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EXHIBIT 10.2
BLUE HILL PLAZA
LEASE
LEASE, dated December 20th, 1996, between GLORIOUS SUN XXXXXX XXXXXX,
L.L.C., a New York limited liability company, having its principal place of
business at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, ("LANDLORD"), and
LONG DISTANCE DIRECT, INC. a corporation organized and existing under the laws
of the State of New York having its principal place of business at Xxx Xxxx Xxxx
Xxxxx, Xxxxx Xxxxx, Xxx Xxxx ("TENANT").
WHEREAS, Landlord is the Landlord of the building commonly known as Xxx
Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000, in the Town of Orangetown, County
of Rockland, and State of New York (the "BUILDING"); and
WHEREAS, Landlord and Tenant desire that a lease be made by Landlord to
Tenant of certain space in the Building for the term, for the rent and upon and
subject to the covenants, agreements, terms, conditions, limitations, exceptions
and reservations herein contained;
NOW, THEREFORE, Landlord and Tenant hereby covenant and agree
as follows
ARTICLE 1
Demise-Premises-Term
1.01. Demise.
Landlord hereby demises and leases to Tenant, and Tenant hereby takes
and hires from Landlord, the premises hereinafter mentioned for the term
hereinafter stated, for the rent hereinafter reserved and upon and subject to
the covenants, agreements, terms, conditions, limitations, exceptions and
reservations of this lease.
1.02. Demised Premises.
The premises hereby demised and leased to Tenant are a portion of the
14th floor of the Building, as shown on the floor and location plans annexed
hereto and marked as Exhibit A. The terms "Demised Premises" or "Premises" at
any given time shall mean the premises described in this Section, subject to the
provisions of this lease.
1.03. Term.
The term of this lease and the estate hereby granted (hereinafter
collectively called the "term of this lease") shall commence on the Commencement
Date (as defined in Section 8.01) and shall expire on December 31, 2000 (such
expiration date being hereinafter called the "Expiration Date"), or on such
earlier date upon which said term may expire or be terminated pursuant to any of
the provisions of this lease or pursuant to law. Promptly following the
determination of the Commencement Date, the parties hereto shall enter into a
recordable supplementary agreement setting forth the Commencement Date and
Expiration Date.
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ARTICLE 2
Definitions
2.01. Definitions.
For all purposes of this lease, and all agreements supplemental hereto,
the terms defined in this Section shall have the meanings specified in this
Section unless the context otherwise requires:
(a) The Land shall mean all of the land and improvements
thereon owned or ground leased by Landlord and comprising the Blue Hill project.
The foregoing shall include, in addition, any other parcels of land or
improvements or any facility serving the project and made available by easement,
agreement or otherwise. Landlord reserves the right to add or sever the
Landlordship or right of use to any portion of the Land at any time, whereupon
the portion so added or severed shall be included or excluded, as the case may
be, from the Land for purposes of this lease.
(b) The Buildings shall mean the Building, the other office
building and the additional improvements erected or to be erected by Landlord on
the Land, of which Building and the Demised Premises are a part, and all
replacements of such Buildings.
(c) Real Property shall mean the Land and Buildings (or in the
event same shall be submitted to the provisions of Article 9-B of the Real
Property Law, the unit (as defined in Section 339-e of the Real Property Law) of
which the Premises is a part).
(d) The Rentable Area of the Premises, shall be conclusively
deemed to be 10,713 square feet and that of the Buildings shall be conclusively
deemed to be 1,100,000 square feet.
(e) The term mortgage shall include an indenture of mortgage,
a deed of trust to a trustee, a pledge or any other instrument creating a lien
on or other security interest in the Real Property, and the term mortgagee shall
include any such mortgagee, trustee and any other holder of rights under a
mortgage.
(f) The terms include and including shall each be construed as
if followed by the phrase "without being limited to".
(g) Landlord shall mean only the Landlord, or the mortgagee in
possession, for the time being of the Building or the condominium unit (or the
Landlord of a lease or sublease of the Building or the condominium unit) of
which the Premises form a part, so that in the event of any conveyance, sale or
sales of said Building or condominium unit or an assignment, termination or
surrender of said lease or sublease or in the event of a lease or sublease of
said Building or of the condominium unit, the said Landlord shall be and hereby
is entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser, at any such sale or other transaction described above, or the
said lessee or transferee of the Building or of the condominium unit, that the
purchaser or the lessee or transferee of the Building or the condominium unit
has assumed and agreed to carry out any and all covenants and obligations of
Landlord thereafter accruing hereunder.
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(h) Tenant shall mean and include, at any given time, Tenant herein
named and each successor to or assignee of any interest of Tenant herein named
under this lease pursuant to the terms of this lease.
(i) The obligations of this lease, and words of like import, shall mean
the covenants to pay rent and additional rent under this lease and all of the
other covenants, agreements, terms, conditions and limitations contained in this
lease.
(j) Tenant's obligations hereunder and Landlord's obligations
hereunder, and words of like import, shall mean the obligations of this lease
which are to be performed, observed, or kept by Tenant, or by Landlord, as the
case may be. Reference to performance of either party's obligations under this
lease shall be construed as "performance, observance and keeping".
(k) The term related corporation shall mean a corporation, individual,
partnership, or other business entity, which directly or indirectly, controls,
is controlled by, or is under common control with, another corporation,
individual, partnership, or other business entity.
(l) The term successor corporation shall mean a corporation or other
business entity into or with which another corporation or other business entity
shall be merged or consolidated or to which all or substantially all of the
assets of such other corporation or other business entity shall be transferred.
(m) The term laws and requirements of public authorities, and words of
like import, shall mean laws and ordinances of any or all of the federal, state,
city, and county governments and rules, regulations, orders and directives of
any or all departments, subdivisions, bureaus, agencies or offices thereof, or
of any other governmental, public or quasi-public authorities, having
jurisdiction of the Land or Building, and the directions of any public officer
pursuant to law.
(n) The term requirements of insurance bodies, and words of like
import, shall mean rules, regulations, orders and other requirements of the New
York Board of Fire Underwriters or the New York Fire Insurance Rating
Organization or any other similar body performing the same or similar functions
and having jurisdiction or cognizance of the Land, Building or Demised Premises.
(o) The words repair and repairs shall be deemed to include
restoration, replacement and rebuilding.
(p) All references in this lease to numbered Articles and Sections and
lettered Exhibits, are references to Articles and Sections of this lease, and
Exhibits annexed to (and thereby made part of) this lease, as the case may be,
unless expressly otherwise designated in the context.
(q) The term unavoidable delays shall mean delays due to strike,
lockout or other labor or industrial disturbance (whether or not on the part of
employees of either party hereto), civil disturbance, order of any government,
court or regulatory body claiming jurisdiction, act of the public enemy, or
riot, sabotage, blockage, embargo, failure or inability to secure materials or
labor by reason of priority or similar regulation or order of any government or
regulatory body, lightning, earthquake, fire, storm, hurricane, flood, washout,
explosion, act of God, or any cause whatsoever beyond the reasonable control of
either party hereto whether or not similar to any of the causes hereinabove
stated, excluding however, the inability of either party to obtain any financing
which may be necessary to carry out its obligations.
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(r) Regular business hours, business days and words of like import
shall mean 8:00 A.M. to 6:00 P.M. on all days other than Saturdays, Sundays, and
all days observed as holidays by the United States, State of New York or labor
unions representing individuals servicing the Building in behalf of Landlord; if
there be no such labor unions, such definition shall include holidays designated
by Landlord for the benefit of such individuals.
(s) The word invitee, relating to either Landlord or Tenant, shall mean
any employees, agents, visitors, customers, contractors, licensees, or other
parties claiming under, or in the Building by permission or sufferance of,
Landlord or Tenant, as the case may be.
(t) Tenant's Property shall mean all movable partitions, lighting
fixtures, special cabinet work, business and trade fixtures, machinery and
equipment, vaults and all other property, whether or not attached to or built
into the Premises and which is installed in the Premises by or for the account
of Tenant at its expense and can be removed without damage to the Building, and
all furniture, furnishings and other articles of personal property owned by
Tenant and located in the Premises.
(u) A lease year shall mean the 12 month period commencing with the
Commencement Date (as defined in Section 8.01), and ending the day preceding the
first anniversary of the Commencement Date (except that if the Commencement Date
shall occur on a day other than the first day of a calendar month, such period
shall commence with the Commencement Date and end with the last day of the 12th
full calendar month thereafter) and each 12 month period thereafter, all or
parts of which fall within the term of this lease.
2.02. Headings.
The Article and Section headings in this lease and the Index annexed to
this lease are inserted only as a matter of convenience, and are not to be given
any effect whatsoever in construing this lease.
ARTICLE 3
Rent
3.01. Rent.
The rent reserved under this lease (hereinafter called the "rent"), for
the term hereof, shall be and shall consist of:
(a) $192,834.00 per annum for the period commencing on the Commencement
Date through and including December 31, 1998 and $214,260.00 per annum for the
period commencing on January 1, 1999 through and including December 31, 2000
(which sum is hereinafter referred to as "fixed rent") which fixed rent shall be
payable without notice, in equal monthly installments in advance on the first
day of each and every calendar month of the term of this lease (except that if
the first day of the term of this lease is other than the first day of a
calendar month, the first monthly installment, prorated to the end of said
calendar month, shall be payable on such first day), plus
(b) such other sums of money as shall become due and payable hereunder
(which other sums are collectively hereinafter referred to as "additional
rent"), which additional rent shall be
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payable as hereinafter provided, all to be paid to Landlord or its designated
agent, at its principal place of business as specified on the first page of this
lease, or such other place as Landlord may designate, in lawful money of the
United States of America, without abatement, deduction or set-off. All rent
shall be paid by currently dated, unendorsed check of Tenant, drawn on a bank or
trust company which is a member of the New York Clearing House.
3.02. Payments Due.
Tenant covenants and agrees to pay the rent and other charges herein
reserved promptly, as and when the same shall become due and payable, without
notice or demand therefor. If no date shall be set forth herein for the payment
of additional rent, then such sum shall be due and payable within ten business
days after the date upon which Landlord demands such payment. Landlord
acknowledges receipt of the payment of fixed rent for the first full calendar
month of the term, by check, subject to collection.
3.03. Rent Control.
If at any time during the term of this lease the rent, or any part
thereof, shall not be fully collectible by reason of any law and requirement of
public authority, Tenant shall enter into such agreement or agreements and take
such other action or actions (without additional expense to Tenant) as Landlord
may request and as may be legally permissible, to permit Landlord to collect the
maximum rents which may from time to time during the continuance of such legal
rent restriction be legally permissible (but not in excess of the amounts
reserved therefor under this lease). Upon the termination of such legal rent
restriction prior to the expiration of the term of this lease (a) the rents
shall become and thereafter be payable hereunder in accordance with the amounts
reserved in this lease for the period of the term following such termination and
(b) Tenant shall pay Landlord, if legally permissible, an amount equal to (i)
the rents which would have been paid pursuant to this lease but for such legal
rent restriction less (ii) the rents actually paid by Tenant to Landlord during
the period such rent restriction was in effect. Tenant hereby appoints Landlord
its attorney-in-fact to execute any and all necessary agreements and documents
pursuant to this Section.
3.04. Late Charge.
If any monies owing by Tenant to Landlord are not paid when due and
payable pursuant to the provisions of this lease, Tenant shall pay to Landlord,
in compensation for the additional administrative, bookkeeping and collection
expenses incurred by Landlord by reason of such late payment, a sum calculated
by multiplying the amount of money not paid timely by the greater of (a) 13%, or
(b) three percentage points in excess of the prime rate then established by
Chemical Bank, N.A. (or its successor), dividing the product by 365 and
multiplying the quotient by the number of days between the date such monies were
payable and the date such monies are in fact paid. Nothing herein shall be
intended to violate any applicable law, code or regulation, and in all instances
all such charges shall be automatically reduced to any maximum applicable legal
rate or charge. Such compensation shall be without prejudice to any of
Landlord's rights and remedies hereunder.
ARTICLE 4
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Adjustment of Rent for Changes in Real Estate Taxes
and Operating Expenses
4.01. Definitions of Taxes and Operating Expenses.
As used herein:
(a) "Taxes" shall mean the total amount of real estate taxes and
assessments now or hereafter levied, imposed, confirmed or assessed against the
Real Property, including, city, county, school and transit taxes, water fees and
sewer and refuse disposal charges, or taxes, assessments or charges levied,
imposed, confirmed or assessed against, or a lien on, the Real Property by any
taxing authority whether general or specific, ordinary or extraordinary,
foreseen or unforeseen and whether for public betterments or improvements or
otherwise. If, due to any change in the method of taxation, any franchise,
capital stock, capital, income, profit, sales, rental, use and occupancy tax or
charge shall be levied, assessed, confirmed or imposed upon any Landlord of the
Real Property in lieu of, or in addition to any real estate taxes or assessments
upon or with respect to the Real Property, such tax shall be included in the
term Taxes. Penalties and interest on Taxes (except to the extent imposed upon
timely payments of assessments that may be, and are in fact, paid in
installments) and income, franchise, transfer, inheritance and capital stock
taxes shall be deemed excluded from Taxes except to the extent provided in the
immediately preceding sentence.
(b) "Base Tax" shall mean a sum determined by applying the tax rates
set forth on tax bills rendered by the taxing authorities for the tax year of
each such taxing authority during which this lease is executed to the assessed
valuations (after any reduction in said assessment as a result of any tax
abatement or other tax relief of any nature whatsoever) of the Real Property for
the tax year during which the Commencement Date shall occur. "Tax Year" shall
mean the fiscal period for each Tax affecting the property (whether or not a
calendar year) as established by each taxing authority. Any and all tax
abatements shall be for the benefit of Landlord.
