbances, shortages or
materials and supplies and for any other causes or events whatsoever beyond
Landlord's reasonable control ("Events of Force Majeure"). Landlord has made,
and makes, no representations as to the date when the Demised Premises will be
ready for Tenant's occupancy, and notwithstanding any date specified in Section
1.01 or elsewhere in this Lease as the Commencement Date it is understood that
the same is merely an estimate.
4.05 All materials and workmanship provided or performed by Landlord shall
be Building Standard quality, as defined In Exhibit B, unless otherwise
specified.
4.06 Tenant shall be responsible for all damage caused by trades employed
by Tenant; for the cost of all electricity and trash removal which may be
incurred by Landlord and to the extent necessary, in connection with the
performance of Excluded Tenant's Work and any other work performed by Tenant;
for the cost of employing such additional union help as shall be required under
the rules and regulations of the unions; for the reasonable costs of supervisory
personnel employed by Landlord in connection with such work; a pro rata portion
of the reasonable cost of staff and other personnel to the extent their time
reasonably is spent or incurred in connection with such work; for compliance
with the reasonable rules and regulations of the Building with respect to
construction of such work; for compliance with all laws, codes and regulations
of all authorities having jurisdiction, including, without limitation, all
inspections required by such authorities in connection with such work; and for
obtaining a certificate of occupancy for the Demised Premises in the event such
work is performed after the Demised Premises are ready for occupancy as provided
in Article 5 hereof.
4.07 If by reason of (a) Tenant's failure to substitute "Substitute
Materials" (as defined below in this Section 4.07) for wallcovering, carpeting,
supplemental air-conditioning or marble included in Tenant's Plans or in changes
thereof, if Landlord notifies Tenant that such failure reasonably likely will
delay the completion of Tenant's Work by the dates set forth in Section 5.07
hereof, (b) Intentionally Omitted, (c) Intentionally Omitted, (d) any changes
(or delays in processing any proposed changes, including, without limitation,
revisions of drawings and obtaining and negotiating prices) in the material or
work on Tenant's Plans or otherwise requested by Tenant, (e) the failure of
Tenant to act promptly when any consent or approval reasonably may be requested
by Landlord, or (f) the occurrence of any delays for which Tenant is responsible
in accordance with the terms of the Lease, ("Delay Conditions"), Landlord is
delayed in supplying the materials or completing the work to be performed by
Landlord in accordance with the provisions of this Lease and/or the Work Letter,
then the Commencement Date and the obligations of Tenant to pay Base Rent and
additional rent (i) shall be accelerated by one day for each day, or part of a
day, during which a Delay Condition existed, but (ii) in no event shall be later
than the date the Demised Premises would have been ready for occupancy if no
Delay Conditions had occurred; and the foregoing shall be applicable whether or
not Landlord has completed such work or whether or not a certificate of
occupancy or other permission to occupy shall have issued or been approved for
insurance. Landlord's time to complete the work to be performed by Landlord
shall be extended by the number of days necessary for Landlord to complete such
work as a result of the occurrences of any of the Delay Conditions. For
purposes of this Section 4.07, "Substitute Materials" shall mean wallcovering,
carpeting, supplemental air-conditioning and/or marble, the use of which will
not result in a delay in completion of Tenant's
Work by the dates set forth in Section 5.07 hereof, and which materials are
reasonably comparable, in price and quality, to those included in Tenant's Plans
or changes thereto.
4.08 Notwithstanding the commencement of rent as aforesaid, work on the
Demised Premises whether performed by Landlord or by Tenant shall be performed
only during regular time union working hours. If Tenant requires Landlord to
perform work during other hours, or if Tenant desires to perform any work
through its contractors, agents, or employees, provided Landlord so consents,
Tenant shall pay as additional rent, the cost of employing such additional union
help as shall be required under the rules and regulations of the unions employed
by Landlord in connection with the Building, as well as the cost of supervisory
personnel employed by Landlord in connection with the Building. Payment shall
be made by Tenant to Landlord within ten (10) days after being billed therefor.
4.09 Wherever in this Lease reference is made to the performance of work or
construction (including, without limitation, in Articles 4, 9 and 15) (a) by
Landlord, it shall mean, unless Landlord otherwise shall determine to perform
the work or construction, by a contractor or contractors chosen by Landlord, it
being understood that Landlord itself shall not be required to perform such work
or construction: and to the extent that, pursuant to this Lease, the cost of
such work or construction is payable by Tenant, such cost shall be at the Work
Charge applicable to work performed by or on behalf of Landlord under, and
computed in accordance with, Paragraph IX of Exhibit B; and (b) by Tenant, it
shall mean at the Work Charge applicable to work performed by Tenant under, and
computed in accordance with, Paragraph IX of Exhibit B.
4.10 Landlord will assign to Tenant all warranties from suppliers and
subcontractors of Tenant's Work, to the extent assignable.
ARTICLE 5
Commencement Date and Ready for Occupancy
5.01 Intentionally Omitted.
5.02 The Demised Premises shall be deemed ready for occupancy on the
earliest date on which all of the following conditions have been met:
A. A certificate of occupancy (temporary or permanent) or other
permission to occupy, if necessary, has been issued for Tenant's Work in the
Demised Premises or approved for issuance by the appropriate department of the
municipality where the Building is located not inconsistent with the Permitted
Uses, subject to the provisions of Section 4.07 and with the restrictions set
forth in Article 8 hereof;
B. Landlord shall have substantially completed Tenant's Work as
shown on the Tenant's Plans but excluding Work Charge Tenant's Work (subject to
delays provided In Section 5.03 hereof); and
C. Means of access have been provided, and the use without material
interference of the facilities necessary to Tenant's occupancy of the Demised
Premises, including Building corridors, elevators, stairways, Building heating,
ventilating, air conditioning, sanitary, water, and electrical lighting and
power facilities, are available to Tenant substantially in accordance with
Landlord's obligations under this Lease.
"Substantially completed" or "substantial completion" shall mean reasonable
completion required for the ordinary and convenient use and occupancy of the
Demised Premises by Tenant except for "Punch List" type details of construction,
decoration and mechanical, electrical or other adjustments, which do not
significantly interfere with Tenant's use of the Demised Premises.
In the event that Tenant does perform any work prior to the Commencement Date,
substantial completion under this Section 5.02 shall be deemed to have been
achieved if incomplete work to be performed by Landlord has not been completed
because, under good construction scheduling practices such work should be done
after still incompleted work to be done by or on behalf of Tenant is completed.
5.03 In addition to those specific "Delay Conditions" set forth in Section
4.07 hereof, if the occurrence of any of the conditions listed in Article 4 and
thereby making of the Demised Premises ready for occupancy, shall be delayed due
to any act or omission of Tenant or any of its employees, agents. or
contractors, including but not limited to failure by Tenant to act promptly when
any consent or approval may be requested by Landlord, or to plan or execute work
to be performed by Tenant diligently and expeditiously, or due to any special
requirements of Tenant in connection with the preparation of the Demised
Premises for occupancy over and above that shown on the Tenant's Plans other
than Work Charge Tenant's Work, then, notwithstanding any other provision of
this Lease, the Demised Premises shall be deemed ready for occupancy on the date
when they would have been ready but for any such delay whether or not a
certificate of occupancy or other permission to occupy shall have issued.
5.04 When the Commencement Date shall have been determined, Landlord and
Tenant shall, upon the request of either of them, execute and deliver to each
other duplicate originals of a Commencement Date Statement prepared by Landlord
in recordable form, which shall specify the Commencement and Expiration Dates of
the Term. Upon execution and delivery of the Commencement Date Statement it
shall be deemed a part of this Lease. Any failure of Tenant to execute such
statement shall not affect Landlord's determination of the Commencement Date,
and such statement shall be deemed approved and accepted if not received back by
Landlord within fifteen (15) days of submission by Landlord.
5.05 On the commencement Date or at such time as Tenant shall take actual
possession of the Demised Premises, whichever shall be earlier, it shall be
conclusively presumed that the same were as of the Commencement Date or the date
or dates of such taking of possession, in the condition in which Landlord was
required to deliver the Demised Premises under this Lease, unless within thirty
(30) days after such date Tenant shall have given Landlord notice specifying in
which respects the Demised Premises were not in satisfactory condition, latent
defects excepted unless within the earlier of 1 year after such date or 30 days
after discovery of the latent
defect by Tenant, Tenant shall have given Landlord notice specifying such latent
defects. Performance by Tenant of Excluded Tenant's Work shall not in and of
itself constitute taking of possession of the Demised Premises.
5.06 Notwithstanding any date, Tenant expressly waives any right to recover
any damages which may result from Landlord's failure to deliver possession of
the Demised Premises on such date or at any time thereafter, provided that
Landlord has used due diligence to comply with its obligations under this Lease.
5.07 In the event that due solely to Landlord's failure ("Failure") to
perform Tenant's Work with due diligence and to complete Tenant's Work (and not
due to any Events of Force Majeure or Delay Conditions) (i) Landlord, by the
105th day following the "Execution Date" (as defined in Section 34.05 hereof),
has not completed Tenant's Work to a point ("preliminary substantial
completion") whereby Tenant can perform Excluded Tenant's Work without
unreasonable interference from Landlord which may be completing Tenant's Work
(which preliminary substantial completion shall, without limitation, include
sheetrocking, painting and carpeting, and shall exclude minor Punch List items),
and/or (ii) Tenant's Work (other than millwork) is not substantially completed
by the 133rd day following the Execution Date, then and in either or both of
such event(s) Landlord shall pay to Tenant $300 per day for each day of the
Failure until preliminary substantial completion or substantial completion, as
applicable, is achieved. Such payment by Landlord shall be made on the
Commencement Date. In any event. except for Delay Conditions, the Commencement
Date shall be no earlier than 21 days after the preliminary substantial
completion of Tenant's Work. In addition, if the millwork shown on Tenant's
Plans described on Exhibit A-1 is not substantially completed by the 163rd day
following the Execution Date (other than due to Force Majeure or Delay
Conditions) then Landlord shall pay 75% of the cost of sound baffling 15
offices, where shown on Tenant's Plans (in addition to the 7 offices described
In Section 4.01A hereof).
ARTICLE 6
Rent Adjustments Based Upon Costs of Operation
6.01 Regarding Increases in the Costs of operation, the following shall be
applicable:
A. "Costs of Operation" shall mean all costs and expenses in
connection with the operation. maintenance, and repair of any and all parts of
the "Real Property" (as defined in Section 10.01B, hereof) and of the Building
and the improvements thereon and therein, including, without limitation, the
following: all materials, supplies and equipment, purchased or hired therefor;
service contracts for any of the foregoing (including, without limitation,
elevator, electric, heating, air-conditioning and plumbing); maintenance and
repair of grounds (including, without limitation, all lawns, gardens, shrubbery,
trees, planters, containers, statuary, exhibits, displays, walks, parking and
other vehicle ways and areas and common areas); maintenance and repairs in and
to Building systems including, without limitation, the heating and ventilating
and air-conditioning systems; maintenance and repair of underground pipes,
lines, equipment and systems; repaving; resurfacing; rooftops; and all parts
thereof, whether decorative or otherwise;
lighting; removal of snow, ice, trash, garbage and other refuse; fuel,
including, without limitation, oil or gas used in connection with heating the
building; electricity used in connection with the Building, including, without
limitation, that used in air conditioning, ventilating and heating, and for
interior and exterior common areas (but excluding electricity used at the
Demised Premises and other portions leased to tenants, to the extent payable by
Tenant or other tenants pursuant to the terms of Article 2); water; telephone
and other utilities; cleaning and sanitary; compliance with laws and with the
requirements of any public authorities or insurance bodies having jurisdiction,
and with the requirements of Landlord's insurer, but excluding Americans with
Disabilities Act and removal of any "Environmental Hazard" (as defined in
Section 29.04 hereof); refurbishing; extermination; the cost of personnel
engaged in the operation, maintenance or repair of the Building (including,
without limitation, salaries, wages, medical, surgical and general welfare
benefits, group insurance, savings and retirement benefits, payroll taxes,
worker's compensation insurance, disability insurance; the maintenance and
repair to the custodian's office (which "custodian" as used herein shall mean a
person who devotes all of or a portion of his working time to the maintenance
and/or operation of all or a portion of the Building), the custodian's telephone
charges pertaining to the operation of the Building and the custodian's
utilities, and all other fringe benefits); fire protection; alterations and
improvements made after the Base Year by reason of laws or requirements of any
public authority, insurance body or Landlord's insurer; all insurance carried by
Landlord applicable to the Building (including, without limitation, primary and
excess liability, and further including vehicle insurance, fire and extended
coverage, vandalism and all broad form coverages including, without limitation,
riot, strike, and war risk insurance, flood insurance, boiler insurance, plate
glass insurance, rent insurance and sign insurance); management fees, legal
(other than those for preparation of this and other leases and other than those
involved in any dispute with any tenant) and accounting fees, commissions and
charges; damages and other losses; taxes (including, without limitation, sales
and use taxes); energy; security systems, security personnel, traffic systems,
and traffic personnel; at Landlord's option, depreciation reserves for capital
expenditures (determined by using reasonably estimated costs and useful lives);
any other costs and expenses in connection with the operation, maintenance and
repair of the Real Property; a pro rata portion of any costs and expenses in
connection with the operation maintenance and repair of any part of those roads,
ways, walks, and other areas whether forming part of the Real Property or used
in connection with the Real Property and whether dedicated to any municipal
authority or used in common with others (sometimes collectively called "Real
Property Common Areas"), it being understood that pro-ration shall be based upon
the respective number of square feet of the buildings involved; and all those
percentages included in the Work Charge of all of the foregoing costs and
expenses referred to in this Section 6.01A to cover Landlord's administrative
supervision, overhead, and general conditions. Excluded from the foregoing,
nevertheless, shall be the following:
(i) any expense to the extent to which Landlord is compensated by
insurance or by any manufacturer's warranty;
(ii) Taxes, (as defined in Article 10);
(iii) any executive salary above the grade of superintendent;
(iv) leasehold improvements made by Landlord, in the Demised
Premises or in other space in the Building leaned to other tenants; and
(v) brokerage commissions;
(vi) expenditures which under generally accepted accounting
principles are properly classified as capital expenditures (as opposed to
expenses or deferred expenses) for improvements or equipment other than: (a)
those which under generally applied real estate practice are expenses or
regarded as deferred expenses, and (b) capital expenditures made by reason of
legal requirements, insurance requirements or for the purpose of reducing
expenses which otherwise would be included in Costs of Operation, in any of
which cases described in (a) or (b) the cost thereof shall be included in Costs
of Operation for the Operating Year in which the costs are incurred and
subsequent Operating Years, on a straight-line basis, to the extent that such
items are amortized over their reasonably estimated useful lives, but not more
than ten (10) years, with an interest factor equal to the Interest Rate, at the
time of Landlord's having made said expenditure provided that, if Landlord shall
lease any items of capital equipment for the purpose of resulting in savings or
reductions in expenses which would otherwise be included in Costs of Operation,
then the rentals and other costs paid pursuant to such leasing shall be included
in Costs of Operation for the Operating Year in which they were incurred;
(vii) any real estate brokerage commissions or other costs incurred
in procuring tenants;
(viii) any advertising and promotional expenses except as provided
above; and
(ix) structural repairs to the structural elements of the Building.
If a cost or expense permissibly shall be included under more than one
category of Costs of Operation, such cost or expense, of course, shall only be
included once where to do so more than once would cause a duplication of, and a
concomitant increase in Costs of Operation. Notwithstanding various provisions
of this Lease which provide that Landlord shall do or perform certain
obligations or services at Landlord's cost and/or expense, the same shall be
included in "Costs of Operation" to the extent that they otherwise would be
pursuant to this Section 6.01A; and this shall be so notwithstanding that in
certain instances throughout this Lease there is specification that a certain
expense shall be a Cost of Operation, while in other instances there is no such
specification.
B. "Operating Year" shall mean each Rent Year after the Base Year,
all or part of which falls within the Term.
C. Following the end of the Base Year and each Operating Year,
Landlord shall furnish to Tenant a written statement of the Costs of Operation
for such year and shall also show the amount of estimated payments, if any, made
by Tenant for Costs of Operation during such year. In the event the Costs of
Operation for any Operating Year exceed the Costs of Operation for the Base
Year, within 20 days of submission of such a written statement, Tenant
shall pay Landlord, as additional rent, the Proportionate Share of such excess;
there shall be credited against such excess any estimated payments made by
Tenant with respect to such year, and if such estimated payments are greater
than such excess, then Landlord may credit the difference against rent next
becoming due under this Lease. Every statement furnished by Landlord pursuant to
this Section 6.01(C) hereof shall be conclusive and binding upon Tenant.
1. Unless within thirty (30) days after the receipt of such
statement Tenant shall notify Landlord that it questions the amount or propriety
thereof and requests copies of back-up documentation reasonably necessary for
Tenant to confirm the correctness of Landlord's statement, in which event
Landlord shall, within 15 days of receipt of such request submit such copies to
Tenant; and unless Tenant shall notify Landlord within 15 days after receipt of
such copies if Tenant disputes the correctness of the statement, specifying in
detail the respects in which the statement is claimed to be incorrect; and
2. If such dispute shall not have been settled by agreement
within thirty (30) days after receipt by Landlord of such notice from Tenant,
the parties agree that, due to the confidential nature of Landlord's books and
records, the dispute shall be submitted to a reputable, independent firm of
certified public accountants chosen by Landlord, subject to Tenant's reasonable
approval, whose decision (and where reasonably necessary such decision shall be
based upon the opinion of experts whom such accountant may retain) shall be made
within twenty (20) days of such submission and whose decision shall be final and
binding on the parties; and the cost of such accountants and experts shall be
borne by the unsuccessful party (and if both parties are partially unsuccessful,
such accountants shall apportion the fees and expenses between the parties).
Pending the determination of such dispute Tenant shall, within ten (10)
days after receipt of such statement, pay additional rent in accordance with
Landlord's statement, but such payment shall be without prejudice. If the
dispute shall be determined in Tenant's favor, Landlord shall, within five (5)
days after notice of such determination, pay Tenant the amount of Tenant's
overpayment of Costs of Operation.
D. Any costs or expenses attributable to the construction,
development, leasing, opening or start-up of the Building plus any costs and
expenses which will not likely recur as an expense under Section 6.01A hereof
will be appropriately adjusted from Costs of Operation during the Base Year.
Landlord shall not cause to be deferred from the Base Year into an Operating
Year Costs of Operation which have been incurred during, and are properly
attributable to, the Base Year primarily in order to reduce Costs of Operation
for the Base Year. Notwithstanding any contrary provision of this Article 6,
Landlord shall extrapolate or adjust Costs of Operation to 95% occupancy during
the Base Year and any Operating Year. If Landlord shall eliminate the payment
of any wages or other labor costs as a result of the installation of labor
saving devices or by any other means, then the difference between the cost of
maintenance and operation of such devices and the amount of such wages or other
labor costs shall be deducted from Costs of Operation for the. Base Year.
Landlord is not aware of any major, extraordinary Costs of Operation which are
planned for after the Base Year.
E. Landlord may submit to Tenant Landlord's estimate, reasonably
determined, of Costs of Operation due and payable or to become due and payable
during any Operating Year, together with the computation thereof and the basis
therefor, in which event on the first day of each month thereafter Tenant shall
pay to Landlord one-twelfth of the excess (over Costs of Operation for the Base
Year) of such estimated sum (plus, if such statement is submitted after the
commencement of the Base Year or any Operating Year, then one-twelfth of such
sum times the number of months, or partial months, which have elapsed since such
commencement). Such payments shall be subject to adjustment in the same manner
as provided in Section 10.07 applicable to Taxes.
F. Landlord's failure to render a statement with respect to
increases in Costs of Operation for any Operating Year shall not prejudice
Landlord's right to thereafter render a statement with respect thereto or with
respect to any subsequent Operating Year.
6.02 Notwithstanding any contrary provisions of Section 6.01 hereof,
Landlord, at Landlord's option, may, at any time and from time to time,
calculate applicable sums under Section 6.01 of this Lease on a calendar year
basis rather than on a fiscal year basis. In such event, if less than a full
calendar year is involved, appropriate adjustments and prorations shall be made.
In the event of such calendar year calculations, if the Expiration Date shall
not be coterminous with the end of the fiscal year, then such prorations shall
be based upon Landlord's estimate as provided in Section 6.01E hereof.
ARTICLE 7
Heat, Ventilating and Air Conditioning
7.01 Landlord shall furnish to the Demised Premises through the Building
heating, ventilating and air conditioning system(s) heated, outside and
conditioned air, at reasonable temperatures, pressures and degrees of humidity
and in reasonable volumes and velocity, during Standard Business Hours; and on
Washington's Birthday Landlord shall furnish heat, in accordance with such
standards, but not cleaning or any other services. The foregoing performance
specifications shall be subject to said systems being balanced. Landlord, as a
Cost of Operation, shall maintain and operate such systems and shall furnish
heat, ventilation and air-conditioning in the Demised Premises through such
systems, subject to Section 11.06, in compliance with such performance
specifications, during Standard Business Hours. Upon reasonable advance notice
from Tenant, Landlord shall furnish heating, cooling or ventilating service at
any time other than Standard Business Hours (hereinafter called "After Hours").
Tenant shall advise Landlord if Tenant plans to use the Demised Premises After
Hours. If Tenant shall request or use such services After Hours, Tenant shall
pay Landlord therefor, as additional rent and upon rendition of a xxxx therefor,
the After Hours Heating Charge, After Hours Cooling Charge and After Hours
Ventilating Charge, as applicable, all of which charges shall be subject to
adjustment upward from time to time by the same percentage as the increase in
the rates of the applicable utilities or other energy sources (or, if a
combination thereof, then of the weighted average of the components) used to
provide the respective service.
7.02 Any damage caused to the heating, air conditioning, and ventilating
equipment, appliances or appurtenances an a result of the negligence of, or
careless operation of the same by, Tenant or its agents, servants, employees,
licensees, invitees, or visitors shall be repaired by Landlord, and the cost and
expense thereof shall be paid by Tenant, as additional rent, within ten (10)
days after being billed therefor.
