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Exhibit 10.33
AGREEMENT OF LEASE
BETWEEN
RECKSON OPERATING PARTNERSHIP, L.P.
AND
TWIN LABORATORIES INC.
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TABLE OF CONTENTS
PAGE
SPACE .....................................................................1
TERM .....................................................................1
RENT .....................................................................3
USE .....................................................................4
LANDLORD ALTERATION...........................................................5
SERVICES .....................................................................5
LANDLORD'S REPAIRS............................................................5
WATER SUPPLY..................................................................7
PARKING FIELD.................................................................7
DIRECTORY.....................................................................7
TAXES AND OTHER CHARGES.......................................................7
TENANT'S REPAIRS..............................................................9
FIXTURES & INSTALLATIONS.....................................................10
ALTERATIONS..................................................................10
REQUIREMENTS OF LAW..........................................................14
END OF TERM..................................................................17
QUIET ENJOYMENT..............................................................18
SIGNS ....................................................................18
RULES AND REGULATIONS........................................................19
RIGHT TO SUBLET OR ASSIGN....................................................19
LANDLORD'S ACCESS TO PREMISES................................................24
SUBORDINATION................................................................25
PROPERTY LOSS, DAMAGE REIMBURSEMENT..........................................27
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TENANT'S INDEMNITY...........................................................27
DESTRUCTION - FIRE OR OTHER CASUALTY.........................................28
INSURANCE....................................................................30
EMINENT DOMAIN...............................................................33
NONLIABILITY OF LANDLORD.....................................................34
DEFAULT ....................................................................35
TERMINATION ON DEFAULT.......................................................37
DAMAGES ....................................................................38
SUMS DUE LANDLORD............................................................40
NO WAIVER....................................................................41
WAIVER OF TRIAL BY JURY......................................................41
NOTICES ....................................................................42
INABILITY TO PERFORM.........................................................42
INTERRUPTION OF SERVICE......................................................43
CONDITIONS OF LANDLORD'S LIABILITY...........................................43
TENANT'S TAKING POSSESSION...................................................44
ENTIRE AGREEMENT.............................................................44
DEFINITIONS..................................................................45
PARTNERSHIP TENANT...........................................................45
SUCCESSORS, ASSIGNS, ETC.....................................................46
BROKER ....................................................................46
CAPTIONS ....................................................................47
NOTICE OF ACCIDENTS..........................................................47
TENANT'S AUTHORITY TO ENTER LEASE............................................47
RENEWAL OPTION...............................................................47
ARBITRATION..................................................................49
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RIGHT OF FIRST OFFER.........................................................50
SCHEDULE "A".................................................................54
SCHEDULE "B".................................................................57
SCHEDULE "C".................................................................59
SCHEDULE "D".................................................................63
EXHIBIT 1....................................................................66
EXHIBIT 2....................................................................67
EXHIBIT 3....................................................................68
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AGREEMENT OF LEASE, made as of this 16th day of January, 1998, between
RECKSON OPERATING PARTNERSHIP, L.P., a Limited Partnership, having its principal
office at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000 X, Xxxxxxxx, Xxx Xxxx 00000-0000
(hereinafter referred to as "Landlord"), and Twin Laboratories Inc. a Utah
corporation, having its principal place of business at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxx (hereinafter referred to as "Tenant").
WITNESSETH: Landlord and Tenant hereby covenant and agree as
follows:
SPACE
1. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the space substantially as shown on the Rental Plan initialed by the
parties and made part hereof as Exhibit "1" ("Demised Premises" or "Premises")
located at 000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx, Xxx Xxxx (hereinafter
referred to as the "Building") which the parties agree contains 21,636 square
feet in a Building containing 195,905 square feet which constitutes 11.04
percent of the area of the Building ("Tenant's Proportionate Share").
TERM
2. The term ("Term", "term" or "Demised Term") of this lease shall
commence upon the execution of this lease. Subject to the provisions of this
Article 2, Tenant's obligation to pay Rent (as defined in Article 3 hereof) and
all items of additional rent shall commence on April 16, 1998 (the "Rent
Commencement Date"),so long as this lease is executed on or before January 16,
1998. If this lease is not executed on or before January 16, 1998, the Rent
Commencement Date shall be postponed one day for each day after such date, until
the lease is executed. The Term of this lease shall expire on the day preceding
the day which is five (5) years and one (1) month after (a) the Rent
Commencement Date, if such date is the first day of the first full calendar
month or (b) the first day of the first full calendar month following the Rent
Commencement Date, if such date is not the first day of a calendar month (the
"Expiration Date").
If on the foregoing date specified for the Rent Commencement
Date the Demised Premises shall not be "substantially completed" in accordance
with Schedule A annexed hereto, then the Rent Commencement Date shall be
postponed until the date on which the Demised Premises shall be "substantially
completed" and the Term of this lease shall be extended so that the Expiration
Date
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shall be five (5) years and one (1) month after the last day of the month in
which the Rent Commencement Date occurs. In the event that the Rent Commencement
Date is postponed hereunder Landlord shall provide Tenant with seven (7) days
prior notice of substantial completion of the Demised Premises. "Substantially
completed" as used herein is defined to mean when the only items to be completed
are those which do not interfere with the Tenant's occupancy and substantially
full enjoyment of the Demised Premises; but if Landlord shall be delayed in such
"substantial completion" as a result of (i) Tenant's failure to furnish plans
and specifications; (ii) Tenant's request for materials, finishes or
installations other than Landlord's standard or those specified in Schedule "A";
(iii) Tenant's changes in said plans; (iv) the performance or completion of any
work, labor or services by a party employed by Tenant; or (v) Tenant's failure
to approve final plans, working drawings or reflective ceiling plans; then the
commencement of the Term of this lease and the payment of rent hereunder shall
be accelerated by the number of days of such delay. If Tenant makes a request
for additional materials, finishes or installations as per (ii) above, Landlord
shall use reasonable efforts to inform Tenant if same will cause delay hereunder
within a reasonable amount of time after Tenant's request. Tenant waives any
right to rescind this lease under Section 223-a of the New York Real Property
Law or any successor statute of similar import then in force and further waives
the right to recover any damages which may result from Landlord's failure to
deliver possession of the Premises on the Rent Commencement Date.
Notwithstanding anything to the contrary herein, if the Demised Premises is not
substantially completed at the expiration of seven (7) months from the Rent
Commencement Date specified in the first paragraph of this Article, either party
hereto shall have the right to terminate this lease by giving written notice
thereof to the other party and thereupon the parties shall have no further
obligation or liability to each other hereunder except that Landlord shall
promptly refund to Tenant all amounts paid to Landlord for Rent and additional
rent under the Lease. This obligation shall survive the expiration of the Lease.
Landlord shall obtain a certificate of occupancy for the Landlord's Initial
Construction and deliver a copy to Tenant. If Landlord does not obtain such
certificate of occupancy within one hundred and eighty (180) days from the date
the Premises are substantially completed, and Tenant is required to vacate the
Premises by the governmental authority having jurisdiction over the Premises due
to the lack of such certificate of occupancy, Tenant shall have the right to
terminate this Lease by giving written notice thereof to the Landlord and
thereupon the parties shall have no further obligation or liability to each
other hereunder except that Landlord shall promptly refund to Tenant, the sum of
$85,642.50 and all additional rent paid by Tenant for any period beyond the date
the lease is terminated in accordance with Tenant's notice. This obligation
shall survive the expiration of the Lease.
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A "Lease Year" shall be comprised of a period of twelve (12)
consecutive months. The first Lease Year shall commence on the Rent Commencement
Date but, notwithstanding the first sentence of this paragraph, if the Rent
Commencement Date is not the first day of a month, then the first Lease Year
shall include the additional period from the Rent Commencement Date to the end
of the then current month. Each succeeding Lease Year shall end on the
anniversary date of the last day of the preceding Lease Year. For example, if
the Rent Commencement date is January 1, 1997, the first Lease Year would begin
on January 1, 1997, and end on December 31, 1997, and each succeeding Lease Year
would end on December 31st. If, however, the Rent Commencement Date is January
2, 1997, the first Lease Year would end on January 31, 1998, the second Lease
Year would commence on February 1, 1998, and each succeeding Lease Year would
end on January 31st.
Within five (5) business days after Landlord's delivery to Tenant of
Landlord's standard Rent Commencement Date Certificate annexed hereto as Exhibit
3, Tenant will sign and return said Certificate to Landlord.
RENT
3. The annual minimum rental ("Rent" or "rent") is as
follows:
During the first Lease Year, the Rent shall be $599,497.50, payable $128,463.75
for the first month and $42,821.25 for each of the second through twelfth
months.
During the second Lease Year, the Rent shall be $530,325.36, payable in monthly
installments of $44,193.78.
During the third Lease Year, the Rent shall be $547,372.32, payable in monthly
installments of $45,614.36.
During the fourth Lease Year, the Rent shall be $565,015.80, payable in monthly
installments of $47,084.65.
During the fifth Lease Year, the Rent shall be $583,276.80, payable $48,606.40.
for each of the first through eleventh months and $5,785.15 for the twelfth
month.
For the last month of the term, the rent shall be $7,360.17.
Tenant agrees to pay the Rent to Landlord, without notice or demand, in lawful
money of the United States which shall be legal tender in payment of the debts
and dues, public and private, at the time of payment in advance on the first day
of each calendar month during the Demised Term at the office of the Landlord set
forth on
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page 1 of this lease, or at such other place as Landlord shall designate, except
that Tenant shall pay the first monthly installment on the execution hereof.
Tenant shall pay the Rent as above and as hereinafter provided, without any set
off or deduction whatsoever. Should the Rent Commencement Date be a date other
than the first day of a calendar month, the Tenant shall pay a pro rata portion
of the Rent on a per diem basis, based upon the fourth full calendar month of
the first Lease Year, from such date to and including the last day of that
current calendar month, and the first Lease Year shall include said partial
month. The Rent payable for such partial month shall be in addition to the Rent
payable pursuant to the Rent schedule set forth above.
Notwithstanding the foregoing, provided Tenant is not then in default under any
provision of this lease, Tenant shall be relieved of its obligations to pay Rent
for the third full calendar month of the first Lease Year of the Term of this
lease.
USE
4. (A) Tenant shall use and occupy the Demised Premises
only for general, executive and administrative offices and for no
other purpose.
(B) Tenant shall not use or occupy, suffer or permit the
Premises, or any part thereof, to be used in any manner which would in any way,
in the reasonable judgment of Landlord, (i) violate any laws or regulations of
public authorities; (ii) make void or voidable any insurance policy then in
force with respect to the Building; (iii) impair the appearance, character or
reputation of the Building; (iv) discharge objectionable fumes, vapors or odors
into the Building, air-conditioning systems or Building flues or vents in such a
manner as to offend other occupants. The provisions of this Section shall not be
deemed to be limited in any way to or by the provisions of any other Section or
any Rule or Regulation.
(C) The emplacement of any equipment which will impose an
evenly distributed floor load in excess of 100 pounds per square foot shall be
done only after written permission is received from the Landlord. Such
permission will be granted only after adequate proof is furnished by a
professional engineer that such floor loading will not endanger the structure.
Business machines and mechanical equipment in the Premises shall be placed and
maintained by Tenant, at Tenant's expense, in such manner as shall be sufficient
in Landlord's reasonable judgment to absorb vibration and noise and prevent
annoyance or inconvenience to Landlord or any other tenants or occupants of the
Building.
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(D) Tenant will not at any time use or occupy the Demised
Premises in violation of the existing certificate of occupancy (temporary or
permanent) issued for the Building or portion thereof of which the Demised
Premises form a part.
LANDLORD ALTERATION
5. Landlord, at its expense, will perform the work and make the
installations, as set forth in Schedule A annexed hereto and the Rental Plan
annexed hereto as Exhibit 1, which work is sometimes hereinafter referred to as
the "Landlord's Initial Construction".
SERVICES
6. Landlord, during the hours of 8:00 A.M. to 7:00 P.M. Monday through
Friday ("Working Hours"), excluding legal holidays which include New Year's Day,
Washington's Birthday, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day and Christmas Day, shall furnish the Demised Premises with heat and
air-conditioning in the respective seasons, and provide the Demised Premises
with electricity for lighting and Tenant's usual office equipment as set forth
in Schedule "C". Landlord may alter or amend the list of holidays provided
herein so long as Landlord provides Tenant with prior written notice of same.
Tenant, shall have the right to designate other hours, so long as the total
hours per week do not exceed fifty-five (55). At any hours other than the
aforementioned, such services will be provided at Tenant's expense in accordance
with Schedule "C".
LANDLORD'S REPAIRS
7. Landlord, at its expense, will make all the repairs to and provide
the maintenance for the Demised Premises including the roof and structural
components of the Building (excluding painting and decorating, except to the
extent painting and decorating is part of the Landlord's Initial Construction)
and for all public areas and facilities as set forth in Schedule B, except such
repairs and maintenance as may be necessitated by the negligence, improper care
or use of the Premises by Tenant, its agents, employees, licensees or invitees,
which will be made by Landlord at Tenant's expense. All repairs shall be
performed in a good workmanlike manner and with materials at least equal in
quality to the materials that are repaired or replaced and Landlord shall
maintain the Building at a level commensurate with other similar Buildings in
the marketplace.
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WATER SUPPLY
8. Landlord, at its expense, shall furnish hot and cold or
tempered water for lavatory and kitchen purposes only.
PARKING FIELD
9. Tenant shall have the right to use one hundred eighteen(118) parking
spaces, ten (10) of which, located as depicted on Exhibit 2, shall be reserved
for Tenant's exclusive use, for the parking of automobiles of the Tenant, its
employees and invitees, in the parking area designated for tenants of the
building (hereinafter sometimes referred to as "Building Parking Area"), subject
to the reasonable Rules and Regulations now or hereafter adopted by Landlord.
Tenant shall not use nor permit any of its officers, agents or employees to use
any parking spaces in excess of Tenant's allotted number of spaces therein.
DIRECTORY
10. Landlord will furnish on the building directory listings in the
lobby requested by Tenant, not to exceed eight (8) listings. The initial
listings will be made at Landlord's expense and any subsequent changes by Tenant
shall be made at Tenant's expense. Landlord's acceptance of any name for listing
on the directory will not be deemed, nor will it substitute for, Landlord's
consent, as required by this lease, to any sublease, assignment or other
occupancy of the Premises.
TAXES AND OTHER CHARGES
11. (A) As used in and for the purposes of this Article 11,
the following definitions shall apply:
(i) "Taxes" shall be the real estate taxes, assessments,
special or otherwise, sewer rents, rates and charges, and any other governmental
charges, general, specific, ordinary or extraordinary, foreseen or unforeseen,
levied on a calendar year or fiscal year basis against the Real Property. If at
any time during the Term the method of taxation prevailing at the date hereof
shall be altered so that there shall be levied, assessed or imposed in lieu of,
or as in addition to, or as a substitute for, the whole or any part of the
taxes, levies, impositions or charges now levied, assessed or imposed on all or
any part of the Real Property (a) a tax, assessment, levy, imposition or charge
based upon the rents
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received by Landlord from the Real Property, whether or not wholly or partially
as a capital levy or otherwise, or (b) a tax, assessment, levy, imposition or
charge measured by or based in whole or in part upon all or any part of the Real
Property and imposed on Landlord, or (c) a license fee measured by the rent
payable by Tenant to Landlord, or (d) any other tax, levy, imposition, charge or
license fee however described or imposed, then all such taxes, levies,
impositions, charges or license fees or any part thereof, so measured or based,
shall be deemed to be Taxes. In the event the method of taxation shall be
altered as mentioned above, the taxes applicable to the Real Property shall be
determined as if the Real Property was the only asset of Landlord.
(ii) "Base Year Taxes" shall be the taxes actually due and
payable in the 1997/98 tax year.
(iii) "Escalation Year" shall mean each calendar year which
shall include any part of the Demised Term.
(iv) "Real Property" shall be the land upon which the Building
stands and any part or parts thereof utilized for parking, landscaped areas or
otherwise used in connection with the Building, and the Building and other
improvements appurtenant thereto.