(c) "Operating Expenses" or "Expenses" shall mean such costs or
expenses (and taxes thereon), as shall be paid or incurred by or in behalf of
Landlord in providing services to tenants, and in the operation, cleaning,
repair (whether structural or non-structural and whether or not capitalized
under generally accepted accounting principles), management, security and
maintenance of any and all parts of the Land and Buildings (collectively called
"Building Operation") including (i) salaries, wages and bonuses paid to, and the
cost of any hospitalization, medical, surgical, union and general welfare
benefits (including group life insurance), pension, retirement or life insurance
plans and other benefit or similar expenses of, Landlord's employees engaged in
Building Operation, (ii) social security, unemployment and other payroll taxes
and the cost of providing disability and workers' compensation coverage with
respect to said employees, (iii) costs and expenses for fuel or energy purchased
or used for the operation of the Buildings' heating, ventilating and air cooling
system and equipment, and for light and power (excluding any allocable share
thereof paid for by tenants for overtime charges), (iv) the cost of casualty,
rent, boiler, machinery, sprinkler, apparatus, liability, fidelity, plate glass
and any other insurance, (v) cost of painting, (vi) cost or rental of all
cleaning supplies, tools, materials and equipment, (vii) cost of uniforms, work
clothes and dry cleaning, (viii) cost of window cleaning, concierge, guard,
watchperson or other security personnel, service or system, if any, (ix)
management fees or, if
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no managing agent is employed by Landlord, a sum in lieu thereof which is not in
excess of then prevailing rates for management fees payable for comparable
properties in comparable locations, (x) charges of independent contractors
performing work included within this definition, (xi) stationery, (xii) legal
(except those for the preparation of this and other leases), accounting and
other professional fees and disbursements incurred in connection with Building
Operation, (xiii) water, (xiv) service contracts for the performance of
Landlord's obligations, including elevator, electric, heating, air-conditioning
and plumbing systems, (xv) maintenance and repair of grounds, including interior
and exterior lawns, gardens, shrubbery, trees, planters, containers, statuary,
exhibits, displays, walks and other ways and areas and common areas, (xvi)
maintenance and repairs to the heating, ventilating and air-conditioning
systems, underground pipes, lines, equipment and systems, roof, and all parts of
the Real Property, (xvii) removal of snow, ice, trash, garbage and other refuse,
(xviii) telephone charges incurred at the Buildings' office, if any, (xix)
extermination, (xx) fire protection, (xxi) repairs or replacements incurred by
reason of fire or other casualty or condemnation to the extent Landlord is not
compensated by insurance or the condemning authority, (xxii) cost of repairs and
the cost of replacements made in connection with repairs of cables, fans, pumps,
boilers, cooling equipment, wiring and electrical fixtures and metering, control
and distribution equipment, component parts of the HVAC, electrical, plumbing,
elevator and any life or property protection system (including sprinkler
systems), window washing equipment and snow removal equipment, (xxiii) costs for
alterations or improvements resulting in or intended to result in a reduction in
fuel consumption or Operating Expenses or made by reason of laws and
requirements of public authorities, insurance bodies or Landlord's insurers,
provided however, that to the extent such costs are capitalized under generally
accepted accounting principles, such costs (together with an interest factor
equal to the greater of 13% or three percentage points in excess of the prime
rate established by Chemical Bank, N.A. (or its successor) at the time of
expenditure) shall be amortized over a period of five years, (xxiv) for each
Expense Comparison Year (as defined in Section 4.06(a) subsequent to the first
Expense Comparison Year, an amount equal to the increase, if any, in the
interest payable as a result of any refinancing of the initial first mortgage
(encumbering the property of which the Premises are a part) during (or with
respect to) such Expense Comparison Year over the interest payable under any
such initial first mortgage during (or with respect to) the first Expense
Comparison Year; provided however, that if the principal balance of such
refinanced mortgage exceeds the principal balance thereof immediately prior to
such refinancing, then for purposes of determining the amount of interest
payable on such refinanced mortgage, the principal amount of such refinanced
mortgage shall be deemed to be equal to the lesser of the principal balance of
such refinanced mortgage or the original principal balance of the initial first
mortgage, and (xxv) costs and expenses (and taxes thereon) paid or incurred in
connection with the operation, cleaning, repair (whether structural or
non-structural and whether or not capitalized under generally accepted
accounting principles), management, security and maintenance of the limited
common elements or common elements of the condominium (if any) of which the
Premises is a part. An item of expense properly included in more than one of the
aforesaid categories shall not be included more than once in the calculation of
Operating Expenses.
(d) "Base Operating Expenses" shall mean Operating Expenses for the
calendar year during which the lease is executed ("Base Expense Year"). If the
Buildings are not fully operational or fully occupied by tenants during such
year, then the Operating Expenses for such year shall be calculated by Landlord
by projecting actual expenses to such increased amount as would have been
incurred if the Buildings had been fully operational and 95%
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occupied.
(e) "Tenant's Proportionate Share" shall mean .97%, provided that if
the Premises shall be a portion of a condominium unit the rentable area of which
shall be less than 100% of the rentable square feet in the Buildings, then
"Tenant's Proportionate Share" shall be a percentage by dividing 10,713 square
feet by the total number of square feet of rentable square feet in the unit of
which the Premises is a part.
4.02. Tax Payments.
(a) If Taxes for any Tax Year during the term ("Tax Comparison Year")
shall exceed the Base Tax, Tenant shall pay Landlord, as additional rent for
each such Tax Comparison Year, Tenant's Proportionate Share of such excess ("Tax
Payment"). At Tenant's request, Landlord shall furnish Tenant with a true copy
of all relevant tax bills.
(b) Subsequent to Landlord's receipt of the tax bills for each Tax
Comparison Year, Landlord shall submit to Tenant a statement showing (i) the Tax
Payments due for such Tax Comparison Year, and (ii) the basis of calculations
("Landlord's Tax Statement"). Tenant shall (y) pay Landlord the unpaid portion
(if any) of the Tax Payment within 30 days after receipt of Landlord's Tax
Statement, and (z) on account of the immediately following Tax Comparison Year,
pay Landlord commencing as of the first day of the month during which Landlord's
Tax Statement is rendered, and on the first day of each month thereafter until a
new Landlord's Tax Statement is rendered, 1/12th of the total payment for the
current Tax Comparison Year. The monthly payments based on the total payment for
the current Tax Comparison Year shall be adjusted from time to time to reflect
Landlord's reasonable estimate of increases in Taxes for the immediately
following Tax Comparison Year.
4.03. Reduction of Comparison Year Taxes.
If Taxes for any Tax Comparison Year, or an installment thereof, shall
be reduced before such Taxes or such installment shall be paid, the amount of
Landlord's costs and expenses of obtaining such reduction (including appraisers'
and consultants' fees) shall be added to and deemed part of Taxes for such Tax
Comparison Year. In the event Landlord obtains a refund of Taxes for any Tax
Comparison Year for which a Tax Payment has been made by Tenant, Landlord shall
credit against Tenant's next succeeding Tax Payment, Tenant's Proportionate
Share of the refund (but not more than the Tax Payment that was the subject of
the refund) after deducting from such refund the costs and expenses incurred by
Landlord in obtaining the refund, including appraisers' and consultants' fees.
In the event no Tax Payment shall thereafter be due, Landlord shall pay such
refund to Tenant.
4.04. Reduction of Base Tax.
If Landlord obtains a reduction in the Base Tax after Tenant shall have
made Tax Payments for one or more Tax Comparison Years, the Base Tax shall be
reduced (such reduction to include the expenses incurred by Landlord in
obtaining such reduction, including appraisers' and consultants' fees), prior
Tax Payments shall be recalculated and Tenant shall pay Landlord, for each of
such Tax Comparison Years, Tenant's Proportionate Share of the increased amount
of Tax Payment for each such Tax Comparison Year. Tenant's payment under this
Section 4.04 shall be made within 30 days after Landlord's billing therefor.
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4.05. Tax Payment Pending Protest.
While proceedings for the reduction in assessed valuations are pending,
the computation and payment of Tax Payments shall be based upon the original
assessments for the year(s) in question.
4.06. Adjustment of Operating Expense Payments.
(a) If Operating Expenses for any calendar year during the term and
following the Base Expense Year (each such year being called an "Expense
Comparison Year") shall exceed Base Operating Expenses, Tenant shall pay
Landlord for each such Expense Comparison Year, Tenant's Proportionate Share of
such excess ("Expense Payment"). (If the Buildings are not fully operational or
fully occupied by tenants throughout any Expense Comparison Year, then the
Operating Expenses for each such year shall be calculated by projecting actual
expenses to such increased amount as would have been incurred if the Buildings
had been fully operational and occupied).
(b) Subsequent to the end of each Expense Comparison Year, Landlord
shall submit to Tenant a statement showing (i) the Expense Payments due Landlord
for such Expense Comparison Year, and (ii) the basis for such calculation
("Landlord's Statement"). Tenant shall (x) make payment of any unpaid portion of
the Expense Payment within 30 days after receipt of Landlord's Statement, and
(y) pay to Landlord on account of the then current Expense Comparison Year,
within 30 days after receipt of Landlord's Statement an amount equal to the
product obtained by multiplying the total payment required for the preceding
Expense Comparison Year by a fraction, the denominator of which shall be 12 and
the numerator of which shall be the number of months of the current Expense
Comparison Year which shall have elapsed prior to the first day of the month
immediately following the rendition of Landlord's Statement, and (z) pay
Landlord on account of the then current Expense Comparison Year, commencing as
of the first day of the month immediately following the rendition of Landlord's
Statement and on the first day of each month thereafter until a new Landlord's
Statement is rendered, 1/12th of the total payment for the preceding Expense
Comparison Year. The monthly payments based on the total payment for the
preceding Expense Comparison Year shall be adjusted, from time to time, to
reflect Landlord's reasonable estimate of increases in rates and expenses for
the current Expense Comparison Year. The payments required to be made under
clauses (y) and (z) above shall be subject to adjustment as and when Landlord's
Statement for such current Expense Comparison Year is rendered by Landlord.
Tenant shall make payments on account of Expense Payments for the first Expense
Comparison Year on the basis of estimates prepared by Landlord, payments to be
made monthly on the first day of each month during such first Expense Comparison
Year. The payments based on such estimates shall be adjusted following the
expiration of the first Expense Comparison Year, upon rendition of Landlord's
Statement for that year.
4.07. No Credit.
If in a Tax Comparison Year the Taxes are less than the Base Tax,
and/or if in an Expense Comparison Year, the Operating Expenses are less than
the Base Operating Expenses, the Tenant shall not be entitled to receive a
credit, by way of a reduction in fixed rent, a refund of all or a portion of
prior (or a credit against future) Tax Payments or Expense Payments, or
otherwise.
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4.08. Assessment With Other Properties.
If, at any time, the Real Property is assessed for tax purposes with
other property owned by Landlord, the tax ascribable to the Real Property shall
be the allocable portion of the Taxes on the entire properties, based upon an
informal apportionment by such assessors of the total assessment to such Real
Property or if such apportionment is not available, as shall be determined by
Landlord.
4.09. Billing.
Landlord's failure during the term to prepare and/or deliver any
statement or xxxx required to be delivered to Tenant, or Landlord's failure to
make demand for payment of fixed rent or additional rent shall not be deemed a
waiver of, or cause Landlord to forfeit or surrender its rights to collect, any
rent due. Tenant's liability for all such payments shall continue unabated
during the term and shall survive the expiration or sooner termination of the
term, notwithstanding Landlord's failure to demand payment for same, failure to
xxxx same, or improper billing thereof.
4.10. Partial Comparison Year.
If the Expiration Date or earlier date upon which the term of this
lease may expire or terminate shall be on a date other than the last day of a
Tax or Expense Comparison Year, Tenant's Tax Payment and Expense Payment for
such partial Tax or Expense Comparison Year (as the case may be) shall be
appropriately prorated.
4.11. Tax Protests.
Tenant shall have no right to institute or participate in any tax
certiorari proceedings or other proceedings of a similar nature, it being
understood that the commencement, maintenance, settlement, or conduct thereof
shall be in the sole discretion of Landlord.
ARTICLE 5
Charges for Services During Non-Regular Business Hours
5.01. Services During Non-Regular Business Hours.
In the event Tenant conducts business in any portion of the Demised
Premises during other than regular business hours, Landlord shall, upon
reasonable advance notice, provide those building services as shall enable
Tenant to utilize the Premises during such period, provided that Tenant shall
pay Landlord's charges therefor, and subject to Landlord's regulations in effect
from time to time.
5.02. Cooling Tower.
In the event Tenant conducts business in any portion of the Demised
Premises during hours other than regular business hours, Landlord shall, upon
reasonable advance notice, operate the Building's cooling tower and such other
equipment and machinery as
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shall enable Tenant to cool the Premises. Tenant shall reimburse Landlord for
Landlord's cost of such service upon rendition of a xxxx therefor, at a rate
equal to Landlord's actual cost therefor, plus 15%.
ARTICLE 6
Construction of the Building
6.01. Changes to Building.
Landlord may, at any time, without the same constituting an eviction of
Tenant or entitling Tenant to any abatement of rent, and without otherwise
incurring liability to Tenant, and without any effect on any of Tenant's
obligations under this lease, change the arrangement and/or location of
(including the closing off of) public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other parts of the Building, provided
that in so doing, Landlord does not deny Tenant reasonable means of access to
the Demised Premises for the conduct of Tenant's business.
6.02. Multi-Tenant Floors.
Landlord may, without the same constituting an eviction of Tenant or
entitling Tenant to any abatement of rent, and without otherwise incurring
liability to Tenant, and without any effect on any of Tenant's obligations under
this lease, rearrange the space unit divisions and the public corridors on the
floor upon which the Demised Premises is located in any manner Landlord may
determine, provided only that the Demised Premises shall not (i) be changed in
any respect and (ii) have diminished access by public corridor(s) to the
elevator(s), fire stair(s) and public toilet(s) serving said floor.
ARTICLE 7
Completion of the Demised Premises
Mechanics' Liens
7.01. Completion of Premises.
Landlord will substantially perform all the quantity of building
standard work in the Demised Premises as set forth in the Work Letter attached
hereto and made part hereof, upon the terms and conditions specified in such
Work Letter.
7.02. Tenant's Work.
(a) If Tenant shall employ or use any contractor or subcontractor other
than Landlord in the performance of any work in connection with Tenant's initial
occupancy, which work Tenant shall not commence until after the Commencement
Date, all of Tenant's duties and obligations set forth in Article 17 (relating
to Tenant's duties and obligations in making Tenant's Changes) shall be
applicable to and binding upon Tenant with respect to any such work.
(b) If Tenant shall employ or use any contractor other than Landlord in
the performance of any work in connection with
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Tenant's initial occupancy, such work shall be conducted in accordance with all
laws and requirements of public authorities and requirements of insurance
bodies, in a good and workmanlike manner, and in such manner as not to interfere
with or delay the work of Landlord's contractors and subcontractors in the
Building, or to impose any additional expense upon Landlord in the construction
within, or operation of, the Buildings, and so as to maintain harmonious labor
relations in the performance of work in the Buildings. Without limiting the
generality of the foregoing, Tenant shall advise Landlord of the names of
Tenant's contractors and subcontractors and adopt a work schedule in conformity
with the schedule of Landlord's contractors and subcontractors. Tenant agrees
that its contractors and subcontractors shall employ people and means to ensure
the progress of the work in the Buildings without interruption on account of
strikes, work stoppage or other similar cause for delay. At any and all times
while Landlord's and Tenant's installations are being performed by Tenant's
designated contractor, Landlord shall be entitled to have a representative(s) on
the site for the purpose of inspecting same, and for such purpose such
representative(s) shall have free and unrestricted access to all parts of the
Demised Premises.
7.03. Tenant's Construction Related Obligations.
Tenant, at its expense, and with diligence and dispatch, shall procure
the cancellation or discharge of all notices of violation arising from or
otherwise connected with work performed, or alleged to have been performed, by
its contractor(s) and which shall be issued by any public authority having or
asserting jurisdiction. Tenant shall defend, indemnify and save harmless
Landlord against any and all mechanic's and other liens and financing
statements, conditional bills of sale, chattel mortgages or other financing or
title retention devices, filed in connection therewith and against all costs,
expenses and liabilities (including reasonable attorney's fees) incurred in
connection with any such lien, financing statement, conditional xxxx of sale,
chattel mortgage or other financing or title retention devices, or any action or
proceeding brought thereon. In connection therewith, Tenant, at its expense,
shall procure the satisfaction or discharge of all such liens, financing
statements, conditional bills of sale, chattel mortgages and other financing or
title retention devices within 15 days after the filing or recording of same.