7.03 Tenant shall be responsible for the failure of the air-conditioning
systems to adequately cool and dehumidify the Demised Premises where such
failure results from the occupancy of the Demised Premises with more than an
average or one person for each one hundred and seventy-five (175) square feet of
the Leased Floor Space or where Tenant installs and operates machines and
appliances, the installed electrical load of which when combined with the load
of all lighting fixtures exceeds four (4) xxxxx per square foot of the Leased
Floor space in any one room or other area or where any part of the Demised
Premises is used other than for offices (including, without limitation,
conference rooms, computer rooms, equipment rooms and kitchens) where the heat
release, heat variation or personnel occupancy is greater than in normal office
space. If due to use of the Demised Premises in a manner exceeding the
aforementioned occupancy and electrical load criteria, or due to rearrangement
of partitioning after the initial preparation of the Demised Premises,
interference with normal operation of the air conditioning in the Demised
Promises results, necessitating changes in the air conditioning system servicing
the Demised Premises, such changes shall be made by Landlord upon written notice
to Tenant at Tenant's sole cost and expense. Tenant agrees to keep all windows
closed, and to lower and close window coverings when necessary because of the
sun's position whenever the said air conditioning system is in operation, and
Tenant agrees at all times to cooperate fully with Landlord and to abide by all
the regulations and requirements which Landlord may prescribe for the proper
functioning and protection of the said air conditioning system. Landlord,
throughout the Term, shall have free and unrestricted access to any and all air
conditioning facilities in the Demised Premises. Landlord shall not be required
to furnish, and Tenant shall not be entitled to receive any air conditioning
during any period wherein Tenant shall be in default in any material provision
of this Lease.
ARTICLE 8
Use, Building Name, Tenant Identification and other Tenants
8.01 Tenant shall not suffer or permit the Demised Premises or any part
thereof to be used in any manner, or anything to be done therein, or suffer or
permit anything to be brought into or kept therein which would in any way:
A. violate any of the provisions of any grant, lease, or mortgage to
which this Lease is subordinate, so long as Tenant has received notice of any
such provisions,
B. violate any laws or requirements of public authorities,
C. make void or voidable any fire or liability insurance policy then
in force with respect to the Building,
D. make unobtainable, or more expensive, from reputable insurance
companies authorized to do business in New York State at standard rates any fire
insurance with extended coverage. or liability, elevator or boiler or other
insurance required to be furnished by Landlord under the terms of any lease or
mortgage to which this Lease is subordinate,
E. cause or in Landlord's reasonable opinion be likely to cause
physical damage to the Building or any part thereof,
F. constitute a public or private nuisance,
G. impair, in the reasonable opinion of the Landlord the appearance
or, character of the Building,
H. result in members of the general public loitering in, on or about
the Building or the Real Property,
I. discharge objectionable fumes, vapors or odors into the Building
air conditioning system or into Building flues or vents not designed to receive
them or otherwise in such manner as may unreasonably offend other occupants,
J. impair or interfere with any of the Building services or the
proper economic heating, cleaning, air conditioning or other servicing of the
Building or the Demised Premises or impair or interfere with or tend to impair
or interfere with the use of any of the other areas of the Building by, or
occasion discomfort, annoyance or inconvenience to, Landlord or any of the other
tenants or occupants of the Building, or
K. cause Tenant to default in any of its other obligations under
this Lease.
The provisions of this Section, and the application thereof, shall not be
deemed to be limited in any way to or by the provisions of any of the other
Sections of this Article or any of the Rules and Regulations referred to in
Article 28 or Exhibit "C" attached hereto, except as may therein be expressly
otherwise provided.
8.02 The "Permitted Use" of the Demised Premises for the purposes specified
in Article 1 hereof shall not in any event be deemed to include, and Tenant
shall not use, or permit the use of, the Demised Premises or any part thereof
for
A. sale of, or traffic in any spirituous liquors, wines, ales or
beer kept in the Demised Premises;
B. sale at retail or any other products or materials kept in the
Demised Premises, by vending machines or otherwise, or demonstrations to the
public, except as may be specifically agreed to by Landlord in writing; vending
machine sales of snacks and beverages to Tenant's employees shall, however, be
permitted;
C. manufacturing, printing, or electronic data processing, except for
the operation of normal business office reproducing and printing equipment,
business machines and electronic data processing equipment incidental to the
conduct of Tenant's business and for Tenant's own requirements at the Demised
Premises; provided that, such use shall not exceed that portion of the
mechanical or electrical capabilities of the Building equipment allocable to the
Demised Premises;
D. the rendition of medical, dental or other diagnostic or
therapeutic services;
E. the conduct of a public auction or assembly of any kind;
F. the conduct of a banking, trust company, savings bank. safe
deposit, savings and loan association or loan company business;
G. the issuance and sale of traveler's checks, foreign drafts,
letters of credit, foreign exchange or domestic money orders (except as is
incidentally required in conduct of Tenant's normal business activity);
H. the receipt of money for transmission (except as is incidentally
required in conduct of Tenant's normal business activity);
I. a restaurant, bar, or the sale of confectionery, tobacco,
newspapers, magazines, soda, beverages, sandwiches, ice cream, baked goods or
similar items, or the preparation, dispensing or consumption of food and
beverages in any manner whatsoever, except in any lunchroom within the Demised
Premises; or
J. a school, college, university or educational institution, whether
or not for profit, any government or subdivision or agency of any government or
an employment agency or recruitment agency except in the space described in
Section 22.03B hereof.
8.03 If any governmental license or permit, other than a certificate of
occupancy or other permission to occupy, shall be required for the proper and
lawful conduct of Tenant's business in the Demised Premises, or any part
thereof, and if failure to secure such license or permit would in any way affect
Landlord, then Tenant, at its expense, shall duly procure and thereafter
maintain such license or permit, but in no event shall failure to procure and
maintain same by Tenant affect Tenant's obligations hereunder. Tenant shall not
at any time use or occupy, or suffer or permit anyone to use or occupy the
Demised Premises, or do or permit anything to be done in the Demised Premises,
in violation of the certificate of occupancy for the Demised Premises or for the
Building.
8.04 Tenant shall not place a load upon any floor of the Demised Premises
exceeding the floor load per square foot which such floor was designed to carry
and which is allowed by certificate, rule, regulation, permit or law. Landlord
represents that the designed floor load is 100
live pounds per square foot. Landlord reserves the right to prescribe the weight
and position of all safes and vaults which must be placed by Tenant, at Tenant's
expense. Business machines and mechanical equipment shall be placed and
maintained by Tenant, at Tenant's expense, in such manner as shall be sufficient
in Landlord's judgment to absorb and prevent vibration, noise and annoyance.
8.05 Landlord reserves the right to select a name for the Building and to
make such a change or changes of name as it may deem appropriate during Tenant's
occupancy, and Tenant agrees not to refer to the Building by any other name than
(a) the name as selected by the Landlord, or (b) the postal address Approved by
the U.S. Post office.
8.06 A. Landlord shall furnish and install a Building electronic
directory for Tenants' listings in the ground floor lobby. Tenant shall submit
its Building directory listings with its final plans, which listings may include
names of any affiliated or related entities as provided in Section 22.03 hereof
and of subtenants.
B. Landlord's acceptance of any name for listing on the Building
directory will not be deemed, nor will it substitute for, Landlord's consent, as
required by this Lease, to any sublease, assignment, or other occupancy of the
Demised Premises.
C. Tenant, at its cost and expense, shall furnish and install its
identification on its entrance door. The design of such identification must
conform to the Building standard, be approved by Landlord and shall be
fabricated and installed by a contractor that meets Landlord's approval.
8.07 So long as not in violation of any statute, law, code or regulation,
Landlord will not enter into leases for other space in the Building with any
governmental agencies where use by such agencies likely would result in there
being in the Building large numbers of clients of such agencies who due to the
nature of such clients, on a regular basis, do, or reasonably would, create a
threat, nuisance or disturbance to other tenants in the Building.
ARTICLE 9
Changes in the Building and Access
9.01 All walls, windows, and doors bounding the Demised Premises (including
exterior Building walls, core corridor walls and doors and any core corridor
entrance), except the inside surface thereof, any terraces or roofs adjacent to
the Demised Premises, and space in or adjacent to the Demised Premises used for
shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other Building facilities, and the use thereof, as well as access
thereto through the Demised Premises for the purposes of operation, maintenance,
decoration and repair, are reserved to Landlord.
9.02 Tenant shall permit Landlord to install, use and maintain pipes, ducts
and conduits within or through the Demised Premises, or through the walls,
columns and ceilings
therein, provided that the installation work is performed at such times and by
such methods as will not unreasonably interfere with Tenant's use and occupancy
of the Demised Premises, or damage the appearance thereof, reduce the Leased
Floor Space by more than one (1%) percent (without an appropriate adjustment in
rent) or materially affect Tenant's layout. Where access doors are required for
mechanical trades in or adjacent to the Demised Premises, Landlord shall furnish
and install such access doors and confine their location wherever practical to
closets, coat rooms, toilet rooms, corridor, and kitchen or pantry rooms.
Landlord and Tenant shall cooperate with each other in the location of
Landlord's and Tenant's facilities requiring such access doors.
9.03 Landlord reserves the right, at any time after completion of the
Building, without incurring any liability to Tenant therefor, to make such
changes in or to the Building and the fixtures and equipment thereof, as well as
in or to the street entrances, halls, passages, elevators, and stairways
thereof, as it may deemed necessary or desirable; provided that there be no
unreasonably lengthy interference with the use of the Demised Premises or in the
services furnished to the Demised Premises, and no reduction in the Leased Floor
Space in excess of one (1%) percent without an appropriate adjustment of rent.
9.04 Landlord or Landlord's agents or employees shall have the right upon
request made on reasonable advance notice to Tenant, or to an authorized
employee of Tenant at the Demised Premises, to enter and/or pass through the
Demised Premises or any part thereof, at reasonable times during reasonable
hours, (a) to examine the Demised Premises or to show them to lessors of
superior leases, holders of mortgages, insurance carriers, or prospective
purchasers, mortgagees, or lessees of the land or the Building, or prospective
tenants, and (b) for the purpose of making such repairs or changes in or to the
Demised Premises or in or to the Building or its facilities as may be provided
for by this Lease or as Landlord may deem necessary or as Landlord may be
required to make by law or in order to repair and maintain the Building or its
fixtures or facilities. Landlord shall be allowed to take into and store upon
the Demised Premises all materials which may be required for such repairs,
changes, or maintenance. However, Landlord's rights under this Section shall be
exercised in such a manner as will not unreasonably interfere with Tenant's use
and occupancy of the Demised Premises. Landlord, its agents, or employees,
shall also have the right to enter on and/or pass through the Demised Premises,
or any part thereof without notice at such times as such entry shall be required
by circumstances of emergency affecting the Demised Premises or the Building;
included among the foregoing emergencies shall be a situation where water has
entered the Demised Premises, in which event upon Landlord learning thereof
Landlord may enter the Demised Premises and remove such water.
9.05 Landlord may limit and restrict, as provided in the Rules and
Regulations attached hereto as Exhibit "C", the means of access to the Demised
Premises outside of Standard Business Hours, so long as Tenant's employees and
authorized agents have reasonable access at substantially all times to all parts
of the Demised Premises. Tenant, and its agents, employees and visitors shall
be entitled to access from the Demised premises to, and the right to use, the
toilets, lavatories, and powder rooms only on the floor (or floors) on which the
Demised Premises are located.
ARTICLE 10
Real Estate Tax Changes and Resulting Rent Adjustments
10.01 As used herein:
A. "Taxes" shall mean all real estate taxes, school taxes, sewer
rates and charges, assessed, levied or imposed upon the Real Property, as
hereinafter defined, and all assessments (other than those specified in Section
10.03 hereof), transit taxes or other Governmental charges, general, specific,
ordinary or extraordinary, foreseen or unforeseen, assessed, levied or imposed
upon the Real Property, and "Tax" shall be any of such taxes.
B. "Real Property" shall mean the Building, the land upon which the
Building stands, and any adjoining land (and the Improvements thereon).
C. "Base Assessment" shall mean the assessment by each of the taxing
authorities affecting the Real Property in effect on the date of this Lease as
the same may be adjusted pursuant to Section 10.02 C 2 hereof.
D. "Tax Year" shall mean each twelve (12) month period commencing on
July 1 and ending an June 30, any portion of which period falls within the Term.
10.02 Tenant shall pay Landlord, as additional rent, increases in Taxes,
which additional rent shall be computed and paid as follows:
A. Intentionally Omitted.
B. If any of the respective Taxes payable during and attributable to
any Tax Year shall exceed the respective Base Taxes, Tenant shall pay to
Landlord as additional rent the Proportionate Share of such excess. Such
payment shall be made on the first day of the month following rendition of a
statement therefor by Landlord to Tenant setting forth the amount of additional
rent due.
C. Notwithstanding the foregoing, in determining Base Taxes, and
Taxes for any Tax Year:
1. Any tax abatement or partial assessment granted by any
taxing authority as a tax inducement shall be disregarded.
2. In the event of any partial assessment(s) of the Building
based upon less than full completion thereof, then the Base Assessment and any
other partial assessment (and Base Taxes and Taxes) shall be projected to
assessment an a fully-completed building for purposes of determining the excess,
if any, payable by Tenant under Section 10.02 hereof until full assessment
actually occurs. Upon such full assessment, appropriate adjustments shall be
made, if necessary, to any projections so made and any excess paid or payable
based
thereon; and any amounts payable as a result of such adjustments from Landlord
to Tenant or Tenant to Landlord, as the case may be, shall be paid in accordance
with the provisions of Section 10.07 hereof. In the event that at any time under
this Lease the Base Assessment is based upon other than a fully completed
building, then once such full assessment occurs, the Base Assessment shall be
revised and adjusted accordingly to reflect such full assessment.
3. In the event of a termination of this Lease, any additional
rent under this Article 10 shall be paid or adjusted within 10 days after
submission of a Landlord's statement. In the event Taxes for such Tax Year have
not been determined as of the Expiration Date, then, at Landlord's option, such
additional rent may be based upon Taxes In effect during the immediately
preceding last full Tax Year; upon Landlord's estimate as provided in Section
10.07 hereof; or upon actual Taxes, once determined for the Tax Year in which
the Expiration Date occurs. In no event shall Base Rent ever be reduced by
operation of this Article 10. The rights and obligations of Landlord and Tenant
under the provisions of this Article with respect to any additional rent shall
survive the Expiration Date or any sooner termination of the Term.
10.03 Tenant shall pay to Landlord, as additional rent, an amount equal to
the Proportionate Share of any assessments or installments thereof for public
betterments or improvements which may hereafter be levied upon or be payable
with respect to, the Real Property. If any such assessment is payable in
installments over a period of time, Tenant shall be obligated to pay only that
percentage of the installments of any such assessments, together with interest
thereon, which shall become due and payable during the Term. Payment shall be
made by Tenant to Landlord on the rent payment date next following the issuance
of a xxxx therefor by Landlord to Tenant.
10.04 Tenant shall pay as additional rent all increases in Taxes which may
be attributable to additions or improvements to the Demised Premises made by
Tenant or on Tenant's behalf (exclusive of the Building Standard improvements or
additions to be provided by Landlord, at Landlord's cost and expense). Payment
shall be made by Tenant to Landlord on the rent payment day next following the
issuance of a xxxx therefor by Landlord to Tenant.
10.05 If at any time prior to the establishment of the Base Taxes the
taxing authorities change the standards or methods utilized in arriving at
Taxes, then and in such event calculations under Section 10.02 shall be made by
applying such factor or factors to the new standards or methods as may be
necessary to make the calculation of increases under Section 10.02 on the same
basis as that in effect on the date of execution of this Lease.
10.06 In the event that, at any tine, the Real Property is assessed for
Tax purposes with other property owned by Landlord, and the taxing authorities
are unwilling to separately assess or tax the properties, the tax ascribable to
the Real Property shall be such portion of the Tax on the entire properties as
the value of the Real Property bears to the value of the entire properties, as
such values are determined by the Assessor of the municipality in which the Real
Property is located. An informal apportionment by such Assessor of the total
assessment of such Real Property shall be binding upon the parties hereto.
10.07 Notwithstanding the provisions of Section 10.02, Landlord may submit
to Tenant Landlord's estimate, reasonably determined, of any increase in Taxes
due and payable during any Tax Year over the Base Taxes, together with the
computation thereof and the basis therefor. If an increase is so estimated,
then on the first day of each month during the calendar year in which such Tax
Year commences Tenant shall pay to Landlord one-twelfth of such estimated
increase. Within 30 days following the end of the Tax Year, Landlord shall
submit to Tenant a statement showing the Base Taxes and the aggregate amount of
such estimated payments made by Tenant during such Tax Year. To the extent that
such estimated payments are less than the amount of such actual increase in
Taxes over the Base Taxes, Tenant shall pay to Landlord the difference within 10
days next following rendition by Landlord of an invoice therefor; to the extent
that such estimated payments are greater than such actual excess of Taxes over
Base Taxes, the difference shall be credited against the next monthly
installment or installments of Base Rent until paid, or if the last lease year
is involved, such difference shall be paid to Tenant within 10 days of rendition
of such Landlord's statement. In the event that the holder of any "superior
mortgage" (as defined in Article 24 hereof) shall notify Tenant and Landlord
that such holder requires that any excess owing by Landlord be paid by Landlord
rather than so applied against Base Rent, then the foregoing provision shall be
deemed amended accordingly. Such holder shall not be liable for payment of any
excess except to the extent that it has received monies, either from Landlord or
directly from Tenant, representing such excess. If Landlord fails to furnish a
Tax estimate for a Tax Year until after the commencement of the calendar year in
which such Tax Year begins, then until the first day of the month following the
month in which such estimate is furnished to Tenant, Tenant shall continue to
pay to Landlord on the first day of each month the same monthly amount payable
during the previous Tax Year as a Tax estimate.
10.08 Landlord's failure to render a statement with respect to increases
in Taxes for any Tax Year shall not prejudice Landlord's right to thereafter
render a statement with respect thereto or with respect to any subsequent Tax
year.
10.09 Only Landlord may, at any time and from time to time, commence a
protest, action or proceeding (a) to reduce the Base Assessment, (b) for a
refund of Taxes and/or (c) for a reduction in Taxes applicable to any Tax Year.
Tenant shall have no right to commence or participate in any such action, and
Tenant hereby waives any and all right which Tenant may have (whether at law,
equity, or otherwise) to commence or participate in any such action. In the
event that any such action is successful in reducing the Base Assessment or in
reducing the assessment of the Real Property below the Base Assessment, then
notwithstanding Section 10.01 hereof, (i) such reduced Base Assessment or
assessment below the Base Assessment thereafter shall be deemed the new Base
Assessment for purposes of computations under Sections 10.02 and 10.07 and for
refunds an hereinafter provided, and (ii) prior payments under Sections 10.02
and 10.07 shall be recalculated, and Tenant shall pay to Landlord, as additional
rent, the Proportionate Share of the amount by which Taxes during Tax Years for
which Tenant was responsible to make payments under Sections 10.02 and 10.07 are
further in excess of Base Taxes as a result of any such further reduction in
Base Assessment. If Landlord shall receive a refund for any Tax Year, Tenant
shall be entitled to that portion of any refund applicable to increases in Taxes
over Base Taxes, payment for which shall have been made by Tenant as additional
rent (including any interest paid on such refund by the taxing authorities), but
not in
excess of the amount of additional rent paid by Tenant for the respective
Section 10.02 increase on account of such Tax Year, after deducting from such
refund and interest that portion (or all, as the case nay be) of the costs and
expenses (including experts, and attorneys' fees) of obtaining such refunds and
Landlord shall be entitled to any refund applicable to the Base Taxes, and any
reduction thereof, (including any interest paid on such refund by the taxing
authorities) after deducting from such refund and interest that portion (or all,
as the came may be) of the costs and expenses (including experts' and attorneys'
fees) of obtaining such refund; and Landlord shall be entitled to any refund
applicable to the Base Taxes, and any reduction thereof, (including any interest
paid on such refund by the taxing authorities) after deducting from such refund
and interest that portion (or all, as the case may be) of the costs and expenses
(including experts' and attorneys' fees) attributable to such refund or
reduction benefiting Landlord. With respect to costs and expenses (including
experts' and attorneys' fees) attributable to any such protest, action or
proceeding referred to in this Section 10.09 (other than where Landlord receives
a refund, from which such costs and expenses shall be deducted, as hereinabove
provided) Tenant shall pay to Landlord the Proportionate Share of such costs and
expenses, as additional rent, unless such protest, action or proceeding pertains
solely to a reduction in Base Taxes paid or to be paid by Landlord, in which
event Landlord shall be responsible for such costs and expenses.
ARTICLE 11
Landlord's Services
11.01 Landlord, as a Cost of Operation, shall furnish adequate hot and
cold water to the floor or floors on which the Demised Premises are located for
drinking, lavatory, toilet and ordinary cleaning purposes.
11.02 Landlord shall, as a Cost of Operation, keep clean, and in good
order and repair, the public areas and the public facilities of the Building.
11.03 Landlord, as a Cost of Operation, shall provide public elevator
services to the floor(s) on which the Demised Premises are situated during
Standard Business Hours, and shall have at least one (1) elevator subject to
call at all other times. The elevator(s), or any or all of them, if more than
one, may be operated by automatic control, and/or by manual control, as Landlord
shall determine at any time or from time to time. Landlord shall not be
obligated to furnish an operator for any automatic elevator and shall have no
liability to Tenant for discontinuing the service of any operator theretofore
furnished.