(B) The Tenant shall pay the Landlord increases in Taxes levied against
the Real Property as follows: If the Taxes actually due and payable with respect
to the Real Property in any Escalation Year shall be increased above the Base
Year Taxes, then the Tenant shall pay to the Landlord, as additional rent for
such Escalation Year, a sum equal to Tenant's Proportionate Share of said
increase ("Tenant's Tax Payment" or "Tax Payment"). Tenant shall not be
responsible, however, for increases in taxes which are proven by Tenant to be
attributable to leasehold improvements made by or for other tenants in the
Building.
(C) Landlord shall render to Tenant a statement containing a
computation of Tenant's Tax Payment ("Landlord's Statement"). Within fifteen
(15) days after the rendition of the Landlord's Statement, Tenant shall pay to
Landlord the amount of Tenant's Tax Payment, however, Tenant shall not be
required to make payment of Tenant's first Tax Payment until the first
anniversary of the Rent Commencement Date. On the first day of each month
following the rendition of each Landlord's Statement, Tenant shall pay to
Landlord, on account of Tenant's next Tax Payment, a sum equal to one-twelfth
(1/12th) of Tenant's last Tax Payment due hereunder, which sum shall be subject
to adjustment for subsequent increases or decreases in Taxes. Any overpayment by
Tenant shall be refunded by Landlord upon request by Tenant. Upon written
request, Landlord shall provide Tenant with a copy of the real estate tax xxxx
evidencing the taxes due for the applicable Escalation Year.
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(D) Tenant shall not, without Landlord's prior written consent,
institute or maintain any action, proceeding or application in any court or body
or with any governmental authority for the purpose of changing the Taxes. If
Landlord shall receive a refund of Taxes for any Escalation Year, Landlord shall
pay to Tenant Tenant's share of the net refund (after deducting from such refund
the costs and expenses of obtaining the same, including, without limitation,
appraisal, accounting and legal fees, to the extent that such reasonable costs
and expenses were not included in the Taxes for such Escalation Year, and upon
written request, Landlord shall provide Tenant with an itemized list of all said
costs and expenses) to the extent such refund represents taxes actually paid by
Tenant; provided, that such payment to Tenant shall in no event exceed Tenant's
Tax Payment paid for such Escalation Year. This subparagraph shall survive the
expiration of this lease.
(E) Landlord's failure to render a Landlord's Statement with respect to
any Escalation Year shall not prejudice Landlord's right to render a Landlord's
Statement with respect to any Escalation Year. The obligation of Landlord and
Tenant under the provisions of this Article with respect to any additional rent
for any Escalation Year shall survive the expiration or any sooner termination
of the Demised Term.
TENANT'S REPAIRS
12. Tenant shall take good care of the Demised Premises, normal wear
and tear and natural deterioration excepted, and, subject to the provisions of
Article 7 hereof, Landlord at the reasonable expense of Tenant, shall make as
and when needed as a result of misuse or neglect by Tenant or Tenant's servants,
employees, agents or licensees, all repairs in and about the Demised Premises
necessary to preserve them in good order and condition. Except as provided in
Article 24 hereof, there shall be no allowance to Tenant for a diminution of
rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord, Tenant or
others making any repairs, alterations, additions or improvements in or to any
portion of the Building or of the Demised Premises, or in or to the fixtures,
appurtenances or equipment thereof, and no liability upon Landlord for failure
of Landlord or others to make any repairs, alterations, additions or
improvements in or to any portion of the Building or of the Demised Premises, or
in or to the fixtures, appurtenances or equipment thereof. Landlord shall,
however, use reasonable efforts to minimize interference with Tenant's use of
the Demised Premises in making repairs hereunder. All repairs performed pursuant
to Article 12 hereof shall be performed in a good workmanlike manner and with
materials at least
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equal in quality to the materials that are repaired or replaced
hereunder.
FIXTURES & INSTALLATIONS
13. All appurtenances, fixtures, improvements, additions and other
property attached to or built into the Demised Premises, whether by Landlord or
Tenant or others, and whether at Landlord's expense, or Tenant's expense, or the
joint expense of Landlord and Tenant, shall be and remain the property of
Landlord (except for purposes of sales tax which, other than sales tax incurred
in connection with Landlord's Initial Construction, shall remain Tenant's
obligation). All trade fixtures, furniture, furnishings and other articles of
movable personal property owned by Tenant and located within the Premises
(collectively, "Tenant's Property") may be removed from the Premises by Tenant
at any time during the Term. Tenant, before so removing Tenant's Property, shall
establish to Landlord's reasonable satisfaction that no structural damage or
change will result from such removal and that Tenant can and promptly will
repair and restore any damage caused by such removal without cost or charge to
Landlord. Any such repair and removal shall itself be deemed an Alteration (as
defined in Article 14 below) within the purview of this lease (except for the
removal of ordinary office furnishings, desks, chairs and office tables, so long
as such removal will not result in any damage to the Demised Premises). Any
Tenant's Property for which Landlord shall have granted any allowance,
contribution or credit to Tenant, excluding the one month rent concession
referred to in Article 3 hereof, shall, at Landlord's option, not be so removed.
Landlord shall advise Tenant of its requirement to remove any such Tenant's
Property within ten (10) business days after its receipt of notice from Tenant
requesting same. All the outside walls of the Demised Premises including
corridor walls and the outside entrance doors to the Demised Premises, any
balconies, terraces or roofs adjacent to the Demised Premises, and any space in
the Demised Premises used for shafts, stacks, pipes, conduits, ducts or other
building facilities, and the use thereof, as well as access thereto in and
through the Demised Premises for the purpose of operation, maintenance,
decoration and repair, are expressly reserved to Landlord, and Landlord does not
convey any rights to Tenant therein. Notwithstanding the foregoing, Tenant shall
enjoy full right of access to the Demised Premises through the public entrances,
elevators, public corridors and public areas within the Building.
ALTERATIONS
14. (A) After completion of the Demised Premises as set
forth in Schedule A, Tenant shall make no alterations,
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installations, additions or improvements (hereinafter collectively referred to
as "Alterations") in or to the Demised Premises without Landlord's prior written
consent, and then only by contractors or mechanics approved by Landlord, which
approval shall not be unreasonably withheld or delayed with respect to such
contractors or mechanics, and at such times and in such manner as Landlord may
from time to time designate.
(B) All Alterations done by Tenant shall at all times comply
with (i) laws, rules, orders and regulations of governmental authorities having
jurisdiction thereof, and (ii) rules and regulations of the Landlord attached as
Schedule D.
(C) With respect to all Alterations, plans and specifications
prepared by and at the expense of Tenant shall be submitted to Landlord for its
prior written approval in accordance with the following requirements:
(i) With respect to any Alterations to be performed
by Tenant pursuant to this lease, Tenant shall, at its expense, furnish Landlord
with all drawings, plans, layouts and specifications for work to be performed by
Tenant, including, without limitation, architectural, plumbing, electrical,
mechanical and heating, ventilating and air conditioning plans (the "Tenant's
Plans"). All of the Tenant's Plans shall: (a) be compatible with the Landlord's
building plans, (b) comply with all applicable laws and the rules, regulations,
requirements and orders of any and all governmental agencies, departments or
bureaus having jurisdiction, and (c) be fully detailed, including locations and
complete dimensions;
(ii) Tenant's Plans shall be subject to approval by
Landlord;
(iii) Tenant shall, at Tenant's expense, (a) cause
Tenant's Plans to be filed with the governmental agencies having jurisdiction
thereover, (b) obtain when necessary all governmental permits, licenses and
authorizations required for the work to be done in connection therewith, and (c)
obtain all necessary certificates of occupancy, both temporary and permanent.
Tenant shall not be deemed to be in default of its obligations hereunder if as a
result of the existence of any open building permits or violations against the
Building Tenant cannot obtain the necessary certificates of occupancy. Landlord
shall execute such documents as may be reasonably required in connection with
the foregoing and Landlord shall otherwise cooperate with Tenant in connection
with obtaining the foregoing, but without any expense to Landlord except that
the execution of said documents shall not be deemed an expense of Landlord.
Tenant shall make no amendments or additions to Tenant's Plans without the prior
written consent of Landlord in each instance;
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(iv) No work shall commence in the Premises until
(a) Tenant has procured all necessary permits therefor and has delivered copies
of same to Landlord, (b) Tenant has procured a paid builder's risk insurance
policy naming Landlord as an additional insured and has delivered to Landlord a
certificate of insurance evidencing such policy, and (c) Tenant or its
contractor has procured a workmen's compensation insurance policy covering the
activities of all persons working at the Premises naming Landlord as an
additional insured and has delivered to Landlord a certificate of insurance
evidencing such policy;
(v) Tenant may use any licensed architect or
engineer to prepare its plans and to file for permits. However,
all such plans and permit applications shall be subject to review,
revision and approval by Landlord or its architect;
(vi) Tenant, at its expense, shall perform all
work, in accordance with Tenant's Plans and all Alterations, unless Landlord
performs same, shall be subject to Landlord's supervisory fee charge of 10% of
the cost thereof. This fee shall include the services described in subparagraph
(v) hereof. In receiving such fee, Landlord assumes no responsibility for the
quality or manner in which such work has been performed; and
(vii) Tenant agrees that it will not, either
directly or indirectly, use any contractors and/or labor and/or materials if the
use of such contractors and/or labor and/or materials would or will create any
difficulty with other contractors and/or labor engaged by Tenant or Landlord or
others in the construction, maintenance or operation of the Building or any part
thereof.
(D) Tenant's right to make Alterations shall be subject to the
following additional conditions: (i) the Alterations will not result in a
violation of, or require a change in, any certificate of occupancy applicable to
the Building; (ii) the outside appearance, character or use of the Building
shall not be affected; (iii) no part of the Building outside of the Premises
shall be physically affected; (iv) the proper functioning of any
air-conditioning, elevator, plumbing, electrical, sanitary, mechanical and other
service or utility system of the Building shall not be affected.
(E) Notwithstanding the foregoing, Landlord shall not
unreasonably withhold its consent to any Alteration requested by Tenant;
provided same is not a Material Alteration. The term "Material Alteration", as
used herein, means any Alteration which may, in the opinion of Landlord (i) be
structural in nature; (ii) affect the exterior or any structural portions or
components of the Building; (iii) be visible from outside of the Demised
Premises; (iv) affect the usage or proper functioning of any of the Building
systems (including, without limitation, the heating, ventilation,
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air conditioning, plumbing, electrical, sprinkler or security systems serving
the Building); (v) jeopardize health safety or life safety; (vi) require a
change to the certificate of occupancy for the Building; (vii) require the
issuance of a building permit or other authorization by any governmental or
quasi-governmental entity exercising jurisdiction over the Building; (viii)
require the consent of any mortgagee or ground lessor of the Building and/or the
Real Property; (ix) cause any previously non-mandatory legal requirement to
become a mandatory legal requirement with regard to the Building (including,
without limitation, any such legal requirement set forth in the Americans with
Disabilities Act); or (x) have a cost of completion in excess of Ten Thousand
Dollars ($10,000.00), excluding Landlord's supervisory fee set forth in
Paragraph (C) (vi) of this Article 14.
(F) Tenant shall defend, indemnify and save harmless Landlord
against any and all mechanics' and other liens filed in connection with Tenant's
Alterations, repairs or installations, including the liens of any conditional
sales of, or chattel mortgages made by Tenant upon, any materials, fixtures or
articles so installed in and constituting part of the Premises and against any
loss, cost, liability, claim, damage and expense, including reasonable counsel
fees, penalties and fines incurred in connection with any such lien, conditional
sale or chattel mortgage or any action or proceeding brought thereon. Tenant
agrees to obtain and deliver to Landlord, promptly upon completion of each
Alteration, written and unconditional waivers of mechanics' liens for all work,
labor and services performed and materials furnished, signed by all contractors,
subcontractors, materialmen and laborers involved in such work. Tenant shall not
be obligated to obtain said waivers for work, labor, services or materials
performed or furnished during the Term which total, in the aggregate, One
Thousand ($1,000) Dollars or less.
(G) Tenant, at its expense, shall procure the satisfaction or
discharge of all such liens within thirty (30) days of the filing of such lien
against the Premises or the Building. If Tenant shall fail to cause such lien to
be discharged within the aforesaid period, 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 maximum rate
permitted by law from the respective dates of Landlord's making of the payments
or incurring of the cost and expense, shall constitute additional rent and shall
be paid on demand.
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(H) Nothing in this lease contained shall be construed in any
way as constituting the consent or request of Landlord, expressed or implied, to
any contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any material for any improvement, alteration or
repair of the Premises, nor as giving any right or authority to contract for the
rendering of any services or the furnishing of any materials that would give
rise to the filing of any mechanics' liens against the Premises.
(I) Prior to making any Alteration hereunder, Tenant shall
obtain and submit to Landlord a copy of a bona fide bid, from a reputable
contractor, which Tenant desires to accept for each Alteration to be performed
and permitted hereunder. Landlord shall have the right, at its option, to match
such bid within the Bid Period (hereinafter defined) and to perform the
Alteration upon terms and conditions substantially similar to those accompanying
such bid (including conditions with respect to time limits for completion of the
Alterations, and quality of materials to be used, in accordance with the bid
requirements). The Bid Period shall mean the same number of calendar days
allowed by Tenant to contractors for the submission to Tenant of a written bid
to perform the Alteration. The Bid Period shall commence on the date that Tenant
delivers to Landlord, at the address to which notices are sent to Landlord in
accordance with Article 34 of this lease, the same information and construction
plans provided by Tenant to contractors to facilitate the preparation of a bid
to perform the Alteration. If Landlord does not elect to match such bid, Tenant
shall have the right to use such contractor to perform the Alteration, in
accordance with the bona fide bid, provided such contractor shall be properly
licensed and insured and shall be reasonably satisfactory to Landlord. In the
event Landlord fails to give Tenant written notice by certified mail (return
receipt requested) or by overnight courier, of its election within the Bid
Period, it shall be deemed that Landlord has elected not to perform such work.
REQUIREMENTS OF LAW
15. (A) Tenant, as Tenant's sole cost and expense, shall comply with
all statutes, laws, ordinances, orders, regulations and notices of Federal,
State, County and Municipal authorities, and with all directions, pursuant to
law, of all public officers, which shall impose any duty upon Tenant with
respect to the Demised Premises or the use or occupation thereof, except that
Tenant shall not be required to make any structural alterations or capital
improvements to the Demised Premises or the Building in order so to comply
unless such alterations shall be necessitated or occasioned, in whole or in
part, by the acts, omissions, or negligence of Tenant or any person claiming
through or under Tenant or any of
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their servants, employees, contractors, agents, visitors or licensees, or by the
use or occupancy or manner of use or occupancy of the Demised Premises by
Tenant, or any such person.
(B) The parties acknowledge that there are certain Federal,
State and local laws, regulations and guidelines now in effect and that
additional laws, regulations and guidelines may hereafter be enacted, relating
to or affecting the Premises, the Building, and the land of which the Premises
and the Building may be a part, concerning the impact on the environment of
construction, land use, the maintenance and operation of structures and the
conduct of business. Tenant will not cause, or permit to be caused, any act or
practice, by negligence, omission, or otherwise, that would adversely affect the
environment or do anything or permit anything to be done that would violate any
of said laws, regulations, or guidelines. Any violation of this covenant shall
be an event of default under this lease.