Nothing herein contained, however, shall prevent Tenant from contesting, in good
faith and at its own expense, any such notice of violation, lien, financing
statement, conditional xxxx of sale, chattel mortgage, or other financing or
title retention devices provided that (i) in case of a notice of violation,
Tenant shall comply with the provisions of Section 14.02, and (ii) in case of a
lien, financing statement, conditional xxxx of sale, chattel mortgage, or other
financing or title retention device Tenant shall have accomplished the discharge
thereof by bonding or otherwise within 15 days after the filing or recording of
the same.
7.04. Non-Liability of Landlord.
Neither Tenant nor any of its agents, employees, representatives,
contractors or subcontractors shall have any power or authority to do any act or
thing or to make any contract or agreement which will bind Landlord or which may
create or be the foundation for any mechanic's lien or other lien or claim upon
or against Landlord or Landlord's interest in the Real Property; and, further,
Landlord shall have no responsibility to Tenant or to any architect, engineer,
contractor, subcontractor, supplier, material provider, worker or other person,
firm or corporation who shall engage, or participate, in the performance of
additional
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work or any installation, alteration or improvement to be performed or made by
Tenant under any of the terms of this lease, or otherwise, unless Landlord shall
expressly undertake such obligation by an agreement in writing, signed by
Landlord, and made between Tenant and Landlord or such other party.
ARTICLE 8
Commencement Date-Earlier Possession
8.01. Commencement Date.
As used herein, the term "Commencement Date" shall mean the earlier of
(i) the date Tenant shall commence the conduct of business in and from the
Demised Premises, or (ii) the date when the Demised Premises are ready for
occupancy. The Demised Premises shall be deemed "ready for occupancy" on the
earliest date on which all of the following conditions shall have been met:
(a) A certificate of occupancy (temporary or final) has been
issued by the Department of Building of The Town of Orangetown, not
inconsistent with the uses permitted by Section 9.01.
(b) The work required to be performed by Landlord in the
Demised Premises has been substantially completed; and it shall be
deemed so completed notwithstanding the fact that minor or
insubstantial details of construction, mechanical adjustment, or
decoration remain to be performed, the noncompletion of which does not
materially interfere with Tenant's normal use and occupancy of the
Demised Premises.
(c) Means of access to the Demised Premises have been
provided, and the use, without material interference, of the facilities
necessary to Tenant's occupancy of the Demised Premises, including
corridors, elevators and stairways and toilet, air-conditioning, water,
plumbing, lighting and electric power facilities, are available to
Tenant substantially in accordance with Landlord's obligations
hereunder.
(d) All facilities and systems serving the Building and
passing through the Demised Premises or any part thereof have been
completed to the extent required to provide adequate services to the
Demised Premises, and the remaining work to be done in the Building is
of such nature as will not materially interfere with Tenant's use and
occupancy of the Demised Premises or access thereto.
If the occurrence of any of the above-mentioned conditions shall be delayed due
to any act or omission of Tenant or its invitees (including but not limited to
(x) Tenant's failure to furnish plans and specifications or subsequent changes
thereto; (y) Tenant's request for materials, finishes or installations other
than Landlord's standard; and (z) the performance or incompletion of work by a
party employed or retained by Tenant) the Demised Premises shall be deemed ready
for occupancy on the date when they would have been so ready but for such delay.
Any installation by Tenant prior to the Commencement Date shall be at the sole
risk of Tenant, provided that no such installation shall interfere with or delay
the work of Landlord's contractors or subcontractors in the Building or impose
any additional expense upon Landlord in the construction or operation of the
Building.
8.02. Consequences of Tenant's Possession of Premises or
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Commencement Date.
On the Commencement Date or upon such earlier date as Tenant shall take
possession of any part or parts of the Demised Premises, Tenant shall be
conclusively deemed to have agreed that Landlord, up to the time of such
possession or the Commencement Date, as the case may be, has performed all of
its obligations hereunder with respect to preparation of such part or parts for
Tenant's possession, except for such failures or omissions by Landlord in
performing such obligations as Tenant may specify by notice to Landlord not more
than 10 days following the taking of such possession by Tenant or the
Commencement Date, as the case may be. Tenant shall not be entitled to any rent
abatement on account of any such incomplete work.
8.03. Waiver of Right to Rescind.
The parties agree that this Article covers Tenant's rights with respect
to the time possession of the Premises is to be delivered to it and constitutes
an express provision to the contrary under, and Tenant hereby waives any rights
to rescind this lease and/or recover damages which Tenant might otherwise have
pursuant to, Section 223(a) of the Real Property Law of the State of New York.
8.04. Early Commencement of Business.
If Tenant shall commence the conduct of its business in one or more
portions of the Demised Premises prior to the Commencement Date, the rents
allocable to such portion or portions shall be payable from the date or dates of
such commencement or commencements, and the obligations assumed by Tenant and to
be performed during the term of this lease shall commence as of the date or
dates of such commencement or commencements, provided that no such partial
commencement of business shall be permitted if, in Landlord's judgment, such
action would interfere with the completion of its construction and installation
obligations. In the event of any such occupancy by Tenant prior to the
Commencement Date, Tenant shall not interfere with or delay the work of
Landlord's contractors and subcontractors in the Buildings and Landlord shall
have no liability to Tenant in the event it, its contractors and subcontractors
shall, in the performance of Landlord's construction and installation
obligations, interfere with, or interrupt the conduct of, Tenant's business.
ARTICLE 9
Use
9.01. Permitted Uses.
Tenant may occupy and use the Demised Premises only for executive,
administrative, accounting, and general office purposes, and for no other
purpose.
9.02. Prohibited Uses.
(a) Tenant agrees that neither Tenant nor any subtenant, assignee or
occupant of the Demised Premises shall at any time during the term of this lease
occupy or use the Demised Premises or permit the same to be used or occupied in
any manner except as provided in Section 9.01. The following non-exclusive list
of
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uses shall not be deemed to be "executive, administrative, accounting and
general office purposes", and Tenant shall not use, or permit the use of, the
Demised Premises or any part thereof, for:
(i) the conduct of a public auction of any kind, or of any
gaming or gambling activities, or for any political or club activities,
whether public or private;
(ii) the conduct of a school of any kind or as an employment
agency;
(iii) the sale, at retail or wholesale, of any products or
materials kept in the Demised Premises, by vending machine or
otherwise;
(iv) manufacturing purposes;
(v) the rendition to the public of medical, dental or other
diagnostic or therapeutic services;
(vi) a restaurant, bar, or the sale of confectionery, tobacco,
newspapers, magazines, soda, beverages, sandwiches, ice cream, baked
goods or similar items, or the preparation, dispensing or consumption
of food and beverages;
(vii) the conduct of any business, occupation or activity
which, in Landlord's reasonable judgment may (x) impair the reputation
of the Buildings, (y) interfere with or disturb the occupancy of other
tenants or occupants of the Buildings, or (z) create or xxxxxx an
unusual risk to the security of the Buildings or of any of their
tenants or occupants;
(viii) the conduct of any business not engaged in by Tenant at
the date of this lease, if the use of the Demised Premises for such
business shall conflict with any negative covenants as to use contained
in any other lease of space in the Buildings entered into subsequent to
the date of this lease but prior to the use of the Demised Premises for
such other business, provided that Landlord shall have notified Tenant
of the existence of such negative covenants; or
(ix) printing and reproduction of materials for sale or for
the purpose of rendering services to others.
(b) Tenant shall not suffer or permit the Demised Premises or any part
thereof to be used in any manner, or anything to be done therein, or suffer or
permit anything to be brought into or kept in the Demised Premises, which would
in any way (i) violate any laws or requirements of public authorities (subject
to the right to contest such laws or requirements as provided in, and subject to
the provisions of, Section 14.02), (ii) cause injury to the Buildings or any
part thereof, (iii) constitute a public or private nuisance, (iv) impair the
appearance of the exterior of the Buildings, (v) impair the use for normal
purposes of any other area of the Buildings by (or occasion physical discomfort
to, or interfere with services required to be furnished by Landlord to Tenant or
to) any of the other tenants and occupants of the Buildings, or (vi) violate any
of Tenant's other obligations under this lease.
(c) Tenant shall not cause (or allow any of its contractors, agents or
other persons or entities over whom or which it exercises a degree of control to
cause) to occur within the Demised Premises, or the Buildings, any discharge,
spillage, uncontrolled loss, seepage or filtration of hazardous waste or oil or
petroleum liquids or solids, asbestos, pcb, radioactive substances, methane,
volatile hydrocarbons, industrial solvents,
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or any other materials or substances which have in the past caused or
constituted, or are in the future found to cause or constitute, a health, safety
or environmental hazard.
9.03. Physical Protection of Premises.
(a) Tenant shall not place (nor require the placement of) a load upon
any floor of the Demised Premises exceeding 75 lbs. per square foot (live and
dead), nor shall Tenant place (or require the placement of) a load upon any
ceiling in the Demised Premises exceeding 5 lbs. per square foot. All data
processing and other business machines and equipment and all other mechanical
equipment installed and used by Tenant in the Demised Premises shall be so
equipped, installed and maintained by Tenant, at its expense, as to prevent
noise, vibration or electrical or other interference from being transmitted from
the Demised Premises to any other area of the Buildings. Tenant shall not move
any safe, heavy machinery or heavy equipment into or out of the Buildings
without employing persons properly licensed, if required by laws and
requirements of public authorities.
(b) Tenant shall not discharge or permit to be discharged any materials
into waste lines, vents, or flues of the Buildings which might cause damage
thereto. The water and wash closets and other plumbing fixtures in or serving
the Demised Premises shall not be used for any purposes other than those for
which they shall have been designed or constructed, and no sweepings, rubbish or
rags shall be deposited therein.
ARTICLE 10
Building Name-Signs-Directory
10.01. Building Name.
Landlord shall have the right, from time to time, to change the name
and/or address of the Buildings.
10.02. Tenant Signs.
Landlord agrees that Tenant may, at its own expense, install and
maintain any signs which Tenant may deem appropriate inside the Demised
Premises, except that any such signs which are visible from the outside of the
Buildings or Demised Premises shall be subject to Landlord's approval. Tenant
agrees that it will maintain all such signs at its sole cost and expense and
will comply with all laws and requirements of public authorities with respect
thereto. Upon the termination or expiration of the term of this lease, Tenant
shall, at its sole cost and expense, remove all such signs and repair any damage
caused by such removal.
10.03. Directory.
Landlord shall, upon Tenant's request and upon payment of Landlord's
charge therefor, list on the Building's directory ("Directory") the names of the
Tenant, any other party occupying any part of the Demised Premises in accordance
with the terms hereof, and their officers or employees, provided the number of
names so listed does not exceed Tenant's Proportionate Share of the Directory's
capacity. The listing of any party's name other than that of Tenant shall
neither grant such party any right or interest in this lease and/or the Demised
Premises nor constitute
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Landlord's consent to any assignment or sublease to, or occupancy by, such
party. Such listing may be terminated by Landlord at any time, without prior
notice.
ARTICLE 11
Subordination
11.01. Subordination.
(a) This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the Real Property, and to all renewals, modifications, consolidations,
replacements and extensions of any such underlying instruments. This clause
shall be self-operative and no further instrument of subordination shall be
needed by any ground or underlying lessee or mortgagee affecting any lease or
the Real Property. In confirmation of such subordination, Tenant shall promptly
execute any certificate that Landlord (or the lessor under any such lease or the
holder of any such mortgage or any of their respective successors in interest)
may request. If Tenant fails to execute, acknowledge or deliver any such
instrument within ten days after request therefor, Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact, coupled with an
interest, to execute and deliver any such instrument for and in behalf of
Tenant.
(b) Notwithstanding the provisions of Section 11.01(a),
subject to the provisions herein set forth, and at the election of the holder of
any current or future mortgage encumbering all or a portion of the premises of
which the Demised Premises are a part, such mortgage shall be subordinate to
this lease with the same force and effect as if this lease had been executed,
delivered and recorded prior to the execution, delivery and recording of the
said mortgage, except however that the said subordination of the mortgage to the
lease shall not affect nor be applicable to and does expressly exclude:
(i) the prior right, claim or lien of the said mortgage in, to
and upon any award or other compensation heretofore or hereafter to be
made for any taking by eminent domain of any part of the mortgaged
premises, and to the right of disposition thereof in accordance with
the provisions of the said mortgage;
(ii) the prior right, claim and lien of the said mortgage in,
to and upon any proceeds payable under all policies of fire and rent
insurance upon the said mortgaged premises and as to the right of
disposition thereof in accordance with the terms of the said mortgage;
and
(iii) any lien, right, power or interest, if any, which may
have arisen or intervened in the period between the recording of the
said mortgage and the execution of this lease, or any lien or judgment
which may arise at any time under the terms of this lease.
Although this clause shall be self-operative upon the election of any
such mortgagee, in confirmation hereof, Tenant shall execute promptly any
certificate that Landlord or such mortgagee may request, and the last sentence
of Section 11.01(a) shall apply to this Section 11.01(b) (with appropriate
changes in points of detail).
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11.02. Attornment.
In the event any proceedings are brought for the foreclosure of, or in
the event of an exercise of the power of sale under, any mortgage made by
Landlord covering the premises of which the Demised Premises are a part, Tenant
shall attorn to and acknowledge the purchaser or purchasers upon any foreclosure
or sale and recognize such purchaser or purchasers as the Landlord under this
lease.
11.03. Waiver of Termination Right.
Tenant waives the benefit of the provisions of any statue or rule of
law now or hereafter in effect which may give or purport to give Tenant any
right of election to terminate this lease or to surrender possession of the
Demised Premises in the event a superior lease or superior mortgage is
terminated or foreclosed, as the case may be.
ARTICLE 12
Quiet Enjoyment
12.01. Quiet Enjoyment.
Landlord covenants and agrees that so long as Tenant pays the fixed
rent and additional rent due hereunder and performs all of Tenant's other
obligations hereunder, Tenant shall peaceably and quietly have, hold and enjoy
the Demised Premises without hindrance or molestation by Landlord, subject,
nevertheless, to the terms, covenants and conditions of this lease. The covenant
herein set forth shall bind and be enforceable against Landlord or any successor
to Landlord's interest, subject to the terms hereof, only so long as Landlord or
any successor to Landlord's interest is in possession and is collecting rent
from Tenant.
ARTICLE 13
Assignment-Mortgaging-Subletting
13.01. Prohibition Against Assignment, Etc.
(a) Tenant covenants and agrees that neither this lease, nor
the term and estate hereby granted, nor any part hereof or thereof shall be
assigned, mortgaged, pledged, or otherwise transferred (whether voluntarily or
involuntarily, by operation of law or otherwise) to, and that neither the
Demised Premises, nor any part thereof, shall be sublet to, or offered or
advertised for subletting to, or be used or occupied by or permitted to be used
or occupied by, anyone other than Tenant.
(b) Unless Tenant is an entity the securities of which are
registered under appropriate statutory authority and listed and traded on a
national securities exchange, the transfer of any portion of the capital stock
of Tenant or the issuance of additional capital stock of Tenant the result of
which, in either event, shall be the transfer of control of Tenant to any person
or entity not controlling Tenant on the date of this lease shall be deemed an
assignment of this lease within the meaning of this Section , and shall not be
valid and binding upon Landlord.