11.04 Provided that Tenant shall keep the Demised Premises in good order,
Landlord, as a Cost of Operation, shall cause the Demised Premises, including
the exterior and the interior of the windows thereof (subject to Tenant
maintaining unrestricted access to such windows), to be cleaned in accordance
with the standards set forth in Exhibit "D" annexed hereto and hereby made a
part hereof. Tenant will not clean, nor require, permit, suffer or allow any
window in the Demised Premises to be cleaned from the outside. Tenant shall pay
to Landlord on demand the costs incurred by Landlord for (a) cleaning work in
the Demised Premises or the Building or otherwise on or about the Building
required because of (1) misuse or neglect on the part of
Tenant or its employees or visitors, (2) use of portions of the Demised Premises
for preparation, serving or consumption of food or beverages, reproducing
operations, private lavatories or toilets or other special purposes requiring
greater or more difficult cleaning work other than office area, (3) interior
glass surfaces, (4) non-building standard materials or finishes installed by
Tenant or at its request, (5) increases in frequency or scope in any of the
items set forth in Exhibit "C" as shall have been requested by Tenant, and (b)
removal from the Demised Premises and the Building of (1) so much of any refuse
and rubbish of Tenant as shall exceed that normally accumulated dally in the
routine or ordinary business office occupancy and (2) all of the refuse and
rubbish of Tenant's machines and the refuse and rubbish of any other eating
facilities requiring special handling (known as "wet garbage"). Landlord and its
cleaning contractor and their employees shall have after hours access to the
Demised Premises and the use of Tenant's light, power and water in the Demised
Premises as may be reasonably required for the purpose of cleaning the Demised
Premises. Extraordinary waste (such as crates, cartons, boxes, etc., and used
furniture or equipment) shall be removed from the Building by Tenant at Tenant's
own cost and expense. At no time shall Tenant place any waste of any kind in any
public areas. If Tenant does so, the parties agree that everything so placed
shall be deemed abandoned and of no value to Tenant and Landlord may have the
same removed and disposed of at Tenant's expense. Such expense shall be deemed
additional rent payable by Tenant within ten (10) days after being billed
therefor. This remedy is in addition to any other remedies Landlord may have
under this Lease.
11.05 With respect to parking of vehicles:
A. Landlord represents that throughout the Term there will be a
paved, illuminated parking area for the Building with the number of Parking
Spaces specified in Article 1. Tenant shall require its personnel and visitors
to park their vehicles only in (i) common Parking Spaces designated by Landlord
for Tenant's use for its personnel and visitors on a "first come, first served"
basis, and (ii) up to seven marked Parking Spaces in the rear of, and near, the
Building which Landlord shall xxxx with Tenant's name or logo. Landlord
similarly may xxxx up to 28 additional Parking Spaces for other tenants with
their names or logos. Attached hereto as Exhibit E is a parking plan showing
the marked Parking Spaces for Tenant and the total marked Parking Spaces area.
The actual number of marked Parking Spaces for Tenant shall be equal
proportionately (on a per square foot of Leased Floor Space basis) to the number
of each marked spaces given to any other tenant in the Building. Landlord shall
have no obligation whatsoever to patrol, monitor or secure any marked Parking
Spaces. Landlord reserves the right at all times to redesignate marked and/or
other Parking Spaces. Tenant, its personnel and visitors shall not at any time
park any trucks or delivery vehicles in any of the parking areas. Parking
Spaces shall be provided at no additional cost to Tenant.
B. There shall not be overnight parking except in that portion of
the parking area designated by Landlord for overnight parking ("overnight
parking area"), and Tenant shall, and shall cause its personnel and visitors to,
remove their automobiles from the parking area except any overnight parking area
at the end of the working day. If any automobile owned by Tenant or by its
personnel or visitors remains in the parking area overnight except any overnight
parking area and the same interferes with the cleaning or maintenance of said
areas (snow or otherwise,) any costs or liabilities incurred by Landlord in
removing said automobile
to effectuate cleaning or maintenance, or any damages resulting to said
automobile or to Landlord's equipment or equipment owned by others by reason of
the presence of or removal of said automobile during such cleaning or
maintenance shall be paid by Tenant to Landlord, as additional rent on the rent
payment date next following the submission of a xxxx therefor.
C. All Parking Spaces and any other parking areas, roadways, and
driveways used by Tenant, its personnel and visitors will be at their own risk,
and Landlord shall not be liable for any injury to person or property, or for
loss or damage to any automobile or its contents, resulting from theft,
collision, vandalism, or any other cause whatsoever unless solely resulting from
the willful or grossly negligent act of Landlord or Landlord's employees.
Landlord shall have no obligation whatsoever to provide a guard or any other
personnel or device to patrol, monitor, guard or secure any parking areas; if
Landlord does so provide, it shall be solely for Landlord's convenience, and
Landlord shall in no way whatsoever be liable for any acts or omissions of such
personnel or device in falling to prevent any such theft, vandalism, or loss or
damage by other cause.
11.06 Landlord reserves the right, without any liability to Tenant, except
as otherwise expressly provided in this Lease, and without being in breach of
any covenant of this Lease, to stop, interrupt, or suspend service of any of the
heating, ventilating, air conditioning, electric, sanitary, elevator or other
Building systems serving the Demised Premises, or the rendition of any other
services required of Landlord under this Lease, whenever and for so long as may
be necessary, by reason of accidents, emergencies, the making of repairs or
changes which Landlord is required by this Lease or by law to make or in good
xxxxx xxxxx advisable, or by reason of difficulty in securing proper supplies of
fuel, steam, water, electricity, labor or supplies, or by reason of Events of
Force Majeure, provided that, in each instance Landlord shall exercise due
diligence to eliminate the cause of stoppage and to effect restoration of
service and shall give Tenant reasonable notice, when practicable, of the
commencement and anticipated duration of such stoppage, and if any work is
required to be performed in or about the Demised Premises for such purpose, the
provisions of Section 14.03 shall apply. Tenant shall not be entitled to any
diminution or abatement of rent or other compensation nor shall this Lease or
any of the obligations of Tenant be affected or reduced by reason of the
interruption, stoppage, or suspense of any of the Building systems or services
arising out of the causes set forth in this Section.
ARTICLE 12
Electrical Energy
12.01 Landlord agrees to bear the cost of electrical energy involved in
furnishing to Tenant the services described in Article 11, except that Tenant
shall be responsible for providing electricity for lighting and power, at
Tenant's expense, for cleaning the Demised Premises as provided in Section 11.04
hereof.
12.02 Intentionally Omitted.
12.03 Intentionally Omitted.
12.04 Intentionally Omitted.
12.05 Intentionally Omitted.
12.06 Tenant shall purchase electricity directly from the utility company
furnishing electricity to the Building. The cost of such service shall be paid
by Tenant directly to such utility company. Landlord shall permit its electric
feeders, risers and wiring serving the Demised Premises to be used by Tenant, to
the extent available, safe and capable of being used for such purpose. Landlord
shall pay for the cost of installing a meter (if not already installed) to
measure electrical consumption in the Demised Premises.
12.07 Intentionally Omitted.
12.08 Intentionally Omitted.
(d) if either the quantity or character of the electrical service is
changed by the utility company supplying electrical service to the Building or
is no longer available or suitable for Tenant's requirements, or if there shall
be a change, interruption or termination of electrical service due to a failure
or defect on the part of the utility company, no such change, unavailability,
unsuitability, failure or defect shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any payment from Landlord
for any loss, damage or expense, or to abatement or diminution of Base Rent or
additional rent, or otherwise relieve Tenant from any of its obligations under
this Lease, or impose any obligation upon Landlord or its agents. Landlord will
use reasonable efforts to insure that there is no interruption in electrical
service to Tenant, but in no event shall Landlord be responsible for any
failures of the utility providing such service or the negligence or other acts
of third parties causing any such interruption.
(e) Tenant shall not make any electrical installations, alterations,
additions or changes to the electrical equipment or appliances in the Demised
Premises without prior written consent of Landlord in each such instance.
Tenant shall comply with the rules and regulations applicable to the service,
equipment, wiring and requirements of Landlord and of the utility company
supplying electricity to the Building. Tenant agrees that in use of electricity
in the Demised Premises will not exceed the capacity of existing feeders into
the Building or the risers or wiring installations therein and Tenant shall not
use any electrical equipment which, in Landlord's judgment, will overload such
installations or interfere with the use thereof by other tenants in the
Building. If, in Landlord's judgment, Tenant's electrical requirements
necessitate installation of an additional riser, risers or other proper and
necessary equipment or services, including additional ventilating or air-
conditioning, the same shall be provided or installed by Landlord at Tenant's
expense, which shall be chargeable and collectible as additional rent and paid
within 30 days after the rendition to Tenant of a xxxx therefor.
(f) If, after Landlord's initial installation work, (i) Tenant shall
request the installation of additional risers, feeders or other equipment or
service to supply its electrical requirements and Landlord shall determine that
the same are necessary and will not cause
damage or injury to the Building or the Demised Premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants of the Building, or (ii) Landlord shall determine that the
installation of additional risers, feeders or other equipment or service to
supply Tenant's electrical requirements is necessary, then and in either of such
events shall cause such installations to be made, at Tenant's sole cost and
expense and Tenant shall pay Landlord for such installations, as additional
rent, within 10 days after submission of a statement therefor.
ARTICLE 13
Eminent Domain
13.01 In the event that the land, Building or any part thereof, or the
Demised Premises or any part thereof, shall be taken on condemnation proceedings
or by the exercise of any right of eminent domain or by agreement between any
superior lessors and lessees and/or Landlord on the one hand and any
governmental authority authorized to exercise such right on the other hand,
Landlord shall be entitled to collect from any condemnor the entire award or
awards that may be made in any such proceeding without deduction therefrom for
any estate hereby vested in or owned by Tenant, to be paid out as in this
Article provided. Tenant hereby expressly assigns to Landlord all of its right,
title and interest in or to every such award and also agrees to execute any and
all further documents that may be required in order to facilitate the collection
thereof by Landlord.
13.02 At any time during the Term if title to the whole or substantially
all of the land, Building and/or Demised Premises shall be taken in condemnation
proceedings or by the exercise of any right of eminent domain or by agreement
between any superior lessors and lessees and/or Landlord on the one hand and any
governmental authority authorized to exercise such right on the other hand, this
Lease shall terminate and expire on the date of such taking and the Base Rent
and additional rent provided to be paid by Tenant shall be apportioned and paid
to the date of such taking.
13.03 However, if substantially all of the land or Building is not taken
and if only a part of the entire Demised Premises shall be so taken, this Lease
nevertheless shall continue in full force and effect, except that either party
may elect to terminate this Lease if that portion of the Demised Premises then
occupied by Tenant shall be reduced by more than twenty-five (25%) percent by
notice of such election to the other party given not later than thirty (30) days
after (a) notice of such taking is given by the condemning authority, or (b) the
date of such taking, whichever occurs later. Upon the giving of such notice
this lease shall terminate on the date of service of such notice and the Base
Rent and additional rent due and to become due, shall be prorated and adjusted
as of the date of the taking. If both parties fail to give such notice upon
such partial taking, and this Lease continues in force as to any part of the
Demised Premises not taken, the rents apportioned to the part taken shall be
prorated and adjusted as of the date of taking and from such date the Base Rent
and additional rent shall be reduced to the amount apportioned to the remainder
of the Demised Premises, and the Proportionate Share shall be recomputed to
reflect the number of square feet of Leased Floor Space remaining in the Demised
Premises in relation to the number of square feet of Total Floor Space remaining
in the Building.
13.04 Notwithstanding the foregoing provisions of this Article and subject
to the interests of any mortgages or lessor or grantor under any superior
mortgage or superior lease, Tenant shall be entitled to claim, prove and receive
in proceedings relating to any taking mentioned in the preceding Sections of
this Article, such portion of each award made therein as represents the then
value of Tenant's Property plus Tenant's moving or relocation expenses.
13.05 In the event of any such taking of less than the whole of the
Building which does not result in a termination of this Lease, or in the event
of such a taking of all or any part of the Demised Premises which does not
result in a termination of this Lease, Landlord, at its expense, shall proceed
with reasonable diligence to repair, alter and restore the remaining part of the
Building and the Demised Premises to substantially the same condition as it was
immediately prior to such taking to the extent that the same may be feasible, so
as to constitute a tenantable Building and Demised Premises, provided that
Landlord's liability under this Section shall be limited to the amount received
by landlord as an award arising out of such taking.
ARTICLE 14
Repairs and Maintenance
14.01 Landlord shall, as a Cost of Operation, keep and maintain the
Building and its fixtures, appurtenances, systems and related facilities
(including the central heating, ventilating and air conditioning systems and the
central or core elevator and plumbing systems), serving the Demised Premises, in
good working order, condition and repair (but not auxiliary or supplementary
heating, ventilating or air conditioning units or equipment, plumbing fixtures,
serving only the Demised Premises shall be Tenant's responsibility under Section
14.02 hereof), and Landlord shall, as a Cost of Operation make all repairs to
preserve the strength of the structural components of the Building, interior and
exterior, as and when needed in the Building, except as indicated in the second
sentence of Section 14.02, except further for those repairs for which Tenant is
responsible pursuant to any other provisions of this Lease, and subject to all
other provisions of this lease, including but not limited to the provisions of
Article 15.
14.02 Tenant shall take good care of the Demised Premises and the fixtures
and appurtenances therein and thereto (including, without limitation, windows
and doors adjoining, or used exclusively in connection with, the Demised
Premises), and at its sole cost and expense shall pay for all repairs thereto,
as and when needed to preserve them in good working order and condition except
as otherwise provided in Section 14.01 hereof. In addition, Tenant, at its sole
cost and expense, shall pay for all repairs, ordinary or extraordinary, interior
or exterior, structural or otherwise, in and about the Demised Premises and the
Building as shall be required by reason of (a) the performance or existence of
work by Tenant necessary to suit the Demised Premises to Tenant's initial
occupancy or in connection with Tenant's Changes, (b) the installation, use or
operation of Tenant's Property in the Demised Premises, (c) the moving of
Tenant's Property in or out of the Building, or (d) the misuse or neglect of
Tenant or any of its employees, agents, or contractors. As soon as any such
repair is required, Tenant shall notify
Landlord, who shall, in turn, at its option, either make such repair (at the
Work Charge), or notify Tenant to make such repairs.
14.03 Except as expressly otherwise provided in this Lease, Landlord shall
have no liability to Tenant by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord or any tenant making
repairs or changes or performing maintenance services, whether or not Landlord
is required or permitted by this Lease or by law to make such repairs or changes
or to perform such services in or to any portion of the Building or Demised
Premises, or in or to the fixture, equipment, or appurtenances of the Building
or the Demised Premises, provided that Landlord shall be reasonably diligent
with respect thereto and shall perform such work, except in case of emergency,
at times reasonably convenient to Tenant and otherwise in such manner and to the
extent practical as will not unreasonably interfere with Tenant's use and
occupancy of the Demised Premises.
14.04 When used in this Lease the term "repair" shall be deemed to include
restoration and replacement as may be necessary to achieve and/or maintain good
working order and condition.
ARTICLE 15
Damage and Destruction
15.01 if the Demised Premises and/or access thereto shall be partially or
totally damaged or destroyed by fire or other casualty, then Landlord, subject
to its rights under Section 15.03 hereof, substantially shall repair the damage
and restore and rebuild the Demised Premises and/or access thereto as nearly as
may be reasonably practical to its condition and character, to the extent of
Building Standard work, immediately prior to such damage or destruction, with
reasonable diligence after notice to it of the damage or destruction.
15.02 If the Demised Premises and/or access thereto shall be partially or
totally damaged or destroyed by fire or other casualty not attributable to the
fault, negligence or misuse of the Demised Premises by the Tenant, its agents or
employees under the provisions of this Lease, the rents payable hereunder shall
be abated to the extent that the Demised Premises shall have been rendered
untenantable from the date of such damage or destruction to the date the damage
shall be substantially repaired or restored or rebuilt to the same condition as
required under Section 5.02 hereof for the Demised Premises to be ready for
occupancy. Should Tenant occupy a portion of the Demised Premises during the
period that the repair, restoration or rebuilding is in progress and prior to
the date that all of the Demised Premises are rendered tenantable, rents and the
Proportionate Share allocable to such occupied portion (based upon that
proportion which the area of the part so occupied bears to the Leased Floor
Space) shall be payable by Tenant from the date of such occupancy to the date
the Demised Premises are made tenantable. Any work to be performed by Tenant
shall be performed in accordance with Article 17 hereof applicable to Tenant's
Changes following completion of Landlord's work.
15.03 In case of substantial damage or destruction of the Demised
Premises, Tenant may
terminate this Lease by notice to Landlord, if Landlord has not completed the
making of the required repairs and restored and rebuilt the Demised Premises
and/or access thereto within twelve (12) months from the date of such damage or
destruction, and such additional time after such date (but not to exceed six (6)
months) as shall equal the aggregate period Landlord may have been delayed in
doing as by adjustment of insurance or Events of Force Majeure.
In case the Building shall be so damaged by such fire or other
casualty that substantial renovation, reconstruction or demolition of the
Building shall, in Landlord's opinion, be required (whether or not the Demised
Premises shall have been damaged by such fire or other casualty), then Landlord
may, at its option, terminate this Lease and the Term and estate hereby granted,
by notifying Tenant in writing of such termination, within one hundred ninety
(90) days after the date of such damage. If at any time prior to Landlord
giving Tenant the aforesaid notice of termination or commencing the repair and
restoration pursuant to Section 15.01, the holder of a superior mortgage or the
lessor of a superior lease or any person claiming under or through the holder of
such superior mortgage or the lessor of such superior lease takes possession of
the Building through the foreclosure or otherwise, such holder, lessor, or
person shall have a further period of sixty (60) days from the date of so taking
possession to terminate this Lease by appropriate written notice to Tenant. In
the event that such a notice of termination shall be given pursuant to either of
the next two (2) preceding sentences, this Lease and the Term and estate hereby
granted shall expire as of the date of such termination with the same effect as
if that were the date hereinbefore set for the expiration of the Term, and the
Base Rent and additional rent due and to become due hereunder shall be
apportioned as of such date if not earlier abated pursuant to Section 15.02.
Nothing contained in this Section 15.03 shall relieve Tenant from any liability
to Landlord or to its insurers in connection with any damage to the Demised
Premises or the Building by fire or other casualty if Tenant shall be legally
liable in such respect.
15.04 No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use due diligence to effect such repair or
restoration promptly and in such manner is not unreasonably to interfere with
Tenant's use and occupancy.
15.05 Landlord will not be required to carry insurance of any kind on
Tenant's Property or on Tenant's Work, Tenant's Changes or any other work in
excess of Building Standard work, except to the extent that Tenant shall have
notified Landlord of any such excess work pursuant to Section 16.03 hereof and
except further to the extent that such excess work shall be insurable under
Landlord's policy; and, except as provided by law or its breach of any of its
obligations hereunder. Landlord shall not be obligated to repair any damage to,
or restore or rebuild, Tenant's Property or such excess work or to replace the
same. For purposes of this Article 15 the term casualty damage, to the extent
Landlord is responsible under this Article 15, shall not be deemed to include
damage caused by vandalism, unknown cause or other act not normally covered
under fire and extended coverage insurance policies applicable to office
buildings in the
area in which the Building is located, if such causes are included in the repair
obligations under Article 15 hereof for which Tenant is responsible to pay.
15.06 The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
15.07 Notwithstanding any of the foregoing provisions of this Article, if
Landlord or the lessor of any superior lease or the holder of any superior
mortgage shall be unable to collect all of the insurance proceeds (including
rent insurance proceeds) applicable to damage or destruction of the Demised
premises or the Building by fire or other cause, by reason of some action or
inaction on the part of Tenant or any of its employees, agents or contractors,
then, without prejudice to any other remedies which may be available against
Tenant, the abatement of Tenant's rents provided for in this Article shall not
be effective to the extent of the uncollected insurance proceeds.
ARTICLE 16
Insurance
16.01 Tenant shall not violate, or permit the violation of, any condition
imposed by the standard fire insurance policy then issued for office buildings
in the municipality in which the Building is located and shall not do, or permit
anything to be done, or keep or permit anything to be kept in the Demised
Premises which would increase the fire or other casualty insurance rate on the
Building or the property therein over the rate which would otherwise then be in
effect (unless Tenant pays the resulting increased amount of premium) or which
would result in insurance companies of good standing refusing to insure the
Building or any of such property in amounts and at normal rates reasonably
satisfactory to Landlord. However, Tenant shall not be subject to liability,
obligation or violation under this Section by reason of the proper use of the
Demised Premises for standard executive and administrative offices.
16.02 Tenant shall, at its sole cost and expense, maintain at all times
commencing with the earlier of the performance of any work in the Demised
Premises by or on behalf of Tenant under Article 4 hereof and the moving of any
property into the Demised Premises and throughout the Term (unless otherwise in
this Section 16.02 provided) the following types of insurance:
(a) Commercial general liability insurance to afford protection
initially in an amount of not less than $4,000,000 combined single limit of
liability for bodily injury, death and property damage arising out of any one
occurrence, under an occurrence-basis policy, against any and all claims for
personal injury, death or property damage occurring in, upon, adjacent, or
connected with the Demised Premises and any part thereof; from time to time
during the Term the foregoing limits of insurance shall be increased to those
required by the holder of any superior mortgage or superior lease or as are
currently carried with respect to similar properties
where the Building is located. There shall be added to or included within said
comprehensive general liability insurance all other coverages as may be usual to
Tenant's use of the Demised Premises, including, without limitation, products
and completed operations liability, independent contractors liability, broad
from comprehensive general, liability endorsements, broad form property damage
liability, liquor law legal liability (if applicable), host liquor liability,
explosion, collapse and underground property damage, environmental
impairment/pollution liability (if applicable) and owners and contractors
protective liability coverage during the course of construction.
(b) Commercial auto liability insurance (with special endorsement
covering mobile equipment and contractual liability) covering owned, non-owned
and hired vehicles providing bodily injury and property damage coverage, all on
a per occurrence basis and under an occurrence-basis policy, at a combined
single limit in such amount as Landlord or Landlord's managing agent may
reasonably determine and in no event less than three million dollars
($3,000,000).
(c) Worker's compensation and employer's liability as required by law.