(C) Tenant shall keep or cause the Premises to be kept free of
Hazardous Materials (hereinafter defined). Without limiting the foregoing,
Tenant shall not cause or permit the Premises to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer, produce
or process Hazardous Materials, except in compliance with all applicable
Federal, State and Local laws or regulations, nor shall Tenant cause or permit,
as a result of any intentional or unintentional act or omission on the part of
Tenant or any person or entity claiming through or under Tenant or any of their
employees, contractors, agents, visitors or licensees (collectively, "Related
Parties"), a release of Hazardous Materials onto the Premises or onto any other
property. Tenant shall comply with and ensure compliance by all Related Parties
with all applicable Federal, State and Local laws, ordinances, rules and
regulations, whenever and by whomever triggered, and shall obtain and comply
with, and ensure that all Related Parties obtain and comply with, any and all
approvals, registrations or permits required thereunder. With respect to
Hazardous Materials for which Tenant is responsible hereunder, Tenant shall (i)
conduct and complete all investigations, studies, samplings, and testing, and
all remedial removal and other actions necessary to clean up and remove such
Hazardous Materials, on, from, or affecting the Premises (a) in accordance with
all applicable Federal, State and Local laws, ordinances, rules, regulations,
policies, orders and directives, and (b) to the reasonable satisfaction of
Landlord, and (ii) defend, indemnify, and hold harmless Landlord, its employees,
agents, officers, and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, reasonable costs, and
expenses of whatever kind or nature, known or unknown, contingent or otherwise,
arising out of, or in any way related to, (a) the presence, disposal, release,
or threatened release by Tenant of such Hazardous Materials which are on, from,
or affecting the soil, water, vegetation, buildings, personal
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property, persons, animals, or otherwise at the Real Property; (b) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Materials; (c) any lawsuit brought or
threatened, settlement reached, or government order relating to such Hazardous
Materials; and/or (d) any violation of laws, orders, regulations, requirements,
or demands of government authorities, including, without limitation, reasonable
attorney and consultant fees, investigation and laboratory fees, court costs,
and litigation expenses. In the event this lease is terminated, or Tenant is
dispossessed, Tenant shall deliver the Premises to Landlord free of any and all
Hazardous Materials other than Hazardous Materials existing at the Demised
Premises as of the Rent Commencement Date, or the date Tenant receives
possession of any additional space at the Building, as the case may be, so that
the conditions of the Premises shall conform with all applicable Federal, State
and Local laws, ordinances, rules or regulations affecting the Premises. For
purposes of this paragraph, "Hazardous Materials" includes, without limitation,
any flammable explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or related materials defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections 1801 et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. ]Sections 9601, et seq.),
and in the regulations adopted and publications promulgated pursuant thereto, or
any other Federal, State or Local environmental law, ordinance, rule, or
regulation.
(D) Landlord represents that general office use is a permitted
use under current zoning classifications and the certificate of occupancy
applicable to the Building. Landlord also represents that as of the date of this
Lease, the Building of which the Demised Premises forms a part is in compliance
with all mandatory requirements of the American with Disabilities Act ("ADA").
If any existing ADA requirements become mandatory as a result of Tenant's use of
the Demised Premises or any alteration made by or on behalf of Tenant except for
Landlord's Initial Construction and any other alteration or improvement
performed by Landlord, in accordance with the terms of this lease, to prepare
additional space in the Building for occupancy by Tenant, Tenant shall be
responsible for the entire cost of addressing such requirement(s) including the
work required to be performed to bring the Demised Premises into compliance with
such ADA requirements. If Tenant is not solely responsible for any additional
ADA requirement, then to the extent Tenant is responsible therefor, Tenant shall
pay for the costs of addressing such requirement on a proportional basis. To the
best of Landlord's knowledge there is no friable asbestos within the Building,
the Building is in compliance with all laws pertaining to Hazardous Materials,
and the Demised Premises do not contain any Hazardous Materials.
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END OF TERM
16. (A) Upon the expiration or other termination of the Term of this
lease, Tenant shall, at its own expense, quit and surrender to Landlord the
Demised Premises, broom clean, in good order and condition, ordinary wear, tear,
natural deterioration and damage by fire or other insured casualty excepted, and
Tenant shall remove all of its property and shall pay the cost to repair all
damage to the Demised Premises or the Building occasioned by such removal. Any
property not removed from the Premises shall be deemed abandoned by Tenant and
may be retained by Landlord, as its property, or disposed of in any manner
deemed appropriate by the Landlord. Any reasonable expense incurred by Landlord
in removing or disposing of such property shall be reimbursed to Landlord by
Tenant within twenty (20) days following Tenant's receipt of an itemized invoice
of such expenses from Landlord accompanied by invoices for all materials
supplied and labor performed by parties other than Landlord's affiliates and
employees. Tenant expressly waives, for itself and for any person claiming
through or under Tenant, any rights which Tenant or any such person may have
under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any successor law of like import then in force, in connection with
any holdover or summary proceeding which Landlord may institute to enforce the
foregoing provisions of this Article. Tenant's obligation to observe or perform
this covenant shall survive the expiration or other termination of the Term of
this lease. If the last day of the Term of this lease or any renewal hereof
falls on Sunday or a legal holiday, this lease shall expire on the business day
immediately preceding. Tenant's obligations under this Article 16 shall survive
the Expiration Date or sooner termination of this lease.
(B) In the event of any holding over by Tenant after the expiration
or termination of this Lease without the written consent of Landlord, Tenant
shall:
(i) pay as holdover rental for each month of the
holdover tenancy an amount equal to the greater of (a) the fair market rental
value of the Premises for such month (as reasonably determined by Landlord) or
(b) one hundred fifty (150%) percent of the Rent payable by Tenant for the third
month prior to the Expiration Date of the term of this lease, and otherwise
observe, fulfill and perform all of its obligations under this lease, including
but not limited to, those pertaining to additional rent, in accordance with its
terms; and
(ii) In the event such holdover exceeds thirty (30)
days, in addition to the holdover rental set forth above, Tenant shall:
(a) be liable to Landlord for any payment or
rent concession which Landlord may be required to make to any
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tenant in order to induce such tenant not to terminate an executed lease
covering all or any portion of the Premises by reason of the holdover over by
Tenant; and
(b) be liable to Landlord for any damages
suffered by Landlord as the result of Tenant's failure to surrender
the Premises.
No holding over by Tenant after the Term shall operate to
extend the Term.
The holdover, with respect to all or any part of the Premises,
of a person deriving an interest in the Premises from or through Tenant,
including, but not limited to, an assignee or subtenant, shall be deemed a
holdover by Tenant.
Notwithstanding anything in this Article contained to the
contrary, the acceptance of any Rent paid by Tenant pursuant to this Paragraph
16(B), shall not preclude Landlord from commencing and prosecuting a holdover or
eviction action or proceeding or any action or proceeding in the nature thereof.
The preceding sentence shall be deemed to be an "agreement expressly providing
otherwise" within the meaning of Section 232-c of the Real Property Law of the
State of New York and any successor law of like import.
QUIET ENJOYMENT
17. Landlord covenants and agrees with Tenant that upon Tenant paying
the Rent and additional rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the Demised Premises during the Term of this
lease without hindrance or molestation by either Landlord or anyone claiming by
or through Landlord, subject, nevertheless, to the terms, covenants and
conditions of this lease including, but not limited to, Article 22.
SIGNS
18. No signs or lettering of any nature may be put on or in any window
or on the exterior of the Building or elsewhere within the Demised Premises such
as will be visible from the street. No sign or lettering in the public corridors
or on the doors is permitted except Landlord's standard name plaque.
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RULES AND REGULATIONS
19. Tenant and Tenant's agents, employees, visitors, and licensees
shall faithfully observe and comply with, and shall not permit violation of, the
Rules and Regulations set forth on Schedule D annexed hereto and made part
hereof, and with such further reasonable Rules and Regulations as Landlord at
any time may make and communicate in writing, sent in accordance with Article 34
hereof, to Tenant which, in Landlord's judgment, shall be necessary for the
reputation, safety, care and appearance of the Building and the land allocated
to it or the preservation of good order therein, or the operation or maintenance
of the Building, and such land, its equipment, or the more useful occupancy or
the comfort of the tenants or others in the Building. Such rules shall be deemed
effective upon five (5) days written notice to Tenant. Landlord shall not be
liable to Tenant for the violation of any of said Rules and Regulations, or the
breach of any covenant or condition, in any lease by any other tenant in the
Building. Notwithstanding anything to the contrary contained herein, or in any
Rules and Regulations of Landlord now or hereafter in effect, Tenant shall not
be obligated to use or patronize any vendor, supplier or cafeteria operator
Landlord may designate from time to time.
RIGHT TO SUBLET OR ASSIGN
20. (A) Tenant shall not assign this lease nor sublet the Demised
Premises or any part thereof, by operation of law or otherwise, including,
without limitation, an assignment or subletting as defined in (D) below, without
the prior written consent of Landlord in each instance, which consent shall not
be unreasonably withheld. Tenant may assign this lease or sublet all or a
portion of the Demised Premises with Landlord's prior written consent, provided:
(i) That such assignment or sublease is for a use which is in
compliance with this lease and the then existing zoning regulations and the
certificate of occupancy;
(ii) That, at the time of such assignment or subletting, there
is no monetary or material non-monetary default beyond expiration of any notice
and/or grace periods provided herein for the cure thereof, under the terms of
this lease on the Tenant's part;
(iii) That, in the event of an assignment, the assignee shall
assume in writing the performance of all of the terms and obligations of the
within lease;
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(iv) That a duplicate original of said assignment or sublease shall
be delivered by certified mail to the Landlord at the address herein set forth
within ten (10) days from the said assignment or sublease and within one hundred
twenty (120) days of the date that Tenant first advises Landlord of the name and
address of the proposed subtenant or assignee, as required pursuant to
subparagraph (B) hereof;
(v) Such assignment or subletting shall not, however, release the
within Tenant or any successor tenant or any guarantor from their primary
liability for the full and faithful performance of all of the terms and
conditions of this lease;
(vi) If this lease be assigned, or if the Demised Premises or any
part thereof be underlet or occupied by anybody other than Tenant, Landlord may
after default by Tenant, beyond expiration of any notice and/or grace periods
provided herein for the cure thereof, collect rent from the assignee,
undertenant or occupant, and apply the net amount collected to the rent herein
reserved; and
(vii) That, in the event Tenant shall request Landlord's consent to
a proposed assignment of this lease or proposed sublease of all or a portion of
the Demised Premises, Tenant shall pay or reimburse to Landlord the reasonable
attorney fees incurred by Landlord in processing such request.
(B) Notwithstanding anything contained in this Article 20 to
the contrary, no assignment or underletting shall be made by Tenant in any event
until Tenant has offered to terminate this lease as of the last day of any
calendar month during the Term hereof and to vacate and surrender the Demised
Premises to Landlord on the date fixed in the notice served by Tenant upon
Landlord (which date shall be prior to the date of such proposed assignment or
the commencement date of such proposed sublease)and Landlord has rejected such
offer. Simultaneously with said offer to terminate this lease, Tenant shall
advise the Landlord, in writing, of the name and address of the proposed
assignee or subtenant, a reasonably detailed statement of the proposed
subtenant/assignee's business, reasonable financial references, and all the
terms, covenants, and conditions of the proposed sublease or assignment.
Landlord shall accept or reject Tenant's offer within ten (10) days after
receiving all of the information from Tenant required pursuant to this
Paragraph. If Landlord does not respond within the aforementioned time period,
Landlord shall be deemed to have rejected Tenant's offer. If Landlord accepts
Tenant's offer hereunder at any time during the Term prior to the twelfth month
of the fifth Lease Year, Landlord shall promptly pay to Tenant the sum of
$85,642.50, and all additional rent paid by Tenant for any period beyond the
date the lease is terminated, provided Tenant is not then in default under any
provision of this lease. The obligation to pay said $85,642.50 shall not be
applicable during
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any renewal period. Landlord's obligation to pay said amounts to Tenant shall
survive the expiration of this lease.
(C) Notwithstanding anything to the contrary contained herein
Tenant may, without the consent of Landlord, assign this lease to an affiliated,
parent or subsidiary corporation, partnership or other entity of Tenant or to a
corporation, partnership or other entity to which it sells or assigns all or
substantially all of its assets, interest or shares of stock or with which it
may be consolidated or merged, or which is acquired in whole or in part by
Tenant, or which is controlled directly or indirectly by Tenant (control shall
mean the ownership of fifty (50%) percent or more of the capital stock,
partnership interest or ownership interest, whichever is applicable), provided
such purchasing, consolidated, merged, affiliated or subsidiary corporation,
partnership or other entity shall, in writing, assume and agree to perform all
of the obligations of Tenant under this lease and it shall deliver such
assumption with a copy of such assignment to Landlord within ten (10) days
thereafter, and provided further than Tenant shall not be released or discharged
from any liability under this lease by reason of such assignment.
(D) For purposes of this Article 20, (i) the transfer of a
majority of the issued and outstanding capital stock of any corporate tenant
other than Twin Laboratories Inc. or an assignee who acquired an interest in
this lease in accordance with an assignment effected pursuant to subparagraph C
of this Article, 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 a single transaction or in a series of related or unrelated
transactions, shall be deemed an assignment of this lease, or of such sublease,
as the case may be; (ii) any person or legal representative of Tenant, to whom
Tenant's interest under this lease passes by operation of law or otherwise,
shall be bound by the provisions of this Article 20; and (iii) a modification or
amendment of a sublease shall be deemed a sublease.
(E) Whenever Tenant shall claim under this Article or any
other part of this lease that Landlord has unreasonably withheld or delayed its
consent to some request of Tenant, Tenant shall have no claim for damages by
reason of such alleged withholding or delay, and Tenant's sole remedy thereof
shall be a right to obtain specific performance or injunction but in no event
with recovery of damages.
(F) Tenant shall not mortgage, pledge, hypothecate or
otherwise encumber its interest under this lease without Landlord's prior
written consent.
(G) Without affecting any of its other obligations under this
lease, except with respect to any permitted assignment or subletting under
Article 20(C) hereof, Tenant will pay Landlord as
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additional rent any sums or other economic consideration, which (i) are
collected by Tenant as a result of any permitted assignment or subletting to a
then existing tenant in any building then owned by Landlord, whether or not
referred to as rentals under the assignment or sublease (after deducting
therefrom the reasonable costs and expenses incurred by Tenant in connection
with the assignment or subletting in question, including but not limited to,
attorney's fees and disbursements, reasonable broker's commissions, Tenant's
advertising costs and any allowance or economic concessions paid by Tenant to an
assignee or subtenant, provided such costs were approved by Landlord when it
approved the assignment or sublease. Tenant must seek such approval for costs
including Attorney's Fees, Tenant improvement costs, allowances, negotiated
monetary credits, reasonable broker's commissions and advertising costs, but
reasonable costs which Tenant could not ascertain prior to Landlord's approval
shall also be deducted so long as Tenant notifies Landlord promptly of such
costs when they arise); and (ii) exceed in total the sums which Tenant is
obligated to pay Landlord under this lease (prorated to reflect obligations
allocable to that portion of the Demised Premises subject to such assignment or
sublease), it being the express intention of the parties that Tenant shall not
in any manner whatsoever be entitled to any profit by reason of such sublease or
assignment.
In the event such permitted assignment or subletting is to
a person or entity which is not a then existing tenant in any building then
owned by Landlord, Tenant shall pay Landlord as additional rent fifty (50%)
percent of the above referenced sums collected by Tenant. Nothing contained
herein shall relieve Tenant from its primary obligations hereunder including,
without limitation, the obligation to pay Rent and additional rent hereunder.
Tenant will not amend the assignment or sublease in such a way as to reduce or
delay payment of amounts which are provided in the assignment or sublease
approved by Landlord.
(H) In determining reasonableness under this Article 20, there
shall be taken into account the character and reputation of the proposed
subtenant or assignee, the specific nature of the proposed subtenant's or
assignee's business and whether same is in keeping with other tenancies in the
building; the financial standing of the proposed subtenant or assignee; and the
impact of all of the foregoing upon the Building and the other tenants of
Landlord therein. Landlord shall not be deemed to have unreasonably withheld its
consent if it refuses to consent to a subletting or assignment to a proposed
subtenant or assignee with whom Landlord is negotiating a lease or if at the
time of Tenant's request, Tenant is in default, beyond applicable grace and
notice periods provided herein for the cure thereof, of any of the terms,
covenants and conditions of this lease to be performed by Tenant. At least
thirty (30) days prior to any proposed subletting or assignment, Tenant shall
submit to Landlord a written notice of the
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proposed subletting or assignment, which notice shall contain or be accompanied
by the following information:
(i) the name and address of the proposed subtenant or
assignee;
(ii) the nature and character of the business of the
proposed subtenant or assignee and its proposed use of the premises to be
demised;
(iii) the most recent three (3) years of balance sheets
and profit and loss statements of the proposed subtenant or assignee or other
financial information reasonably satisfactory to Landlord; and
(iv) such shall be accompanied by a copy of the proposed
sublease or assignment of lease.