(c) If Tenant is controlled (directly or indirectly) by a
corporation or other business entity, ("Parent"), the securities of which are
not registered under appropriate statutory authority and not listed and traded
on a national securities
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exchange, the transfer of any portion of the capital stock of such Parent or the
issuance of additional capital stock of such Parent the result of which, in
either event, shall be the transfer of control of such Parent to any person or
entity not controlling such Parent on the date of this lease shall be deemed an
assignment of this lease within the meaning of this Section, and shall not be
valid and binding upon Landlord.
(d) Any transfer by operation of law or otherwise, of Tenant's
interest in this lease, shall be deemed an assignment of this lease within the
meaning of this Section and shall not be valid and binding upon Landlord.
(e) If this lease shall be assigned, whether or not in
violation of the provisions of this lease, Landlord may (but need not) collect
rent from the assignee. If the Demised Premises or any part thereof be sublet or
occupied by anyone other than Tenant, Landlord may (but need not), after default
by Tenant and expiration of Tenant's time to cure such default, collect rent
from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the rents herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, subtenant or occupant as Tenant hereunder, or
a release of Tenant from the further performance by Tenant of Tenant's
obligations under this Lease.
ARTICLE 14
Compliance with Laws
14.01. Notice and Compliance With Laws.
Tenant shall give prompt notice to Landlord of any written notice it
receives of the violation of any law or requirement of public authority
affecting the Demised Premises or the Buildings, and (subject to Section 14.02)
at its expense shall comply with all laws and requirements of public authorities
which shall, with respect to the Demised Premises or the use or occupancy
thereof, or the abatement of any nuisance, impose any violation, order or duty
on Landlord or Tenant, arising from (i) Tenant's use of Demised Premises, (ii)
breach of any of Tenant's obligations hereunder, (iii) the manner of conduct of
any business of Tenant or operation of its installations, equipment or other
property in the Demised Premises, or (iv) any cause or condition created by or
at the instance of Tenant or its invitees.
14.02. Contest.
Tenant may, at its expense (and if necessary, in the name of but
without expense to Landlord), contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings, provided that:
(a) Tenant shall defend, indemnify and hold harmless Landlord
against all liability, loss or damage which Landlord shall suffer by
reason of such contest (and any non-compliance in connection
therewith), including reasonable attorneys' fees and other expenses
incurred by Landlord, and shall furnish such bond or other security as
may be required pursuant to the requirements of any mortgage affecting
the Real Property or Demised Premises; and
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(b) Tenant shall keep Landlord advised as to the status of
such proceedings.
Tenant need not comply with any law or requirement of public authority so long
as Tenant shall be so contesting the validity or applicability thereof to the
Demised Premises in accordance with this Section, provided that (v)
noncompliance shall not constitute a crime or an offense on the part of Landlord
or any shareholder, member, partner, agent or officer of Landlord punishable by
fine or imprisonment, (w) neither Landlord nor any shareholder, member, partner,
agent or officer of Landlord shall be subjected to civil complaint, (x) no part
of the Buildings shall be in danger of being condemned or vacated by reason of
noncompliance or otherwise by reason of such contest, (y) such noncompliance
shall not cause either a violation of the Certificate(s) of Occupancy for the
Buildings or of any licenses or permits issued for the Buildings or a violation
to be noted or issued against the Buildings, and (z) title to the Demised
Premises, the Real Property and/or the Buildings is not adversely affected by
reason of such contest.
ARTICLE 15
Insurance
15.01. Tenant's Requirements.
Tenant covenants to provide prior to entry upon the Demised Premises
and to keep in full force and effect during the period prior to the commencement
of the term during which Tenant shall enter upon and occupy any portion of the
Demised Premises for any purpose, and throughout the term of this lease, at its
own cost, and with responsible insurance companies of recognized standing,
authorized to do business in the State of New York and approved by Landlord, (i)
public liability and property damage insurance, written on an occurrence basis,
to afford protection in an amount not less than $2,500,000 combined single limit
for personal injury, death and property damage arising out of any one
occurrence, protecting Landlord and Tenant against any and all claims for
personal injury, death or property damage occurring in, upon or adjacent to the
Demised Premises and any part thereof, or arising from, related to, or in any
way connected with the conduct and operation of Tenant's use, or occupancy, of
the Demised Premises, which insurance shall name Landlord (and, at Landlord's
request, Landlord's mortgagees) as additional insureds, (ii) workers'
compensation insurance covering all persons employed by Tenant or its
contractors in connection with any work performed by or for Tenant, and (iii)
plate glass insurance covering exterior plate glass in the Demised Premises, if
any. All of Tenant's insurance shall be in form satisfactory to Landlord and
shall provide that it shall not be subject to cancellation, termination or
change except after at least 30 days' prior written notice to Landlord. All such
policies or duly executed certificates for the same (in both instances with
satisfactory evidence of the payment of the premium therefor) shall be deposited
with Landlord not less than 30 days prior to the day such insurance is required
to be in force and upon renewals of said policies not less than 30 days prior to
the expiration of the term of such coverage. Landlord shall have the right at
any time and from time to time during the term hereof on not less than 30 days
notice to Tenant to require that Tenant increase the amount and/or types of
coverage required to be maintained under this Article to the amounts and/or
types of coverage then generally required of tenants in first class office
buildings the New York City metropolitan area. The minimum limits of liability
insurance required pursuant to clause (i) of this Section shall in no way limit
or diminish Tenant's liability under Section 28.02 hereof.
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15.02. Blanket Policies.
The insurance required to be provided by Tenant hereunder may be
effected by "umbrella" policies. Any such policy or policies shall, as to the
Premises, otherwise comply as to endorsements and coverage, with the provisions
of this Article.
15.03. Tenant's Compliance.
Tenant shall not commit or permit any violation of the casualty and
rent insurance policies carried by Landlord, or do or permit anything to be
done, or keep or permit anything to be kept, in the Demised Premises, which, in
case of any of the foregoing (i) could result in termination of any of such
policies, (ii) could adversely affect Landlord's right of recovery under any
such policies, or (iii) would result in reputable and independent insurance
companies refusing to insure the Building or property of Landlord therein in
amounts reasonably satisfactory to Landlord and its mortgagees, in compliance
with the requirements of insurance bodies. If any such action by Tenant, or any
failure by Tenant either to comply with the requirements of insurance bodies
with respect to the Demised Premises or to perform any of Tenant's obligations
hereunder, or any use of the Demised Premises by Tenant (whether or not
permitted under Article 9) shall result in the cancellation of any such
insurance or an increase in the rate of premiums payable with respect to such
policies carried by Landlord, Tenant shall indemnify and hold Landlord harmless
against any loss which would have been covered by such insurance and reimburse
Landlord for the resulting additional premiums which shall thereafter be paid by
Landlord. Tenant shall make such reimbursement within 30 days after the receipt
of notice from Landlord that such additional premiums have been paid by
Landlord, without limiting Landlord's rights under Articles 32, 33 and 34.
15.04. Waiver of Subrogation.
Tenant shall procure an appropriate clause in, or endorsement on, each
of its policies for fire or extended coverage insurance covering the Demised
Premises or the Building or personal property, fixtures or equipment located
thereon or therein, pursuant to which the insurance company waives subrogation
or consents to a waiver of right of recovery against Landlord, and Tenant hereby
agrees that it will not make any claim against or seek to recover from Landlord
for any loss or damage to its property or the property of others covered by such
fire or extended coverage insurance. To the extent that Tenant shall be a
self-insurer with respect to Tenant's Property, Tenant shall and hereby does
waive its right of recovery, if any, against Landlord, its agents and employees,
for loss, damage or destruction of Tenant's Property.
ARTICLE 16
Parking
16.01. Parking.
(a) Throughout the term, so long as Tenant shall have performed all of
the agreements on Tenant's part to be performed, Landlord shall make available
to Tenant the following number of parking spaces, on a reserved basis:
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four (4) spaces for executive cars, which shall be reasonably close to
the front entrance to the Building.
If Tenant or its invitees use more than the specified number of spaces
set forth above, then after five days notice from Landlord, Tenant shall, at the
option of Landlord, either (i) pay Landlord's then current charge per month for
each additional space used for each month during which such excess use takes
place (even if for less than the full month) (as of the date of this lease,
Landlord's current monthly charge is $40.00 per space), or (ii) cease and desist
immediately from using said additional spaces. If Landlord selects the first of
such options, Landlord may revoke such choice on 30 days notice.
(b) As necessary, Landlord shall (between 7:00 a.m. and 10:00 p.m. on
business days), light, clean, remove snow from and otherwise maintain, the
parking area. Tenant shall be responsible for repairing damage to the parking
areas caused by Tenant or its invitees. Landlord shall not be obligated to
remove snow unless the accumulation exceeds three inches. In no event shall
Landlord be obligated to remove snow from areas obstructed by parked vehicles at
the time Landlord's equipment is servicing such areas.
(c) Tenant shall require its invitees to park only in areas designated
by Landlord, and not to obstruct the parking areas of other tenants. Tenant
shall, upon request, furnish to Landlord the license numbers of the automobiles
operated by Tenant, its executives and other employees. Landlord may use any
lawful means to enforce the parking regulations established pursuant to Article
38, including, but not limited to, the towing away of improperly parked or
unauthorized cars and pasting of warning notices on car windows and windshields.
(d) Landlord may temporarily close any parking area in order to make
repairs or changes, to prevent the acquisition of public rights, or to
discourage unauthorized parking. Landlord may do such other acts in and to such
areas as, in its judgment, may be desirable to improve same.
(e) The parking areas for trucks and delivery vehicles in front of
loading areas (if any) adjacent to the Buildings are not to be used by Tenant or
its invitees, as parking spaces, unless otherwise directed by Landlord. Such
loading areas are provided solely for the loading and unloading of Tenant's
goods and no vehicles may be parked in such areas longer than necessary, in
Landlord's reasonable judgment, for the efficient discharge of such purposes. In
no event shall access to any loading area be blocked for more than 15 minutes.
(f) Neither Tenant nor its invitees shall park automobiles, trucks or
other motor vehicles overnight within the parking areas.
ARTICLE 17
Tenant's Changes
17.01. Permitted Changes.
After completion of the initial preparation of the Demised Premises as
provided for in Article 7, Tenant may, at any time and from time to time during
the term of this lease, at its expense, make or have made such other
alterations, additions, installations, substitutions, improvements and
decorations (hereinafter collectively called "changes" and, as applied to
changes provided for in this Article, "Tenant's Changes") in and to the Demised
Premises, but not structural alterations, additions
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or changes, as Tenant may reasonably consider necessary for the conduct of its
business in the Demised Premises, provided that:
(a) the outside appearance of the Building, or the strength of
the Building or of any of its exterior walls, supporting beams,
columns, floor slabs, foundations or elevator systems is not adversely
affected;
(b) no Tenant's Changes shall operate to reduce the Rentable
Area of the Demised Premises or the value of the Buildings;
(c) no Tenant's Changes shall adversely affect (or increase
the cost of) any service required to be furnished by Landlord to the
Demised Premises or to any other portion of the Buildings;
(d) in performing the work involved in making such changes,
Tenant shall be bound by and observe all applicable conditions and
provisions contained in Sections 7.02(b), 7.03 and 7.04 as if such
changes were included in the initial preparation of the Demised
Premises;
(e) in the case of any Tenant's Changes, other than
decorations, Tenant shall give notice to Landlord, including general
plans and specifications (if any) for such Tenant's Changes, at least
20 days before the work of making such Tenant's Changes shall commence;
(f) if the reasonably anticipated cost of any Tenant's Change
or series or group of proposed Tenant's Changes intended to be made at
or about the same time shall be $50,000 or more ("Substantial Change"),
or if any Tenant's Change shall include a change which under the
provisions of the applicable governmental Building Code then in effect
requires an alteration permit, Tenant, prior to commencement of such
change, shall obtain consent thereto from Landlord; Landlord agrees
that its consent shall not be unreasonably withheld, but Tenant agrees
that any such consent may be upon condition that upon the expiration or
earlier termination of this lease, Tenant shall restore the Demised
Premises to the condition in which it would be if the change in respect
of which the consent is required had not been made; it is agreed that
Landlord shall be deemed to be acting reasonably in refusing to give
any such consent if the making of such change would constitute a
default under a mortgage encumbering the Land or Building;
(g) if because of the nature of any Tenant's Change,
compliance with any provisions of a mortgage encumbering the Land or
Building is required, Tenant at its own expense, shall comply
therewith; and
(h) in connection with any Tenant's Changes, Tenant shall, at
its own cost and expense, obtain such permits and certificates as
shall be required under the applicable governmental Building Code then
in effect, and all other permits and certificates of any other
governmental authority having jurisdiction over the Building; and
(i) at Landlord's option, Tenant shall employ Landlord or an
affiliate of Landlord to perform Tenant's Changes, provided Landlord or
its affiliates price for such Tenant's Changes is competitive with
other licensed (and union if applicable) contractors for similar work
in similar buildings in Rockland County.
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17.02. Substantial Changes.
Each Substantial Change shall be made under the supervision of an
architect or engineer selected (and paid) by Tenant and approved by Landlord,
which approval shall not be unreasonably withheld. Each Substantial Change shall
be made in accordance with detailed plans and specifications prepared by an
architect or engineer designated (and paid) by Tenant and approved by Landlord,
such approval not to be unreasonably withheld. Copies of all such plans and
specifications shall be delivered by Tenant to Landlord, and shall be subject to
the advance approval of Landlord, which approval shall not be unreasonably
withheld. If any plans and/or specifications are prepared in connection with any
Tenant's Change, Tenant shall furnish copies thereof to Landlord.
17.03. Substantial Changes in Excess of $100,000.
If the estimated cost of any proposed Tenant's Change shall be $100,000
or more or if the estimated aggregate cost of any series or group of proposed
Tenant's Changes intended to be made at or about the same time shall be $100,000
or more, Tenant shall, at its sole cost and expense and before commencing same,
furnish to Landlord (and the holder of any mortgage affecting the Land or
Building, if therein required) (i) a surety company bond, issued by a surety
company approved by Landlord, which approval shall not be unreasonably withheld
(and the holder of any such mortgage where required), in an amount at least
equal to the estimated cost of such change, or the estimated collective cost of
such group of permitted changes, as the case may be, or (ii) other security
satisfactory to Landlord (and the holder of any such mortgage where required),
in each case guaranteeing to Landlord (and the holder of any such mortgage where
required) the fully paid completion of the proposed change, or proposed
permitted changes, as the case may be, within a reasonable time, free and clear
of all liens, encumbrances, chattel mortgages, conditional bills of sale and
other claims and charges, and in accordance with any plans and specifications
therefor approved by Landlord (and the holder of any such mortgage where
required).
17.04. Restricted Changes.
Except as provided in this Article, Tenant shall not have any right to
make any changes in the Demised Premises without the prior consent of Landlord.
ARTICLE 18
Tenant's Property
18.01. Tenant's Property.
Tenant's Property shall be and shall remain the property of Tenant, may
be removed by it at any time during the term of this lease so long as Tenant
shall not be in default hereunder and shall be in possession of the Demised
Premises. Tenant shall repair or pay the cost of repairing any damage to the
Demised Premises or to the Buildings resulting from such removal.