(d) New York State disability benefits liability as required by law.
(e) During the performance by or on behalf of Tenant of any Tenant's
Work, Tenant's Changes or any other work under this lease and until completion
thereof, owners and contractors protective liability coverage in an amount of
not less than $2,000,000.
(f) "All Risk" property insurance upon Tenant's Property, including
contents and trade fixtures: such coverage is to be written on a replacement
cost basis and in an amount of not less than 100% of the full replacement value
thereof.
(g) Such other insurance (customarily required by landlords of other
firstclass buildings in the Xxxxxxxx/White Plains area) and in such amounts as
Landlord, the holder of a superior mortgage or superior lease may reasonably
require from time to time and as are carried with respect to properties similar
to the Real Property.
16.03 At least ten business days prior to the performance of any Tenant's
Work, Tenant's Changes and all other betterments, improvements and all other
work in, on, attached to or becoming part of the Demised Premises (some time
collectively called "betterments and improvements"), Tenant shall submit to
Landlord all information necessary for Landlord to increase, if necessary under
Landlord's policy, (and not less than annually shall certify replacement costs
to Landlord) so Landlord at all times may maintain its property insurance
coverage on the Building so that the betterments and improvements may be
insured, on a replacement cost basis, in an amount not less than 100% of the
full replacement value, subject to terms, conditions, exclusions and deductibles
of such coverage. Regardless of whether Landlord or Tenant is to perform such
betterments and improvements, and notwithstanding any contrary provision of this
Lease, Tenant shall make payment to Landlord, within ten days of being billed
therefor, of the amount of the insurance premium applicable to providing such
coverage on
betterments and improvements in excess of Building Standard work.
16.04 With respect to insurance provided by Tenant or others performing
work for Tenant hereunder:
(a) Such insurance shall be written by insurance companies licensed to
do business in the State of New York, authorized to issue such insurance
policies and having a rating of no less than "A" in the most current edition of
Bests Key Rating Guide. The original insurance policies or duly executed,
----------------------
appropriate certificates (together with reasonably adequate evidence of waivers
of subrogation required by this Article 16 and of payment of insurance premiums)
shall be deposited with Landlord together with all renewals, replacements and
endorsements. Tenant shall have the right to insure and maintain such insurance
under blanket insurance policies covering other premises used or operated by
Tenant so long as such blanket policies are aggregated so that at all times when
required by this Lease there is adequate insurance attributable to the Demised
Premises or to this Lease so as to comply with the insurance provisions set
forth in this Lease.
(b) There shall be maintained deductibles in such amounts as Tenant
shall reasonably determine but in no event in excess of $5,000 with respect to a
property insurance policy and in no event in excess of $10,000 with respect to a
liability insurance policy.
(c) Landlord, Landlord's managing agent and the holder of any superior
mortgage and of any superior lease, to the extent that Tenant has been notified
(collectively called "Landlord and Others in Interest") shall be (i) included as
an additional named insured under all insurance required to be provided by
Tenant under this Lease except under Sections 16.02 (c) and (d), and (ii) a
named insured under insurance required to be provided by tenant under this Lease
pursuant to Section 16.02(b).
(d) All property insurance policies shall cover the interest of Tenant
and Landlord and Others in Interest, as their interests may appear, and the
policies therefor shall provide that adjustment of any losses thereunder shall
include in the negotiation, not be settled or finalized without, and be payable
to, Landlord and Others in Interest, to the extent applicable. All such
property insurance policies shall contain a provision allowing other insurance
that is provided to or for Landlord. All such property insurance policies shall
be required of Tenant regardless of whether Tenant or others on behalf of Tenant
preform Tenant's Work, Tenant's Changes or any other work in the Demised
Premises.
(e) At least 10 days prior to commencement of construction of any work
in the Demised Premises, Tenant and Tenant's contractor shall deliver to
Landlord (and Others in Interest, if required by them) certificates of insurance
or policies (as provided in Section 16.04(a) hereof) evidencing all insurance
coverages provided in this Article 16. Tenant's contractor shall be required to
comply with all of such insurance obligations only through final completion of
all such work.
(f) At its own cost and expense, Tenant or its general contractor if
other than
Landlord shall, in accordance with all of the insurance requirements of this
Article 16, obtain professional liability insurance for all architects,
designers and engineers with regard to all of their work in or in connection
with the Demised Premises, in a minimum policy amount of $1,000,000.
(g) The limits of all insurance provided under this Article 16 (a)
shall not limit Tenant's liability to Landlord under this Lease, and (b) shall
be subject to increase to the same extent as provided under Section 16.02 (a)
with respect to liability insurance.
(h) All policies of insurance maintained by Tenant under this Article
16 shall be written as primary policies not contributing with, nor in excess of,
insurance coverage that Landlord and Others in Interest may have. Tenant shall
not carry separate or additional insurance which, in the event of any loss or
damage, is concurrent in form or would contribute with the insurance required to
be maintained by Tenant under this Lease.
(i) Each policy required to be provided hereunder (and each
certificate of insurance issued with respect thereto) shall contain endorsements
by the Insurer, without disclaimers, that the policies will not be cancelled,
materially changed, amended, reduced or non-renewed without at least thirty (30)
days prior notice to Landlord and Others in Interest, that the act or omission
of any insured will not invalidate the policy as to any other insured, and that
Tenant (or the general contractor, as the case may be) solely shall be
responsible for payment of all premiums under such policies and that neither
Landlord nor Others in Interest shall have any obligations for the payment
thereof.
(j) In the event Tenant shall fail to procure and place any insurance
required under this Lease, after notice to Tenant, Landlord may, but shall not
be obligated to, procure and place same, in which event the amount of the
premium paid shall be refunded by Tenant to Landlord within 30 days of notice,
as additional rent.
16.05 Tenant shall procure and maintain at all times during which Tenant
shall be required under this Lease to maintain property insurance a clause in,
or a written endorsement on, all policies applicable to such insurance pursuant
to which the insurer waives subrogation (or consents to a waiver by Tenant of a
right of recovery) against Landlord, Others in Interest and the employees,
agents and licensees of any of the foregoing, and Tenant agrees not to make
claim against or seek to recover against (and Tenant hereby releases Landlord
for any claim which it otherwise might have against) Landlord and Others in
Interest in connection with any loss or damage covered by any such policies. If
Tenant shall decide not to insure for) or to selfinsure part of any loss for)
business interruption or to the extent that Tenant shall be a self-insurer
(including, without limitation, any deductible under any insurance policy),
Tenant hereby releases Landlord and Others in Interest from all loss or damage
which could have been covered by an insurance policy if Tenant had chosen.
16.06 If Tenant shall decide not to insure for (or to self-insure or co-
insure part of any loss for) business interruption and/or if Tenant shall at any
time fail to maintain property insurance as, and to the extent, required under
this Lease, Tenant hereby releases Landlord and
Others in Interest from all loss or damage which could have been covered by such
insurance if Tenant had chosen.
ARTICLE 17
Tenant's Changes
17.01 After completion of the initial preparation of the Demised Premises
as provided for in Article 4, and subsequent to receipt of a certificate of
occupancy or permission to occupy as provided in Section 5.02 hereof, Tenant may
not, at any time or from time to time during the Term make any alterations,
additions, installations, substitutions and improvements (hereinafter
collectively called "changes" and, as applied to changes provided for in this
Article, "Tenant's Changes") in and to the Demised Premises, (a) without at
least 20 days prior notice to Landlord with respect to decorating and other
changes not exceeding in the aggregate $25,000, and (b) with Landlord's prior
written approval with respect to all other changes. Tenant's Changes shall be
performed on the following conditions, provided that in no event shall such
changes result in a violation of or require a change in the certificate of
occupancy applicable to the Demised Premises:
A. The outside appearance, character or use of the Building shall
not be affected, and no Tenant's Changes shall weaken or impair the structural
strength or, in the opinion of the Landlord, lessen the value of the Building;
B. No part of the Building outside of the Demised Premises shall be
physically affected;
C. The proper functioning of any of the mechanical, electrical,
sanitary and other services systems of the Building shall not be adversely
affected;
D. In performing the work involved in making such changes, Tenant
shall be bound by and observe all of the conditions and covenants contained in
this Article;
E. At the Expiration Date, Tenant shall on Landlord's written
request remove Tenant's Changes and restore the Demised Premises to their
condition prior to the making of any changes permitted by this Article,
reasonable wear and tear excepted (unless at the time of requesting Landlord's
consent to (and requesting a response as to Tenant's removal obligations, at the
time of surrender of) Tenant's Changes, Landlord advised Tenant that Tenant
would be required so to remove, and, even then, only where the cost of such
removal exceeds the cost of removal of any of Tenant's Work which may have been
replaced by such Tenant's Changes);
F. With respect to each change performed by Tenant (other than
decorating or other changes costing in the aggregate less than $25,000), Tenant
shall pay to Landlord, as
additional rent, upon demand, the reasonable costs incurred by Landlord in
connection with such change, including, without limitation, costs of
supervision, plus 10% of such costs for overhead and indirect job costs;
G. Before proceeding with any change (exclusive of changes in items
constituting "Tenant's Property" as defined in Article 18) Tenant shall submit
to Landlord plans and specifications, together with all contractors and
subcontractors that Tenant proposes to perform Tenant's Changes (all of whom
shall be reputable and have had at least 7 years experience in their respective
trade), for the work to be done, for Landlord's approval in writing, and, if
such change requires approval by or notice to the lessor of a superior lease or
the holder of a superior mortgage, Tenant shall not proceed with the change
until such approval has been received, or such notice has been given, as the
case may be, and all applicable conditions and provisions of said superior lease
or superior mortgage with respect to the proposed change or alteration have been
met or compiled with at Tenant's expense; and Landlord, if it approves the
change, will request such approval or give such notice, as the case may be; any
change for which approval has been received shall be performed strictly in
accordance with the approved plans and specifications, and no amendments or
additions to such plans and specifications shall be made without the prior
written consent of Landlord. Tenant shall not be permitted to install and make
part of the Demised Premises any materials, fixtures or articles which are
subject to liens, conditional sales contracts, security agreements or chattel
mortgages; and
H. Tenant shall comply with all other terms and conditions of this
Lease in connection with Tenant's Changes, including, without limitation,
Section 10.03 hereof. Notwithstanding the foregoing, Landlord shall have the
option of performing Tenant's Changes at the work Charge.
17.02 All Tenant's Changes shall at all times comply with laws, order and
regulations or governmental authorities having jurisdiction thereof, and all
rules and regulations of Landlord (in addition to those expressly provided in
this Lease) which, in Landlord's opinion, are necessary to protect its interest,
including without limitation, a guaranty of completion, payment and restoration;
and Tenant, at its expense, shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of Tenant's Changes and for
final approval thereof upon completion, and shall cause Tenant's Changes to be
performed in compliance therewith and with all applicable requirements of
insurance bodies, and in good and first class workmanlike manner, using
materials and equipment at least equal in quality and class to the original
installations of the Building. Tenant's Changes shall be performed in such a
manner as not to interfere with the occupancy of any other tenant in the
Building nor delay, or impose any additional expense upon Landlord in the
construction, maintenance, or operation of the Building, and shall be performed
by union contractors or mechanics approved by Landlord. Throughout the
performance of Tenant's Changes, Tenant, at its expense, shall carry and shall
cause all contractors, agents and other persons performing Tenant's Changes to
carry, all additional insurance under Article 16 hereof applicable as a result
of, or based upon, Tenant's Changes. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of Tenant's Changes and, on request, at reasonable intervals
thereafter during the continuance of Tenant's Changes. No Tenant's Changes shall
involve the removal of any fixtures, equipment or other property in the Demised
Premises which are not "Tenant's Property" (as defined in Article 18), unless
Landlord's prior written consent is first obtained and unless such fixtures,
equipment or other property shall be promptly replaced, at Tenant's expense and
free of superior title, liens and claims, with fixtures, equipment or other
property (as the case may be) of like utility and at least equal value (which
replaced fixtures, equipment or other property shall thereupon become the
property of the Landlord), unless Landlord shall otherwise expressly consent in
writing.
17.03 Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant's Changes which shall be issued by the
appropriate department of the municipality where the Building is located or any
other public authority having or asserting jurisdiction. Tenant shall defend,
indemnify and save harmless Landlord against any and all mechanics and other
liens in connection with Tenant's Changes, repairs, or installations, including
but not limited to the liens of any conditional sales of, or chattel mortgages
upon, any materials, fixtures, or articles so installed in and constituting part
of the Demised Premises and against all costs, attorneys' fees, fines expenses
and liabilities reasonably incurred in connection with any such lien,
conditional sale or chattel mortgage or any action or proceeding brought
thereon. Tenant, at its expense, shall procure the satisfaction or discharge of
all such liens within ten (10) days of the filing of such lien against the
Demised Premises or the Building. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid, then in addition to any other right or
remedy, Landlord may, but shall not be obligated to, discharge the same either
by paying the amount claimed to be due or by procuring the discharge of such
lien by deposit or by bonding proceedings, and in any such event Landlord shall
be entitled, if Landlord so elects, to compel the prosecution of an action for
the foreclosure of such lien by the lienor and to pay the amount of the judgment
in favor of the lienor with interest, costs and allowances. Any amount so paid
by Landlord and all costs and expenses incurred by Landlord in connection
therewith, together with interest thereon at the lesser of the maximum permitted
by law or three (3%) percent per month or portion thereof from the respective
dates of Landlord's making of the payment or incurring of the cost and expense
shall constitute additional rent payable by Tenant under this Lease and shall be
paid by Tenant on demand. If Tenant makes any such payment it shall not be
entitled to any set-off against rent due hereunder. Tenant agrees that it will
not at any time prior to or during the Term, either directly or indirectly, use
any contractors, labor or materials in the Demised Premises, if the use of such
contractors, labor or materials would, in Landlord's opinion, create any
difficulty with other contractors or labor engaged by Tenant or Landlord or
would in any way disturb harmonious labor relations in the construction,
maintenance or operation of the Building or any part thereof or any other
building owned or operated by Landlord or any affiliate of Landlord.
17.04 All of Tenant's Changes, whether performed by Landlord or by Tenant
shall be performed only during regular time union working hours. If Tenant
requires Landlord to perform work during other hours, or if Tenant desires to
perform work through its contractors, agents or employees, Tenant shall pay as
additional rent, the cost of employing such additional union help as shall be
required under the rules and regulations of the unions
employed in connection with the Building. Payment shall be made by Tenant to
Landlord within ten (10) days after being billed therefor.
ARTICLE 18
Tenant's Property
18.01 All fixtures, equipment, improvements and appurtenances attached to
or built into the Demised Premises at the Commencement Date or during the Term,
whether or not by or at the expense of the Tenant, shall be and remain a part of
the Demised Premises, shall be deemed the property of Landlord and shall not be
removed by Tenant except an hereinafter in this Article expressly provided.
18.02 All fixtures, furnishings, equipment, including Tenant's movable
shelving, movable files and movable work stations, but exclusive of work
performed by Landlord at Landlord's cost and expense pursuant to the provisions
of Article 4 hereof and exclusive of any electric meter and related wiring and
parts, whether or not attached to or built into the Demised Premises, which are
installed in the Demised Premises by or for the account of Tenant, without
expense to the Landlord, and can be removed without structural damage to or
defacement of the Building (all of which are herein called "Tenant's Property"),
shall be and shall remain the property of Tenant and may be removed by it at any
time during the Term; provided that if any of the Tenant's Property is removed,
Tenant shall repair or pay the cost of repairing any damage to the Demised
Premises or to the Building or the Real Property resulting from such removal.
Any fixtures, equipment or other property for which Landlord shall have granted
any allowance to the Tenant as a credit or substitution in kind shall not be
deemed to have been installed by or for the account of the Tenant without
expense to Landlord, and shall not be considered as Tenant's Property. Any
partitions installed by Landlord, whether movable or not, shall not be
considered Tenant's Property. Landlord shall not be obligated to return and/or
reinstall any partitions supplied to Tenant which are returned by Tenant to
Landlord due to enlargement, reduction or change in the Demised Premises.
Landlord waives any Landlord's lien against the aforementioned movable shelving,
movable files and movable work stations and other of Tenant's personalty and
will execute any instruments as Tenant may reasonably request affirming said
waiver without cost or obligation to Tenant.
18.03 At or before the expiration of this Lease, Tenant shall remove, at
its expense, from the Demised Premises, all of Tenant's Property and shall
repair any damage and make any replacements to the Demised Premises or the
Building resulting from or necessitated by such removal, and shall pay all other
costs of such removal.
18.04 Any items of Tenant's Property which shall remain in the demised
Premises after the expiration of this Lease, may, at the option of the Landlord,
be deemed to have been abandoned, and in such case either may be retained by
Landlord as its property or may be disposed of, without accountability, in such
manner as Landlord may see fit. Tenant agrees to reimburse Landlord for the
costs of removal and for the coat of repairing any damage to the Demised
Premises or the Building arising out of Tenant's failure to remove Tenant's
Property pursuant to the terms of this Lease.
ARTICLE 19
Surrender
19.01 On the last day of the Term, or upon any earlier termination of this
Lease, or upon
any re-entry by Landlord upon the Demised Premises, Tenant shall quit and
surrender the Demised Premises to Landlord broom clean, in good order, condition
and repair except for ordinary wear and tear and damage by fire or other insured
casualty, restored as provided in Section 17.01, if applicable.
19.02 Prior to such surrender Tenant shall (a) remove Tenant's Property
subject to the provisions of Article 18 hereof, (b) at Landlord's request remove
Tenant's Changes as provided in Section 17.01, and (c) at Landlord's request,
repair any damage and make any replacements to the Real Property resulting from
or necessitated by such removal, and restore those parts of the Demised Premises
from which the removal referred to in subparagraphs "a" and "b" above occurred,
to a condition which will blend with and be comparable to and compatible with
adjacent areas. If Tenant shall fail to perform as provided in this Section
19.02, Landlord shall have the right to do so at Tenant's cost and expense,
without further notice or demand upon Tenant, and Tenant shall indemnify
Landlord against all loss or liability resulting therefrom, including, without
limitation, any delay in granting occupancy of the Demised Premises to a future
occupant.
19.03 In the event Tenant remains in possession of the Demised Premises
after the termination of this Lease without the execution by Landlord and Tenant
of a new Lease, Tenant, at the option of Landlord, shall be deemed to be
occupying the Demised Premises as a Tenant from month to month, at a monthly
rental equal to three (3) times the Base Rent and additional rent payable during
the last month of the Term, subject to all of the other terms of this Lease
insofar as the same are applicable to a month to month tenancy.
19.04 Tenant hereby indemnifies and agrees to hold Landlord harmless from
and against any loss, cost, liability, claim, damage, fine, penalty, and
expense, including reasonable attorneys' fees and disbursements, resulting from
delay by Tenant in surrendering the Demised Premises upon the termination of
this Lease as provided in this Article 19, including without limitation, any
claims made by any succeeding tenant or prospective tenant based upon such
delay.
ARTICLE 20
Recording and Estoppel Certificate
20.01 Tenant agrees not to record this Lease. At the request of either
party, Landlord and Tenant shall promptly execute, acknowledge and deliver a
memorandum with respect to this Lease sufficient for recording, which Tenant may
record. Such memorandum shall not in any circumstance be deemed to change or
otherwise affect any of the obligations or provisions of this Lease.
20.02 Tenant agrees, at any time and from time to time, as requested by
Landlord, or the holder of any superior lease or superior mortgage, upon not
less than ten (10) days prior notice, to execute and deliver without cost or
expense to the Landlord a statement certifying that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same is
in full force and effect as modified and stating the modifications), certifying
the dates to which the
Base Rent and additional rent have been paid, and stating whether or not, to the
best knowledge of the Tenant, the Landlord is in default in performance of any
of its obligations under this Lease, and, if so, specifying each such default of
which the Tenant may have knowledge, and specifying as to such other matters an
may be reasonably requested and as are part of the standard form or request of
such holder of any superior lease or superior mortgage, it being intended that
any such statement delivered pursuant thereto may be relied upon by any other
person with whom the Landlord, or the holder or any superior lease or superior
mortgage, may be dealing.
ARTICLE 21
Events of Default and Termination
21.01 This Lease and the Term and estate hereby granted are subject inter
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alia to the limitation that whenever Tenant shall make an assignment for the
----
benefit of creditors, or shall file a voluntary petition under any bankruptcy or
insolvency law, or an involuntary petition alleging an act of bankruptcy or
insolvency in filed against Tenant, or whenever a petition shall be filed by or
against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
any future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, or shall seek to consent to or acquiesce
in the appointment of any trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties, or whenever a permanent or temporary
receiver of Tenant or of, or for, the property of Tenant shall be appointed, or
if Tenant shall plead bankruptcy or insolvency as a defense in any action or
proceeding, then, Landlord, (a) at any time after receipt of notice of the
occurrence of any such event, or (b) if such event occurs without the
acquiescence of Tenant, at any time after the event continues for sixty (60)
days may give Tenant a notice of intention to end the Term at the expiration of
five (5) days from the service of such notice of intention, and upon the
expiration of said five (5) day period (whether or not the event resulting in
such default shall have been cured within such five (5) day period) this Lease
and the Term and estate hereby granted, whether or not the Term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as provided
as in Article 30. The foregoing provisions of this Section 21.01 also shall be
applicable to Guarantor as though wherever the word "Tenant" is used the words
"and/or Guarantor" immediately followed.