(I) Notwithstanding the foregoing, Tenant agrees that it and
anyone holding through Tenant shall not sublet or assign all or any portion of
the Demised Premises to any subtenant or assignee who will use the Demised
Premises or a portion thereof for any of the following designated uses nor for
any other use which is substantially similar to any one of the following
designated uses:
(i) federal, state or local governmental division,
department or agency which generates heavy public traffic, including, without
limitation, court, social security offices, labor department office, drug
enforcement agency, motor vehicle agency, postal service, military recruitment
office;
(ii) union or labor organization;
(iii) office for the practice of medicine, dentistry or
the rendering of other "retail" level health related services;
(iv) chemical or pharmaceutical company provided; however,
that the subletting or assignment to such a company which will use the premises
only for executive, general and sales offices and waive the right to conduct any
research and development shall not be prohibited;
(v) insurance claims office, including, but not limited
to, unemployment insurance or worker's compensation insurance; or
(vi) brokerage firm.
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LANDLORD'S ACCESS TO PREMISES
21. (A) Landlord or Landlord's agents shall have the right to enter
and/or pass through the Demised Premises at all reasonable times on reasonable
prior notice, except in an emergency, to examine the same, and to show them to
ground lessors, prospective purchasers or lessees or mortgagees of the Building,
and to make such repairs, improvements or additions as Landlord may deem
necessary or desirable, and Landlord shall be allowed to take all material into
and upon and/or through said Demised Premises that may be required therefor.
During the twelve (12) months prior to the expiration of the Term of this lease,
or any renewal term, Landlord may exhibit the Demised Premises to prospective
tenants or purchasers at all reasonable hours upon verbal notice given at least
one hour prior to entry and without unreasonably interfering with Tenant's
business. If Tenant shall not be personally present to open and permit an entry
into said premises at any time, when for any reason an entry therein shall be
reasonably necessary to meet Landlord's obligations under the lease, Landlord or
Landlord's agents may enter the same by a master key, or forcibly, upon
reasonable prior written notice to Tenant (except in cases of emergency) and
Tenant's failure to provide access in accordance with the notice, without
rendering Landlord or such agent liable therefor (if during such entry Landlord
or Landlord's agents shall accord reasonable care to Tenant's property).
Landlord shall use reasonable effort to minimize interference with Tenant's
business when exercising its rights under this paragraph.
(B) Landlord shall also have the right, at any time, to change
the arrangement and/or location of public entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets, or other public parts of the
Building, provided, however, that Landlord shall make no change in the
arrangement and/or location of public entrances or passageways or other public
parts of the Building which will adversely affect in any material manner
Tenant's use and enjoyment of the Demised Premises. Landlord shall also have the
right, at any time, to name the Building, including, but not limited to, the use
of appropriate signs and/or lettering on any or all entrances to the Building,
and to change the name, number or designation by which the Building is commonly
known.
(C) Neither this lease nor any use by Tenant shall give Tenant
any right or easement to the use of any door or passage or concourse connecting
with any other building or to any public conveniences, and the use of such doors
and passages and concourse and of such conveniences may be regulated and/or
discontinued at any time and from time to time by Landlord without notice to
Tenant.
(D) The exercise by Landlord or its agents of any right
reserved to Landlord in this Article shall not constitute an actual
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or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this lease, or impose any liability upon Landlord, or its agents, or upon
any lessor under any ground or underlying lease, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
SUBORDINATION
22. (A) This lease and all rights of Tenant hereunder are, and
shall be, subject and subordinate in all respects to all ground leases and/or
underlying leases and to all first mortgages and building loan agreements which
may now or hereafter be placed on or affect such leases and/or the Real Property
of which the Demised Premises form a part, or any part or parts of such Real
Property, and/or Landlord's interest or estate therein, and to each advance made
and/or hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor. This Section A shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute and deliver promptly any certificate that
Landlord and/or any mortgagee and/or the lessor under any ground or underlying
lease and/or their respective successors in interest may request.
Notwithstanding anything to the contrary contained in this Lease, Landlord
agrees to obtain, enter into and require the Holder and/or any current or future
mortgage lender(s) to enter into, and Tenant agrees to enter into, a
subordination, nondisturbance and attornment agreement with any current or
future mortgage lender(s) and/or the holder of all ground and/or underlying
leases, (collectively "Holder") on such lender's and/or Holders standard form.
Notwithstanding anything to the contrary contained in this lease, subordination
of this lease pursuant to this Article shall be conditioned upon Landlord's
compliance with this paragraph. Landlord represents that there is no current
Holder with respect to the subject Building.
(B) Without limitation of any of the provisions of this lease,
in the event that any mortgagee or its assigns shall succeed to the interest of
Landlord or of any successor-Landlord and/or shall have become lessee under a
new ground or underlying lease, then, at the option of such mortgagee, this
lease shall nevertheless continue in full force and effect and Tenant shall and
does hereby agree to attorn to such mortgagee or its assigns and to recognize
such mortgagee or its respective assigns as its Landlord, in accordance with the
aforesaid subordination, non-disturbance and attornment agreement.
(C) Tenant shall, at any time and from time to time (but no
more than four (4) times in any one lease year), upon not less
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than ten (10) business days prior notice by Landlord, execute, acknowledge and
deliver to Landlord a statement in writing certifying that this lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modification) and the dates to which the Rent, additional rent and other charges
have been paid in advance, if any, and stating whether or not to the best
knowledge of the signer of such certificate Landlord is in default in
performance of any covenant, agreement, term, provision or condition contained
in this lease, and if so, specifying each such default of which the signer may
have knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by any prospective purchaser or lessee of said real
property or any interest or estate therein, any mortgagee or prospective
mortgagee thereof, or any prospective assignee of any mortgage thereof. If, in
connection with such financing, such institutional lender shall require
financial audited information on the Tenant, Tenant shall promptly provide its
most recent financial statements.
(D) Subject to and in accordance with the provisions of the
applicable Subordination, Nondisturbance and Attornment Agreement, the Tenant
covenants and agrees that if by reason of a default under any underlying lease
(including an underlying lease through which the Landlord derives its leasehold
estate in the premises), such underlying lease and the leasehold estate of the
Landlord in the premises demised hereby is terminated, providing notice has been
given to the Tenant and leasehold mortgagee, the Tenant will attorn to the then
holder of the reversionary interest in the premises demised by this lease or to
anyone who shall succeed to the interest of the Landlord or to the lessee of a
new underlying lease entered into pursuant to the provisions of such underlying
lease, and will recognize such holder and/or such lessee as the Tenant's
landlord of this lease. The Tenant agrees to execute and deliver, at any time
and from time to time, upon ten (10) business days prior written notice from
Landlord or of the lessor under any such underlying lease, any instrument which
may be necessary or appropriate to evidence such attornment. The Tenant further
waives the provision of any statute or rule of law now or hereafter in effect
which may give or purport to give the Tenant any right of election to terminate
this lease or to surrender possession of the premises in the event any
proceeding is brought by the lessor under any underlying lease to terminate the
same, and agrees that unless and until any such lessor, in connection with any
such proceeding, shall elect to terminate this lease and the rights of the
Tenant hereunder, this lease shall not be affected in any way whatsoever by any
such proceeding.
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PROPERTY LOSS, DAMAGE REIMBURSEMENT
23. (A) Except otherwise specifically provided in this Article.
Landlord or its agents shall not be liable for any damages to property of Tenant
or of others entrusted to employees of the Building, nor for the loss of or
damage to any property of Tenant by theft or otherwise. Landlord or its agents
shall not be liable for any injury or damage to persons or property resulting
from fire, explosion, falling plaster, steam, gas, electricity, electrical
disturbance, water, rain or snow or leaks from any part of the Building or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatsoever
nature, unless caused by or due to the negligence of Landlord, its agents,
servants or employees; nor shall Landlord or its agents be liable for any such
damage caused by other tenants or persons in the Building or caused by
operations in construction of any private, public or quasi-public work. If at
any time any windows of the Demised Premises are temporarily closed or darkened
incident to or for the purpose of repairs, replacements, maintenance and/or
cleaning in, on, to or about the Building or any part or parts thereof, Landlord
shall not be liable for any damage Tenant may sustain thereby and Tenant shall
not be entitled to any compensation therefor nor abatement of rent nor shall the
same release Tenant from its obligations hereunder nor constitute an eviction.
Landlord shall use reasonable efforts to minimizing the period during which any
windows are temporarily closed or darkened. Tenant shall reimburse and
compensate Landlord as additional rent for all expenditures (including, without
limitation, reasonable attorneys' fees) made by, or damages or fines sustained
or incurred by, Landlord due to non-performance or non-compliance with or breach
or failure to observe any term, covenant or condition of this lease upon
Tenant's part to be kept, observed, performed or complied with. Tenant shall
give immediate notice to Landlord in case of fire in the Demised Premises or in
the Building or of defects therein or in any fixtures or equipment.
TENANT'S INDEMNITY
(B) Tenant shall indemnify and save harmless Landlord against and
from any and all claims by or on behalf of any person or persons, firm or firms,
corporation or corporations arising from the conduct or management of or from
any work or other thing whatsoever done (other than by Landlord or its
contractors or the agents or employees of either) in and on the Demised Premises
during any other period of occupancy by Tenant including the Term of this lease
and during the period of time, if any, prior to the specified commencement date
that Tenant may have been given access to the Demised Premises for the purpose
of making installations,
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and will further indemnify and save harmless Landlord against and from any and
all claims arising from any condition of the Demised Premises or Tenant's
occupancy thereof due to or arising from any act or omissions or negligence of
Tenant or any of its agents, contractors, servants, employees, licensees or
invitees and against and from all costs, expenses, and liabilities incurred in
connection with any such claim or claims or action or proceeding brought
thereon; and in case any action or proceeding be brought against Landlord by
reason of any such claim, Tenant, upon written notice from Landlord, agrees that
Tenant, at Tenant's expense, will resist or defend such action or proceeding and
will employ counsel therefor reasonably satisfactory to Landlord. Landlord
agrees that counsel employed by Tenant's insurance carrier shall be deemed
satisfactory to Landlord.
DESTRUCTION - FIRE OR OTHER CASUALTY
24. (A) If the Premises or any part thereof shall be damaged by fire or
other casualty and Tenant gives prompt notice thereof to Landlord, Landlord
shall proceed with reasonable diligence to repair or cause to be repaired such
damage (including Landlord's Initial Construction). The Rent and Additional Rent
shall be abated to the extent that the Premises shall have been rendered
untenantable, such abatement to be from the date of such damage or destruction
to ten (10) days following the date that repairs have been Substantially
Completed (as defined in Article 2 hereof), in proportion which the area of the
part of the Premises so rendered untenantable bears to the total area of the
Premises.
(B) If the Premises shall be totally damaged or rendered wholly
untenantable (which shall include damage that prevents reasonable means of
ingress and egress to and from the Demised Premises) by fire or other casualty,
and Landlord has not terminated this lease pursuant to Subsection (C) and
Landlord has not completed the making of the required repairs and restored and
rebuilt the Premises and/or access thereto, in accordance with this lease,
within twelve (12) months from the date of such damage or destruction, and such
additional time after such date (but in no event to exceed three (3) months) as
shall equal the aggregate period Landlord may have been delayed in doing so by
unavoidable delays or adjustment of insurance, Tenant may serve notice on
Landlord of its intention to terminate this lease, and, if within thirty (30)
days thereafter Landlord shall not have Substantially Completed the making of
the required repairs and restored and rebuilt the Premises, in accordance with
this lease, this lease shall terminate on the expiration of such thirty (30) day
period as if such termination date were the Expiration Date, and the Rent and
additional rent shall be apportioned as of such date and any prepaid portion of
Rent and additional rent for any period after such date shall be promptly
refunded by Landlord to Tenant and this
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obligation shall survive the termination of this lease. The Demised Premises
shall be deemed to be totally damaged or rendered wholly untenantable if the
portion of the Demised Premises useable by Tenant is not functional without the
portion damaged or rendered wholly untenantable, and Tenant is no longer using
any part of the Demised Premises.
(C) If the Premises shall be totally damaged or rendered wholly
untenantable by fire or other casualty or if the Building shall be so damaged by
fire or other casualty that substantial alteration or reconstruction of the
Building shall, in Landlord's opinion, be required (whether or not the Premises
shall have been damaged by such fire or other casualty), then in any of such
events Landlord may, at its option, terminate this lease and the Term and estate
hereby granted, by giving Tenant thirty (30) days notice of such termination
within sixty (60) days after the date of such damage. In the event that such
notice of termination shall be given, this lease and the Term and estate hereby
granted, shall terminate as of the date provided in such notice of termination
(whether or not the Term shall have commenced) with the same effect as if that
were the Expiration Date, and the Rent and additional rent shall be apportioned
as of such date or sooner termination, and, provided that such date is prior to
the twelfth month of the fifth Lease Year, Landlord shall promptly pay to Tenant
the sum of $85,642.50, and all additional rent paid by Tenant for any period
beyond the date the lease is terminated, provided Tenant is not then in default
under any provision of this lease. The obligation to pay said $85,642.50 shall
not be applicable during any renewal period. This obligation shall survive the
expiration of this Lease.
(D) Landlord shall not be liable for any inconvenience or annoyance
to Tenant or injury to the business of Tenant resulting in any way from such
damage by fire or other casualty or the repair thereof. Landlord will not carry
insurance of any kind on Tenant's property, and Landlord shall not be obligated
to repair any damage thereto or replace the same, and this obligation shall
survive the expiration of this lease.
(E) This lease shall be considered an express agreement governing
any case of damage to or destruction of the Building or any part thereof by fire
or other casualty, and Section 227 of the Real Property Law of the State of New
York providing for such a contingency in the absence of such express agreement,
and any other law of like import now or hereafter enacted, shall have no
application in such case.
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INSURANCE
25. (A) Tenant shall not do anything, or suffer or permit anything to
be done, in or about the Premises which shall (i) invalidate or be in conflict
with the provisions of any fire or other insurance policies covering the
Building or any property located therein, or (ii) result in a refusal by fire
insurance companies of good standing to insure the Building or any such property
in amounts reasonably satisfactory to Landlord, or (iii) subject Landlord to any
liability or responsibility for injury to any person or property by reason of
any activity being conducted in the Premises or (iv) cause any increase in the
fire insurance rates applicable to the Building or equipment or other property
located therein at the beginning of the Term or at any time thereafter. Tenant,
at Tenant's expense, shall comply with all rules, orders, regulations or
requirements of the New York Board of Fire Underwriters and the New York Fire
Insurance Rating Organization or any similar body, except that Tenant shall not
be required to make any structural alterations or capital improvements to the
Building or the Demised Premises in connection therewith.
(B) If, by reason of any act or omission on the part of Tenant,
(other than the use of the Demised Premises as general, executive and
administrative offices only, in accordance with this lease), the rate of fire
insurance with extended coverage on the Building or equipment or other property
of Landlord or any other tenant or occupant of the Building shall be higher than
it otherwise would be, Tenant shall reimburse Landlord and all such other
tenants or occupants, upon fifteen (15) days notice from Landlord, accompanied
by evidence from the applicable insurance carrier as to amount of the increase,
for the part of the premiums for fire insurance and extended coverage paid by
Landlord and such other tenants or occupants because of such act or omission on
the part of Tenant. Upon written request, Landlord shall provide Tenant with a
description of the act or omission on the part of Tenant giving rise to said
increase.
(C) In the event that any dispute should arise between Landlord and
Tenant concerning insurance rates, a schedule or make up of insurance rates for
the Building or the Premises, as the case may be, issued by the New York Fire
Insurance Rating Organization or other similar recognized body making rates for
fire insurance and extended coverage for the Premises concerned, shall be
conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates with extended coverage then applicable to
such Premises.