18.02. Abandonment of Tenant's Property.
Any of Tenant's Property which shall remain in the Demised
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Premises following the expiration or earlier termination of the term of this
lease and the removal of Tenant from the Demised Premises, may, at the option of
Landlord, be deemed to have been abandoned and either may be retained by
Landlord as its property or be disposed of by Landlord at Tenant's expense,
without accountability to Tenant, in such manner as Landlord may see fit,
subject to the reimbursement provisions of Section 18.05. Tenant's failure to
remove any of Tenant's Property from the Demised Premises after the expiration
or earlier termination of the term of this lease shall not be construed to
create a holding over by Tenant.
18.03. Leasehold Improvements.
All leasehold improvements at any time constructed or installed in the
Demised Premises, except as hereinafter otherwise provided, shall remain in the
Demised Premises upon the expiration or sooner termination of the term of this
lease. All leasehold improvements which Tenant is required to remove under the
following sentence, shall be removed by Tenant without damage to the Demised
Premises and Buildings and in the event any damage is caused by such removal,
the damage shall be repaired by Tenant at Tenant's expense. If any alteration
which shall require the Landlord's consent or approval is an item which is not a
customary leasehold improvement, such as (for illustrative purposes only) a
raised computer floor, supplemental HVAC system, private elevator, vault,
internal stairway or private lavatory, then unless Landlord shall give written
notice to Tenant to the contrary at the time it grants consent or approval for
the alteration, Landlord will require removal of said alteration by Tenant at
the expiration or sooner termination of the term of this lease.
18.04. End of Term.
Upon the expiration or sooner termination of the term of this lease,
Tenant shall quit and surrender possession of the Premises, broom clean and dry,
in good order and condition, ordinary wear and tear excepted, and Tenant shall
remove Tenant's Property from the Premises and repair any damage caused by such
removal. All leasehold improvements which Tenant is required to remove shall be
removed by Tenant, and any damage caused by such removal shall be repaired by
Tenant at Tenant's expense.
18.05. Removal by Landlord.
In the event Tenant fails to (i) remove any item of Tenant's Property
or any leasehold improvement or alteration it is required to remove, or (ii)
repair damage caused by such removal, then Landlord may effect such removal and
repair, and Tenant shall pay Landlord's costs for such removal and repair, such
obligation to survive the expiration or sooner termination of the term of this
lease.
ARTICLE 19
Tenant's Repairs
19.01. Tenant's Required Repairs.
Tenant shall, at its own expense, take good care of the Demised
Premises, and shall be responsible for replacement of all fluorescent tubes,
starters and light bulbs installed in the
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Demised Premises. Tenant, at its expense shall make all repairs, including
structural repairs, in the Demised Premises and the Buildings as shall be
required by reason of the negligence or other improper conduct of Tenant or its
invitees. In addition to the foregoing, Tenant shall, at Tenant's expense, keep
in good order and condition all installations, alterations and additions in the
Demised Premises comprising Tenant's Property (including Tenant's pneumatic
tubes, conveyors, mail chutes and air-conditioning equipment installed by or at
the expense of Tenant) and make all repairs thereto, ordinary or extraordinary,
structural or otherwise, foreseen or unforeseen, as from time to time may be
necessary, whether or not such repairs are or shall be made necessary by reason
of fault or neglect on the part of Tenant.
19.02. Windows.
Tenant shall not clean the exterior side of any window in the Demised
Premises or require, permit or allow it to be cleaned, from the outside, in
violation of any law or requirement of public authority.
19.03. Damage to Building.
All damage to the Buildings caused by Tenant in moving property into or
out of the Building or in installing or removing furniture, equipment or
fixtures shall promptly be repaired by Tenant at its expense. If Tenant permits
consumption of food in the Demised Premises, Tenant, at its expense, shall
employ the regular services of an exterminator to keep the Demised Premises and
Buildings free of vermin occasioned by such consumption.
ARTICLE 20
Landlord's Repairs, Maintenance, Cleaning
20.01. Landlord's Obligations.
Landlord, at its expense, shall keep and maintain the Building and its
fixtures, appurtenances, systems and facilities, in working order, condition and
repair and shall make all repairs, structural and otherwise, interior and
exterior, as and when needed in or about the Demised Premises, except for items
installed by or for Tenant at Tenant's expense and except for those repairs for
which Tenant is expressly responsible pursuant to any other provisions of this
lease.
20.02. Cleaning.
(a) Provided that Tenant shall keep the Demised Premises in good order,
Landlord shall cause the Demised Premises to be cleaned in accordance with the
provisions of the Cleaning Specifications annexed hereto and made part hereof.
Tenant shall provide Landlord with unrestricted access to the interior of all
windows within the Demised Premises, as a condition precedent to Landlord's
obligation to clean same.
(b) Tenant shall pay to Landlord, within 30 days after demand, the
costs and expenses incurred by Landlord as a result of (i) cleaning performed by
or for the account of Landlord in the Demised Premises, the Buildings or on the
Land, necessitated by
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(v) misuse or neglect on the part of Tenant or its invitees, (w) use of any
portion of the Demised Premises for preparation, serving or consumption of food
or beverages, reproducing operations, private lavatories or other special
purposes requiring greater or more difficult cleaning work than that normally
associated with office areas, (x) interior glass surfaces, (y) non-building
standard materials or finishes installed by Tenant or at its request, or (z)
increases in frequency or scope of any of the items set forth in the Cleaning
Specifications as shall have been requested by Tenant and provided by Landlord,
and (ii) removal from the Demised Premises, the Buildings or Land of (y) so much
of any refuse and rubbish of Tenant as shall exceed that normally accumulated
daily in the routine or ordinary business office occupancy, or (z) all of the
refuse and rubbish of Tenant's machines and eating facilities requiring special
handling. Tenant shall provide Landlord, its contractors and their employees
with free access to the Demised Premises during hours other than regular
business hours, together with the use of Tenant's lights, electricity and water,
all as may be required for the purpose of cleaning the Demised Premises.
20.03. Extraordinary Refuse.
Extraordinary waste (such as crates, cartons, boxes and used furniture
and equipment) shall be removed from the Buildings by Landlord, at Tenant's cost
and expense. At no time shall Tenant place any waste of any kind in any public
area. Anything placed in a public area by Tenant shall be deemed abandoned and
of no value to Tenant, and Landlord may have same removed and disposed of, and
the cost thereof shall be paid by Tenant to Landlord, within 30 days after
submission of a statement therefor, without limiting Landlord's rights under
Articles 32, 33 and 34.
20.04. Quality of Repairs.
All repairs to be made by Tenant pursuant to this lease shall be of
first-class quality and workmanship. If Tenant shall fail to commence any
required repairs within a reasonable time, or in any event within ten days after
service of a notice by Landlord requesting such repairs, or after commencing
such repairs shall fail to complete them with reasonable diligence, Landlord may
(but shall not be obliged to) make or complete such repairs at the expense of
Tenant.
20.05. Required Changes.
If at any time during the term of this lease there is imposed upon
Landlord by any governmental authority having jurisdiction, any obligation or
requirement to perform any structural or non-structural alteration, change or
improvement (collectively, "changes") to the Buildings which changes are not
required to be performed by Tenant pursuant to any provision of this lease,
Tenant shall pay to Landlord, as additional rent, Tenant's Proportionate Share
of all costs and expenses incurred by Landlord in performing such changes. Such
payment by Tenant shall be due to Landlord within 30 days after rendition of a
xxxx therefor, accompanied by a statement setting forth the changes performed by
Landlord.
ARTICLE 21
Electricity
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21.01. General.
(a) Electricity shall be supplied to the Demised Premises during the
term in accordance with the provisions of paragraph 21.02 of this Article.
However, at any time and from time to time during the term hereof, provided it
is then permissible under the provisions of laws and requirements of public
authorities, Landlord shall have the option to have electricity supplied to the
Demised Premises in accordance with either paragraph 21.03 or 21.04 of this
Article.
(b) For the purposes of this Article:
(i) The term "Electric Rate" shall mean the greater of either:
(a) the Service Classification pursuant to which Landlord
purchases electricity from the utility company servicing the Building,
or
(b) the Service Classification pursuant to which Tenant would
purchase electricity directly from the utility company servicing the Building,
provided, however, at no time shall the amount payable by Tenant for electricity
be less than Landlord's Cost per Kilowatt and Cost per Kilowatt Hour (as such
terms are hereinafter defined), and provided further that in any event, the
Electric Rate shall include all applicable surcharges, and demand, energy, fuel
adjustment and time of day charges (if any), taxes and other sums payable in
respect thereof.
(ii) The term "Cost per Kilowatt Hour" shall mean the total cost for
electricity incurred by Landlord to service the Building during a particular
time period (including all applicable surcharges, and energy, fuel adjustment
and time of day charges (if any), taxes and other sums payable in respect
thereof) divided by the total kilowatt hours purchased by Landlord during such
period.
(iii) The term "Cost per Kilowatt" shall mean the total cost for demand
incurred by Landlord to service the Building during a particular time period
(including all applicable surcharges, demand, and time of day charges (if any),
taxes and other sums payable in respect to thereof) divided by the total
kilowatts purchased by Landlord during such period.
21.02. Rent Inclusion.
(i) Landlord shall redistribute or furnish electricity to the Demised
Premises on a "rent inclusion" basis in such reasonable quantities as may be
required by Tenant to service Tenant's ordinary office equipment installed in
the Demised Premises as of the Commencement Date. Tenant shall pay to Landlord,
on account, the annual sum of $1.50 per square foot of Rentable Area, which sum
is included in the fixed rent as set forth in Article 3.01(a) ("Electric Rent").
At any time during the term, Landlord, at Tenant's sole cost and expense, may
cause an independent electrical engineer or electrical consulting firm selected
by Landlord (hereinafter referred to as the "Engineer") to make a survey of
Tenant's electrical equipment located in the Demised Premises, and the use
thereof, to determine if the full value of electricity furnished to the Demised
Premises exceeds the Electric Rent. If the value of such electricity (applying
the Electric Rate to Tenant's usage) exceeds the Electric Rent, Landlord shall
furnish a copy of said survey to Tenant and Landlord shall adjust the Electric
Rent and fixed rent in
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accordance with the survey and the Electric Rate, or Cost per Kilowatt and Cost
per Kilowatt Hour in effect on the date hereof, as adjusted in accordance with
Section 21.02 (iii) below.
(ii) If, on the Commencement Date or at any time during the term,
Tenant desires to install in the Demised Premises equipment which would not be
considered ordinary office equipment, including, but not limited to, items such
as copier machines, computer installations or supplemental air-conditioning
systems, or other heat or cooling intensive electrically operated equipment,
Tenant shall submit to Landlord a list indicating the specific type of
additional equipment, and the number, type and model of each item of equipment
to be installed, as well as the manufacturer's electrical rating associated with
same. If Landlord consents to the installation of such additional equipment,
Landlord, at Tenant's cost and expense, subsequent to or simultaneously with the
installation thereof, may either (a) cause the Engineer to make a survey of such
additional equipment in accordance with the provisions of Section 21.02(i)
hereof, or (b) at Tenant's cost, install a submeter to record Tenant's
consumption of and demand for electricity within the Demised Premises and in
that event the provisions of Section 21.03 below shall apply.
(iii) If, at any time or times after the execution of this lease, the
electric rate as published by the electric utility company servicing the Demised
Premises ("Electric Schedule") shall be increased or decreased, then commencing
with the Commencement Date and from time to time thereafter, the fixed rent and
the Electric Rent shall be increased or decreased, as the case may be, by the
percentage increase or decrease in the Electric Schedule. Notwithstanding
anything herein to the contrary, under no circumstances shall the Electric Rent
be less than the amount set forth in Section 21.02(i) hereof.
21.03. Submetering.
(i) Landlord may supply electricity to service the Demised Premises on
a submetered basis, and Tenant in such event shall pay to Landlord, as
additional rent, the sum of (y) an amount determined by applying the Electric
Rate or, at Landlord's election, the Cost per Kilowatt Hour and Cost per
Kilowatt, to Tenant's consumption of and demand for electricity within the
Demised Premises as recorded on the submeter or submeters servicing the Demised
Premises, and (z) Landlord's administrative charge of 12% of the amount referred
to in clause (y) above, if and to the extent same is permitted by laws and
requirements of public authorities (such combined sum being hereinafter called
"Submeter Electric Rent"). Except as set forth in the foregoing clause (z),
Landlord will not charge Tenant more than the Electric Rate or, at Landlord's
election, the Cost per Kilowatt and Cost per Kilowatt Hour for the electricity
provided pursuant to this paragraph. If, pursuant to paragraph (a) hereof,
Landlord shall have elected to supply electricity to the Demised Premises in
accordance with this paragraph, the fixed rent shall be decreased by the
Electric Rent. At Landlord's request, Tenant agrees to execute a supplementary
agreement modifying this lease to reflect the changes in the fixed rent
resulting from such election.
(ii) Where more than one submeter measures the electric service to
Tenant, the electric service rendered through each submeter shall be computed
and billed separately in accordance with the provisions hereinabove set forth.
(iii) Tenant shall pay to Landlord, on account of the Submeter Electric
Rent payable pursuant to this Section 21.03, the annual sum of $1.50 per square
foot of Rentable Area ("Estimated
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Submeter Electric Rent"), subject to the adjustments on the first day of each
and every calendar month of the term (except that if the first day of the term
is other than the first day of a calendar month, the first monthly installment,
prorated to the end of said calendar month, shall be payable on the first day of
the first full calendar month).
(iv) From time to time during the term, the Estimated Submeter Electric
Rent may be adjusted by Landlord on the basis of either Landlord's reasonable
estimate of Tenant's electric consumption and demand (if at any time the
submeter(s) servicing the Demised Premises are inoperative) or Tenant's actual
consumption of and demand for electricity as recorded on the submeter(s)
servicing the Demised Premises, and, in either event, the Electric Rate or Cost
per Kilowatt and Cost per Kilowatt Hour then in effect.
(v) Subsequent to the end of each calendar year during the term of this
lease, or more frequently if Landlord shall elect, Landlord shall submit to
Tenant a statement of the Electric Submeter Rent for such year or shorter period
together with the components thereof, as set forth in clause (i) of this Section
21.03 ("Submetered Electric Statement"). To the extent that the Estimated
Submeter Electric Rent paid by Tenant for the period covered by the Submetered
Electric Statement shall be less than the Submeter Electric Rent as set forth on
such Submeter Electric Statement, Tenant shall pay Landlord the difference
within 30 days after receipt of the Submeter Electric Statement. If the
Estimated Submeter Electric Rent paid by Tenant for the period covered by the
Submeter Electric Statement shall be greater than the Submeter Electric Rent as
set forth on the Submeter Electric Statement, such difference shall be credited
against the next required payment(s) of Estimated Submeter Electric Rent. If no
Estimated Submeter Electric Rent payment(s) shall thereafter be due, Landlord
shall pay such difference to Tenant.
(vi) For any period during which the submeter(s) servicing the premises
are inoperative, the Submeter Electric Rent shall be determined by Landlord,
based upon its reasonable estimate of Tenant's actual consumption of and demand
for electricity, and the Electric Rate or Cost per Kilowatt and Cost per
Kilowatt Hour then in effect.