21.02 This Lease and the Term and estate hereby granted are subject to the
further limitation that (a) whenever Tenant shall default in the payment of any
installment of Base Rent, or in the payment of any additional rent, on any day
upon which the same shall be due and payable (following 5 days notice of such
default from Landlord to Tenant with respect to two of such defaults in any Rent
Year), or (b) whenever Tenant shall do or permit anything to be done, whether by
action or inaction, contrary to any of Tenant's obligations hereunder, other
than the payment of rent, and if such situation shall continue and shall not be
remedied by Tenant within thirty (30) days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a happening or default
which cannot with due diligence be cured within a period of thirty (30) days and
the continuance of which for the period required for cure will not subject
Landlord to the risk of civil or criminal liability or termination of any
superior lease or foreclosure of any
superior mortgage, if Tenant shall not duly institute within such thirty (30)
day period and diligently prosecute to completion within an additional 30 days
all steps necessary to remedy the same, or, (c) whenever any event shall occur
or any contingency shall arise whereby this Lease or any interest therein or the
estate hereby granted or any portion thereof or the unexpired balance of the
Term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Article 22, or (d) whenever Tenant shall abandon the Demised Premises, or a
substantial portion of the Demised Premises shall remain vacant for a period of
ten (10) consecutive days, unless such vacancy arises as a result of a casualty;
then in any such event covered by subsections "a", "b", "c" or "d" of this
Section 21.02, at any time thereafter, Landlord may give to Tenant a notice of
intention to end the Term of this Lease at the expiration of ten (10) days from
the date of service of such notice of intention, and upon the expiration of said
ten (10) days (whether or not the event resulting in such default shall have
been cured within such ten (10) day period) this Lease and the Term and estate
hereby granted, whether or not the Term shall theretofore have commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 30.
ARTICLE 22
Assignment, Subletting, Mortgaging
22.01 Neither this Lease nor the Term and estate hereby granted, nor any
part hereof or thereof, nor the interest of Tenant in any sublease or the
rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant by operation of law or otherwise, and neither
the Demised Promises nor any part thereof, shall be encumbered in any manner by
reason of any act or emission on the part of Tenant or anyone claiming under or
through Tenant, or shall be sublet or be used or occupied or permitted to be
used or occupied, or utilized for desk space or for mailing privileges, by
anyone other than Tenant or for any purpose other than as permitted by this
Lease, without the prior written consent of Landlord, at Landlord's sole
discretion, in every case, except as expressly otherwise provided in this
Article. For purposes of this Article 22, (i) the transfer of a majority of the
issued and outstanding capital stock of any corporate tenant, its parent or any
entity having a controlling interest in either (including, without limitation,
any capital stock issued in connection with any transfer), or of a corporate
subtenant, or the transfer of a majority of the total interest in any
partnership tenant or subtenant, however accomplished, whether in single
transaction or in a series of related or unrelated transactions, shall be deemed
an assignment of this Lease, and (ii) a takeover agreement shall be deemed a
transfer of this Lease.
22.02 If this Lease be assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Demised Premises or any part thereof be sublet or be used or occupied by anybody
other than Tenant, whether or not in violation of this Lease, Landlord may after
default by Tenant, and expiration of Tenant's time to cure such default, collect
rent from the subtenant or occupant. In either event, Landlord may apply the
net amount collected to the rents herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provision of Section 22.01, or the acceptance of the
assignee, subtenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of Tenant's obligations under this Lease. The
consent by Landlord to assignment, mortgaging, subletting or use or occupancy by
others shall not in any wise be considered to relieve Tenant from obtaining the
express written consent of Landlord to any other or further assignment,
mortgage, or subletting or use or occupancy by others not expressly permitted by
this Article. Notwithstanding any assignment, subletting, mortgaging or use or
occupancy by others, Tenant shall remain fully responsible and liable to
Landlord for all of the terms and conditions of this Lease, and for all acts and
omissions of any assignee, subtenant, user or occupant of the Demised Premises,
or anyone claiming through or under any of the foregoing, which shall be in
violation of any of the obligations of Tenant hereunder. Tenant agrees to pay to
Landlord reasonable counsel fees incurred by Landlord 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 (including, without
limitation, the exercise by Landlord of any options under section 22.04B or C,
and the preparation and/or review of any and all documents in connection with
any rights under this Article 22). References in this Lease to use or occupancy
by others, that is anyone other than Tenant, shall not be construed as limited
to subtenants and those claiming under or through subtenants but as including
also licensees and other claiming under or through Tenant, immediately or
remotely.
22.03 A. Upon at least 20 days prior notice to Landlord, if Tenant is a
corporation, this Lease may be assigned to a corporation into which Tenant
merges or consolidates, or to any other corporation which controls, is
controlled by, or under common control with Tenant, so long as the Demised
Premises continue to be used for the Permitted Use; the transfer is not
principally for the purpose of transferring the leasehold estate created hereby;
the net worth of the assignee is at least equal to or in excess of the net worth
of Tenant immediately prior to such assignment; the assignee assumes by
documents satisfactory to Landlord all of Tenant's obligations to be performed
under this Lease; and subject to all of the other terms and conditions of this
Lease.
B. Tenant may, without Landlord's approval, sublet up to 5,000
rentable square feet of contiguous space in which Tenant shall provide and
conduct an office services business pursuant to which others may share or use
offices with Tenant providing office support services as part thereof
(including, without limitation, secretarial services, telecopy, telephone and
photocopy services and conference room use), on the following terms and
conditions:
1. Tenant shall give Landlord at least 20 days prior notice of
each such sublet together with the information specified in Sections 22.04B 1,
2, 3 and 4.
2. The provision of Sections 22.04E (i), (iv), (v), (ix), (x),
(xii) and (xiv) shall be applicable hereto.
3. No more than the lesser of 2 offices (or 500 rentable square
feet) shall be subleased to the same individual or entity or any affiliated or
related individual or entity. The foregoing 2 offices may be Increased to 3 or
4 offices subject to Landlord's consent not to be unreasonably withheld.
22.04 In the event that at any time or from time to time prior to or
during the Term Tenant desires to sublet all or any portion of the Demised
Premises (other than pursuant to Section 22.03):
A. Tenant shall submit to Landlord a written notice of Tenant's
desire to sublet, which shall contain or be accompanied by the following
information:
1. a description identifying the space to be sublet (which
shall include appropriate means of ingress and egress; and
2. the terms and conditions (including without limitation the
proposed commencement and termination dates) of the proposed subletting.
Landlord shall have the option to be exercised by notice to Tenant within
thirty (30) days after receipt of such notice to require a surrender of the
Demised Premises or part thereof involved, as the came may be, including
Tenant's leasehold improvements therein, upon the terms and conditions
hereinafter set forth.
B. If Landlord fails to exercise its option as above provided and
Tenant still desires to sublet all or any part of the Demised Premises, Tenant
shall submit to Landlord a written request for Landlord's consent to such
subletting, which request shall contain or be accompanied by the following
information:
1. a description identifying the space to be sublet (which
shall include appropriate means of ingress and egress);
2. the terms and conditions (including without limitation the
proposed commencement and termination dates) of the proposed subletting;
3. the name and address of the proposed subtenant;
4. the nature and character of the business of the proposed
subtenant and of its proposed use of the Demised Premises; and
5. current financial information, and any other information
as Landlord may reasonably request, with respect to the proposed subtenant.
Landlord shall have the option to be exercised by notice given to Tenant
within twenty (20) days after the later of (i) receipt of Tenant's request for
consent or (i) receipt of such further information as Landlord may reasonably
request pursuant to clause 5 of Section 22.04B above, to require a surrender of
the Demised Premises or as to the part thereof involved, as the case may be,
including Tenant's leasehold improvements therein, upon the terms and conditions
hereinafter set forth.
C. If Landlord shall exercise its option to require a surrender of
the Demised
Premises as provided in Section 22.04A or 22.04B hereof, then upon the proposed
commencement date of the subletting specified in Tenant's notice given pursuant
to Section 22.04A or 22.04B hereof, the Demised Premises or the part thereof
involved, as the case may be, shall be delivered to Landlord in accordance with
the provisions of the Lease relating to surrender of the Demised Premises at the
expiration of the Term, and this Lease shall cease and terminate insofar as the
Demised Premises or part thereof involved, as the case may be, is concerned with
the same force and effect an though such proposed commencement date were the
date set forth in this Lease an the expiration of the Term. If only part of the
Demised Premises is involved, the terms and conditions of the Lease shall remain
in full force and effect as to the remainder of the Demised Premises, except
that the Base Rent and additional rent shall be proportionately reduced based
upon the number of rentable square feet of such part of the Demised Premises
surrendered, and except further to the extent that appropriate modifications of
other terms or Provisions of this Lease (including, without limitation,
Proportionate Share) should be made to reflect such elimination of such part of
the Demised Premises surrendered. Notwithstanding the foregoing, in the event
that less than all of the demised Premises is surrendered,
1. Landlord shall cause to be constructed, at its cost and
expense, such alteration and connections as may be required in order to
physically separate such surrendered part of the Demised from the balance of the
Demised Premises; and
2. At least thirty (30) days prior to the proposed commencement
date specified above, Landlord shall have free access to enter to the Demised
Premises in order to complete such construction referred to in clause "1" above,
and to the extent that there are less than thirty (30) days between Landlord's
exercise of its option to require a surrender and such proposed commencement
date, such proposed commencement date shall be extended by a like number of
days.
D. Intentionally Omitted.
E. If Landlord shall not exercise either of its options under
Section 22.04A or 22.04B hereof, Tenant shall not sublet (other than as
permitted pursuant to Section 22.03) without Landlord's prior consent, which
shall not be unreasonably withheld provided that with respect to any subletting
the following further conditions shall be fulfilled:
(i) There shall be no advertisement, public communication or listing
of the availability of the Demised Premises for subletting without the prior
written consent of Landlord, which shall not be unreasonably withheld; it is
specifically understood that the foregoing condition shall not prohibit
advertisements, communications or listings (x) among brokers, which are not
available to the general public, or (y) in professional or trade journals, or
publications of equal dignity, or the yellow pages of the Westchester County
telephone directory, insofar as the use specified in Section 22.03B is involved.
It shall not be unreasonable for Landlord to deny its consent if any
advertisement or public communication (which shall not be construed as a listing
with a broker) shall list the rental rate in any way or shall adversely reflect
on the dignity, character or prestige of the Building;
(ii) No space shall be sublet to another tenant, or to a related
entity of any other tenant, or to any other occupancy of the Building; if
Landlord shall then have available for rent comparable or similar space in the
Building;
(iii) No subletting shall be to a person or entity which has a
financial standing less than that of Tenant at the time of execution of this
Lease and is of a character, is engaged in business, is of a reputation, or
proposes to use the sublet premises in a manner, not in keeping with the
standards in such respects of the other tenancies of the Building;
(iv) The subletting shall be expressly subject to all of the
obligations of Tenant under this Lease, and, without limiting the generality of
the foregoing, the sublease shall impose at least the same restrictions and
conditions with respect to use as are contained in Section 1.01 and Article 8
hereof, and shall specifically provide that there shall be no further subletting
of the sublet premises;
(v) That part, if any, of the term of any such sublease or any
renewal or extension thereof, which shall extend beyond a date one (1) day prior
to the expiration or earlier termination of the term, shall be a nullity;
(vi) The subletting shall not have the effect, or give the utility
serving the Building with electricity cause to claim, that Landlord will not be
permitted to serve the Demised Premises or the portion thereof so sublet, or any
of the other lease portions of the Building, with electricity, on a "rent
inclusion" basis as provided for herein;
(vii) No such subletting shall result in there being, in addition
to Tenant and any occupants of Tenant's offices service business, more than
three (3) subtenants, users or occupants in the Demised Premises;
(viii) The Base Rent and additional rent for any such subletting
shall be not less than the greater of (a) that provided for under this lease on
a per square foot basis for the space as proposed to be sublet, and (b) the then
going market rental rate for comparable space and for a comparable term in the
Building (or if none is or has been currently leased or subleased, then
comparable space and term in a comparable building in the area in which the
Building is located;
(ix) The proposed subtenant shall not be a person then negotiating
with Landlord for the rental of any space in the Building;
(x) The subleased premises shall be used for the Permitted Use;
(xi) The business of the subtenant shall not be in violation of any
restriction against competition contained in any other lease of at least 15,000
rentable square feet to which Landlord is a party;
(xii) Landlord shall be furnished with a copy of the agreement of
sublease to be executed, at least ten (10) days prior to its execution, and with
a duplicate original of the sublease, within ten (10) days after the date of its
execution;
(xiii) Tenant shall pay to Landlord, an additional rent, a sum
equal to 50% of the amount of (a) all Base Rent and additional rent and any
other consideration paid or payable to Tenant by any subtenant which is in
excess of the Base Rent and additional rent then being paid by Tenant to
Landlord pursuant to the terms hereof (after deducting from such excess the
reasonable net costs incurred by Tenant for brokerage and subtenant improvements
in connection with such sublease), and (b) any other profit or gain realized by
Tenant from any such subletting; if only a part of the Demised Premises is
sublet, then the Base Rent and additional rent paid therefor by Tenant to
Landlord shall be deemed to be that fraction thereof that the area of said
sublet space bears to the entire Demised Premises;
(xiv) Tenant shall have fully and faithfully complied with all of
the terms, covenants and conditions of this Lease on the part of the Tenant then
to have been performed under this Lease: and
(xv) Every sublease shall contain substantially the following
language:
"In the event a default under any superior lease covering all or any
portion of the premises demised hereby results in the termination of
such superior lease, this sublease shall, at the option of the lessor
under such superior lease, remain in full force and effect and the
subtenant hereunder shall attorn to and recognize such lessor as owner
and landlord hereunder and shall promptly upon such lessor's request,
execute and deliver all instruments necessary or appropriate to
confirm such attornment and recognition. The subtenant hereunder
hereby waives all rights under any present or future laws or otherwise
to elect, by reason of the termination of such superior lease, to
terminate this sublease or surrender possession of the premises
demised hereby."
22.05 The provisions of this Article 22 shall apply to each such proposed
subletting, none of which shall be effective until all of the foregoing shall
have been compiled with. Notwithstanding any subletting, Tenant and any future
sublessor shall remain liable for the full performance of all the terms and
conditions of this Lease on the part of the Tenant to be performed.
ARTICLE 23
Security Deposit
23.01 A. As security for the punctual performance by Tenant of each and
every obligation of it under this Lease (the "Liabilities"), Tenant hereby
covenants and agrees with Landlord that, except as provided herein, it will not
enter into any pledge, credit retention or
security or similar agreement (nor execute financing statements pursuant
thereto) selling, transferring, or conveying, or creating a lien in and to any
of the following, whether now existing or owned or hereafter arising or acquired
(collectively, the "Receivables"):
Tenant's right, title and Interest in "Management Fees" (as
hereafter defined) which are now, or which in the future may be
receivable by it pursuant to: (1) the Agreements of Limited
Partnership, as currently amended, for ICON Cash Flow Partners, L.P.,
Series A; ICON Cash Flow Partners, L.P., Series B; ICON Cash Flow
Partners, L.P., Series C; ICON Cash Flow Partners, L.P., Series D,
ICON Cash Flow Partners, L.P., Series E; and (2) any other public
limited partnerships of a similar form or nature formed or sponsored
by Tenant or any subsidiaries of Tenant in which Tenant or any of its
subsidiaries is General Partner and/or Manager (collectively, the
"Limited Partnership" and each individually, a "Limited Partnership").
Tenant represents and warrants that the Receivables are, and that they and
all future Receivables will remain during the Term of this Lease, free and clear
of all liens, security interests and further encumbrances except as permitted by
the terms hereof and of the applicable Partnership Agreement.
B. Landlord shall not have any obligation or liability under the
contracts and agreements included in the Receivables by reason of this Article
23, nor shall Landlord be obligated to perform any of the obligations or duties
of Tenant thereunder or to take any action to collect or enforce any claim for
payment thereunder.
C. Tenant shall not sell, assign or otherwise dispose of any of the
Receivables, and shall not create or authorize creation of any lien, security
interest or other charge or further encumbrance upon or with respect to them
except as permitted by the terms of this Article 23 and of the applicable
Partnership Agreement.
D. (i) In the event that Tenant violates the representations,
warranties and covenants set forth in this Article 23 (which representations,
warranties and covenants are hereinafter referred to as the "Negative Pledge"),
Landlord shall give Tenant written notice of said violation ("Landlord's Notice
of Violation") and Tenant shall have twelve (12) days to cure said violation (or
to deposit with Landlord, as alternate security, cash or a "Letter of Credit",
as hereinafter defined, in either case in the amount specified below at
subsection 23.04). In the event that Tenant has failed to either cure the
violation described in Landlord's Notice of Violation or to deposit with
Landlord the alternate security in cash, or in the form of a Letter of Credit,
by the close of business on the twelfth (12th) day following Landlord's
rendition of such Notice, then Landlord shall have the right to file one or more
financing and/or continuation statements and amendments thereto, relative to all
or any part of the Receivables and the "Collateral" (as hereinafter defined)
without the signature of Tenant, and the above-described Negative Pledge
automatically shall convert to a positive and deliberate pledge of all of
Tenant's
Receivables, and all proceeds and products of the foregoing (in the
aggregate the "Collateral") to Landlord in the aggregate amount specified below
at subsection 23.01D(ii). Tenant hereby irrevocably appoints Landlord as its
attorney-in-fact, with full authority in its place and stead and in its name to
sign in the name and on behalf of Tenant UCC-1 financing statements reasonably
necessary to accomplish the purposes of this Section 23.01D(i), and to file same
in the locations specified below at Section 23.01D(iii)(b). In the event that
Tenant deposits with Landlord the alternate security in cash, or in the form of
a Letter of Credit, within the above-described twelve day period but falls to
cure the violation described in Landlord's Notice of Violation and same
continues, then nothing herein shall prevent or preclude Landlord from suing
Tenant for fraud.
(ii) The aggregate initial amount of the security interest described in
Section 23.01D(i) shall be $950,000.00; however, said amount shall decline
during the first three Rent Years hereunder on a straight line basis at the rate
of $26,388.88 per month to, but not below, $500,000.00 on the last day of the
third Rent Year, and shall remain at $500,000.00 until the end of the Term
unless substitute security, pursuant to the provisions of Section 23.05 below,
is delivered to Landlord.
(iii) Anything In this Article to the contrary notwithstanding, Tenant
shall have the right to encumber its Receivables in favor of a bank, insurance
company, pension plan, institutional lender, or other third party upon thirty
(30) days prior written notice to Landlord provided that, and only to the extent
that, prior to so doing: (a) it grants and delivers to Landlord, in form and
substance reasonably satisfactory to Landlord, a first security interest in its
Receivables in the then-applicable aggregate amount specified above at Section
23.01D(ii) evidenced by a properly executed and acknowledged security agreement
and UCC-1 form financing statements, (b) it files said statements at its cost
and expense with the Secretary of State of the State of New York and with the
Clerk of the County of Westchester (or the state and county in which Tenant is
then headquartered and in which it maintains evidence of its Receivables and
records pertaining thereto) to evidence such security interest, and (c) Landlord
has received a UCC-11 search report evidencing the proper filing of said UCC-1s.
E. During the period of time that the Negative Pledge serves as
security, Tenant shall provide Landlord with copies of its audited financial
statements prepared on an annual basis and with copies of other financial
statements, if any, prepared by Tenant as part of any public record. Once
Tenant takes possession of the Demised Premises, Tenant shall. at least
initially, keep its principal place of business, its principal executive office
and the offices where it keeps its records concerning its Collateral, at the
Building and Tenant shall give Landlord prior written notice of any change in
the location of same.
F. If any "Default" (as hereinafter defined) shall have occurred and
be continuing after Landlord has filed UCC-1 against Tenant's Collateral as
permitted by Section 23.01D(i) hereof, or after Tenant has filed any such UCC-1s
pursuant to Section 23.01D(iii) hereof, then Landlord (i) may exercise in
respect of the Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party on default under the New York Uniform Commercial Code and other applicable
laws and agreements; (ii) shall have the right to notify the account debtors or
obligors under any
Receivables of the assignment thereof to Landlord to the extent of the sums due
Landlord hereunder and to direct such account debtors or obligors to make
payment of all amounts due or to become due thereon directly to Landlord; and
(iii) if Landlord is unable to collect 100% of the above sums due Landlord by
Tenant under this Lease, Landlord shall have the right to notify Tenant's bank
of the amounts due Landlord plus of all monthly installments thereafter coming
due under this Lease and such notice shall serve as direction to such bank to
debit Tenant's account in the amounts specified in Landlord's notice and pay
said amounts directly to Landlord in accordance with this Lease. Upon such
notification, Tenant at its expense shall take all steps necessary to enforce
collection of any such Receivables for Landlord. After such notification and
during the continuation of a Default: (a) Tenant shall not adjust, settle or
compromise the amount or payment of any Receivable, or release wholly or in part
any account debtor or obligor thereunder, or allow any credit or discount
thereon outside of the ordinary course of business; and (b) all amounts and
proceeds received or collected by Tenant in respect of the Receivables or other
collateral up to the total amount due Landlord shall be received in trust for
Landlord and shall be forthwith paid over to Landlord in the same form an so
received (with any necessary endorsement). Nothing herein shall be read as
authorizing Landlord to collect more than one hundred percent of the sums due
Landlord by Tenant under the Lease.
G. Tenant covenants that: (i) all Management Fees payable by the
Limited Partnerships In existence on the date of this Lease are as of said date
payable only to Tenant; (ii) all Management Fees payable by existing and/or by
future Limited Partnerships will be receivable by and paid to no entity other
than Tenant, unless thirty days prior written notice that they are payable to
another party to delivered by Tenant to Landlord together with a security
agreement from said other party granting to Landlord rights in said other
party's Collateral that are substantially similar to those granted by Tenant to
Landlord herein; (iii) it shall do nothing further to limit its right to receive
Management Fees or to terminate any agreements (whether now existing or
hereafter created) under which It receives or is to receive Management Fees;
(iv) it shall take all steps necessary to maintain in full force and effect all
such agreements; and (v) it shall not exercise any right as general partner or
Manager (as such term is defined in existing agreements of Limited Partnership)
or managing agent of any Limited Partnership or to Appoint a new or substitute
Manager, or to transfer its rights to Management Fees to a new or substitute
Manager without prior written notice to Landlord and the delivery to Landlord
from said new Manager of a security agreement granting to Landlord rights in
said newly appointed Manager's Collateral that are substantially similar to
those granted by Tenant to Landlord herein.