(D) Tenant shall obtain and keep in full force and effect during
the Term, at its own cost and expense, (i) Public Liability Insurance, such
insurance to afford protection in an
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amount of not less than Three Million ($3,000,000) Dollars for injury or death
arising out of any one occurrence, and Five Hundred Thousand ($500,000) Dollars
for damage to property, protecting Landlord and Tenant as insureds against any
and all claims for personal injury, death or property damage and (ii) Fire and
Extended Coverage Insurance on Tenant's property, insuring against damage by
fire, and such other risks and hazards as are insurable under present and future
standard forms of fire and extended coverage insurance policies, to Tenant's
property for the full insurable value thereof, protecting Landlord and Tenant as
insureds.
(E) Said insurance is to be written in form and substance
reasonably satisfactory to Landlord by a good and solvent insurance company
admitted to do business in the State of New York, and rated by Best's Insurance
Reports or any successor publication of comparable standing as A-/VIII or better
or the then equivalent of such rating. Tenant shall procure, maintain and place
such insurance and pay all premiums and charges therefor and upon failure to do
so Landlord may, but shall not be obligated to, procure, maintain and place such
insurance or make such payments, and in such event the Tenant agrees to pay the
amount thereof, plus interest at the maximum rate permitted by law, to Landlord
payable within twenty (20) days of notice of same. Upon written request Landlord
will promptly provide Tenant with an invoice or other evidence as to the amount
of the insurance premium. Tenant shall cause to be included in all such
insurance policies a provision to the effect that the same will be
non-cancelable except upon twenty (20) days written notice to Landlord. On the
Rent Commencement Date appropriate certificates of insurance showing that the
policy is paid shall be deposited with Landlord. Any renewals, replacements or
endorsements thereto shall also be deposited with Landlord to the end that said
insurance shall be in full force and effect during the Term.
(F) Each party agrees to use its best efforts to include in each of
its insurance policies (insuring the Building and Landlord's property therein,
in the case of Landlord, and insuring Tenant's property, in the case of Tenant,
against loss, damage or destruction by fire or other casualty) a waiver of the
insurer's right of subrogation against the other party, or if such waiver should
be unobtainable or unenforceable (i) an express agreement that such policy shall
not be invalidated if the insured waives or has waived before the casualty, the
right of recovery against any party responsible for a casualty covered by the
policy, or (ii) any other form of permission for the release of the other party,
or (iii) the inclusion of the other party as an additional insured, but not a
party to whom any loss shall be payable. If such waiver, agreement or permission
shall not be, or shall cease to be, obtainable without additional charge or at
all, the insured party shall so notify the other party promptly after learning
thereof. In such case, if the other party shall agree in writing to pay the
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insurer's additional charge therefor, such waiver, agreement or permission shall
be included in the policy, or the other party shall be named as an additional
insured in the policy, but not a party to whom any loss shall be payable. Each
such policy which shall so name a party hereto as an additional insured shall
contain, if obtainable, agreements by the insurer that the policy will not be
cancelled without at least twenty (20) days prior notice to both insureds and
that the act or omission of one insured will not invalidate the policy as to the
other insured.
(G) As long as Landlord's fire insurance policies then in force
include the waiver of subrogation or agreement or permission to release
liability referred to in Subsection (F) or name the Tenant as an additional
insured, Landlord hereby waives (i) any obligation on the part of Tenant to make
repairs to the Premises necessitated or occasioned by fire or other casualty
that is an insured risk under such policies, and (ii) any right of recovery
against Tenant, any other permitted occupant of the Premises, and any of their
servants, employees, agents or contractors, for any loss occasioned by fire or
other casualty that is an insured risk under such policies. In the event that at
any time Landlord's fire insurance carriers shall not include such or similar
provisions in Landlord's fire insurance policies, the waivers set forth in the
foregoing sentence shall, upon notice given by Landlord to Tenant, be deemed of
no further force or effect, with respect to any insured risks under such policy
from and after the giving of such notice. During any period while the foregoing
waiver of right of recovery is in effect, Landlord shall look solely to the
proceeds of such policies to compensate Landlord for any loss occasioned by fire
or other casualty which is an insured risk under such policies.
(H) As long as Tenant's fire insurance policies then in force
include the waiver of subrogation or agreement or permission to release
liability referred to in Subsection (F), or name the Landlord as an additional
insured, Tenant hereby waives (and agrees to cause any other permitted occupants
of the Premises to execute and deliver to Landlord written instruments waiving)
any right of recovery against Landlord, any other tenants or occupants of the
Building, and any servants, employees, agents or contractors of Landlord or of
any such other tenants or occupants, for any loss occasioned by fire or other
casualty which is an insured risk under such policies. In the event that at any
time Tenant's fire insurance carriers shall not include such or similar
provisions in Tenant's fire insurance policies, the waiver set forth in the
foregoing sentence shall, upon notice given by Tenant to Landlord, be deemed of
no further force or effect with respect to any insured risks under such policy
from and after the giving of such notice. During any period while the foregoing
waiver of right of recovery is in effect, Tenant, or any other permitted
occupant of the Premises, as the case may be, shall look solely to the proceeds
of such policies to compensate Tenant or such other permitted occupant
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for any loss occasioned by fire or other casualty which is an insured risk under
such policies.
(I) Tenant shall have the right to insure and maintain 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 Demises
Premises or to this lease so as to comply with the insurance provisions set
forth in this lease.
EMINENT DOMAIN
26. (A) In the event that the whole of the Demised Premises, or all or
a portion of the parking lot (if alternative parking, providing Tenant with use
of the same number of parking spaces set forth in this lease, cannot be provided
within five hundred (500) feet of the Building), shall be lawfully condemned or
taken in any manner for any public or quasi-public use, this lease and the Term
and estate hereby granted shall forthwith cease and terminate as of the date of
vesting of title. In the event that only a part of the Demised Premises shall be
so condemned or taken, then effective as of the date of vesting of title, the
Rent and additional rent hereunder shall be abated in an amount thereof
apportioned according to the area of the Demised Premises so condemned or taken.
In the event that only a part of the Building (consisting of at least
twenty-five (25%) percent of the area of the Building set forth in Article 1
hereof), shall be so condemned or taken, then (i) Landlord (whether or not the
Demised Premises be affected) may, at its option, terminate this lease effective
as of the date of vesting of title and the Term and estate hereby granted as of
the date of such vesting of title by notifying Tenant in writing of such
termination within sixty (60) days following the date on which Landlord shall
have received notice of vesting of title, and (ii) if such condemnation or
taking shall be of a substantial part of the Demised Premises or a substantial
part of the means of access thereto (substantial part shall mean more than forty
(40%) percent, or if in the last year of the term, more than twenty-five (25%)
percent of the Demised Premises), Tenant shall have the right, by delivery of
notice in writing to Landlord within sixty (60) days following the date on which
Tenant shall have received notice of vesting of title, to terminate this lease
and the Term and estate hereby granted as of the date of vesting of title, or
(iii) if neither Landlord nor Tenant elects to terminate this lease, as
aforesaid, this lease shall be and remain unaffected by such condemnation or
taking, except that the Rent and additional rent shall be abated to the extent,
if any, hereinabove provided in this Article 26, and Tenant's proportionate
share shall be adjusted accordingly. In the event that only a part of the
Demised Premises shall be so condemned or taken and this lease and the Term
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and estate hereby granted are not terminated as hereinbefore provided, Landlord
will, at its expense, promptly restore the remaining portion of the Demised
Premises as nearly as practicable to the same condition as it was in prior to
such condemnation or taking. In the event that Tenant has paid Rent and/or
additional rent for any period covered by an abatement under this article,
Landlord shall promptly refund such amounts to Tenant.
(B) In the event of a termination in any of the cases hereinabove
provided, this lease and the Term and estate granted shall expire as of the date
of such termination with the same effect as if that were the date hereinbefore
set for the expiration of the Term of this lease, and the Rent and additional
rent hereunder shall be apportioned as of such date and, provided that such date
is prior to the twelfth month of the fifth Lease Year, Landlord shall promptly
pay to Tenant the sum of $85,642.50, and all additional rent paid by Tenant for
any period beyond the date the lease is terminated, provided Tenant is not then
in default under any provision of this lease. The obligation to pay said
$85,642.50 shall not be applicable during any renewal period. This obligation
shall survive the expiration of this lease.
(C) In the event of any condemnation or taking hereinabove
mentioned of all or part of the Building, Landlord shall be entitled to receive
the entire award in the condemnation proceeding, including any award made for
the value of the estate vested by this lease in Tenant, and Tenant hereby
expressly assigns to Landlord any and all right, title and interest of Tenant
now or hereafter arising in or to any such award or any part thereof, and Tenant
shall be entitled to receive no part of such award, except that the Tenant may
file a claim for any taking of nonmovable fixtures owned by Tenant and for
moving expenses incurred by Tenant. It is expressly understood and agreed that
the provisions of this Article 26 shall not be applicable to any condemnation or
taking for governmental occupancy for a limited period, not exceeding twelve
(12) months in the aggregate during the term hereof.
NONLIABILITY OF LANDLORD
27. (A) If Landlord or a successor in interest is an individual (which
term as used herein includes aggregates of individuals, such as joint ventures,
general or limited partnerships or associations), such individual shall be under
no personal liability with respect to any of the provisions of this lease, and
if such individual hereto is in breach or default with respect to its
obligations under this lease, Tenant shall look solely to the equity of such
individual in the land and Building of which the Demised Premises form a part
for the satisfaction of Tenant's remedies and in no event shall Tenant attempt
to secure
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any personal judgment against any such individual or any partner, employee or
agent of Landlord by reason of such default by Landlord.
(B) The word "Landlord" as used herein means only the owner of the
landlord's interest for the time being in the land and Building (or the owners
of a lease of the Building or of the land and Building) of which the Premises
form a part, and in the event of any sale of the Building and land of which the
Demised Premises form a part, Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder other than
claims against Landlord which are brought within sixty (60) days of Landlord's
giving notice to Tenant that there will be a new landlord (notice may consist of
an estoppel certificate in connection with the sale of the Building provided
Tenant is notified that such estoppel certificate is being requested in
connection with a sale of the Building), and, it shall be deemed and construed
without further agreement between the parties or between the parties and the
purchaser of the Premises, that such purchaser has assumed and agreed to carry
out any and all covenants and obligations of Landlord hereunder.
DEFAULT
28. (A) Upon the occurrence, at any time prior to or during the Demised
Term, of any one or more of the following events (referred to as "Events of
Default"):
(i) If Tenant shall default in the payment when due of any
installment of Rent or in the payment when due of any additional rent, and such
default shall continue for a period of ten (10) days after written notice by
Landlord to Tenant of such default; or
(ii) If Tenant shall default in the observance or performance of
any term, covenant or condition of this lease on Tenant's part to be observed or
performed (other than the covenants for the payment of Rent and additional rent)
and Tenant shall fail to remedy such default within twenty (20) days after
written notice by Landlord to Tenant of such default, or if such default is of
such a nature that it cannot be completely remedied within said period of twenty
(20) days and Tenant shall not commence within said period of twenty (20) days,
or shall not thereafter diligently prosecute to completion, all reasonable steps
necessary to remedy such default; or
(iii) If Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or become insolvent, or shall
file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any
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future federal bankruptcy code or any other present or future applicable
federal, state or other statute or law, or shall make an assignment for the
benefit of creditors or shall seek or consent to or acquiesce in the appointment
of any trustee, receiver or liquidator of Tenant or of all or any part of
Tenant's property; or
(iv) If, within one hundred twenty (120) days after the
commencement of any proceeding against Tenant, whether by the filing of a
petition or otherwise, seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy code or any other present or future applicable
federal, state or other statute or law, such proceedings shall not have been
dismissed, or if, within one hundred twenty (120) days after the appointment or
any trustee, receiver or liquidator of Tenant, or of all or any part of Tenant's
property, such appointment shall not have been vacated or otherwise discharged,
or if any execution or attachment shall be issued against Tenant or any of
Tenant's property pursuant to which the Demised Premises shall be taken or
occupied or attempted to be taken or occupied; or
(v) If Tenant shall materially default in the observance or
performance of any term, covenant or condition on Tenant's part to be observed
or performed under any other lease with Landlord of space in the Building and
such material default shall continue beyond any grace period set forth in such
other lease for the remedying of such default; or
(vi) If Tenant's interest in this lease shall devolve upon or pass
to any person, whether by operation of law or otherwise, except as expressly
permitted under Article 20;
then, upon the occurrence, at anytime prior to or during the
Demised Term, of any one or more of such Events of Default, Landlord, at any
time thereafter, at Landlord's option, may give to Tenant a ten (10) days'
notice of termination of this lease and, in the event such notice is given, this
lease and the Term shall come to an end and expire (whether or not said term
shall have commenced) upon the expiration of said ten (10)days with the same
effect as if the date of expiration of said ten (10) days were the Expiration
Date, but Tenant shall remain liable for damages as provided in Article 30.
(B) If, at any time (i) Tenant shall be comprised of two (2) or
more persons, or (ii) Tenant's obligations under this lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
lease shall have been assigned, the word "Tenant", as used in subsection (iii)
and (iv) of Section 28(A), shall be deemed to mean any one or more of the
persons primarily or secondarily liable for Tenant's obligations under this
lease. Any monies received by Landlord from or on behalf of Tenant during the
pendency of any proceeding of the types referred to in
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said subsections (iii) and (iv) shall be deemed paid as compensation for the use
and occupation of the Demised Premises and the acceptance of such compensation
by Landlord shall not be deemed an acceptance of Rent or a waiver on the part of
Landlord of any rights under Section 28(A).
TERMINATION ON DEFAULT
29. (A) If Tenant shall default in the payment when due of any
installment of rent or in the payment when due of any additional rent and such
default shall continue for a period of ten (10) days after written notice by
Landlord to Tenant of such default, or if this lease and the Demised Term shall
expire and come to an end as provided in Article 28:
(i) Landlord and its agents and servants may immediately, or at any
time after such default or after the date upon which this lease and the Demised
Term shall expire and come to an end, re-enter the Demised Premises or any part
thereof, without notice, either by summary proceedings or by any other
applicable action or proceeding, or by force or other means provided such force
or other means are lawful (without being liable to indictment, prosecution or
damages therefor), and may repossess the Demised Premises and dispossess Tenant
and any other persons from the Demised Premises and remove any and all of their
property and effects from the Demised Premises; and
(ii) Landlord, at Landlord's option, may relet the whole or any
part or parts of the Demised Premises from time to time, either in the name of
Landlord or otherwise, to such tenant or tenants, for such term or terms ending
before, on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, may determine. Landlord shall have no
obligation to relet the Demised Premises or any part thereof and shall in no
event be liable for refusal or failure to relet the Demised Premises or any part
thereof, or, in the event of any such reletting, for refusal or failure to
collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this lease or otherwise
to affect any such liability; Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Demised Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this lease or otherwise affecting any such liability.
(B) Tenant, on its own behalf and on behalf of all persons claiming
through or under Tenant, including all creditors,
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does hereby waive any and all rights which Tenant and all such persons might
otherwise have under any present or future law to redeem the Demised Premises,
or to re-enter or repossess the Demised Premises, or to restore the operation of
this lease, after (i) Tenant shall have been dispossessed by a judgment or by
warrant of any court or judge, or (ii) any re-entry by Landlord, or (iii) any
expiration or termination of this lease and the Demised Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this lease. In the event of a breach or threatened
breach by Tenant or any persons claiming through or under Tenant, of any term,
covenant or condition of this lease on Tenant's part to be observed or
performed, Landlord shall have the right to enjoin such breach and the right to
invoke any other remedy allowed by law or in equity as if re-entry, summary
proceeding and other special remedies were not provided in this lease for such
breach. The rights to invoke the remedies hereinbefore set forth are cumulative
and shall not preclude Landlord from invoking any other remedy allowed at law or
in equity.