21.04. Direct Meter.
If Landlord discontinues furnishing electricity to the Demised Premises
pursuant to Sections 21.02 or 21.03, Tenant shall make its own arrangements to
obtain electricity directly from the utility company furnishing electricity to
the Building. The cost of such service shall be paid by Tenant directly to such
utility company. Landlord shall permit its electric feeders, risers and wiring
serving the Demised Premises to be used by Tenant, to the extent available, safe
and capable of being used for such purpose. All meters and all additional panel
boards, feeders, risers, wiring and other conductors and equipment which may be
required to enable Tenant to obtain electricity of substantially the same
quality and character, shall be installed by Landlord at Tenant's cost and
expense.
21.05. Landlord's Statements and Bills.
(a) Bills for electricity supplied pursuant to Sections 21.02 and 21.03
shall be rendered to Tenant at such times as Landlord may elect. Tenant's
payments for electricity supplied in accordance with Sections 21.02 and 21.03
shall be due and payable within 30 days after delivery of a statement therefor,
by Landlord
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to Tenant. If such bills are not paid within 30 days after the same are
rendered, Landlord may, without further notice, discontinue the service of
electricity to the Demised Premises without releasing Tenant from any liability
under this lease and without Landlord or Landlord's agents incurring any
liability for any damage or loss sustained by Tenant as the result of such
discontinuance. If any tax is imposed upon Landlord's receipts from the sale of
electricity to Tenant by laws and requirements of public authorities, Tenant
agrees that, unless prohibited by such laws and requirements of public
authorities, Tenant's Proportionate Share of such taxes shall be included in the
bills of, and paid by Tenant to Landlord, as additional rent.
(b) Landlord's failure during the term to prepare and deliver any
statements or bills under this Article, or Landlord's failure to make a demand
under this Article, shall not in any way be deemed to be a waiver of, or cause
Landlord to forfeit or surrender, its rights to collect any amount of additional
rent which may become due pursuant to this Article. Tenant's liability for any
amounts due under this Article shall survive the expiration or sooner
termination of the term.
(c) Tenant's failure or refusal, for any reason, to utilize the
electrical energy provided by Landlord, shall not entitle Tenant to any
abatement or diminution of fixed rent or additional rent, or otherwise relieve
Tenant from any of its obligations under this lease.
21.06. Change of Service.
If either the quantity or character of the electrical service is
changed by the utility company supplying electrical service to the Building or
is no longer available or suitable for Tenant's requirements, or if there shall
be a change, interruption or termination of electrical service due to a failure
or defect on the part of the utility company, no such change, unavailability,
unsuitability, failure or defect shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any payment from Landlord
for any loss, damage or expense, or to abatement or diminution of fixed rent or
additional rent, or otherwise relieve Tenant from any of its obligations under
this lease, or impose any obligation upon Landlord or its agents. Landlord will
use reasonable efforts to insure that there is no interruption in electrical
service to Tenant, but in no event shall Landlord be responsible for any
failures of the utility providing such service or the negligence or other acts
of third parties causing any such interruption.
21.07. Additional Installations.
(a) Tenant shall not make any electrical installations, alterations,
additions or changes to the electrical equipment or appliances in the Demised
Premises without prior written consent of Landlord in each such instance. Tenant
shall comply with the rules and regulations applicable to the service,
equipment, wiring and requirements of Landlord and of the utility company
supplying electricity to the Building. Tenant agrees that its use of electricity
in the Demised Premises will not exceed the capacity of existing feeders to the
Building or the risers or wiring installations therein and Tenant shall not use
any electrical equipment which, in Landlord's judgment, will overload such
installations or interfere with the use thereof by other tenants in the
Building. If, in Landlord's judgment, Tenant's electrical requirements
necessitate installation of an additional riser, risers or other proper and
necessary equipment or services, including additional ventilating or
air-conditioning, the same
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shall be provided or installed by Landlord at Tenant's expense, which shall be
chargeable and collectible as additional rent and paid within 30 days after the
rendition to Tenant of a xxxx therefor.
(b) If, after Landlord's initial installation work, (i) Tenant shall
request the installation of additional risers, feeders or other equipment or
service to supply its electrical requirements and Landlord shall determine that
the same are necessary and will not cause damage or injury to the Building or
the Demised Premises or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations, repairs or expense or interfere
with or disturb other tenants or occupants of the Building, or (ii) Landlord
shall determine that the installation of additional risers, feeders or other
equipment or service to supply Tenant's electrical requirements is necessary,
then and in either of such events Landlord shall cause such installations to be
made, at Tenant's sole cost and expense and Tenant shall pay Landlord for such
installations, as additional rent, within 30 days after submission of a
statement therefor.
ARTICLE 22
Heat, Ventilation and Air-Conditioning
22.01. Access and Repair.
Landlord shall have free and unrestricted access to any and all
heating, air-conditioning and ventilating equipment in the Demised Premises. The
cost of maintaining said systems shall, except to the extent set forth in this
Section and in Section 22.02, be deemed an Operating Expense. Any damage caused
to the heating, air-conditioning and ventilating equipment, appliances or
appurtenances as a result of the negligence of, or careless operation of the
same by Tenant or its invitees, shall be repaired by Landlord and the cost and
expense thereof shall be paid by Tenant, as additional rent, within 30 days
after submission of a statement therefor, without limiting Landlord's rights
under Articles 32, 33 and 34. Landlord shall have no maintenance or repair
obligation as to heating, ventilating or air conditioning equipment installed
by, or at the expense or direction of, Tenant.
22.02. Tenant's Requirements.
Landlord will not be responsible for the failure of the
air-conditioning system to meet its maximum performance specifications prior to
the proper balancing of the systems, or, if such failure results from the
occupancy of the Demised Premises by more than an average of 1 person for each
150 square feet of Tenant's Rentable Area or if Tenant installs and operates
machines and appliances the installed electrical load of which when combined
with the load of all lighting fixtures exceeds 4 xxxxx per square foot of
Tenant's Rentable Area in any one room or other area. If the use of the Demised
Premises in a manner exceeding the aforementioned occupancy and electrical load
criteria, or the rearrangement, or partitioning after the initial preparation,
of the Demised Premises, results in the interference with the normal operation
of the air-conditioning in the Demised Premises, and as a result thereof changes
in the air-condition system servicing the Demised Premises are needed, such
changes shall be made by Landlord, at Tenant's request and at Tenant's expense,
and shall be paid within 30 days after submission of a statement therefor.
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22.03. Additional Tenant Requirements.
Tenant shall keep all windows closed and lower and close window
coverings when necessary because of the sun's position. Tenant agrees to
cooperate fully with Landlord and to comply with all regulations and
requirements Landlord may establish for the proper functioning and protection of
the heating, air-conditioning and ventilating Systems.
ARTICLE 23
Landlord's Other Services
23.01. Elevators.
Landlord shall provide Tenant, in common with other tenants in the
Building, passenger elevator service. If Landlord shall be obliged to repair,
maintain or replace such elevators by reason of the negligence or other improper
conduct of Tenant or its invitees, such work shall be performed at Tenant's
expense; Tenant shall pay for such work, within 30 days after submission of a
statement therefor, without limiting Landlord's rights under Articles 32, 33 and
34.
23.02. Interruption of Services.
Landlord reserves the right, without any liability to Tenant, to
interrupt, curtail, suspend or stop any of Landlord's services to Tenant or the
Demised Premises (including heat, ventilation, elevators, and water and such
other services as may hereafter be undertaken by Landlord for Tenant) at such
times as may be necessary, and for so long as may be reasonably required, by
reason of the making of repairs or changes which Landlord is required by this
lease to make or in good xxxxx xxxxx necessary. In each such case Landlord shall
exercise reasonable diligence to effect restoration of service and shall give
Tenant reasonable notice, when practicable, of the commencement and anticipated
duration of such interruption, curtailment, suspension or stoppage of any of
Landlord's services. Before commencing any work required in connection with the
foregoing, or any other work or repairs in the Demised Premises which would
interfere with Tenant's use thereof, Landlord shall endeavor to notify Tenant of
the need for and nature of the work and repairs and the manner in which and the
length of time for which such work or the making of such repairs will affect the
Demised Premises. Such notice with respect to the making of emergency repairs
shall, if time permits, be given by telephone or in person to such
representative of Tenant at the Demised Premises as Tenant may have designated
to receive such notice. Except in the event of an emergency, Tenant may require
Landlord to perform such work or make such repairs after Tenant's business hours
if they would otherwise create a material interference with Tenant's use of the
Demised Premises and can properly be accomplished at such time provided however,
however, that if Landlord shall thereby incur any additional expense by reason
of overtime work, Tenant shall reimburse Landlord for the amount thereof within
30 days after submission of a statement therefor.
ARTICLE 24
Tenant's Access
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24.01. Tenant's Access to Demised Premises.
During the term of this lease Tenant may conduct its business in the
Demised Premises on such days and hours as it may determine, and Tenant and its
invitees at all times shall have access to the Demised Premises by means of
doorways, passageways, corridors, stairways, elevators, entrances and service
entrances in the Building selected by Landlord and affording access to the
Demised Premises. Notwithstanding the foregoing, Landlord may, during times
other than regular business hours and regular business days, limit or restrict
access to the Building and Demised Premises to all persons other than Tenant and
employees and invitees specifically designated to Landlord by Tenant. Rules and
procedures to be followed in order to gain access to the Building and Demised
Premises may, from time to time, be established and amended by Landlord, and
shall be complied with by Tenant, its employees and invitees. Except in the case
of an emergency, Tenant shall have 24 hours per day, seven days per week access
to the Demised Premises.*
ARTICLE 25
Landlord's Access
25.01. Lines Through Demised Premises.
Tenant shall permit Landlord to install, use and maintain additional
utility and other pipes, ducts, lines, flues and conduit in the Demised
Premises, provided:
(a) such installations shall be so located as to cause the
least possible interference with the Tenant's use of the Demised
Premises and the conduct of its operations therein, shall not
unreasonably damage the appearance or materially reduce the floor area
of the Demised Premises or affect Tenant's layout, in each case
consistent with requirements of any laws and requirements of public
authorities and insurance bodies if such installation is required by
the aforesaid public authorities or insurance bodies;
(b) the installation shall be performed at such times and in
such manner as to create the least practicable interference with
Tenant's use of the Demised Premises and the conduct of its operations
therein; and
(c) Landlord shall repair and restore all damage caused by
such installations.
Where access doors are required for mechanical equipment in or adjacent to the
Demised Premises, Landlord shall furnish and install such access doors and
confine their location, wherever practicable, to closets, coat rooms, toilet
rooms, corridors and kitchen or pantry rooms. Landlord and Tenant will cooperate
with each other in the location of Landlord's and Tenant's facilities requiring
such access doors.
25.02. Access to Demised Premises.
Landlord and/or Landlord's agents shall have the right, upon request
made to Tenant, or to a designated representative of Tenant at the Demised
Premises, to enter and pass through the Demised Premises or any part or parts
thereof during business hours (i) to examine the Demised Premises and to show
them to the lessors of underlying or ground leases or mortgagees and to
prospective purchasers, mortgagees or lessees of the Real
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Property, and (ii) for the purpose of performing such maintenance and making
such repairs or changes in or to the Demised Premises or in or to the Building
or its facilities as may be provided for or permitted by this lease or deemed
necessary by Landlord for the benefit of the Demised Premises or other portions
of the Building or as may be mutually agreed upon by the parties or as Landlord
may be required to make by laws and requirements of public authorities. Landlord
shall be allowed to take all materials into and upon the Demised Premises that
may be required for such repairs, changes or maintenance, without being deemed
thereby to evict Tenant from the whole or any part of the Demised Premises.
Landlord's rights under this Section shall be exercised in such manner (not
involving any overtime expenses, unless Tenant shall agree to reimburse Landlord
for such expenses as additional rent) as to create the least practicable
interference with Tenant's normal conduct of its business in the Demised
Premises.
25.03. Access Upon Emergency.
Landlord shall also have the right to enter on and pass through the
Demised Premises, or any part thereof, at such times as such entry shall be
required by emergency circumstances affecting the Demised Premises or the
Building. In such event, if practicable, Landlord or its agents shall be
accompanied by a designated representative of Tenant or a member of the police,
fire, water or other municipal department concerned or of a recognized
protection company or of a public utility which is concerned.
25.04. Access During Twelve Months.
During the period of 12 months prior to the Expiration Date, Landlord
may exhibit the Demised Premises to prospective tenants, during regular business
hours, upon prior notification to Tenant.
ARTICLE 26
Shoring
26.01. Access for Protection.
If an excavation or other substructure work shall be undertaken or
authorized upon land adjacent to the Building or beneath the Building, Tenant,
without liability on the part of Landlord, shall afford to the person causing or
authorized to cause such excavation or other substructure work license to enter
upon the Demised Premises for the purpose of doing such work as such person
shall deem to be reasonably necessary to protect or preserve any of the walls or
structures of the Building or surrounding lands from injury or damage and to
support the same by proper foundations, pinning and/or underpinning, provided
that such entry (except in the event of an emergency) shall be accomplished in
the presence of a representative of Tenant, who shall be designated by Tenant
promptly upon Landlord's request. The said license to enter the Demised Premises
shall be granted by Tenant without any claim for damages or indemnity against
Landlord, and Tenant shall not be entitled to any diminution of rent on account
therefor.
ARTICLE 27
Notice of Accidents, Fire, Damage and Defects
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27.01. Notice to Landlord.
Tenant shall give prompt notice to Landlord of any of the following of
which Tenant shall have knowledge: (i) any accident in or about the Demised
Premises or the Building for which Landlord might be liable, (ii) all fires in
the Demised Premises, and (iii) all damage to, or defects in, the Demised
Premises (including the fixtures, equipment and appurtenances constituting part
thereof), or in any parts or appurtenances of the Building's sanitary,
electrical, heating, ventilating, air-conditioning, elevator and other systems
located in or passing through the Demised Premises or any part thereof.
ARTICLE 28
Landlord Not Liable, Indemnity and Exculpation
28.01. No Liability of Landlord.
Except for the negligence of Landlord, its agents or employees,
Landlord and its agents shall not be liable for any damage to property of Tenant
or others entrusted to employees of the Buildings, nor for the loss of or damage
to any property of Tenant by theft or otherwise. Except for the negligence of
Landlord, its agents or employees, Landlord and its agents shall not be liable
for any injury or damage to persons or property resulting from fire, explosion,
falling plaster, Steam, gas, electricity, water, rain or snow which may leak
from any part of the Buildings or from the pipes, appliances or plumbing works
of the same, or from any other place, or from dampness or any other cause of
whatsoever nature; nor shall Landlord or its agents be liable for any such
damage caused by other tenants or persons in, upon or about said Buildings, or
caused by operations in construction of any public or quasi-public work; nor
shall Landlord be liable for any latent defect in the Buildings or Premises. If
at any time any windows of the Demised Premises are temporarily or permanently
closed, or bricked up for any reason whatsoever, 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.