23.02. A. For purposes of this Article 23: (i) "Default" shall mean any
of:
nonpayment and/or nonperformance of any of the Liabilities, or the breach
of any covenant, representation or warranty made by Tenant herein; and (ii)
"Management Fees" shall mean those fees representing compensation to Tenant or
its subsidiaries for the provision to the applicable Limited Partnership(s) of
day-to-day management of assets including, but not limited to, marketing and
leasing and releasing of equipment, monitoring the use of collateral for
financing transactions, arranging for necessary maintenance and repairs of
equipment, collecting revenues, paying operating expenses not paid directly by
lessees, determining that equipment is used in accordance with all operative
contractual arrangements, and providing clerical and bookkeeping services.
B. Any amounts received or collected by Landlord pursuant to this
Article 23 shall be applied in whole or in part by Landlord against all or any
part of the Liabilities, in such order as Landlord shall reasonably determine in
accordance with this Lease. Any surplus in excess of the security to which
Landlord to then entitled under the terms of this Article remaining after
satisfaction in full of all Liabilities shall be paid over to Tenant.
23.03 A. Anything to the contrary hereinabove notwithstanding, Tenant
shall have the right, at any time upon thirty days prior written notice to
Landlord, to substitute for the security interest above described, as the
security for the Liabilities, a sight, demand, unconditional, irrevocable one
year letter of credit (the "Letter of Credit") in the amount specified in
Section 23.04, issued by a national, commercial bank, naming Landlord as payee,
and providing that (a) in the event of and during the continuance of any Default
by Tenant, Landlord may draw on such Letter of Credit in a sufficient amount,
and may apply the proceeds of such drawing, to cure the Default and, at
Landlord's election to reimburse Landlord for any sum which Landlord may incur
and to which Landlord is entitled to be reimbursed under this Lease by reason of
the Default, and (b) in the event that such Letter of Credit is not renewed or
replaced with a like-kind Letter of Credit, prior to 30 days before the maturity
or expiration date of such Letter of Credit, then the full amount of such Letter
of Credit may be drawn by, and paid to, Landlord on or after such date thereupon
Landlord shall deposit such proceeds in a bank account and the same shall
constitute the Security Deposit. In the case of every drawing described in
clause (a) of the preceding sentence. Tenant shall, on demand, pay to Landlord
a cash sum equal to the proceeds so drawn which shall be placed in a bank
account and when added to the undrawn principal balance of the Letter of Credit
shall total at all times an amount equal to the sum specified in Section 23.04.
B. On receipt of a Letter of Credit pursuant to subsection A above,
Landlord shall promptly release Tenant from its obligation under the negative
Pledge described in Section 23.01 and any cash deposits provided to Landlord
pursuant to Section 23.03.
C. Interest an any cash security deposit shall accrue to Tenant, be
applied against any further security payments due hereunder from Tenant. and the
balance. if any, shall be payable as follows: if at the end of the Term Tenant
shall not be in default under this Lease, the security deposits, or any balance
thereof, together with any interest earned thereon, shall be returned to Tenant,
within thirty (30) days after the Expiration Date. If prior to the Expiration
Date Tenant shall be entitled under the terms of this Article to reduce the
amounts held as security hereunder, then so long as Tenant shall not be in
default under this Lease, so much of the Letter of Credit and security deposits
hereunder or any balance remaining thereof shall be returned to Tenant as will
result in there being on deposit with Landlord reduced security deposits in
accordance with the terms of Sections 23.04 and 23.05 hereof.
D. In the event of a sale of the land and Building, the leasing of
the whole Building or the transfer of the Building to the holder of any superior
mortgage or superior lease, Landlord shall have the right to transfer the
security, whether then in form of a Negative Pledge, a security interest in
Receivables or Collateral, a Letter of Credit or cash in a bank account, to any
vendee, lessee or holder who recognizes Tenant's rights under this Lease and
assumes Landlord's obligations under this Lease. Landlord shall thereupon be
released by Tenant from all
liability for the return or release of such security and, Tenant shall thereupon
look solely to the new landlord for the return or release of said security. It
is agreed that the provisions hereof shall apply to every transfer made of the
security to a new landlord. In connection with any such transfer where any of
the security then in the form of a Letter of Credit, Tenant shall cause the
Letter of Credit to be amended so as to name such transferee as payee, and if
the foregoing is not effected by Tenant within five days of Landlord's written
request, Landlord shall have the right to draw down the Letter of Credit and
transfer the proceeds thereof to such transferee.
E. Tenant further agrees that it will not assign or encumber or
attempt to assign or encumber the cash security deposit and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
23.04 The amount of the Letter of Credit shall be determined by the Rent
Year in which the said substitution is made. If substitution is made at the
beginning of the first Rent Year, the face amount of the Letter of Credit shall
be $400,000.00; however, said amount shall decline during the first three Rent
Years hereunder on a straight-line basis to be $200,000.00 on the last day of
the third Rent Year. at which amount it shall remain until the end of the Term
unless substitute security, pursuant to the provisions of Section 23.05 below,
is delivered to Landlord.
23.05 Anything to the contrary hereinabove notwithstanding, no later than
thirty days prior to the expiration of the sixth Rent Year, Tenant shall deposit
with Landlord as security for the punctual performance by Tenant of the
Liabilities, either (i) cash or (ii) a Letter of Credit meeting all the
requirements other than amount specified at Section 23.03, in either case in a
sum equal to two times (x) the average monthly Base Rent payable for the seventh
through twelfth Rent Years of the Term, plus (y) the monthly increases then
payable under Articles 6 and 10. Upon receipt of said deposit in accordance
with the requirements of this Section 23.05, (1) Landlord shall promptly return
to Tenant any previously delivered Letter of Credit, whereupon Tenant shall be
released from its negative Pledge above described at Section 23.01, and (2) for
the balance of the Term Landlord shall have all of the rights, and Tenant shall
have all of the obligations, described above at Sections 23.03C, D and E. If
Tenant shall fail to so deposit timely, such failure shall constitute a Default
thereunder and Landlord shall have the right to draw down any Letter of Credit
then deposited with Landlord, pursuant to Section 23.03A hereof.
23.06 Tenant acknowledges that Landlord is relying on each and every one
of the covenants, representations and warranties above set forth in this Article
23 in entering into this Lease, and agrees that any violation of said covenants,
representations and warranties shall, among all other rights and remedies
available to Landlord therefor, constitute fraud.
ARTICLE 24
Quiet Enjoyment, Subordination and Attornment, and
Notice Prior to Suit
24.01 Landlord covenants that if, and so long as, Tenant pays all of the
Base Rent and additional rent due hereunder, and keeping and performing each and
every covenant, agreement, term, provision and condition herein contained on the
part and on behalf of Tenant to be kept and performed, Tenant shall quietly
enjoy the Demised Premises without hindrance or molestation by Landlord or by
any other person lawfully claiming the same, subject to the covenants,
agreements, terms, provisions and conditions of this Lease and to any superior
leases and/or superior mortgages.
24.02 This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all present and future ground leases,
over-riding leases and underlying leases and/or grants of term of the land
and/or the Building or the portion thereof in which the Demised Premises are
located in whole or in part now or hereafter existing ("superior leases") and to
all mortgages and building loan agreements, which may now or hereafter affect
the land and/or the Building and/or any superior leases ("superior mortgages")
whether or not the superior leases or superior mortgages shall also cover other
lands and/or buildings, and to each and every advance made or hereafter to be
made under the superior mortgages, and to all renewals, modifications,
replacements and extensions of the superior leases and superior mortgages and
spreaders, consolidations and correlations of the superior mortgages. This
Section shall be self-operative and no further instrument of subordination shall
be required. In confirmation of such subordination, Tenant shall promptly
execute and deliver at its own cost and expense any instrument, in recordable
form, if required, that Landlord, the lessor of any superior lease or the holder
of any superior mortgage of any of their respective successors in interest may
request to evidence such subordination and Tenant hereby constitutes and
appoints Landlord attorney-in-fact for Tenant to execute any such instrument for
and an behalf of Tenant.
Tenant agrees without further instruments of attornment in each came, to
attorn to lessor under any superior lease, or the holder of any superior
mortgage, as the case may be to waive the provisions of any statute or rule or
law now or hereafter in effect which may give or propose to give Tenant any
right of election to terminate this Lease or to surrender possession of the
Demised Premises in the event a superior lease is terminated or a superior
mortgage is foreclosed, and that unless and until said lessor, or holder, as the
case may be, shall elect to terminate this Lease, this Lease shall not be
affected in any way whatsoever by any such proceeding or termination, and Tenant
shall take no steps to terminate this Lease without giving written notice to
said lessor under the superior lease, or holder of a superior mortgage, and a
reasonable opportunity to cure (without such lessor or holder being obligated to
cure), any default on the pact of the Landlord under this Lease. In
confirmation of such attornment, Tenant shall promptly execute and deliver at
its own cost and expense any Instrument, in recordable form, if required, that
Landlord, the lessor of any superior lease or the holder of any superior
mortgage or any of their respective successors in interest may request to
evidence such attornment, and Tenant hereby constitutes and appoints Landlord
attorney-in-fact for Tenant to execute any such instrument for and on behalf of
Tenant.
Landlord shall obtain, and deliver to Tenant within 20 business days
following the Execution Date, from the holder of any present superior mortgage
and superior lease (and Landlord shall use due diligence to obtain from the
holder of any future superior mortgage and
superior lease) a "non-disturbance agreement", duly executed by such holder,
which shall mean an agreement, in such holder's standard form (so long as
consistent to instruments of other such holders in the area in which the
Building is located), that so long an Tenant is not in default beyond any
applicable cure period, in the event of any termination of the superior lease or
any foreclosure of the superior mortgage, this Lease shall not be terminated by
Landlord and Tenant shall not be named as a party, unless technically so
necessary, in any proceedings in connection therewith.
24.03 Notwithstanding any contrary provision of this Lease, Tenant shall
not under any circumstances commence any action or proceeding or take any action
based upon an alleged breach or default of this Lease by or through Landlord
unless and until (a) Tenant shall have notified Landlord thereof, specifying in
detail the facts of the alleged breach or default, and (b) Landlord shall not
have cured, or used due diligence to cure, said alleged breach or default within
20 days after receipt of said notice.
ARTICLE 25
Brokerage
Tenant represents that, in the negotiation of this Lease, it dealt with no
broker or brokers other than the Leasing Broker, and based thereupon Landlord
agrees to pay to the Leasing Broker a brokerage fee per a separate agreement
between Landlord and Leasing Broker which either has been entered into at the
time of signing this Lease or which may hereinafter be entered into. Tenant
thereby indemnities Landlord and agrees to hold Landlord harmless from any and
all losses, costs. damages, expenses, claims and liabilities, Including, without
limitations court costs and attorneys' fees and disbursements, arising out of
any inaccuracy or alleged inaccuracy of the above representation. Landlord
shall have no liability for brokerage commissions arising out of any sublease by
Tenant, and Tenant shall and does hereby Indemnify Landlord and hold Landlord
harmless from any and all liabilities for brokerage commission arising out of
any such sublease.
ARTICLE 26
Re-Entry by Landlord on Tenant's Default,
Curing Tenant's Defaults
26.01 If this Lease shall terminate for any reason whatsoever, Landlord or
Landlord's agents and employees may, without further notice, immediately or at
any time thereafter enter upon and re-enter the Demised Premises, or any part
thereof, and possess or repossess itself thereof either by summary dispossess
proceedings, ejectment or by any suitable action or proceeding at law, or by
agreement, and may dispossess and remove Tenant and all other persons and
property from the Demised Premises without being liable to indictment,
prosecution, or damages therefor, and may repossess the same, and may remove any
persons therefrom, to the end that Landlord may have, hold and enjoy the Demised
Premises and the right to receive all
rental income again as and of its first estate and interest therein. The words
"enter" or "re-enter", "possess" or "repossess" an herein used, are not
restricted to their technical legal meaning. In the event of any termination of
this Lease under the provisions of Article 21 or re-entry under this Article or
in the event of the termination of this Lease or of re-entry by summary
dispossess proceedings, ejectment or by any suitable action or proceeding at
law, or by agreement, by reason of default hereunder on the part of Tenant,
Tenant shall thereupon pay to Landlord the Base Rent and additional rent due up
to the time of such termination of this Lease or of such recovery of possession
of the Demised Premises by Landlord, as the came may be, and shall also pay to
Landlord damages as provided In Article 30.
26.02 In the event of any breach or threatened breach by Tenant of any of
the agreements, terms, covenants or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity or by statute
or otherwise as though re-entry, summary proceedings, and other remedies were
not provided for In this Lease.
26.03 Each right and remedy of Landlord provided for in this Lease shall
be cumulative and shall be in addition to every other right or remedy provided
for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise, and the exercise or beginning of the exercise by Landlord of any
one or more of the rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by Landlord of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise.
26.04 If this Lease shall terminate under the provisions of Article 21, or
if Landlord shall re-enter the Demised Premises under the provisions of this
Article 26, or in the event of the termination of this Lease or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such monies shall be credited by
Landlord against any Base Rent or additional rent due from Tenant at the time of
such termination or re-entry or, at Landlord's option, against any damages
payable by Tenant under Article 30 or pursuant to law.
26.05 If Tenant shall default in the performance of any covenant,
agreement, term, provision or condition herein contained, Landlord without
thereby waiving such default, may perform the same for the account and at the
expense of Tenant without notice in case of emergency and in any other case if
such default continues after three (3) days from the due date of the giving by
Landlord to Tenant of written notice of intention to do so. Bills for any
reasonable and necessary expense incurred by Landlord in connection with any
such performance by Landlord for the account of Tenant, and reasonable and
necessary bills for all costs, expenses and disbursements, including (without
being limited to) reasonable counsel fees, incurred in collecting or endeavoring
to collect the Base Rent or additional rent or other charge or any part thereof
or enforcing or endeavoring to enforce any rights against Tenant under or in
connection with this Lease, or pursuant to law, whether or not any action or
proceeding is instituted, payable by Tenant, within three (3) days of notice to
Tenant and if not paid when due, the amounts
thereof shall immediately become due and payable as additional rent under this
Lease together with interest thereon at the lesser of the maximum rate permitted
by law or the rate of three (3%) percent per month or portion thereof from the
date the said bills should have been paid in accordance with their terms.
Landlord reserves the right, without liability to Tenant and without
constituting any claim or constructive eviction, to suspend furnishing or
rendering to Tenant any property, material, labor, utility or other service,
wherever Landlord is obligated to furnish or render the same at the expense of
Tenant in the event that (but only for so long as) Tenant is in arrears in
paying Landlord therefor.
26.06 To secure the payment of all rent and its performance of this
Lease, Tenant grants to Landlord an express first and prior lien and security
interest on all Tenant's Property which may be placed in the Demised Premises,
and also upon all proceeds of any insurance which may accrue to Tenant by reason
of the destruction or damage of any such Tenant's Property. Tenant will not
remove such Tenant's Property from the Demised Premises (except in the ordinary
course of business) without the written consent of Landlord until all arrearages
in rent have been paid. Tenant waives the benefit of all exemption laws in
favor of such lien and security interest. This lien and security interest is
given in addition to Landlord's statutory lien and is cumulative with it. Upon
the occurrence of an event of default, these liens may be foreclosed with or
without court proceedings by public or private sale, so long as Landlord gives
Tenant at least fifteen (15) days' notice of the time and place of the sale.
Landlord will have the right to become the purchaser if it is the highest bidder
at such sale. Contemporaneous with its execution of this Lease (and if
requested after such execution by Landlord), Tenant will execute and deliver to
Landlord Uniform Commercial Code financing statements in form and substance
sufficient (upon proper filing) to perfect the security interest granted in this
Section. If requested by Landlord, Tenant also will execute and deliver to
Landlord Uniform Commercial Code continuation statements In form and substance
sufficient to reflect any proper amendment of, modification in, or extension of
the security interest granted in this Section.
ARTICLE 27
Notices
27.01 Whenever either party shall consist of more than one (1) person or
entity, any notice, statement. demand, or other communication required or
permitted and any payment to be made shall be deemed duly given or paid if
addressed to or by (or in the case of payment by check, to the order of) any one
of such persons or entities who shall be designated from time to time an the
authorized representative of such party. Such party shall promptly notify the
other of the identity of such person or entity who is so to act on behalf of all
persons and entitles then comprising such party and of all changes in such
identity.
27.02 Any notice, statement, demand, request or other communication
required or permitted pursuant to this Lease or otherwise shall be in writing
and shall be deemed to have been properly given if addressed to the other party
at the address hereinabove set forth (except that after the Commencement Date,
Tenant's address, unless Tenant shall give notice to the
contrary, shall be the Building), and (a) if sent to such address by (i)
registered or certified United States mall, return receipt requested, postage
prepaid, or (ii) United States Express mail or private reputable overnight
carrier, charges prepaid, or (b) if personally delivered to such address to an
officer, partner or other authorized representative of the other party, receipt
requested, then in any of such events referred to in clauses (a) and (b) above,
notice shall be deemed to have been given, rendered or made upon delivery, or if
rejected when delivery was attempted. Either party may, by notice as aforesaid,
designate a different address or addresses (not to exceed two) for notices,
statements, demands or other communications intended for it. However, notices
requesting After Hours services pursuant to Sections 7.01 and 11.03 may be
given, provided they are in writing, by delivery to the Building Superintendent
or any other person in the Building designated by Landlord to receive such
notices, and notice of fire, accident or other emergency shall be given by
telegram or by personal delivery of written notice to that address designated
for this purpose from time to time by the respective parties hereto.
27.03 Tenant shall give notice to Landlord promptly after Tenant learns
thereof (a) of any accident in or about the Demised Premises or the Building,
(b) of all fires in the Demised Premises, (c) of all damages to or defects in
the Demised Premises, including the fixtures, equipment and appurtenances
thereof, for the repair of which Landlord might be responsible or which
constitutes Landlord's property, and (d) of all damage to or defects in any
parts or appurtenances of the Building's sanitary, electrical, heating,
ventilating, air conditioning, elevator and other systems located in or passing
through the Demised Premises.
ARTICLE 28
Rules and Regulations; Laws and Requirements
of Public Authorities
28.01 Tenant covenants that promptly it shall notify Landlord of any
written notice it receives of the violation of, and Tenant shall comply with,
all present and future laws, statutes, codes, rules, regulations and
requirements of any Federal, State, Municipal or other public authorities which
shall, with respect to the Building or the Demised Premises or the use and
occupation thereof or the abatement of any nuisance therein, impose any
violation, order, duty or obligation in connection with or arising from (a)
Tenant's or any other party's use of the Demised Premises, (b) the manner of
conduct of any business therein or the operation of any installations, equipment
or other property therein, (c) any cause or condition created by or at the
instance of Tenant or any other party, (d) breach of any of Tenant's obligations
hereunder, or (e) any event which with notice or the passage of time, or both,
would constitute a default under this Lease.
28.02 Tenant and its employees and scents shall, at their sole cost and
expenses, faithfully observe and company with (a) the Rules and Regulations
annexed hereto as Exhibit "C", and such reasonable changes therein (whether by
modification, elimination or addition) as Landlord at any time or times
hereafter may make and communicate in writing to Tenant, which do not
unreasonably affect the conduct of Tenant's business in the Demised Premises;
provided however, that in case of any conflict or inconsistency between the
provisions of this Lease and
any Rules and Regulations changed subsequent to the date of this Lease the
provision of this Lease shall control, and (b) all laws, statutes, codes, rules,
regulations and requirements referred to in Section 28.01 hereof.
ARTICLE 29
Non-Liability, Indemnification and Non-Recourse
29.01 Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant. Its employees, agents, contractors and licensees, and Tenant
shall hold Landlord harmless for any injury or damage to Tenant or to any other
persons for any damage to, or lose (by theft, vandalism or otherwise) of, any
property of Tenant and/or of any other person, irrespective of the cause (unless
caused by Landlord's gross negligence or willful act) of such injury, damage or
lose, including, without limitation, that caused by water regardless of its
source, or that resulting from promulgating or falling to promulgate or enforce
any Rules and Regulations specified in Exhibit "C". Landlord shall not be
liable in any event for loss of, or damage to, any property entrusted to any of
landlord's employees or agents by Tenant, without Landlord's specific written
consent. Landlord shall not be liable for the security or physical safety of
Tenant, its employees, agents or visitors, including. without limitation, after
hours use of the Demised Premises, the Building or the Real Property.
29.02 Tenant shall defend, indemnify and save harmless Landlord and its
agents and employees against and from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including reasonable architects'
and attorneys' fees, which may be imposed upon or incurred by or asserted
against Landlord and/or its agents by reason or any of the following occurring
during the Term, or during any period of time prior to the Commencement Date
that Tenant may have been given access to or possession of all or any part of
the Demised Premises: (a) any work or thing done in on or about the Demised
Premises or any part thereof by or at the instance of Tenant, its agents,
contractors, subcontractors, servants, employees, licensees, or invitees; (b)
any negligence or otherwise wrongful act or omission on the part of Tenant or
any of its agents, contractors, subcontractors, servants, employees, licensees,
or invitees (c) any accident, injury, or damage to any person or property
occurring in, on or about the Demised Premises or any part thereof, or vault,
passageway, or space adjacent thereto; (d) any failure on the part of Tenant to
perform or comply with any of the covenants, agreements, terms, provisions,
conditions or limitations contained in this Lease on its part to be performed or
complied with. In case any action or proceeding is brought against Landlord by
reason of any such claim, Tenant upon written notice from Landlord shall at
Tenant's expense resist or defend such action or proceeding by counsel approved
by Landlord in writing, which approval Landlord shall not unreasonably be
withheld.
29.03 Except as otherwise provided herein, this Lease and the obligations
of Tenant to pay rent hereunder and perform all of the other covenants,
agreements, terms, provisions and conditions hereunder on the part of Tenant to
be performed shall in no wise be affected, impaired or excused because Landlord
is unable to fulfill any of its obligations under this Lease or is unable to
supply or is delayed in supplying any service, express or implied, to be
supplied or is
unable to make or is delayed in supplying any equipment or fixtures if Landlord
is prevented or delayed from so doing by reason of any Events of Force Majeure,
as defined in Section 4.04 hereof; provided that Landlord shall in each instance
exercise reasonable diligence to effect performance when and as soon as
possible. However, nothing contained in this Section shall be deemed to extend
or otherwise modify or affect any of the time limits and conditions set forth in
Section 15.03.