DAMAGES
30. (A) If this lease and the Demised Term shall expire and come to an
end as provided in Article 28 or by or under any summary proceeding or any other
action or proceeding, or if Landlord shall re-enter the Demised Premises as
provided in Article 29 or by or under any summary proceedings or any other
action or proceeding, then, in any of said events:
(i) Tenant shall pay to Landlord all Rent, additional rent and
other charges payable under this lease by Tenant to Landlord to the date upon
which this lease and the Demised Term shall have expired and come to an end or
to the date of re-entry upon the Demised Premises by Landlord, as the case may
be; and
(ii) Tenant shall also be liable for and shall pay to Landlord, as
damages, any deficiency (referred to as "Deficiency") between the Rent and
additional rent reserved in this lease for the period which otherwise would have
constituted the unexpired portion of the Demised Term and the net amount, if
any, of rents collected under any reletting effected pursuant to the provisions
of Section 29(A) for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's reasonable expenses in
connection with the termination of this lease or Landlord's re-entry upon the
Demised Premises and with such reletting including, but not limited to, all
repossession costs, brokerage commissions, reasonable legal expenses, attorneys'
fees, alteration costs and other expenses of preparing the Demised Premises for
such reletting). Any such Deficiency shall be paid in monthly installments by
Tenant on the days specified in this lease for payment of installments of Rent.
Landlord shall be entitled to
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recover from Tenant each monthly Deficiency as the same shall arise, and no suit
to collect the amount of the Deficiency for any month shall prejudice Landlord's
rights to collect the Deficiency for any subsequent month by a similar
proceeding; and
(iii) At any time after the Demised Term shall have expired and
come to an end or Landlord shall have re-entered upon the Demised Premises as a
result of Tenant's default hereunder, as the case may be, whether or not
Landlord shall have collected any monthly Deficiencies as aforesaid, Landlord
shall be entitled to recover from Tenant, and Tenant shall pay to Landlord, on
demand, as and for liquidated and agreed final damages, a sum equal to the
amount by which the Rent and additional rent reserved in this lease for the
period which otherwise would have constituted the unexpired portion of the
Demised Term exceeds the then fair and reasonable rental value of the Demised
Premises for the same period, both discounted to present worth at the rate of
six (6%) per cent per annum, less all amounts collected by Landlord on account
of any Deficiency. If, before presentation of proof of such liquidated damages
to any court, commission, or tribunal, the Demised Premises, or any part
thereof, shall have been relet by Landlord pursuant to a lease with a tenant
that is not; affiliated with, controlled by, or a subsidiary or parent company
of Landlord, where the intent of such lease is to enter into a transaction which
is not "arms length", for the period which otherwise would have constituted the
unexpired portion of the Demised Term, or any part thereof, the amount of Rent
reserved upon such reletting shall be deemed, prima facie, to be the fair and
reasonable rental value for the part or the whole of the Demised Premises so
relet during the term of the reletting.
(B) If the Demised Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved under
any such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Article 30. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the rent reserved in this lease. Solely for the purposes
of this Article, the term "Rent" as used in Section 30(A) shall mean the rent in
effect immediately prior to the date upon which this lease and the Demised Term
shall have expired and come to an end, or the date of re-entry upon the Demised
Premises by Landlord, as the case may be, plus any additional rent payable
pursuant to the provisions of Article 11 for the Escalation Year (as defined in
Article 11) immediately preceding such event. Nothing contained in Articles 28
and 29 of this lease shall be deemed to limit or preclude the recovery by
Landlord from Tenant of the maximum amount allowed to be obtained as damages by
any statute or rule of law, or of any sums or damages to which Landlord may be
entitled in addition to the damages set forth in Section 30(A).
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SUMS DUE LANDLORD
31. If Tenant shall default in the performance of any covenants on
Tenant's part to be performed under this lease, and such default shall continue
beyond applicable notice and grace periods provided in this lease, Landlord may
immediately, or at anytime thereafter, without notice, and without thereby
waiving such default, perform the same for the account of Tenant and at the
reasonable expense of Tenant. If Landlord at any time is compelled to pay or
elects to pay any reasonable sum of money, or do any act which will require the
payment of any reasonable sum of money by reason of the failure of Tenant to
comply with any provision hereof, or, if Landlord is compelled to or elects to
incur any reasonable expense, including reasonable attorneys' fees, instituting,
prosecuting and/or defending any action or proceeding instituted by reason of
any default of Tenant hereunder, the reasonable sum or sums so paid by Landlord,
with all interest, costs and damages, shall be deemed to be additional rent
hereunder and shall be due from Tenant to Landlord within ten (10) days of
notice thereof from Landlord to Tenant, given in accordance with Article 34 of
this lease. Upon written request, Landlord shall provide Tenant with an itemized
invoice of such amounts. Any sum of money (other than rent) accruing from Tenant
to Landlord pursuant to any provisions of this lease, including, but not limited
to, the provisions of Schedule C, whether prior to or after the Rent
Commencement Date, may, at Landlord's option, be deemed additional rent, and
Landlord shall have the same remedies for Tenant's failure to pay any item of
additional rent when due as for Tenant's failure to pay any installment of Rent
when due. Tenant's obligations under this Article shall survive the expiration
or sooner termination of the Demised Term. In any case in which the Rent or
additional rent is not paid within ten (10) days of the day when same is due,
Tenant shall pay a late charge equal to 8-1/2 cents for each dollar so due, and
in addition thereto, the sum of $100.00 for the purpose of defraying expenses
incident to the handling of such delinquent account. This late payment charge is
intended to compensate Landlord for its additional administrative costs
resulting from Tenant's failure to pay in a timely manner and has been agreed
upon by Landlord and Tenant as a reasonable estimate of the additional
administrative costs that will be incurred by Landlord as a result of Tenant's
failure as the actual cost in each instance is extremely difficult, if not
impossible, to determine. This late payment charge will constitute liquidated
damages and will be paid to Landlord together with such unpaid amounts. The
payment of this late payment charge will not constitute a waiver by Landlord of
any default by Tenant under this lease. This late payment charge shall not
apply, however, to the first late payment made by Tenant within any twelve (12)
month period.
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NO WAIVER
32. No act or thing done by Landlord or Landlord's agents during the
term hereby demised shall be deemed an acceptance of a surrender of said Demised
Premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the Demised Premises prior to the
termination of this lease. The delivery of keys to any employee of Landlord or
of Landlord's agents shall not operate as a termination of this lease or a
surrender of the Demised Premises. In the event Tenant shall at any time desire
to have Landlord underlet the Demised Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purposes without
releasing Tenant from any of the obligations under this lease, and Tenant hereby
relieves Landlord of any liability for loss of or damage to any of Tenant's
effects in connection with such underletting. The failure of Landlord to seek
redress for violation of, or to insist upon the strict performance of, any
covenants or conditions of this lease, or any of the Rules and Regulations
annexed hereto and made a part hereof or hereafter adopted by Landlord, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Landlord of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a wavier of such breach. The failure of Landlord to
enforce any of the Rules and Regulations annexed hereto and made a part hereof,
or hereafter adopted, against Tenant and/or any other tenant in the Building
shall not be deemed a waiver of any such Rules and Regulations. No provision of
this lease shall be deemed to have been waived by Landlord, unless such waiver
be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of
a lesser amount then the monthly Rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated Rent nor shall any endorsement
or statement on any check or any letter accompanying any check or payment of
Rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy in this lease provided.
WAIVER OF TRIAL BY JURY
33. To the extent such waiver is permitted by law, Landlord and Tenant
hereby waive trial by jury in any action, proceeding or counterclaim brought by
Landlord or Tenant against the other on any matter whatsoever arising out of or
in any way connected with this lease, the relationship of landlord and tenant,
the use or occupancy of the Demised Premises by Tenant or any person claiming
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through or under Tenant, any claim of injury or damage, and any emergency or
other statutory remedy. The provisions of the foregoing sentence shall survive
the expiration or any sooner termination of the Demised Term. If Landlord
commences any summary proceeding for nonpayment, Tenant agrees not to interpose
any counterclaim of whatever nature or description in any such proceeding or to
consolidate such proceeding with any other proceeding.
Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord's obtaining
possession of the Demised Premises, by reason of the violation by Tenant of any
of the covenants and conditions of this lease or otherwise.
NOTICES
34. Except as otherwise expressly provided in this lease, any bills,
statements, notices, demands, requests or other communications including,
without limitation, default notices and notices pursuant to Articles 2, 19, 25,
28, 46, and 47 of this lease (other than bills, statements or notices given in
the regular course of business) given or required to be given under this lease
shall be effective only if rendered or given in writing, sent by overnight
courier, registered or certified mail (return receipt requested), or hand
delivery, addressed (A) to Tenant, to the attention of Xxxxx Xxxxxxxx (i) at
Tenant's address set forth in this lease if mailed prior to Tenant's taking
possession of the Demised Premises, or (ii) at the Building if mailed subsequent
to Tenant's taking possession of the Demised Premises, or (iii) at any place
where Tenant or any agent or employee of Tenant may be found if mailed
subsequent to Tenant's vacating, deserting, abandoning or surrendering the
Demised Premises, or (B) to Landlord at Landlord's address set forth in this
lease, or (C) addressed to such other address as either Landlord or Tenant may
designate as its new address for such purpose by notice given to the other in
accordance with the provisions of this Article. Any such bills, statements,
notices, demands, requests or other communications shall be deemed to have been
rendered or given two (2) business days from the date it shall have been mailed
or, with respect to overnight courier or hand delivery, upon delivery or when
delivery is refused, as provided in this Article.
INABILITY TO PERFORM
35. (A) If, by reason of strikes or other labor disputes, fire or other
casualty (or reasonable delays in adjustment of
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insurance), accidents, orders or regulations of any Federal, State, County or
Municipal authority, or any other cause beyond Landlord's reasonable control,
whether or not such other cause shall be similar in nature to those hereinbefore
enumerated, Landlord is unable to furnish or is delayed in furnishing any
utility or service required to be furnished by Landlord under the provisions of
this lease or any collateral instrument or is unable to perform or make or is
delayed in performing or making any installations, decorations, repairs,
alterations, additions or improvements, whether or not required to be performed
or made under this lease, or under any collateral instrument, or is unable to
fulfill or is delayed in fulfilling any of Landlord's other obligations under
this lease, or any collateral instrument, no such inability or delay shall
constitute an actual or constructive eviction (the foregoing shall not be deemed
a waiver of either actual or constructive eviction), in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this lease except for Tenant's right to terminate
this lease as specifically provided in Article 2 and Article 24, or impose any
liability upon Landlord or its agents, by reason of inconvenience or annoyance
to Tenant, or injury to or interruption of Tenant's business, or otherwise.
INTERRUPTION OF SERVICE
(B) Landlord reserves the right to stop the services of the air
conditioning, elevator, escalator, plumbing, electrical or other mechanical
systems or facilities in the Building when necessary by reason of accident or
emergency, or for repairs, alterations or replacements, which, in the judgment
of Landlord are necessary, until such repairs, alterations or replacements shall
have been completed. The exercise of such rights by Landlord in a commercially
reasonable manner shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of rent, or
relieve Tenant from any of its obligations under this lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business or otherwise, however,
Landlord shall use reasonable efforts to minimize interruption of service.
CONDITIONS OF LANDLORD'S LIABILITY
(C) (i) In addition to the requirements for constructive eviction
imposed by law, Tenant shall not be entitled to claim a constructive eviction
from the Demised Premises unless Tenant shall have first notified Landlord of
the condition or conditions giving rise thereto, and if the complaints be
justified,
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unless Landlord shall have failed to remedy such conditions within a reasonable
time after receipt of such notice.
(ii) If Landlord shall be unable to give possession of the
Demised Premises on any date specified for the commencement of the term by
reason of the fact that the Premises have not been sufficiently completed to
make the Premises ready for occupancy, or for any other reason, Landlord shall
not be subject to any liability for the failure to give possession on said date,
other than Tenant's right to terminate this lease as specifically provided in
Article 2 hereof, nor shall such failure in any way affect the validity of this
lease or the obligations of Tenant hereunder,.
TENANT'S TAKING POSSESSION
(D) (i) Tenant, by entering into occupancy of the Premises, shall
be conclusively deemed to have agreed that Landlord, up to the time of such
occupancy has performed all of its obligations hereunder and that the Premises
were in satisfactory condition as of the date of such occupancy except for
incomplete portions of Landlord's Initial Construction, unless within ten (10)
days after such date Tenant shall have given written notice to Landlord
specifying the respects in which the same were not in such condition.
(ii) If Tenant shall use or occupy all or any part of the
Demised Premises for the conduct of business prior to the Rent Commencement
Date, such use or occupancy shall be deemed to be under all of the terms,
covenants and conditions of this lease, including the covenant to pay rent for
the period from the commencement of said use or occupancy to the Rent
Commencement Date.
36. INTENTIONALLY OMITTED
ENTIRE AGREEMENT
37. This lease (including the Schedules and Exhibits annexed hereto)
contains the entire agreement between the parties and all prior negotiations and
agreements are merged herein. Tenant hereby acknowledges that neither Landlord
nor Landlord's agent or representative has made any representations or
statements, or promises, upon which Tenant has relied, regarding any matter or
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thing relating to the Building, the land allocated to it (including the parking
area) or the Demised Premises, or any other matter whatsoever, except as is
expressly set forth in this lease, including, but without limiting the
generality of the foregoing, any statement, representation or promise as to the
fitness of the Demised Premises for any particular use, the services to be
rendered to the Demised Premises, or the prospective amount of any item of
additional rent. No oral or written statement, representation or promise
whatsoever with respect to the foregoing or any other matter made by Landlord,
its agents or any broker, whether contained in an affidavit, information
circular, or otherwise, shall be binding upon the Landlord unless expressly set
forth in this lease. No rights, easements or licenses are or shall be acquired
by Tenant by implication or otherwise unless expressly set forth in this lease.
This lease may not be changed, modified or discharged, in whole or in part,
orally, and no executory agreement shall be effective to change, modify or
discharge, in whole or in part, this lease or any obligations under this lease,
unless such agreement is set forth in a written instrument executed by the party
against whom enforcement of the change, modification or discharge is sought. All
references in this lease to the consent or approval of Landlord shall be deemed
to mean the written consent of Landlord, or the written approval of Landlord, as
the case may be, and no consent or approval of Landlord shall be effective for
any purpose unless such consent or approval is set forth in a written instrument
executed by Landlord.
DEFINITIONS
38. The words "re-enter", "re-entry", and "re-entered" as used in this
lease are not restricted to their technical legal meanings. The term "business
days" as used in this lease shall exclude Saturdays (except for any
modifications of specific hours for services pursuant to Article 6) Sundays and
all days observed by the State or Federal Government as legal holidays. The
terms "person" and "persons" as used in this lease shall be deemed to include
natural persons, firms, corporations, partnerships, associations and any other
private or public entities, whether any of the foregoing are acting on their
behalf or in a representative capacity. The various terms which are defined in
other Articles of this lease or are defined in Schedules or Exhibits annexed
hereto, shall have the meanings specified in such other Articles, Exhibits and
Schedules for all purposes of this lease and all agreements supplemental
thereto, unless the context clearly indicates the contrary.
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PARTNERSHIP TENANT
39. If Tenant is a partnership (or is comprised of two (2)or more
persons, individually or as co-partners of a partnership) or if Tenant's
interest in this lease shall be assigned to a partnership (or to two (2) or more
persons, individually or as copartners of a partnership) pursuant to Article 20
(any such partnership and such persons are referred to in this Section as
"Partnership Tenant"), the following provisions of this Section shall apply to
such Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, and (b) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any modifications of this lease which may hereafter be made, and by
any notices, demands, requests or other communications which may hereafter be
given, by Partnership Tenant or by any of the parties comprising Partnership
Tenant, and (c) any bills, statements, notices, demands, requests and other
communications given or rendered to Partnership Tenant or to any of the parties
comprising Partnership Tenant shall be deemed given or rendered to Partnership
Tenant and to all such parties and shall be binding upon Partnership Tenant and
all such parties, and (d) if Partnership Tenant shall admit new partners, all of
such new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms, covenants and conditions of this
lease on Tenant's part to be observed and performed, and (e) Partnership Tenant
shall give prompt notice to Landlord of the admission of any such new partners,
and upon demand of Landlord, shall cause each such new partner to execute and
deliver to Landlord an agreement in form satisfactory to Landlord, wherein each
such new partner shall assume performance of all of the terms, covenants and
conditions of this lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subdivision (d) of this Section).
SUCCESSORS, ASSIGNS, ETC.