28.02. Tenant's Indemnification.
Tenant shall defend, indemnify and save harmless Landlord and its
agents and employees against and from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including reasonable attorneys'
fees, which may be imposed upon or incurred by or asserted against Landlord
and/or its agents or employees by reason of any of the following occurring
during the term, or during any period of time prior to the Commencement Date
that Tenant may have acquired or been given access to or possession of all or
any part of the Demised Premises: (i) any work or thing done in, on or about the
Demised Premises or any part thereof by or at the instance of Tenant, or any of
its invitees, (ii) any negligent or otherwise wrongful act or omission on the
part of Tenant or any of its invitees, (iii) any accident, injury or damage to
any person or property occurring in, on or about the Demised Premises or any
part thereof, or vault, passageway or space adjacent thereto caused by the
negligence of Tenant or any of its invitees, and (iv) any failure on the part of
Tenant to perform or comply with any of the
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covenants, agreements, terms, provisions, conditions or limitations contained in
this lease on its part to be performed or complied with. In case any action or
proceeding is brought against Landlord by reason of any such claim, Tenant upon
notice from Landlord shall, at Tenant's expense, resist or defend such action or
proceeding by counsel approved by Landlord, which approval Landlord shall not
unreasonably withhold. Counsel selected by Tenant's insurance companies shall be
deemed approved by Landlord.
28.03. Exculpation.
Tenant shall look solely to the estate and interest of Landlord, its
successors and assigns, in the Building for the collection of any judgment (or
other judicial process) recovered against Landlord based upon the breach by
Landlord of any of the terms, conditions or covenants of this lease on the part
of Landlord to be performed, and no other property or assets of Landlord shall
be subject to levy, execution or other enforcement procedures for the
satisfaction of Tenant's remedies under or with respect to either this lease,
the relationship of landlord and tenant hereunder, or Tenant's use and occupancy
of the Demised Premises.
ARTICLE 29
Destruction or Damage
29.01. Notice and Repair Obligation.
Tenant shall give prompt notice to Landlord in case of fire or other
casualty in or about the Demised Premises. If the Demised Premises and/or access
thereto shall be partially or totally damaged or destroyed by fire or other
casualty, then, Landlord shall, subject to its rights as set forth in Section
29.03, repair the damage and restore and rebuild the Demised Premises and/or
access thereto as nearly as may be reasonably practical to its condition and
character immediately prior to such damage or destruction, with reasonable
diligence after notice to it of the damage or destruction, which repair and
restoration shall be limited to the extent of insurance proceeds received,
subject to unavoidable delays and delays in the adjustment of insurance claims.
In no event shall Landlord be required to repair or replace Tenant's
furnishings, decorations and other moveable items in the Premises, or personal
property of any type belonging to Tenant. Unless Landlord shall terminate this
lease in accordance with Section 29.03, Tenant shall cooperate with Landlord's
restoration by removing from the Premises as promptly as possible, all of
Tenant's salvageable inventory and movable equipment, furniture and other
property.
29.02. Abatement of Rent.
If the Demised Premises and/or access thereto shall be partially or
totally damaged or destroyed by fire or other casualty not attributable to the
fault, negligence or misuse of the Demised Premises or the Buildings by the
Tenant or its invitees, the rents payable hereunder shall be abated to the
extent that the Demised Premises shall have been rendered untenantable, from the
date of such damage or destruction to the date the damage shall be substantially
repaired. Should Tenant reoccupy a portion of the Demised Premises during the
period that the repair is in progress and prior to the date that the same are
made completely tenantable, rents allocable to such portion shall
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be payable by Tenant from the date of such occupancy to the date the Demised
Premises are made tenantable.
29.03. Termination Rights.
In case the Demised Premises shall be rendered wholly unusable by
reason of fire or other casualty or if the Building shall be so damaged by fire
or other casualty that substantial renovation, reconstruction or demolition of
the Building shall, in Landlord's opinion, be required (whether or not the
Demised Premises shall have been damaged by such fire or other casualty), or in
the event Landlord's mortgagee(s) shall make claim to the proceeds of the
casualty insurance maintained by Landlord, then Landlord may, at its option,
terminate this lease and the term and estate hereby granted, by notifying Tenant
of such termination, within 120 days after the date of such damage; such
termination date shall be not more than 60 days after the giving of such notice.
If at any time prior to Landlord giving Tenant the aforesaid notice of
termination or commencing the repair and restoration pursuant to Section 29.01,
the holder of a mortgage or the lessor of a superior lease or any person
claiming under or through the holder of such mortgage or the lessor of such
lease takes possession of the Building through foreclosure or otherwise, such
holder or lessor shall have a further period of 60 days from the date of taking
possession to terminate this lease by appropriate notice to Tenant. Nothing
contained in this Section shall relieve Tenant from any liability to Landlord in
connection with any damage to the Demised Premises or the Buildings by fire or
other casualty if Tenant shall be legally liable in such respect.
29.04. Termination Upon Casualty.
In the event of the termination of this lease pursuant to the
provisions of this Article, this lease shall expire as fully and completely on
the date fixed in such notice of termination as if that were the date definitely
fixed for the expiration of this lease, and Tenant shall forthwith quit,
surrender and vacate the Premises without prejudice, however, to Landlord's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination. Any rent owing shall be paid up to such date, and any payments
of rent made by Tenant which were on account of any period subsequent to such
date shall be returned to Tenant.
29.05. Non-Liability of Landlord.
No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Buildings pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not to interfere unreasonably with
Tenant's use and occupancy.
29.06. Insurance on Tenant's Property.
Landlord will not carry insurance of any kind on Tenant's Property or
on any work in excess of building standard work and shall not be obligated to
repair any damage thereto or replace the same. For purposes of this Article the
term casualty damage, to the extent Landlord is responsible under this Article,
shall not be deemed to include damage caused by vandalism, unknown cause or
other act not normally covered under fire and extended coverage
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insurance policies applicable to office buildings in the New York City
metropolitan area.
29.07. Waiver of Statutory Protection.
The provisions of this Article shall be considered an express agreement
governing any case of damage or destruction of the Demised Premises by fire or
other casualty, and Section 227 of the Real Property Law, providing for such a
contingency in the absence of an express agreement, and any other law of like
import, now or hereafter in force, shall have no application in such case.
29.08. Uncollectibility of Insurance.
Notwithstanding any of the foregoing provisions of this Article, if
Landlord or the lessor of any underlying lease or the holder of any mortgage
shall be unable to collect all of the insurance proceeds (including rent
insurance proceeds) applicable to damage or destruction of the Demised Premises
or the Buildings by fire or other cause, by reason of some action or inaction on
the part of Tenant, or any of its invitees, then without prejudice to any other
remedies which may be available against Tenant, the abatement of Tenant's rent
provided for in Section 29.02 shall not be effective to the extent of the
uncollected insurance proceeds.
ARTICLE 30
Condemnation
30.01. Landlord's Rights to Award.
In the event that the Real Property or any part thereof, shall be taken
in condemnation proceedings or by the exercise or any right of eminent domain or
by agreement between any superior lessors and lessees and/or Landlord on the one
hand and any governmental authority authorized to exercise such right on the
other hand (collectively a "taking"), Landlord shall be entitled to collect from
the condemnor the entire award or awards that may be made in any such proceeding
without deduction therefrom for any estate hereby vested in or owned by Tenant.
Tenant hereby expressly assigns to Landlord all of its right, title and interest
in or to every such award and also agrees to execute any and all further
documents that may be required in order to facilitate the collection thereof by
Landlord.
30.02. Full Taking.
If title to the whole or substantially all of the Real Property shall
be subject to a taking, this lease shall terminate and expire on the date of
such taking and the fixed rent and additional rent provided to be paid by Tenant
shall be apportioned and paid to the date of such taking.
30.03. Partial Taking.
If substantially all of the Real Property is not so taken and if only a
part of the Demised Premises shall be so taken, this lease nevertheless shall
continue in full force and effect, except that either party may elect to
terminate this lease, if that portion of the Demised Premises then occupied by
Tenant shall be reduced by more than 25%, by notice of such election to the
other
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party given not later than 30 days after (i) notice of such taking is given by
the condemning authority, or (ii) the date of such taking, whichever occurs
later. Upon the giving of such notice this lease shall terminate on the date of
service of such notice and the fixed rent and additional rent due and to become
due, shall be prorated and adjusted as of the date of the taking. If both
parties fail to give such notice upon such partial taking, and this lease
continues in force as to any part of the Demised Premises not taken, (x) the
rents apportioned to the part taken shall be prorated and adjusted as of the
date of taking and from such date the fixed rent and additional rent shall be
reduced to the amount apportioned to the remainder of the Demised Premises, (y)
the number of parking spaces allocated to Tenant pursuant to Section 16.01 shall
be proportionately reduced and (z) the Tenant's Proportionate Share shall be
recomputed to reflect the number of square feet of Tenant's Rentable Area
remaining in the Demised Premises in relation to the Rentable Area remaining in
the Real Property.
30.04. Tenant's Rights to Award.
Tenant shall not be entitled to appear, claim, prove or receive any
award in the proceedings relating to any taking mentioned in this Article.
30.05. Reconstruction.
In the event of any taking which does not result in a termination of
this lease, Landlord, at its expense, shall proceed with reasonable diligence to
repair the remaining part of the Building and the Demised Premises to
substantially the same condition as it was in immediately prior to such taking
to the extent that the same may be feasible, so as to constitute a tenantable
Building and Demised Premises, provided that Landlord's liability under this
Section shall be limited to the amount received by Landlord as an award arising
out of such taking, and Landlord shall have no liability or responsibility to
repair Tenant's Property.
ARTICLE 31
Surrender and Holdover
31.01. Surrender.
On the Expiration Date, or upon any earlier termination of the term of
this lease, Tenant shall quit and surrender the Demised Premises to Landlord in
good order, condition and repair, except for ordinary wear and tear, damage or
destruction by fire or other casualty or the elements, and Tenant shall remove
all of Tenant's Property therefrom except as otherwise expressly provided in
this lease.
31.02. Holdover.
Tenant acknowledges that possession of the Demised Premises must be
surrendered to Landlord at the expiration or sooner termination of the term of
this lease. Tenant agrees it shall indemnify and save Landlord harmless against
all liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including reasonable attorneys' fees, resulting from delay by Tenant
in so surrendering the Demised Premises, including
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any claims made by any succeeding tenant founded on such delay. The parties
recognize and agree that the damage to Landlord resulting from any failure by
Tenant to surrender possession of the Demised Premises on a timely basis as
aforesaid will be extremely substantial, will exceed the amount of fixed rent
and additional rent theretofore payable hereunder and will be impossible of
accurate measurement. Tenant, therefore, agrees that if possession of the
Demised Premises is not surrendered to Landlord on the date of expiration or
sooner termination of the term of this lease, then Tenant agrees to pay to
Landlord as liquidated damages for each month and for any portion of a month
during which Tenant holds over in the Demised Premises after expiration or
termination of the term of this lease, a sum equal to 200% of the average fixed
rent and additional rent which was payable per month under this lease during the
last three months of the term hereof. Such liquidated damages shall not limit
Tenant's indemnification obligation with respect to claims made by any
succeeding tenant founded upon Tenant's failure or refusal to surrender the
Premises to Landlord at the expiration or sooner termination of the term of this
lease. Nothing contained herein shall be deemed to authorize Tenant to remain in
occupancy of the Demised Premises after the expiration or termination of the
term of this lease.
ARTICLE 32
Conditions of Limitation
32.01. Prior to Term.
If at or before the commencement of the term of this lease:
(a) Tenant (or any guarantor of Tenant's obligations under
this lease) shall file a petition commencing a voluntary case under the
Bankruptcy Code (Title 11 of the United States Code), as now or
hereafter in effect, or under similar law, or file a petition in
bankruptcy or for reorganization or for an arrangement pursuant to any
state insolvency law or any similar state law;
(b) An involuntary case against Tenant (or any guarantor of
Tenant's obligations under this lease) as debtor is commenced by a
petition under the Bankruptcy Code (Title 11 of the United States
Code), as now or hereafter in effect, or under similar law, or a
petition or answer proposing the adjudication of Tenant (or any
guarantor of Tenant's obligations under this lease) as a bankrupt or
its reorganization pursuant to any state insolvency law or any similar
state law shall be filed in any court and shall not be dismissed,
discharged or denied within 60 days after the filing thereof, or if
Tenant (or any guarantor of Tenant's obligations under this lease)
shall consent or acquiesce in the filing thereof;
(c) A custodian, receiver, United States Trustee, trustee or
liquidator of Tenant or of all or substantially all of Tenant's
property (or any guarantor of Tenant's obligations under this lease) or
of the Demised Premises shall be appointed in any proceedings brought
by Tenant; or if any such custodian, receiver, United States Trustee,
trustee or liquidator shall be appointed in any proceedings brought
against Tenant and shall not be discharged within 60 days after such
appointment or if Tenant shall consent to or acquiesce in such
appointment; or
(d) If Tenant shall generally not pay Tenant's debts
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(or the guarantor of Tenant's obligations under this lease shall
generally not pay its debts) as such debts become due, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due;
this agreement shall be deemed cancelled and terminated, in which event neither
Tenant nor any person claiming through or under Tenant or by virtue of any
statute or of an order of any court shall be entitled to possession of the
Demised Premises, but Tenant shall remain liable for damages as provided in
Article 34.
32.02. During Term.
(a) If any of the events set forth in Section 32.01 occurs during the
term of this lease, such term, at the option of Landlord, exercised within a
reasonable time after notice of the happening of any one or more of such events,
shall terminate on such date as Landlord shall specify by notice to Tenant, with
the same effect as if the date of termination were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 34.
(b) The term of this lease is subject to the further
limitation that:
(i) Whenever Tenant shall default in the payment of any
installment of rent or any other charge payable by Tenant to Landlord,
on any day upon which the same is due, and such default shall continue
for five days after Landlord shall have given to Tenant a notice
specifying such default;
(ii) Whenever Tenant shall do, or permit to be done, whether
by action or inaction, anything contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be
remedied by Tenant within 30 days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a situation
which cannot with due diligence be cured within a period of 30 days, if
Tenant shall not (y) within said 30-day period advise Landlord of
Tenant's intention duly to institute all steps necessary to remedy such
situation, and (z) duly institute within said 30- day period, and
thereafter diligently prosecute to completion, all steps necessary to
remedy the same;
(iii) Whenever Tenant shall desert and abandon the Demised
Premises (whether the keys be surrendered or not and whether the rent
be paid or not);
(iv) Whenever Tenant shall default in the timely payment of
rent for two consecutive months or for a total of four months in any
period of 12 months, notwithstanding the possibility that each of such
defaults shall have been cured within the time period set forth in
subparagraph (i); or
(v) Whenever Tenant shall default in the performance of any
non-rental obligation imposed upon it hereunder more than two times in
any period of six months or more than three times in any period of 12
months, notwithstanding the possibility that each of such defaults
shall have been cured within the time period set forth in subparagraph
(ii);
then in any of said cases set forth in the foregoing subparagraphs (i) through
(v), Landlord may give to Tenant a notice of intention to end the term of this
lease at the expiration of five days from the date of service of such notice of
intention, and upon the expiration of said five days the term and estate hereby
granted,
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whether or not the term shall theretofore have commenced, shall expire and
terminate with the same effects as if the date of termination were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 34.