29.04 Notwithstanding any contrary provisions of this Lease whatsoever,
including, without limitation, those pertaining to use and Permitted Use, Tenant
shall not use, or permit the use of the Demised Premises or the Real Property so
as to create or result in, directly or indirectly, (a) any sudden or gradual
spill, leak, discharge, escape, seepage, infiltration, abandonment, dumping,
disposal or storage of any hazardous or industrial waste, substance or
contamination, effluent, sewage, pollution or other detrimental or deleterious
material or substance (including without limitation asbestos), or the disposal,
storage or abandonment on the Real Property of any material, tank or container
holding or contaminated by any of the foregoing or residues thereof, or the
installation of any material or product containing or composed of any of the
foregoing, in, on, from under or above the Real Property (the foregoing
occurrences being hereinafter collectively called "Environmental Hazard"), or
(b) any violation, or state of facts or condition which would result in a
violation, of any Federal, State or local statute, law, code, rule, regulation
or order applicable to any Environmental Hazard (the foregoing being hereinafter
collectively called "Legal Violation"). In the event of the violation of the
foregoing by Tenant, in addition to all other rights and remedies of Landlord
under this Lease, regardless of when the existence of the Environmental Hazard
or Legal Violation is determined, and whether during the Term or after the
Expiration Date, (I) Tenant shall, immediately upon notice from Landlord, at
Tenant's sole cost and expense, at Landlord's option either (x) take all action
necessary to test, identify and monitor the Environmental Hazard and to remove
the Environmental Hazard from the Real Property and dispose of the same and
restore the Real Property to the condition existing prior to such removal,
and/or to remedy any Legal Violation, all in accordance with applicable Federal,
State and local statutes, laws, codes, rules, regulations or orders or (y)
reimburse Landlord for all costs and expenses incurred by Landlord for
engineering or environmental consultant or laboratory services) in testing,
investigating, identifying and monitoring the Environmental Hazard and in
removing and disposing of the Environmental Hazard and in restoring the Real
Property, and/or in remedying any Legal Violation, and (II) Tenant shall and
hereby does defend with legal counsel acceptable to Landlord, indemnify and save
harmless Landlord and Others in Interest against and from all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
architects' and attorneys' fees and disbursements which may be imposed upon or
incurred by or asserted against Landlord and Others in Interest, whether by any
governmental authority, Tenant or other third party, by reason of any violation
or alleged violation of any of the foregoing provisions of this Section.
29.05 Tenant shall look solely to the estate and interest of Landlord, its
successors and assigns, in the land and Building (or the proceeds thereof) for
the collection of a judgment (or other judicial process) requiring the payment
of or money by Landlord in the event of any default by Landlord hereunder, and
no other property or assets of Landlord (or if Landlord is a
partnership of any partner of Landlord) 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.
29.06 All of the provisions of this Article 29 shall survive termination
of this Lease.
ARTICLE 30
Damages
30.01 If this Lease is terminated under the provisions of Article 21, or
if Landlord shall re-enter the Demised Premises under the provisions of Article
26 or in the event of the termination of this Lease, or of re-entry by summary
dispossess proceedings, ejectment or by any suitable action or proceeding at
law, or by agreement, or by force or otherwise, by reason of default hereunder
on the part of Tenant, Tenant shall pay to Landlord as damages, at the election
of Landlord, either.
A. on demand, a sum which at the time of such termination of this
Lease or at the time of any such re-entry by Landlord, as the case may be,
represents the excess of (1) the aggregate of the Base Rent and the additional
rent payable hereunder which would have been payable by Tenant (conclusively
presuming the additional rent to be the same as was payable for the year
immediately preceding such termination) for the period commencing with such
earlier termination of this Lease or the date of any such re-entry, as the case
may be, and ending with the expiration of the Term, had this Lease not so
terminated or had Landlord not so re-entered the Demised Premises, over (2) the
aggregate market rental value (calculated as of the date of such termination or
re-entry) of the Demised Premises for the same period, or,
B. sums equal to the Base Rent and the additional rent (as above
presumed) payable hereunder which would have been payable by Tenant had this
Lease not so terminated, or had Landlord not so re-entered the Demised Premises,
payable quarterly but otherwise upon the terms therefor specified herein
following such termination or such re-entry and until the expiration of the
Term, provided, however, that if Landlord shall relet the Demised Premises or
any portion or portions thereof during said period Landlord shall credit Tenant
with the net rents received by Landlord from such reletting, such net rents to
be determined by first deducting from the gross rents as and when received by
Landlord from such reletting the expenses incurred or paid by Landlord in
terminating this Lease or in re-entering the Demised Premises and in securing
possession thereof, as well as the expenses of reletting, including altering and
preparing the Demised Premises or any portion or portions' thereof for new
tenants, brokers' commissions, advertising expenses, attorneys' fees, and all
other expenses properly chargeable against the Demised Premises and the rental
therefrom; it being understood that any such reletting may be for a period
shorter or longer than the remaining Term of this Lease but in no event shall
Tenant be entitled to receive any excess of such net rents over the sums payable
by Tenant to Landlord hereunder, nor shall Tenant be entitled to any suit for
the collection of damages pursuant to this
Subsection to a credit in respect of any net rents from a reletting, except to
the extent that such net rents are actually received by Landlord. If the Demised
Premises or any part thereof should be relet in combination with other space,
then proper apportionment shall be made of the rent received from such reletting
and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord for the
unexpired portion of the Term, or any part thereof, before presentation of proof
of such damages to any court, commission, or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
----- -----
rental value for the Demised Premises, or any part thereof, so relet during the
term of the reletting. Landlord, however, shall in no event and in no way be
responsible or liable for any failure to relet the Demised Premises or any part
thereof or for failure to collect any rent due upon any such reletting. In the
event this Lease is so terminated, Landlord shall use reasonable efforts to
relet the Demised Premises.
30.02 Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the Term would have expired if it had not been so terminated
under the provisions of Article 21, or under any provision of law, or had
Landlord not reentered the Demised Premises. Nothing herein contained shall be
construed to limit or preclude recovery by Landlord against Tenant of any sums
or damages to which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder or
otherwise an the part of Tenant. Nothing herein contained shall be construed to
limit or prejudice the right of the Landlord to prove for and obtain as
liquidated damages by reason of the termination of this Lease or re-entry on the
Demised Premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 30.01.
30.03 Anything in this Lease to the contrary notwithstanding, if Tenant
shall at any time be in default hereunder, whether or not Landlord shall
institute an action or summary proceeding against Tenant based upon such default
and whether or not such default results from non-payment of Base Rent or
additional rent, or if Tenant requests Landlord to review or execute documents
(including, without limitations any sublease or occupancy documents) in
connection with this Lease or to grant its consent or approval to the making of
Tenant's Changes or any other thing, or otherwise if it is reasonably prudent
for Landlord to contact legal counsel, architects, engineers or other
representatives or agents as to the form or substance of any of the foregoing,
then Tenant shall reimburse Landlord, as additional rent, for all fees, charges
and disbursements of such attorneys, architects, engineers or other
representatives or agents, thereby Incurred by Landlord.
ARTICLE 31
Waivers, Failure to Enforce Terms, Modifications
31.01 Tenant, for itself, and on behalf of any and all persons claiming
through or under Tenant, including creditors of all kinds. does hereby waive and
surrender all right and privilege so far as is permitted by law, which they or
any of them might have under or by reason of any present or future law, of the
service of any notice of intention to re-enter and also waives any and all right
of redemption or re-entry or repossession in case Tenant shall be dispossessed
or ejected by process of law or in case of re-entry or repossession by Landlord
or in case of any expiration or termination of this Lease as herein provided.
31.02 Tenant waives Tenant's rights, if any, to assert a counterclaim in
any summary proceeding brought by Landlord against Tenant, and Tenant agrees to
assert any such claim against Landlord only by way of a separate action or
proceeding.
31.03 Tenant waives Tenant's rights, If any, to designate the items
against which any payments made by Tenant are to be credited, and Tenant agrees
that Landlord may apply any payments made by Tenant to any items it sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the Items against which any such payments shall be credited.
31.04 To the extent not prohibited by applicable law, Landlord and Tenant
hereby waive trial by jury in any action, proceeding or counterclaim brought by
either against the other or any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, or Tenant's
use or occupancy of the Demised Premises, or any emergency or other statutory
remedy with respect thereto.
31.05 The failure of either party to Insist in any one or more instances
upon the strict performance of any one or more of the agreements, terms.
covenants, conditions or obligations of this Lease, or to exercise any right,
remedy, or election herein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one or more obligations
of this Lease or of the right to exercise such election, but the same shall
continue and remain in full force and effect with respect to any subsequent
breach, act or omission. The manner of enforcement or the failure of Landlord to
enforce any of the Rules and Regulations set forth herein, or hereafter adopted
against the Tenant and/or any other tenant in the Building shall not be deemed a
waiver of any such Rules and Regulations.
31.06 No agreement to accept a surrender of all or any part of the Demised
Premises shall be valid unless in writing and signed by Landlord. The delivery
of keys to an employee of Landlord or of its agent shall not operate as a
termination of this Lease or a surrender of the Demised Premises. If Tenant
shall at any time request Landlord to sublet the Demised Premises for Tenant's
account, Landlord or its agent is authorized to receive said keys for such
purposes without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Landlord of any liability for loss or damage to any
of Tenant's Property in connection with such subletting.
31.07 A. No executory agreement hereafter made between Landlord and Tenant
shall be effective to change, modify, waive, release, discharge, terminate or
effect an
abandonment of this Lease, in whole or in part, unless such executory agree in
writing, refers expressly to this Lease and is signed by the party against whom
enforcement of the change, modification, waiver, release, discharge or
termination or effectuation of the abandonment is sought.
B. If, in connection with obtaining, continuing or renewing financing for
the Real Property or any part thereof (or leasehold or any interest therein)
represents collateral in whole or in part, a banking, insurance or other lender
shall request modifications of this Lease as a condition of such financing,
Tenant will not withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or adversely
affect to a material degree the Tenant's leasehold interest hereby created.
ARTICLE 32
Shoring
32.01 if an excavation or other substructure work shall be undertaken or
authorized upon land adjacent to the Building or in the vaults beneath the
Building or in subsurface space adjacent to the said vaults, Tenant, without
liability on the part of the Landlord therefor, shall afford to the person
causing or authorized to cause such excavation or other substructure work
license to enter upon the Demised Premises for the purpose of doing such work as
such person shall deem necessary to protect or preserve any of the walls or
structures of the Building or surrounding lands from injury or damage and to
support the same by proper foundations, pinning and/or underpinning, and, except
in case of emergency, if so requested by Tenant such entry shall be accomplished
in the presence of a representative of Tenant, who shall be designated by Tenant
promptly upon Landlord's request. The said license to enter shall be afforded
by Tenant without any claim for damages or indemnity against the Landlord, and
Tenant shall not be entitled to any diminution or abatement of rent on account
thereof.
ARTICLE 33
Successors and Assigns, No Other Representations, Construction
33.01 The obligations of this lease shall bind and benefit the successors
and assigns of the parties with the same effect an if mentioned in each instance
where a party is named or referred to, except that no violation of the
provisions of Article 22 shall operate to vest any rights in any successor or
assignee of Tenant, and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 21.
However, the obligations of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in the event of such
transfer such obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee of the Building,
but only with respect to the period ending with a subsequent transfer within the
meaning of this Article, and such transferee, by accepting such interest, shall
be deemed to have assumed such obligations except
only as may be expressly otherwise provided elsewhere in this Lease. A lease of
Landlord's entire interest in the Building as owner or lessee thereof shall be
deemed a transfer within the meaning of this Article 33.
33.02 This Lease supersedes and revokes all previous negotiations,
arangements, letters of intent, offers to lease, lease proposals, brochures,
"Representations" (meaning covenants, promises, assurances, agreements,
representations, conditions, warranties, statements and understandings) and
information conveyed, whether oral or in writing, between the parties hereto or
their respective representatives or any other person purporting to represent
Landlord or Tenant. Tenant expressly acknowledges and agrees that Landlord has
not made, and is not making, and Tenant, in executing and delivering this Lease,
is not relying upon, and has not been induced to enter into this Lease by, any
Representations, except to the extent that the same are expressly set forth in
this Lease or in any other written agreement which may be made and executed
between the parties concurrently with the execution and delivery of this Lease
and shall expressly refer to this Lease, and no such Representations not so
expressly herein set forth shall be used in the interpretation or construction
of this Lease, and Landlord shall have no liability for any consequences arising
as a result of any such Representations not so expressly herein set forth.
33.03 If any of the provisions of this Lease, or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
ARTICLE 34
Miscellaneous Provisions
34.01 All work, including but not limited to, waxing or additional
cleaning that Tenant does or shall do in the Demised Premises, shall be done
with union labor and materials only, by contractors approved in writing by
Landlord, shall at all times conform to the standards of the Building and shall
comply with all laws and/or requirements of public authorities. Tenant, as
additional rent, shall indemnify and hold harmless Landlord, against any loss or
damage Landlord may sustain by reason of, and against, any orders, decrees.
judgments; attorneys' fees and expenses resulting from, failure of Tenant to
comply with provisions hereof.
34.02 The Article headings in this Lease and the Table of Contents
prefixed to this Lease are inserted only as a matter of convenience or
reference, and are not to be given any effect whatsoever in construing this
Lease.
34.03 Any provision of this Lease which requires a party not to
unreasonably withhold its consent, (a) shall be read as if the word "withhold"
read "withhold, delay or defer", and (b) shall never be the basis for any award
of damages (unless exercised in intentional and deliberate bad faith) or give
rise to a right of setoff to the other party, but shall be the basis for a
declaratory judgment or specific injunction with respect to the matter in
question.
34.04 Wherever in this Lease Landlord performs any work due to Tenant's
default as set forth in Section 26.01 hereof, due to Tenant's failure to perform
any of the conditions on its part to be performed hereunder, or wherever
Landlord otherwise performs work at Tenant's cost and expense, then such work
performed at the Work Charge.
34.05 This Lease is offered to Tenant for signature with the express
understanding that it shall not be binding upon Landlord unless and until,
within 10 business days after the date Tenant signs this Lease, Landlord shall
have executed and delivered a fully executed copy to Tenant ("Execution Date"),
and the holder of any and all superior mortgages shall have approved the same;
it is understood that such holder already has sent to Tenant a letter confirming
such holder's agreement to make available $725,000 for purposes of paying costs
of Tenant's Work.
34.06 Intentionally omitted.
34.07 This Lease shall be governed in all respects by and construed under
the Laws of the State of New York.
34.08 This Lease shall be construed without any regard to any presumption
or other rule regarding construction against the party Causing this Lease to be
drafted.
34.09 Notwithstanding any cancellation or termination of this Lease,
nothing herein shall be construed to release Tenant from any liability or
responsibility (whether then or thereafter accruing) with respect to any acts,
omissions or obligations of Tenant occurring prior to such cancellation or
termination, all of which shall survive such cancellation or termination.
ARTICLE 35
Cafeteria
35.01 Landlord shall provide space on the ground floor of the Building for
use as a public cafeteria, which Tenant's employees may use in common with other
tenants of the Building, and Landlord shall provide an operator therefor to
operate the cafeteria ("Cafeteria"). Landlord shall use due diligence to cause
the Cafeteria to be opened and in operation by January 1, 1993. In the event the
Commencement Date has occurred and the Cafeteria is not so open and in operation
by January 1, 1993, then until such operation occurs, Landlord shall make
available other space in the Building for employees of Tenant and other tenants
in the Building to use for the consumption of food, and in such space Landlord
shall cause to be provided food and beverages for sale to such employees; if and
for so long as Landlord is required but fails to provide such other space, other
than due to Force Majeure, Landlord shall owe Tenant a reduction at a rate of
$1,000 per month.
ARTICLE 36
Storage Space
36.01 Landlord shall provide approximately 5,000 rentable square feet of
storage space in the basement level of the Building ("Storage Space"), for
Tenant's "dead file storage". Notwithstanding anything to the contrary, the
rights and obligations under this Article 36 are based upon, and subject to, the
following:
(a) The Storage Space shall be used only in accordance with all applicable
laws, statutes and codes.
(b) The Base Rent for the Storage Space shall be at the rate of $5.00 per
rentable square foot per annum (following the first four Rent Years during which
no Base Rent for the Storage Space shall be due), subject to increase under
Articles 6 and 7 hereof as though the Storage Space originally had been included
and leased under this Lease.
(c) Tenant may not sublease or assign the Storage Space except to a party
to whom or which Tenant may have subleased all of the Demised Premises in
accordance with this Lease.
(d) The terms and conditions of the leasing of the Storage Space shall be
as follows, except to the extent that the parties otherwise mutually agree:
(i) The Storage Space shall be delivered to Tenant "as is" and in the
same condition in which any prior tenant vacated it, and none of Landlord's
obligations under Article 4 or elsewhere in this Lease, regarding improvement of
any space shall be applicable. Tenant shall be responsible to secure the
Storage Space, subject to Landlord's approval not to be unreasonably withheld.
(ii) The term of the leasing of Storage Space shall be the same as the
Term of this Lease.
(iii) No credit against (or contribution towards) cost of
improvements or other items shall be applicable to the Storage Space.
(iv) The term "Demised Premises" shall be deemed to include the
Storage Space.
(v) There shall be no increases in the parking spaces as a result of
the Storage Space.
(vi) None of Landlord's services provided under this Lease (including,
without limitation, those provided under Articles 11 and 12 hereof) shall be
applicable or provided to the Storage Space.
(vii) Except as otherwise in this Article 36, and except as sense
otherwise would require due to the fact that storage space rather than office
space is involved, all of the other terms and conditions of this Lease shall be
applicable to the Storage Space as though the
Storage Space had been included in this Lease as of the Commencement Date of the
Term.
ARTICLE 37
Continuation Term
37.01 Provided that this Lease is in full force and effect, that Tenant is
not in default under this Lease beyond any applicable notice and cure period,
and that tenant has not then subleased more than 25% of the Demised Premises or
assigned this Lease (other than to an affiliate), then Tenant shall have the
option to continue leasing for an additional period of five years commencing on
the day immediately following the Expiration Date ("First Continuation Term")
upon the following terms and conditions:
(a) The space to be included in the First Continuation Term shall be the
same space as was included in the Lease at the moment immediately prior to the
commencement of the First Continuation Term.
(b) Tenant shall exercise its option to lease for the First Continuation
Term by notifying Landlord thereof ("First Continuation Notice") not later than
ten full calendar months prior to the Expiration Date of the Term.
(c) Provided that Tenant complies with the conditions in Section 37.01 (b)
hereof, then the following terms shall be applicable to the First Continuation
Term:
(i) The Demised Premises shall be delivered to Tenant "as is", in
their same condition, and none of Landlord's obligations under Articles 4, 5,
Exhibit B or elsewhere in this Lease regarding improvement of any space shall be
applicable.
(ii) No rent concession or credit against the cost of, or Landlord's
contribution to the cost of, any improvements or work shall be applicable.
(iii) The same "escalators" or adjustments in rent as are provided in
Articles 6, 7, 10, 12 and elsewhere in this Lease shall be applicable, except
that the bases and base years used in connection with such adjustments shall be
changed to those applicable to the single calendar year in which the First
Continuation Term commences (and which shall be taken into consideration, among
other factors, in determining "Fair Market Rent" pursuant to Section 37.01(d)
hereof).
(iv) The After Hours Heating Charge, After Hours Cooling Charge and
After Hours Ventilating Charge shall be those amounts which Landlord is then
charging therefor to new tenants in the Building (or if no such new tenants,
then in the Adjoining Building, or if no such new tenants there, then in
comparable buildings in the area of the Building).
(v) The annual Base Rent for each Rent Year during the First
Continuation Term shall be increased to the greater of (I) the sum of the Base
Rent and additional rent as
adjusted under all of the escalation provisions of the Lease (including, without
limitation Articles 6 and 10 of the Lease) applicable to the last month of the
original Term, multiplied by 12 so as to annualize the same, and (II) the amount
determined under Section 37.01(d) hereof.
(vi) All of the other terms and conditions of this Lease shall be
applicable to the First Continuation Term other than rent, any further right to
renew (except for the Second Continuation Term), and other than as may be
reasonably necessary because a renewal term rather than an original term, and a
previously occupied space rather than a new space, is involved.
(d) Promptly following receipt by Landlord of the First Continuation Notice
timely given as provided in Section 37.01(b), Landlord shall notify Tenant of
the amount which, in Landlord's reasonable opinion represents the fair market
Base Rent during the First Continuation Term. Within ten (10) days of such
notice, if Tenant disagrees, Tenant shall notify Landlord that Tenant so
disagrees that the Base Rent therein provided constitutes the "Fair Market
Rent", as hereinafter provided, and shall specify what Base Rent, in Tenant's
opinion, constitutes the Fair Market Rent ("Tenant's Base Rent Notice"). In the
event no Tenant's Base Rent Notice in timely given to Landlord as aforesaid, the
Base Rent set forth in Landlord's said notice shall be deemed the Fair Market
Rent. In the event Tenant's Base Rent Notice is timely given, the following
procedure shall be used in determining Fair Market Rent (sometimes hereinafter
called "Fair Market Rent Procedure"):
In the event the parties cannot agree upon the Fair Market Rent within 7
business days of Tenant's Base Rent Notice, then at the request of either party
to the other (called the "initial request"), the parties shall jointly choose a
real estate appraiser (who shall have had at least ten (10) years experience as
an appraiser, and who shall also be a person involved in commercial office
leasing in the White Plains, New York area), whose decision shall be final and
binding. If the parties do not agree upon such a third party and notify in
writing the other thereof within 7 business days of such initial request, then
within 7 additional business days each party shall choose such a real estate
appraiser and notify in writing the other thereof, and the joint decision of
such real estate appraisers regarding Fair Market Rent shall be final and
binding, (or, failing such choice, or, if such choice is made, failing notice to
the other within such 7 business day period, the decision of one real estate
appraiser timely chosen shall be final and binding). If the two real estate
appraisers do not agree within 7 business days of the end of the 7 business day
period mentioned in the immediately preceding sentence, then they shall choose a
third such real estate appraiser within 5 business days, or if they do not agree
upon a third, then either party may make a request of the Chairman of the Real
Estate Section of the Westchester County Bar Association of the appointment of
such an appraiser, and the decision of such third real estate appraiser
regarding Fair Market Rent shall be final and binding.