40. The terms, covenants, conditions and agreements contained in this
lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and,
except as otherwise provided in this lease, their respective assigns.
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BROKER
41. Landlord and Tenant represent that this lease was brought about by
Xxxxxxx & Xxxxxxxxx of Long Island, Inc. and CB Commercial/Hampshire, LLC. as
brokers and all negotiations with respect to this lease were conducted
exclusively with said brokers. Landlord and Tenant agree that if any claim is
made for commissions by any other broker through or on account of any acts of
Landlord or Tenant, Landlord or Tenant will hold the other free and harmless
from any and all liabilities and expenses in connection therewith, including
reasonable attorney's fees. Landlord shall pay the above broker fees pursuant to
separate Agreements. Tenant shall not be obligated to pay the above brokers a
fee in connection with this lease.
CAPTIONS
42. The captions in this lease are included only as a matter of
convenience and for reference, and in no way define, limit or describe the scope
of this lease nor the intent of any provisions thereof.
NOTICE OF ACCIDENTS
43. Tenant shall endeavor to give notice to Landlord, promptly after
Tenant learns thereof, of (i) any accident in or about the Premises, (ii) all
fires and other casualties within the Premises, (iii) all damages to or defects
in the Premises, including the fixtures, equipment and appurtenances thereof for
the repair of which Landlord might be responsible, and (iv) 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 Premises or any part thereof. Tenant shall give notice to
Landlord, immediately after Tenant learns thereof, of all accidents which result
in material personal injury.
TENANT'S AUTHORITY TO ENTER LEASE
44. In the event that the Tenant hereunder is a corporation, Tenant
represents that the officer or officers executing this lease have the requisite
authority to do so.
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RENEWAL OPTION
45. The Tenant shall have a one time right to be exercised as
hereinafter provided, to extend the term of this lease (including any space then
being leased by Tenant pursuant to Tenant's right of first offer under Article
47 hereof) for either: (A) one period of one (1) year (the "One Year Renewal
Term") or; (B) one period of five (5) years (the "Five Year Renewal Term"), upon
the following terms and conditions:
(i) That at the time of the exercise of such right and at the
commencement of the renewal term, Tenant shall not be in monetary or material
non-monetary default beyond applicable notice and cure periods provided herein
for the cure thereof in the performance of any of the terms, covenants or
conditions which Tenant is required to perform under this lease.
(ii) That Tenant shall notify Landlord in writing that Tenant intends
to exercise this option at least twelve (12) months prior to the expiration of
the initial term set forth in Article 2 of this lease. Upon Tenant's written
request, Landlord shall advise Tenant in writing as to its determination of the
fair market annual minimum rent for comparable space in the building.
(iii) That the renewal term shall be upon the same terms, covenants and
conditions as in this lease provided, except that (a) there shall be no further
option to extend this lease; (b) the Premises shall be delivered in its then "as
is" condition; (c) there shall be no further right of first offer, (d) no
concessions shall be applicable to such renewal term and (e) the minimum annual
rent to be paid by Tenant during the renewal term elected shall be as follows:
(a) The One Year Renewal Term shall be one hundred twenty
percent of the rent payable during the first (1st) month of the fifth (5th) year
of the Term computed on an annualized basis; or
(b) During the first year of the Five Year Renewal Term, the
Rent shall be ninety-five (95%) percent of the then fair market annual minimum
rent being received by Landlord for comparable space in the Building at the time
of commencement of the Five Year Renewal Term, but in no event less than the
amount Tenant was paying during the first (1st) month of the fifth (5th) year of
the Term computed on an annualized basis. Said sum shall be payable in equal
monthly installments.
During each of the second through fifth years of the Five Year Renewal
Term, the rent shall be increased by three and one half (3 1/2%) percent per
annum over the rent payable for the prior year. Said sums shall be payable in
equal monthly installments.
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"Fair market annual minimum rent" shall mean the fair market rental
rate per square foot of rentable areas received by Landlord for comparable space
in the Building at the time of the commencement of the Five Year Renewal Term.
Fair market annual minimum rent shall not mean "net effective rent to Landlord".
In determining fair market annual minimum rent, no adjustment shall be made in
consideration of and Tenant shall not be entitled to a credit for Tenant
improvements, brokerage commissions, rent concessions and other concessions
which Landlord may typically offer to other tenants. In the event Tenant
disputes Landlord's determination of fair market annual minimum rent, Tenant, by
written demand, may commence arbitration strictly in accordance with the terms
and conditions of Article 46 of this lease. The sole issue to be determined by
such arbitration shall be the fair market annual minimum rent in accordance with
this Subparagraph. Notwithstanding anything to the contrary contained herein, in
the event Tenant disputes Landlord's determination of the Fair market annual
minimum rent, Tenant shall nevertheless continue to pay rent at the same rate as
paid during the first (1st) month of the fifth (5th) year computed on an
annualized basis. In the event the rent as determined by arbitration is at
variance with the rent being paid by Tenant, Tenant shall either pay the
difference in a lump sum or receive a credit as the case may be.
This Renewal Option is personal to Twin Laboratories Inc. and any permitted
assignee who acquired its interest in this lease pursuant to subparagraph C of
Article 20 and is otherwise non-transferable by operation of law or otherwise.
ARBITRATION
46. In any situation which may arise under this lease in which
arbitration is explicitly set forth as an available remedy, the party seeking
arbitration must make written demand for same. Such written demand shall contain
the name and address of the arbitrator appointed by the demandant. Within ten
(10) days after its receipt of the written demand, the other party will give the
demandant written notice of the name and address of its arbitrator. Within ten
(10) days after the date of the appointment of the second arbitrator, the two
(2) arbitrators will meet. If the two (2) arbitrators are unable to agree as
provided herein within ten (10) days after their first meeting, they will select
a third arbitrator within ten (10) days of their first meeting. If within said
time period a third arbitrator is not selected, the third arbitrator shall be
selected by the American Arbitration Association, in accordance with their rules
and procedures, within ten (10) days of the request by either Landlord or Tenant
to make such appointment. The third arbitrator will be designated as chairman
and will immediately
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give Landlord and Tenant written notice of its appointment, qualification and
fees. The three (3) arbitrators will meet within ten (10) days after the
appointment of the third arbitrator. If they are unable to agree within ten (10)
days after their first meeting, the third arbitrator will select a time, date
and place for a hearing and will give Landlord and Tenant thirty (30) days prior
written notice of it. The date for the hearing will not be more than sixty (60)
days after the date of appointment of the third arbitrator. The arbitrators must
be licensed real estate appraisers (qualified by an "M.A.I." designation) with
at least ten (10) years experience in real estate leasing and valuation of
commercial properties in the Nassau/Suffolk real estate market and who have been
active during the preceding five (5) year period ending on the date Tenant
exercised the option giving rise to their designation. The arbitrators hereunder
shall disclose to Landlord and Tenant in writing, upon their appointment, any
personal or financial interest in the outcome of the arbitration or any past or
present relationship with the parties. No arbitrator may be an active real
estate broker. The arbitration will be governed by the laws of the State of New
York and, when not in conflict with such law, by the general procedures in the
commercial arbitration rules of the American Arbitration Association. The
arbitrators will not have the power to add to, modify, detract from or alter in
any way the provisions of this lease or any amendments or supplements to this
lease. The arbitrators will not have any power to decide or consider anything
other than the specific issue before them, in accordance with the terms of this
lease. The written decision of at least two (2) arbitrators will be conclusive
and binding upon Landlord and Tenant and said decision shall be rendered within
ten (10) business days following the conclusion of the hearing. No arbitrator is
authorized to make an award for damages of any kind including, without
limitation, an award for punitive, exemplary, consequential or incidental
damages. Landlord and Tenant will each pay for the services of the arbitrator it
appointed and its appointees, attorneys and witnesses plus one-half of all other
proper costs relating to the arbitration, including the fees payable to the
third arbitrator. The decision of the arbitrators will be final and
non-appealable and may be enforced according to the laws of the State of New
York.
RIGHT OF FIRST OFFER
47. (A) From and after the date hereof, in the event any space located
on the second floor of the Building as shown on the Drawing A-2 dated October
16, 1997 initialed by the parties and made a part hereof as Exhibit "4" (the
"Offer Premises") becomes available during the first two years of the initial
Term hereof, Tenant shall have the right, subject and subordinate to any
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rights now existing in the Offer Premises, to lease the Offer Premises
immediately after any tenant occupying the space as of the date of this lease
surrenders possession of the Offer Premises to Landlord and the Offer Space
becomes available (except as otherwise provided herein), provided the following
terms and conditions are fully and completely satisfied:
(i) Provided this Lease shall have commenced with
respect to the premises identified in Exhibit "1" annexed hereto, and no event
of monetary or material non-monetary default shall have occurred under the
Lease;
(ii) Tenant shall give written notice to Landlord of
its intent to exercise its right to lease the Offer Premises hereunder (
"Tenant's Offer Notice") within ten (10) business days after Landlord gives
Tenant notice of the availability of the Offer Premises (which notice shall
provide information to enable Tenant to reasonably determine the size and
location of the Offer Premises and shall also include Landlord's determination
of the fair market rental rate); TIME BEING OF THE ESSENCE WITH RESPECT TO ALL
OF TENANT'S OBLIGATIONS HEREUNDER. The minimum annual rent (the "Offered Rent")
shall equal the then current fair market rental rate for the Offer Premises. In
the event Landlord and Tenant have not agreed upon the Offered Rent within
fifteen (15) days following the delivery of Tenant's Offer Notice, Tenant shall
nevertheless pay rent at Landlord's determination of fair market rental and the
Offered Rent shall be determined through arbitration in accordance with Article
46 of this lease. The sole issue to be determined by such arbitration shall be
the fair market rental rate in accordance with this Subparagraph. In no event
shall the Offered Rent be less than the rent payable for the second (2nd) month
of the year of the Term in which the Tenant exercises its rights under this
Article 47, computed on an annualized basis (each calculated on a per rentable
square foot basis). In the event that Tenant elects not to lease the Offer
Premises, or fails to deliver to Landlord written notice of Tenant's intent to
exercise its rights to lease the Offer Premises in strict accordance with the
terms hereof, Tenant's option to lease the Offer Premises shall automatically
expire and be of no further force or effect.
(B) For purposes hereof, the term "Offer Premises Effective
Date" shall mean fifteen (15) days from the receipt (or refusal) by Landlord of
timely notice by Tenant of its intention to lease the Offer Premises. The Offer
Premises Expiration Date shall be the same date as the Expiration Date
hereunder, so that both this lease and the lease of the Offer Premises shall run
coterminously. Landlord's obligation to obtain a subordination, non-disturbance
and attornment agreement under Article 22 of this lease shall also apply to the
Offer Premises hereunder.
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(C) Upon the exercise by Tenant of its option hereunder, and
within five (5) days of Landlord's providing Tenant with a lease modification
agreement, Landlord and Tenant shall enter into a lease modification agreement,
to be effective as of the Offer Premises Effective Date, which shall reflect the
lease by Tenant of the entire premises (including the Premises and the Offer
Premises), as then constituted, in accordance with all of the terms and
conditions of this lease, except that (i) the rental rate for the Offer Premises
shall be equal to the Offered Rental, and (ii) Tenant's percent of the rentable
area of the Building shall be equal to a fraction, the numerator of which shall
be the total number of rentable square feet contained in the Entire Premises, as
then constituted, and the denominator of which shall be the total rentable
square footage in the Building, which, in the absence of an increase in the size
of the Building as of the date hereof, shall be the amount set forth in Article
1 of this lease.
(D) In the event Tenant shall exercise its option to lease the
Offer Premises in accordance with this Paragraph, Tenant shall take the Offer
Premises in its "as is" condition as of the Offer Premises Effective Date and
Landlord shall have no obligation to perform any work in, on or to the Offer
Premises in order to prepare same for occupancy by Tenant.
(E) This option to lease the Offer Premises is personal to
Twin Laboratories Inc. and any permitted assignee who acquires its interest
pursuant to Article 20(c) hereof, and shall not otherwise be transferrable by
operation by law or otherwise.
(F) Notwithstanding anything contained in this Article, Tenant
shall not have the right to lease Suite 203 hereunder until the date which is
one year from the Rent Commencement Date. Within twenty (20) days following the
expiration of that one year period, Tenant shall give Landlord written notice of
its intention to lease Suite 203, and all applicable provisions of this Article
must be fully and completely satisfied.
(G) As of the Offer Premises Effective Date, Article 9 shall
be modified to provide that Tenant shall have the right to use an additional
five (5) parking spaces per 1,000 square feet of the Offer Premises or Suite 203
which Tenant leases pursuant to the terms of this Article, of which one parking
space per each 2,500 square feet of Offer Premises or Suite 203 shall be
reserved for Tenant.
(H) If, with respect to the Offer Premises, or Xxxxx 000,
Xxxxxxxx is unable to deliver possession of said space due to the holdover of
another tenant, Landlord agrees that it will diligently prosecute a proceeding
to dispossess such tenant through completion.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed and sealed this lease as of the day and year first above written.
Witness for Landlord: RECKSON OPERATING
PARTNERSHIP, L.P.
By: Reckson Associates Realty
Corp., its General Partner
/s/ ILLEGIBLE
-------------------------- By: /S/ ILLEGIBLE
-------------------------
Witness for Tenant: TWIN LABORATORIES INC.
/S/ Xxxxxx Xxxxx
-------------------------- By: /S/ Xxxxx Xxxxxxxx
--------------------------
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SCHEDULE "A"
LANDLORD'S INITIAL CONSTRUCTION
1. Initial Office Finishing Schedule
At the Tenant's option, Landlord will design or follow Tenant's plans in
preparing Tenant's office area at Landlord's cost (subject to Article 5 above)
to the following specifications:
Erect the necessary dividing walls constructed of metal stud, 5/8" Fire X gypsum
board, with xxxxx of 3" fiberglass for sound attenuation in Demising walls.
Finish exterior walls with 5/8" sheetrock. Erect per approved plan dry-wall
partitioning of 2- 1/2" metal studs with 5/8" gypsum board on each side to
underside of hung ceiling.
Spackle and tape walls three coats to a smooth and true finish. Paint walls two
coats flat latex and doors and trim coats matching enamel.
Install in executive offices, main conference room and reception area, over
padding, executive grade, 30 ounce cut pile carpet. Balance of space carpeted
with building standard 24 ounce loop pile carpet (glued down).
Install a 2' x 4' acoustical tile ceiling with a Travertine finish.
Provide interior building standard hollow core doors on Tenant's plan.
2. Lavatory Area - Public Spaces
a) Separate male and female toilet facilities.
3. Landscaping
The building will be extensively landscaped with trees, plantings and other
materials. An underground sprinkler system will be provided with a time clock to
maintain proper watering.
4. Electrical Specifications
All electrical work shall be installed in accordance with the National
Electrical Code, and the local building code. A "Certificate of Compliance"
shall be obtained from the New York Board of Fire Underwriters at the completion
of the project.
Lighting throughout the entire finished office area shall be obtained by the use
of recessed light 2' by 4' fluorescent fixtures with parabolic lenses, not to
exceed one (1) fixture for each eighty (80) square feet of usable space (not
less than 60 foot-candles maintained at desk height throughout the Demised
Premises). Local wall switches shall be provided for control of
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lighting. Toilet, corridor, lobby and other similar areas shall be lit to 50
foot candles.
Exit light lighting for all paths of egress shall be provided in accordance with
local building department regulations, if required.
All branch circuit wiring shall be above hung ceiling or within dry-wall
construction in finished areas and shall be type BX. All exposed conduits in
non-finished areas shall be thin-walled "EMT".
Two hundred (200) wall-mounted duplex convenience outlets shall be provided.
However, the exact location of each outlet shall be coordinated with the
Tenant's furniture layout. All duplex outlets are to be considered as normal
convenience outlets and shall be wired up with an average of 5 to 8 outlets on
one 20 ampere, 120 volt circuit. Panel capacity shall be adequate to handle all
tenant lighting and equipment load, providing such equipment load does not
exceed 3 xxxxx per square foot of rentable area.
No credit given for installation less than standard installation.