37.02 Provided that this Lease is in full force and effect, that Tenant is
not in default under this Lease beyond any applicable notice and cure period,
and that Tenant has not then subleased more than 25% of the Demised Premises or
assigned this Lease (other than to an affiliate), then Tenant shall have the
option to continue leasing for an additional period of five years commencing on
the date immediately following the end of the First Continuation Term
("Second Continuation Term") upon the following terms and conditions:
(a) All of the provisions of Section 37.01(a), (b), (c) and (d)
shall be applicable to this Section 37.02 as though reference therein to "First
Continuation Term" and "First Continuation Notice" were changed herein to
"Second Continuation Term" and "Second Continuation Notice", respectively,
except that,
(x) reference in Section 37.01(b) to "Expiration Date" shall be
changed to "expiration of the First Continuation Term" for purposes herein; and
(y) the parenthetical exception in Section 37.01(c)(vi) shall be
deleted for purposes of this Section 37.02.
Article 38
Antenna
38.01 Tenant shall have the right to install (and thereafter to modify),
subject to Landlord's prior approval (which shall not be unreasonably withheld
or delayed) as to location, up to a total of 3 microwave, satellite or other
antennas on the Real Property, provided (a) all installations are performed in
accordance with all applicable laws, statutes, ordinances, codes and regulations
of all authorities having jurisdiction, and Tenant obtains all permits, licenses
and approvals required therefor, (b) Tenant indemnifies and holds Landlord
harmless from any liability, cost or expense connected with this Section 38.01,
(c) Tenant promptly repairs any damage caused to any part of the Building or the
Real Property by reason of such installation including without limitation any
repairs to the roof necessitated by or in any way caused or relating to such
installations (if made thereon), reasonable wear and tear excepted, (d) Tenant
removes such installations and lines and repairs any resulting damage to the
Building, reasonable wear and tear excepted, at or prior to expiration of the
Term of this Lease, (e) such antenna shall not disturb or interfere with the use
and quiet enjoyment of any other tenant in the Building, of any ordinary
electrical equipment used by any such tenant within such tenant's demised
premises, (f) such installations do not adversely affect the site line of the
roof of the Building (if the antenna is installed thereon) or the Real Property
and (g) Tenant obtains any additional insurance coverage for the benefit of
Landlord and any mortgagee or ground lessor in such amount and of such type as
mortgagee may require or Landlord may reasonably require.
IN WITNESS WHEREOF, the parties hereto have executed this instrument the
day and year first above written.
LANDLORD:
MENDIK REAL ESTATE LIMITED PARTNERSHIP
By: MENDIK REALTY COMPANY, INC.
as authorized agent
By:_______________________________
Signature
________________________ Its:______________________________
Witness for Landlord (Title)
TENANT:
ICON CAPITAL CORP.
_________________________ By:______________________________
Witness for Tenant Signature Corporate
Seal
_________________________ Its:_____________________________ President
Witness for Tenant (Title)
_________________________________
Tenant's Federal I.D. Number or
Social Security Number
FOR CORPORATE TENANT:
--------------------
STATE OF NEW YORK )
)ss:
COUNTY OF WESTCHESTER )
On this _____ day of July, 1992, before me personally came
_________________________ to me known, who, being by me duly sworn did depose
and say that (s)he resides at _______________________________________ that (s)he
is the President of ICON CAPITAL CORP., the corporation, described in and which
executed the foregoing instrument; that (s)he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the board of directors of said corporation,
and that (s)he signed her/his name thereto by like order.
_______________________________
Notary Public
EXHIBIT A
---------
Floor Plan(s) of Demised Premises
(Floor Plan Appears Here)
EXHIBIT A-1
Tenant's Plans
--------------
Plans prepared by Xxxxxx Xxxxxx Architect P.C. carrying Job #92245
consisting of 11 pages, designated as C1, A1, A2, A3, A4 and A5, and
dated 22 June 92, except that pages A-1 and A-5 are revised through
June 30, 1992; attached to which pages are plans prepared by Xxxxxxxxx
Designs carrying Job designation "ICON", designated as Interior
Finishes Sheet 1, Sheet 2 and Sheet 3, dated June 19, 1992, and
designated as Furniture and Outlet Sheet 1 and Sheet 2, dated May 14,
1992 and revised on June 30, 1992.
EXHIBIT B
BUILDING STANDARD WORK/WORK CHARGE
The provisions of Paragraphs I through VIII below are included only for the
purpose of setting forth and defining the meaning of "Building Standard" work.
Thus reference in Paragraphs I through VIII to allowances by Landlord or
inclusion of any quantities at Landlord's cost and expense are specifically
negated hereby. In addition, such Building Standard items of work shall not
limit or describe the items of work which Tenant may include in Tenant's Plans
or which shall be performed for Tenant, it being understood that Tenant may
perform or cause to be performed other work to the extent in accordance with the
requirements of the Lease. For clarification only it is understood that
Tenant's Plans (described on Exhibit A-1) differ from this Exhibit B in various
respects, and notwithstanding anything in the Lease to the contrary, to the
extent provided in Article 4 of the Lease, Landlord shall perform Tenant's Work
per Tenant's Plans at Landlord's coat even though such work differ from this
Exhibit B.
I. Drywall Partitions
A. Tenant Interior Partitions
Partitions shall consist of 2-1/2" metal stud spaced 24" O.C. with one
layer of 5/8" gypsum board each side at a ratio of ten (10) lineal
feet per 100 square feet of rentable area. Metal studs shall extend
from floor to ceiling height. Each side to be taped, compounded and
prepared for paint.
B. Demising Partition
Partitions between tenants shall consist of 2-1/2" metal stud spaced
24" O.C. with one layer of 5/8" fire rated gypsum board each side, and
batt insulation fill. Metal studs and gypsum board shall extend from
floor to slab or structure above, with suitable fire-rated openings to
accommodate air conditioning requirements, pipes, ducts or structural
penetrations.
Partitions between tenants and public corridors shall consist of 2-
1/2" metal stud spaced 24" O.C. with two layers of 5/8" fire rated
gypsum board each side, and batt insulation fill. Metal studs and
gypsum board shall extend from floor to slab or structure above with
suitable fire rated openings to accommodate air conditioning
requirements, pipes, ducts or structural penetrations.
NOTE: Partitions that end at or below ceiling height, including
curved, offset, or angled full height partitions shall be at tenant's
expense.
II. Doors and Frames
A. Interior Office Doors
Shall be 1-3/4" x 7'0" x 3'0" solid core wood door with dark oak or
natural finish, both sides and shall be provided at a ratio of one (1)
door per thirty (30) lineal feet of Building Standard Partition.
Doors shall be prepared to receive Building Standard hardware, with
1/4" undercut for carpet.
B. Tenant Entrance Doors
Shall consist of one 1-3/4" x 7'0" x 3'0" solid core fire-rated label
oak door with dark oak or natural finish. Overhead concealed closure,
pivot mounted. Supplied at a ratio of one (1) per floor or tenant.
Door shall be prepared to receive Building Standard hardware, Xxxxxxx
#8100 Series, LNB Design, Rose 695 LN, Lover 0000X, Xxxxxxx Xxxxx X.X.
#00 finish. The lockset shall be keyed to the Building Master.
C. Interior Door Frames
Shall be 16 gauge knock down steel sized for Building Standard doors.
Frames shall be reinforced, and templated to receive Building Standard
hardware. Frame to be supplied with factory primed finish. Closet
doors to be luan 1-3/8". Extra to tenant under 1,000 square feet.
III. Hardware
A. Interior Office Doors
Hardware shall consist of one (1) pasage latch #8100 Series, Lever
1445B, US 26 Finish. One and a half (1-1/2) pair (primed) butt
hinges, one (1) floor mounted door stop and supplied at a ratio of one
set per Building Standard door.
IV.IV. Acoustic Tile Ceilings
Ceiling systems shall consist of Ceiling Grid - white finish, fire
rated, for use with 2'-0" lay-in acoustic ceiling tile. Finished
ceiling height shall be at 8'5' above concrete floor.
V. Flooring
A. Carpet
Tenant may select from Landlord's Building Standard carpet. Building
Standard carpet in assorted colors shall be glued down. Tackless and
padding
tenant extra.
B. Vinyl Tile
Tenant may elect to substitute vinyl tile for carpet in high
maintenance areas and select from the Landlord's Building Standard
color palette.
C. Vinyl Base
Vinyl base shall consist of 3 1/2" high solid color vinyl straight
edge for carpeted areas and 3 1/2" high cove edge for vinyl tile
areas. Colors to be selected from Landlord's Building Standard
palette.
VI. Painting
Shall consist of one (1) prime coat and one (1) finish coat for new
gypsum board walls, "egg shell' finish, in colors selected from
Landlord's Building Standard palette. Hollow metal surfaces shall
receive one (1) factory prime coat. one (1) undercoat and one (1)
semi-gloss enamel finish coat in colors selected from Landlord's
Building Standard color palette. Tenant may elect to have one wall
surface per room or office finished in accent paint color. No credit
shall be issued for unused options or substitutions.
VII. Window Treatment
Landlord shall furnish thin slat (1") horizontal blinds by Levolor, at
all exterior windows in the Landlord's Building standard neutral color
(black). Landlord shall provide a suitable drapery pocket at the
window for tenant to install drapery at the tenant's own expense. All
tenant-supplied drapery or window treatment shall occur on the inside
of the space from the Building Standard blinds. No credit or
substitutions will be permitted.
VIII. Electrical
A. Lighting
Landlord shall provide 3 Lamp - 2' x 4' or 2 lamp - 2' x 2' Parabolic
fluorescent lighting fixture at a ratio of one (1) fixture per ninety
(90) square feet of carpetable area. Fixtures shall be compatible
with the lay-in ceiling and shall be installed and initially lamped by
the Landlord. Building Standard fluorescent lamps shall be "cool
white" in color rendition. Substitution of lamp shall be a tenant's
expense, and in accordance with Building Standard.
B. Switches
Light switches shall be "Leviton" or "Sister" specification grade in
white or ivory with matching coverplate, installed in quantities as
required by codes and regulations of all governmental agencies having
jurisdiction, but not less than one (1) switch per office or room.
C. Electrical Receptacles
Convenience receptacles shall be "Leviton" or "Sister" specification
grade, three-prong grounded duplex receptacles in white or ivory. No
more than eight (8) duplex receptacles shall be installed on each 20
ampere circuit. Receptacles are to be provided on a ratio of one (1)
per 125 square feet of carpetable area and mounted within Building
Standard gypsum board partitions. Single receptacles requiring a
separate or dedicated circuit or receptacles requiring voltage above
120V and amperage above 20 amperes will be provided at the tenant's
expense.
D. Telephone Receptacles
All wiring shall be done by others and Landlord has no responsibility
for said work which must, however, meet Building Standard criteria and
Westchester County codes and not conflict with the progress of
construction. Any damage incurred by tenant's contractor shall be the
liability of the tenant. Any additional conduit shall be Installed by
Landlord's contractors and charged to tenant.
E. Electric Power
The total connected load for tenant's lighting and convenience power
shall be 2.4 xxxxx per square foot of installed ceiling area for all
purposes, of which, a maximum of 1.5 xxxxx per square foot shall be
apportioned for convenience receptacles (120/208V).
F. H.V.A.C.
Landlord to supply Heat, Ventilation and Air Conditioning during
normal business hours based on the following conditions:
One (1) person for every 175 r.s.f.
Temperature year-round shall be maintained at 72 degrees plus or minus
4 degrees Fahrenheit. The foregoing temperature range based on
outside air temperatures between 25 degrees and 85 degrees Fahrenheit.
IX. Work Charge
All work to be performed by Landlord for Tenant under this Lease to
the extent it in to be performed at Tenant's cost and expense
(including work for which
Landlord may have agreed to grant to Tenant Landlord's Contribution or
any other credit) shall be performed at the "Work Charge", which shall
mean (a) the cost charged Landlord by, or paid by Landlord to,
Landlord's architects and engineers, contractors, suppliers,
materialmen, employees and agents in connection with such work, plus
the lesser of (i) 10% of such costs and (ii) $1.50 per square foot of
Leased Floor Space for Landlord's general conditions (such as on-the-
job services, supervisory personnel and use of elevators and hoists),
and (b) if Landlord's employees or agents or those of an affiliate of
Landlord are used in connection with such work, an additional sum of
10% of such cost for Landlord's overhead. With respect to any work in
connection with the Demised Premises performed by Tenant, the Work
Charge shall mean the reasonable costs incurred by Landlord in
connection with such work, including, without limitation, costs of
supervision, plus 10% of such costs for overhead and indirect job
costs.
EXHIBIT C
Rules and Regulations
1. The rights of each tenant in the Building to the entrances, corridors
and elevators of the Building are limited to ingress to and egress from such
tenant's premises and no tenant shall use, or permit the use of the entrances,
corridors or elevators for any other purpose. No tenant shall invite to its
premises, or permit the visit of persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, elevators and other facilities of the Building by other
tenants. No tenant shall encumber or obstruct, or permit the encumbrance or
obstruction of any of the sidewalks, plazas, entrances, corridors, elevators,
fire exits or stairways of the Building. Landlord reserves the. right to
control and operate the public portions of the Building, the public facilities,
as well as facilities furnished for the common use of the tenants, in such
manner as Landlord deems beat for the benefit of the tenants generally.
2. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchman in charge, if any, or not
having a pass issued by Landlord or not properly identified, and may require all
persons admitted to or leaving the Building outside of ordinary business hours
to register. Each tenant shall be responsible for all persons for whom it
requests such permission and shall be liable to Landlord for all acts of such
persons. Any person whose presence in the Building at any time shall, in the
judgment of Landlord, be prejudicial to the safety, character, reputation, or
interests of the Building at any time shall, in the judgment of Landlord, be
prejudicial to the safety, character, reputation or interests of the Building or
its tenants may be denied access to the Building or may be ejected therefrom.
In case of invasion, riot, public excitement or other commotion Landlord may
prevent all access to the Building during the continuance of the same, by
closing the doors or otherwise, for the safety of the tenants and protection of
property in the Building. Landlord may require any person leaving the Building
with any package or other object to exhibit a pass from the tenant from whose
premises the package or object is being removed, but the establishment and
enforcement of such requirement shall not impose any responsibility on Landlord
for the protection of any tenant against the removal of property from the
premises of the tenant, Landlord shall, in no way, be liable to any tenant
against the removal of property from the premises of the tenant, Landlord,
shall, in no way, be liable to any tenant for any damage or lose arising from
the admission, exclusion or ejection of any person to or from a tenant's
premises or the Building under the provisions of this rule.
3. No tenant shall obtain or accept for use in its premises ice, drinking
water, food, beverages, towels, barbering, boot blacking, floor polishing,
lighting, maintenance, cleaning or other similar services from any persons not
reasonably authorized by Landlord in writing to furnish such services. Such
services shall be furnished only at such hours, in such places within the
tenant's premises and under such regulation as may be fixed by Landlord.
4. No window or other air-conditioning units shall be installed by any
tenant, and only such window coverings an are supplied or permitted by Landlord
shall be used in a tenant's premises.
5. There shall not be used in any space, nor in the public halls of the
Building, either by any tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
6. All entrance doors in each tenant's premises shall be left locked, and
all lights turned out, when the tenant's premises are not in use. Entrance doors
shall not be left open at any time. All windows in each tenant's premises shall
be kept closed at all times and all blinds therein above the groundfloor shall
be lowered when and as reasonably required because of the position of the sun,
during the operation of the Building air conditioning system to cool or
ventilate the tenant's premises.
7. No noises, including the playing of any musical instruments, radio or
television, which, in the judgment of Landlord, might disturb other tenants in
the Building, shall be made or permitted by any tenant, and no cooking shall be
done in the tenant's premises, except for microwave cooking in Tenant's kitchen
area or as expressly approved in writing by Landlord. No dangerous,
inflammable, combustible or explosive object, material or fluid shall be brought
into the Building by any tenant or with the permission of any tenant.
8. No tenant shall permit any odors emanating within its premises to seep
into any other portion of the Building.
9. All damages resulting from any misuse of the plumbing fixtures shall
be borne by the tenant who, or whose employees, agents, visitors or licensees,
shall have caused the same.
10. Signs and lettering on doors shall be inscribed. painted, or affixed
for each tenant by Landlord at the expense of such tenant, and shall be of a
size, color and style acceptable to Landlord. Except for the foregoing, no
signs, advertisement, notice or other lettering shall be exhibited, inscribed,
painted or affixed by any tenant on any part of the outside or inside of the
premises or the Building without the prior written consent of Landlord. Tenant
shall not advertise, making reference to the Building as Tenant's address, or
otherwise, in a manner which impairs the reputation of the Building or its
desirability as a first class office building; but this shall not be deemed to
reduce Tenant's rights under Section 22.04E(i) of the Lease.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows in any tenant's premises, and no locks on any door therein
shall be changed or altered in any respect. Duplicate keys for a tenant's
premises and toilets rooms shall be procured only from Landlord, which may make
a reasonable charge therefor. Upon the termination of a tenant's lease, all
keys of the tenant's premises and toilet rooms shall be delivered to Landlord.
12. Each tenant shall, at its expense, provide artificial light in the
premises for Landlord's agents, contractors and employees while performing
janitorial or other cleaning services and making repairs or alterations in said
premises.
13. If the premises become infested with insects or vermin caused by
Tenant, such tenant, at its sole cost and expense shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
14. No tenant shall install or permit to be installed any vending
machines, except for snacks and beverages for Tenant's employees in any
lunchroom in the Demised Premises.
15. No animals or birds, bicycle, mopeds or vehicles of any kind shall be
kept in or about the Building or permitted therein.
16. No furniture, office equipment, packages or merchandise will be
received in the Building or carried up or down in the elevator, except between
such hours as shall be designated by Landlord. Landlord shall prescribe
reasonably the method and manner in which any merchandise, heavy furniture,
equipment or safes shall be brought in or taken out of the Building, and also
the hours at which such moving shall be done. Landlord in all cases retains the
right to prescribe the weight and proper position of such heavy furniture and
safes. All damages done to the Building by taking in or out such merchandise,
heavy furniture or safes or any damages done to the Building while any of said
property shall be therein, shall be made good and paid for by tenant on demand.
17. Intentionally Omitted.
18. Reasonable advance notice for the provision of heating, ventilating
and air conditioning through the Building System after hours shall be oral or
written notice to Landlord's manager of the Building requesting such service not
later than 2 p.m. on the date such service is required, or if such date is not a
business day, by 2 p.m. on the last business day preceding such date.
19. The Demised Premises shall not be used for lodging or sleeping or for
any immoral or illegal purpose.
20. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
21. No tenant shall xxxx, paint, drill into, or in any way deface any part
of the Demised Premises or the Building. No boring, cutting, or stringing of
wires shall be permitted, except with the prior written consent of Landlord, and
as Landlord may direct. No tenant shall lay linoleum, or other similar floor
covering, so that the same shall come in direct contact with the floor of the
Demised Premises, and, if linoleum or other similar floor covering is desired to
be used an interlining of builder's deadening felt shall be first affixed to the
floor, by a paste or other materials, soluble in water. The use of cement and
other similar adhesive material is expressly prohibited.
22. Tenant shall cooperate with Landlord in obtaining maximum effectiveness
of the cooling system by lowering and closing venetian blinds and/or drapes and
curtains when the sun's rays fall directly on the windows of the Demised
Premises.
23. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building, when, in its judgment it
deems it necessary or desirable for the reputation, safety, care or appearance
of the Building, or the preservation of good order therein, or the operation or
maintenance of the Building or the equipment thereof, or the comfort of tenants
or others in the Building. No recision, alteration of waiver of any rule or
regulation in favor of one tenant shall operate as a recision, alteration or
waiver in favor of any other tenant.
EXHIBIT D
General Cleaning Specifications
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GENERAL CLEANING:
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NIGHTLY:
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General Offices:
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1. All hard surfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures appliances,
countertops and window xxxxx.
4. Empty and clean all ash trays and screen all sand urns.
5S. Empty and clean all waste disposal cans and baskets.
6. Dust Interiors of all waste disposal cans and baskets.
7. Wash clean all water fountains and coolers and appliances.
Public Lavatories:
-----------------
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty paper receptacles and remove wastepaper.
7. Fill and clean all soap, towel and toilet tissue dispensers as needed;
supplies therefore to be furnished by Landlord at a reasonable charge
to Tenant. If the Demised Premises consist of a part of rentable
floor, said charge to Tenant shall
be that portion of a reasonable charge for such supplies that is
reasonably allocable to Tenant.
8. Empty and clean sanitary disposal receptacles
WEEKLY:
------
1. Vacuum clean all carpeting and rugs.
2. Dust all door louvres and other ventilating louvres within a person's
reach.
3. Wipe clean all brass and other bright work.
QUARTERLY:
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High dust the Demised Premises complete, including the following:
1. Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
2. Dust clean all vertical surfaces, such as walls, partitions, doors and
door bucks and other surfaces not reached in nightly cleaning.
3. Dust all pipes, ventilating and air-conditioning louvres, ducts, high
moldings and other high areas not reached in nightly cleaning.
4. Dust all venetian blinds.
Wash exterior and interior of windows twice per year, subject to weather
conditions and requirements of law.
Parking Plan
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(Parking Plan Appears Here)
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