5. Heating, Ventilation and Air Conditioning Specifications
General
The intent of this specification is to define a design concept for the subject
area.
Design Criteria
Central air conditioning with modular systems with individual zone control shall
be capable of the following performance when the criteria noted are not
exceeded:
A) Between September 1 and June 1, the "heating system" shall be operative and
maintain a minimum of 72 degrees FDB when the outdoor temperature is 0 degrees
FDB and the prevailing wind velocity does not exceed 15 mph.
B) Between April 15 and October 14, the "cooling system" shall be operative and
maintain a maximum of 78 degrees FDB and 55% relative humidity when the outdoor
temperature is 95 degrees FDB and 75 degrees FDB with the prevailing wind
velocity not exceeding 13 mph.
C) During the overlapping seasons (April 15 - June 1 and
September 1 - October 15) both systems shall be operative
(cooling and heating).
D) Zoning temperature and balancing controls shall be operated
solely by the Landlord to assure the conditions above.
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E) Maintenance of the foregoing temperature conditions is conditioned upon the
following criteria, which shall not be exceeded by the Tenant in any room, or
area, within the demised premises:
a) Population Density .................... 1 person per 150
square feet
b) Lighting and Electrical Load Density... 4 xxxxx per
square foot
c) Exhaust and Ventilation Load........... 5 cfm per person
6. Ventilation
Bathrooms and similar areas to be ventilated per code using rooftop fans.
7. System Design
Exterior Perimeter Zones
Heating/cooling of exterior offices and areas provided by variable air volume
terminals with integrated thermostats to meet Tenant's requirements for
individual control.
Interior Zones
Heating/cooling provided by variable air volume system terminals with integrated
thermostats for areas of 2,000 square feet.
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SCHEDULE "B"
LANDLORD'S CLEANING SERVICES AND MAINTENANCE OF PREMISES
(to be performed on all business days except those which are union holidays (as
listed in Article 6, and which may be changed by Landlord so long as Landlord
provides Tenant with not less than ten (10) days prior written notice) for the
employees performing cleaning services and maintenance in the Building and
grounds or those days in which the Building is closed)
I. CLEANING SERVICES - PUBLIC SPACES:
A. Floor of entrance lobby and public corridors will be
vacuumed or swept and washed nightly and waxed as necessary.
B. Entranceway glass and metal work will be washed and rubbed
down daily.
C. Wall surfaces and elevator cabs will be kept in polished
condition.
D. Lighting fixtures will be cleaned and polished annually.
Bulbs will be replaced as needed.
E. Elevators and restrooms will be washed and disinfected once
a day. The floors will be mopped as many times as required. All
brightwork and mirrors will be kept in polished condition.
Dispensers will be continuously checked and receptacles
continuously emptied.
F. Exterior surfaces and all windows of the building will be
cleaned quarterly.
II. CLEANING SERVICES - TENANT SPACES:
A. Floors will be swept and spot cleaned nightly. Carpets will
be swept daily with carpet sweeper and vacuumed weekly.
B. Office equipment, furniture, furnishings, telephones, etc.
will be dusted nightly.
C. Normal office waste in receptacles and ashtrays will be
emptied nightly.
D. Interior surface of windows and xxxxx will be washed and
blinds dusted quarterly.
E. There shall be regularly scheduled visits by a qualified
exterminator, as necessary.
F. All lavatories contained within the Demised Premises shall
be cleaned and mopped in the same manner as public lavatories
contained within the Building.
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III. EXTERIOR SERVICES:
A. Parking fields will be regularly swept, cleared of snow in
excess of two inches, and generally maintained so as to be well
drained, properly surfaced and striped.
B. All landscaping, gardening, exterior lighting and irrigation
systems will have regular care and servicing.
IV. EQUIPMENT SERVICE:
A. All air-conditioning and heating equipment and elevators
will be regularly serviced and maintained.
B. Plumbing and electrical facilities, doors, hinges and locks
will be repaired as necessary.
C. All appurtenances, such as rails, stairs, etc. will be
maintained in a safe condition.
V. EXTRA CLEANING SERVICES
Tenant shall pay to Landlord within fifteen (15) days following receipt of a
written itemized statement, on demand, Landlord's reasonable charges for (a)
cleaning work in the Premises required because of (i) misuse or neglect on the
part of Tenant or its employees or visitors, (ii) use of portions of the
Premises for preparation, serving or consumption of food or beverages, or other
special purposes requiring greater or more difficult cleaning work than office
areas; (iii) unusual quantity of interior glass surfaces; (iv) non-building
standard materials or finishes installed by Tenant or at its request; (v)
increases in frequency or scope in any item set forth in Schedule B as shall
have been requested by Tenant; and (b) removal from the Premises and Building of
(i) so much of any refuse and rubbish of Tenant as shall exceed that normally
accumulated in the routine of ordinary business office activity and (ii) all of
the refuse and rubbish of any eating facility requiring special handling (wet
garbage). Notwithstanding anything to the contrary contained herein, the
completion of the Premises in accordance with Landlord's Initial Construction
shall not give rise to any extra cleaning charges under this paragraph.
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SCHEDULE "C"
1. Landlord shall provide at the rates hereinafter set forth and Tenant
shall purchase from Landlord "energy service" for Tenant's requirements. There
shall be the following categories of energy service:
A) NORMAL SERVICE: NORMAL SERVICE is energy consumed during WORKING
HOURS as defined in Article 6 whose power demands do not exceed 5 xxxxx per
square foot of the Demised Premises per WORKING HOUR ("TENANT'S ALLOWABLE USE").
Of this amount, two xxxxx are allocated to Landlord supplied lighting and three
xxxxx are allocated for Tenant's usual office equipment.
B) EXCESS SERVICE: EXCESS SERVICE is energy demanded,
regardless of hours, in excess of TENANT'S ALLOWABLE USE.
C) OVERTIME SERVICE: OVERTIME SERVICE is energy consumed
at all other hours than WORKING HOURS ("OVERTIME HOURS"). For
the purpose of OVERTIME SERVICE, the Demised Premises may be
separated into zones of use. The minimum practical size of these
zones is 2500 square feet. Zones less than 2500 square feet will
be billed at the rate applicable to 2500 square feet.
2. Charges for NORMAL SERVICE: The charge for NORMAL SERVICE is payable
at the rate of $2.00 per annum per square foot of the Demised Premises and is
subject to escalation as hereinafter provided. The charge for NORMAL SERVICE is
included in the monthly rent set forth in Article 3. Any escalation shall be
payable as additional rent. The charge to change WORKING HOURS is $25.00 per
zone. Tenant shall not incur the $25.00 charge for the use of OVERTIME SERVICE.
3. Charges for OVERTIME SERVICE: Subject to escalation as hereinafter
provided, the Landlord's monthly charge for Tenant's OVERTIME SERVICE, payable
in addition to any additional charges for NORMAL SERVICE and EXCESS SERVICE if
applicable, shall be derived as follows:
A) OVERTIME SERVICE: An amount equal to the number of
OVERTIME HOURS in the month, multiplied by the square feet of the
zones in use, multiplied by $.0024.
B) OVERTIME charges shall be increased by the same
percentage the EXCESS SERVICE (if applicable) exceeds TENANT'S
ALLOWABLE USE for NORMAL SERVICE.
C) TWENTY-FOUR HOUR SERVICE: Any energy use for office
equipment in the Tenant's space such as computerized
communication systems, telephone switching systems and CRTs which
require 24-hour service, which energy use is outside of NORMAL
SERVICE and OVERTIME SERVICE, shall be charged at an amount equal
to $1.155 per year, multiplied by the connected xxxxx (or part
thereof, computed and adjusted to the nearest 100th). Low
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wattage accessory equipment, such as refrigerator, water cooler, answering
machine, and electric key telephone system (up to 2 amps or 240 xxxxx) shall be
provided with 24 hour energy services, without charge, provided tenant limits
his request to three (3) such outlets within the Demised Premises and the
information, as to location, is provided prior to construction of the space.
These amounts shall be billed at least once every three months
and shall be payable within fifteen (15) days of the giving of notice of same
(this xxxx shall be deemed to be in the ordinary course of Landlord's business).
4. Charges for EXCESS SERVICE: The Landlord's monthly charges for
Tenant's EXCESS SERVICE payable in addition to any charges for NORMAL SERVICE,
OVERTIME SERVICE, and TWENTY-FOUR HOUR SERVICE, if applicable, shall be an
amount derived as follows: The excess above TENANT'S ALLOWABLE USE shall be
charged to Tenant at the rate of $.56 per square foot per year, for each excess
watt per square foot (or part thereof, computed and adjusted to the nearest
100th).
5. Escalation of Charges for NORMAL SERVICE, EXCESS SERVICE, OVERTIME
SERVICE and TWENTY-FOUR HOUR SERVICE: The rates referred to in this Schedule "C"
are based upon current rates promulgated by the utility company during the month
prior to the "Rent Commencement Date". All of the rates, fuel and adjustment
costs, state and local government taxes, and all other component parts of the
utility company charges referred to in this Schedule "C" are subject to increase
to reflect changes in rate or classification or other component parts of the
xxxx employed by the utility company providing services to the Building. Tenant
agrees to pay such increase in utility company charges. Landlord shall give
prompt written notice to Tenant of any such increase or change in charge. Tenant
shall not be or become entitled to a reduction in rent, additional rent or to
other reimbursement in the event it uses less energy than is contemplated by
this Schedule "C".
6. Landlord's energy management system will be conclusive evidence of
the computation of NORMAL SERVICE, EXCESS SERVICE, OVERTIME SERVICE and
TWENTY-FOUR HOUR SERVICE. However, Landlord hereby reserves to itself the right,
from time to time, to use an independent, reputable electric engineering
company, reasonably acceptable to Tenant and licensed to practice electrical
engineering in the state of New York(the "Engineer") to make a survey of
Tenant's energy usage requirements to determine whether the TENANT'S ALLOWABLE
USE limitation has been exceeded and, if so, to what extent. If these surveys
indicate at the time that the cost to Landlord by reason thereof, computed on an
annual basis at rates which would be charged by a public utility company
servicing the Building for such purposes, is in excess of the initial cost
similarly computed, then the additional rent provided for in this Schedule shall
be increased as provided for herein, commencing with the first day of the month
immediately following the computation of such survey and the submission of a
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copy thereof to Tenant. In the event Tenant disputes the findings of the survey,
Tenant may submit such dispute to arbitration by submitting written demand for
same to Landlord, within ten (10) business days of Tenant's receiving a copy of
the survey. Arbitration under this Paragraph shall be conducted by the American
Arbitration Association("AAA") in accordance with the AAA's expedited
arbitration procedures. In the event there is an arbitration hereunder, Tenant
shall nevertheless pay at the rate provided by the survey. If the amount
determined by arbitration is at variance with the survey, Tenant or Landlord, as
the case may be, shall promptly pay or refund, as the case may be the difference
in a lump sum.
7. Subject to the provisions of Articles 21 and 35 of this lease and
Landlord's obligations contained therein, Landlord shall have full and
unrestricted access to all air-conditioning and heating equipment, and to all
other utility installations servicing the Building and the Demised Premises.
Landlord reserves the right temporarily to interrupt, curtail, stop or suspend
air-conditioning and heating service, and all other utilities, or other
services, because of Landlord's inability to obtain, or difficulty or delay in
obtaining, labor or materials necessary therefor, or in order to comply with
governmental restrictions in connection therewith, or for any other cause beyond
Landlord's reasonable control. No diminution or abatement of Rent, additional
rent, or other compensation shall be granted to Tenant, nor shall this Lease or
any of the obligations of Tenant hereunder be affected or reduced by reason of
such interruptions, stoppages or curtailments, the causes of which are
hereinabove enumerated, nor shall the same give rise to a claim in Tenant's
favor that such failure constitutes actual or constructive, total or partial,
eviction from the Demised Premises, unless such interruptions, stoppages or
curtailments have been due to the arbitrary, willful or negligent act, or
failure to act, of Landlord or its agents.
8. Telephone and service shall be the responsibility of Tenant. Tenant
shall make all arrangements for telephone service with the company supplying
said service, including the deposit requirement for the furnishing of service.
Landlord shall not be responsible for any delays occasioned by failure of the
telephone company to furnish service.
9. At Landlord's option, it shall furnish and install all lighting
tubes, bulbs and ballasts used in the Premises and Tenant shall pay Landlord's
reasonable charges therefor, within fifteen (15) days of the giving of notice of
same (this xxxx shall be deemed to be in the ordinary course of Landlord's
business), as additional rent.
10. Tenant has been advised that the meters installed to measure
Tenant's consumption of electric current as provided herein may curtail or cut
off overhead lighting within the Premises after WORKING HOURS subject to
restoration at Tenant's election by a means which, among other things, may
record such election as conclusive evidence of Tenant's occupancy of the
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Premises after WORKING HOURS so as to require Tenant to pay for OVERTIME SERVICE
as provided herein.
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SCHEDULE "D"
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress to and egress from
the Demised Premises and for delivery of merchandise and equipment in a prompt
and efficient manner using elevators and passageways designated for such
delivery by Landlord. There shall not be used in any space, or in the public
hall of the building, either by any Tenant or by jobbers or others in the
delivery or receipt of merchandise, any hand trucks, except those equipped with
rubber tires and sideguards.
2. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed
and no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No Tenant shall sweep or throw or permit to be swept or thrown from
the Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the building, and the
Tenant shall not use, keep or permit to be used or kept any burner, or oven, or
noxious gas or substance in the Demised Premises, or permit or suffer the
Demised Premises to be occupied or used in a manner offensive or objectionable
to Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having business
therein, nor shall any animals or birds be kept in or about the Building.
Smoking or carrying lighted cigars or cigarettes in the elevators of the
Building is prohibited. Tenant may keep a coffee machine, refrigerator,
microwave oven and a vending machine in the Demised Premises.
4. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of the Landlord.
5. No sign, advertisement, notice or other lettering and/or window
treatment shall be exhibited, inscribed, painted or affixed by any Tenant on any
part of the outside of the Demised Premises or the Building or on the inside of
the Demised Premises if the same is visible from the outside of the Demised
Premises without the prior written consent of the Landlord. In the event of the
violation of the foregoing by any Tenant, Landlord may remove same without any
liability, and may charge the expense incurred by such removal to Tenant or
Tenants violating this rule. Interior signs on doors and directory tables shall
be inscribed, painted or affixed for each Tenant by Landlord at the reasonable
expense of such Tenant, and shall be of a size, color and style acceptable to
Landlord.
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6. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the Demised Premises or the Building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. No tenant shall lay
linoleum 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 water soluble material,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Tenant, nor shall any changes be made in existing
locks or in the mechanisms thereof. Each Tenant must, upon the termination of
his tenancy, restore to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such Tenant, and in the event of
the loss of any keys, so furnished, such Tenant shall pay to Landlord the cost
thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the Premises only
through the service entrances and corridors, and only during hours and in a
manner approved by Landlord. Landlord reserves the right to inspect all freight
to be brought into the Building and to exclude from the Building all freight
which violates any of these Rules and Regulations or the lease of which these
Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited
and each Tenant shall cooperate to prevent the same.
10. Landlord reserves the right to exclude from the building between
the hours of 6:00 P.M. and 8:00 A.M. and at all hours on Sundays and legal
holidays, all persons who do not present a pass to the building signed by
Landlord. Landlord will furnish passes to persons for whom any Tenant requires
same in writing. Each Tenant shall be responsible for all persons for whom he
requires such a pass and shall be liable to Landlord for all acts of such
persons.
11. Landlord shall have the right to prohibit any advertising by any
Tenant that makes reference to Landlord or the building which, in Landlord's
reasonable opinion, tends to impair the reputation of the Building or its
desirability as an office building, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
Premises, any inflammable, combustible, hazardous or explosive fluid, material,
chemical or substance, except as otherwise specifically provided in this lease,
or cause or permit any odors of cooking or other processes, or any unusual or
other objectionable odors, to permeate in or emanate from the Premises.
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13. Tenant agrees to use the entry doors to its premises
only for ingress and egress purposes and to keep such doors
closed at all other times.
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EXHIBIT 1
RENTAL PLAN
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