32.03. Adequate Assurances.
Without limiting any of the provisions of Articles 32, 33 or 34, if
pursuant to the Bankruptcy Code of 1978, as the same may be amended, Tenant is
permitted to assign this lease in disregard of the obligations contained in
Article 13 hereof, Tenant agrees that adequate assurance of future performance
by the assignee permitted under the Code shall mean the deposit of cash security
with Landlord in an amount equal to the sum of one year's fixed rent then
reserved hereunder plus an amount equal to all additional rent payable under
this lease for the calendar year preceding the year in which such assignment is
intended to become effective, which deposit shall be held by Landlord, for the
balance of the term of this lease as security for the full and faithful
performance of all of the obligations under this lease on the part of Tenant yet
to be performed. If Tenant receives or is to receive any valuable consideration
for such an assignment of this lease, such consideration after deducting
therefrom (i) the brokerage commissions, if any, and other expenses reasonably
incurred by Tenant for such assignment and (ii) any portion of such
consideration reasonably designated by the assigned as paid for the purchase of
Tenant's property in the Demised Premises, shall be the sole and exclusive
property of Landlord and shall be paid over to Landlord directly by such
assignee.
ARTICLE 33
Re-Entry by Landlord
33.01. Re-Entry; Summary Proceedings.
If Tenant shall default in the payment of any installment of rent or
any other charge payable by Tenant to Landlord, and if such default shall
continue for five days, or if the term of this lease shall be terminated as in
Article 32 provided, Landlord or Landlord's agents and employees may immediately
or at any time thereafter re-enter the Demised Premises, or any part thereof,
either by summary dispossess proceedings or by any suitable action or proceeding
at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
persons therefrom, to the end that Landlord may have, hold and enjoy the Demised
Premises. The word "re-enter", as herein used, is not restricted to its
technical legal meaning. In the event of any termination of this lease under the
provisions of Article 32 or if Landlord shall re-enter the Demised Premises
under the provisions of this Article or in the event of the termination of this
lease, or of re-entry, by or under any summary dispossess or other proceeding or
action under any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall thereupon pay to Landlord the rent and any other charge
payable by Tenant to Landlord up to the time of such termination or re-entry, as
the case may be, and shall also pay to Landlord damages as provided in Article
34.
33.02. Remedies Cumulative.
The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be
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entitled at any time, and Landlord may invoke any remedy allowed at law or in
equity as if specific remedies were not provided for herein.
33.03. Retention of Funds.
If the term of this lease shall be terminated under the provisions of
Article 32, or if Landlord shall re-enter the Demised Premises under the
provisions of this Article, or in the event of the termination of this lease, or
of re-entry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all moneys, if any, paid by Tenant to
Landlord, whether as advance rent, security or otherwise, but such moneys shall
be credited by Landlord against any rent or other charge due from Tenant at the
time of such termination or re-entry or, at Landlord's option, against any
damages payable by 'Tenant under Article 34 or pursuant to law.
ARTICLE 34
Damages
34.01. Damages.
Tenant covenants and agrees that if the term of this lease shall be
terminated under the provisions of Article 32, or if Landlord shall re-enter the
Demised Premises under the provisions of Article 33, or in the event of the
termination of the term of this lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant, Tenant shall pay to Landlord as
damages, at the election of Landlord, either:
(a) a sum which at the time of such termination or at the time
of such re-entry by Landlord, as the case may be, represents the then
value of the excess, if any, of: (i) the aggregate of the rent payable
hereunder which would have been payable by Tenant (conclusively
presuming the additional rent to be the same as was payable for the
year immediately preceding such termination or re-entry) for the period
commencing with the date of such termination or re-entry, as the case
may be, and ending with the Expiration Date had the term of this lease
not been so terminated or had Landlord not so re-entered the Demised
Premises, over (ii) the aggregate rental value of the Demised Premises
for the same period; both discounted to the date of such termination or
re-entry, as the case may be, at the rate of 10% per annum compounded
quarterly; or
(b) sums equal to the rent payable hereunder which would have
been payable by Tenant had the term of this lease not been terminated,
or had Landlord not re-entered the Demised Premises, payable upon the
due dates therefor specified herein following such termination or such
re-entry and until the Expiration Date; Landlord may re-let the Demised
Premises or any part or parts thereof, either in the name of Landlord
or otherwise, for a term or terms, which may at Landlord's option be
less than or exceed the period which would otherwise have constituted
the balance of the term of this lease; Landlord may grant concessions
of free rent and Landlord, at its option, may make such alterations and
decorations in the Demised Premises as Landlord considers advisable and
necessary for the purpose of re-letting the Demised Premises, and the
granting of such concessions and/or
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making of such alterations and decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid
PROVIDED HOWEVER, that if Landlord shall re-let the Demised Premises
during said period, Landlord shall credit Tenant with the net rents
received by Landlord from such re-letting, such net rents to be
determined by first deducting from the gross rents as and when received
by Landlord from such re-letting, the expenses incurred or paid by
Landlord in terminating the term of this lease and in re-entering the
Demised Premises and in securing possession thereof, as well as the
expenses of re-letting, including altering and preparing the Demised
Premises for new tenants, brokers' Commissions, attorneys' fees and all
other expenses properly chargeable against the Demised Premises and the
rental therefrom it being understood that any such re-letting may be
for a period shorter or longer than the remaining term of this lease.
In no event shall Tenant be entitled to receive any excess of such net
rents over the sums payable by Tenant to Landlord hereunder, or shall
Tenant be entitled in any suit for the collection of damages pursuant
to this Article to a credit in respect of any net rents from a re-
letting, except to the extent that such net rents are actually received
by Landlord. If the Demised Premises or any part thereof should be
re-let in combination with other space, then proper apportionment on a
square foot basis shall be made of the rent received from such
re-letting and of the expenses of re-letting.
In the event of a default by Tenant in its obligations under this
lease, beyond applicable grace periods, if any, in addition to
Landlord's other rights and remedies, there shall be immediately
payable by Tenant to Landlord, as additional rent, the amount of all of
the following which are incurred, granted or assumed by Landlord in
connection with the lease: all rent concessions, free rent, rent
credits, contributions or payments by Landlord with respect to work or
improvements performed in the Demised Premises, and/or obligations
expenses and liabilities of Tenant assumed or paid for by Landlord in
consideration of Tenant's entering into this lease.
If the Demised Premises or any part thereof be relet by Landlord for
the unexpired portion of the Term, or any part thereof, before presentation of
proof of such damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for Demised Premises, or part thereof, so relet during the term of
the reletting. Landlord shall not be liable in any way whatsoever for its
failure or refusal to relet the Demised Premises or any part thereof, or if the
Demised Premises or any part thereof are relet, for its failure to collect the
rent under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant's liability for damages or otherwise
under this lease.
34.02. Recovery of Damages.
Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this lease would have expired if it had not been
terminated under the provisions of Article 32, or under any provision of law, or
had Landlord not re-entered the Demised Premises.
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34.03. Additional Damages.
Nothing herein contained shall be construed as limiting or precluding
the recovery by Landlord against Tenant of any sums or damages, in addition to
the damages particularly provided above, to which Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant.
ARTICLE 35
Waivers
35.01. Waiver of Redemption Rights.
Tenant, for Tenant, and on behalf of any and all persons claiming
through or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
lease or after the termination of the term of this lease as herein provided.
Tenant also waives the provisions of any law now or hereafter in effect relating
to notice and delay in levy of execution in case of an eviction or dispossess of
a tenant for non-payment of rent.
35.02. No Designation of Payments.
Tenant waives Tenant's right, if any, to designate the items against
which any payments made by Tenant are to be credited, and Tenant agrees that
Landlord may apply any payments made by Tenant to any items it sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items against which any such payments shall be credited.
35.03. Waiver of Jury Trial.
Landlord and Tenant waive trial by jury in any action, proceeding or
counterclaim brought by either against the other on any matter whatsoever
arising out of or in any way connected with this lease, the relationship of
landlord and tenant, Tenant's use or occupancy of the Demised Premises, any
claim of injury or damage, or any emergency statutory or any other statutory
remedy.
35.04. Counterclaims.
Tenant shall not interpose any counterclaim of any kind in any summary
proceeding commenced by Landlord for nonpayment of rent.
ARTICLE 36
Unperformed Covenants
36.01. Performance of Tenant's Obligations.
If Tenant shall default in the performance of any of Tenant's
obligations hereunder, Landlord, without thereby waiving such default, may at
Landlord's option, after reasonable notice to
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Tenant, perform the same for the account of Tenant. If Landlord makes any
expenditures or incurs any obligations for the payment of money, including
attorneys' fees in instituting, prosecuting or defending any action or
proceeding by reason of any default of Tenant hereunder, such sums paid or
obligations incurred, with interest at the maximum legal rate thereon, shall be
deemed to be additional rent hereunder and shall be paid by Tenant to Landlord
upon rendition of any xxxx or statement to Tenant therefore.
ARTICLE 37
Consents and Approvals
37.01. Consents and Approvals.
Whenever in this lease it is provided that Landlord shall not
unreasonably withhold or delay consent or approval or shall exercise its
judgment reasonably (such consent or approval and such exercise of judgment
being collectively referred to as "consent"), if Landlord shall delay or refuse
such consent, Tenant in no event shall be entitled to make, nor shall Tenant
make, any claim, and Tenant hereby waives any claim, for money damages (nor
shall Tenant claim any money damage by way of setoff, counterclaim or defense)
based upon any claim or assertion by Tenant that Landlord unreasonably withheld
or unreasonably delayed its consent. Tenant's sole remedy shall be an action or
proceeding for specific performance, injunction or declaratory judgment to
enforce any such provision, but any such equitable remedy which can be cured by
the expenditure of money may be enforced personally against Landlord only to the
extent of its interest in the Building. Failure on the part of Tenant to seek
such relief within 30 days after the date upon which Landlord has withheld its
consent shall preclude any right to dispute the reasonableness of such
withholding of consent.
37.02. Expenses.
If Tenant shall request the consent or approval of Landlord to the
making of any alterations or to any other thing, and Landlord shall seek and pay
a separate fee for the expert opinion of Landlord's counsel, architect, engineer
or other representative or agent as to the form or substance thereof, Tenant
shall pay to Landlord, as additional rent, within 30 days after demand, all
costs and expenses of Landlord incurred in connection therewith, including, in
case of any alteration, costs and expenses of Landlord in reviewing plans and
specifications.
ARTICLE 38
Rules and Regulations
38.01. Rules and Regulations.
Tenant and Tenant's invitees shall observe and comply with the Rules
and Regulations attached hereto and made part hereof, and such other and further
Rules and Regulations as Landlord or Landlord's agents may from time to time
adopt. Notice of any additional Rules and Regulations shall be given to Tenant.
Nothing in this lease shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations or the terms, covenants or
conditions in any other lease, against any other tenant or occupant of the
Buildings, and Landlord shall not
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be liable to Tenant for violation of the same by any other tenant or such other
tenant's licensees. In the event of a conflict between the Rules and Regulations
and the provisions of this lease, the provisions of this lease shall prevail.
ARTICLE 39
Amendments for Financing
39.01. Amendments for Financing.
If, in connection with obtaining financing for the Real Property, a
banking, insurance or other recognized institutional lender shall request
modifications in this lease as a condition to such financing, Tenant will not
withhold, delay or defer its consent thereto, provided that such modifications
do not increase the monetary obligations of Tenant hereunder.
ARTICLE 40
Notice to Mortgagees and Underlying Lessors
40.01. Notice to Mortgagees and Lessors.
Upon the occurrence of any act or omission on the part of Landlord
which would give Tenant the right, either immediately or after the lapse of a
period of time, to terminate this lease or the term hereof or to claim a partial
or total eviction, Tenant shall not exercise such right until (i) it has given
notice of the occurrence of such act or omission to holders of any mortgages
which at the time shall be liens on the leasehold estate under any ground lease
or the Real Property, and the lessors under all underlying leases, if the names
and addresses of such holders and lessors shall previously have been furnished
to Tenant, and (ii) a period of time has elapsed after such notice as shall
equal the greater of (y) twice the length of time to which Landlord would be
entitled under this lease or otherwise, after similar notice, to remedy such act
or omission, or (z) the same time to which Landlord would be so entitled, plus
the time reasonably required to enable the holder of such mortgage or lease to
become legally entitled (through receivership or otherwise) to remedy such act
or omission.
ARTICLE 41
Parties Bound; Partnership Tenant
41.01. Successors and Assigns.
The covenants, agreements, terms, provisions and conditions of this
lease shall bind and benefit the successors and assigns of the parties hereto
with the same effect as if mentioned in each instance where a party hereto is
named or referred to, except that no violation of the provisions of Article 13
shall operate to vest any rights under this lease in any successor or assignee
of Tenant. Notwithstanding the foregoing, it is understood and agreed that (i)
the covenants and obligations on the part of Landlord under this lease shall not
be binding upon Landlord herein named with respect to any period subsequent to
the transfer of its interest in the Real Property as Landlord or lessee thereof,
(ii) in the event of such transfer said covenants and obligations shall
thereafter be binding upon each transferee
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of the interest of Landlord herein named as such Landlord or lessee of the Real
Property, but only with respect to the period ending with a subsequent transfer
of such interest, (iii) a lease of the entire interest of Landlord hereunder
shall be deemed a transfer within the meaning of this Article, and (iv) the
provisions of this Article shall not be construed as modifying the conditions of
limitation contained in Article 32.
41.02. Partnership Tenant.
If Tenant's interest in this lease shall at any time be held by a
partnership, or by two or more persons or entities individually (any such
partnership and such persons and entities are referred to in this Section as
"Partnership Tenant"), the following provisions shall apply to such Partnership
Tenant:
(a) the liability of each of the parties comprising
Partnership Tenant shall be joint and several;
(b) each of the parties comprising Partnership Tenant consents
in advance to, and agrees to be bound by, any (i) written instrument
which may thereafter be executed, changing, modifying or discharging
this lease, in whole or in part, or surrendering all or any part of the
Demised Premises to Landlord, and (ii) notices, demands, requests or
other communications which may thereafter be given, by Partnership
Tenant or any of the parties comprising Partnership Tenant;
(c) any bills, statements, notices, demands, requests or 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;
(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 each new partner, and upon demand of Landlord, shall
cause each new partner to execute and deliver to Landlord an agreement
in form satisfactory to Landlord, wherein each 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
partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of this subparagraph).
Landlord shall release from liability hereunder, as to obligations
thereafter accruing, retiring partners and the estates of deceased partners,
provided that the aggregate assets of the remaining partners of a Partnership
Tenant shall be sufficient in Landlord's sole judgment to meet Tenant's
obligations hereunder.
The provisions of this Section shall not be deemed to constitute a
consent, by Landlord, to the assignment of any interest in this lease by Tenant.
ARTICLE 42
No Other Waivers or Modifications
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42.01. Waivers.
The failure of Landlord to insist in any one or more instances upon the
strict performance or observance of any one or more of the obligations of this
lease, or to exercise any election herein contained, shall not be construed as a
waiver or relinquishment for the future of the performance of such one or more
obligations of this lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this lease or the
Premises, in whole or in part, unless such executory agreement is in writing and
is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge or termination or effectuation of the abandonment is
sought.
42.02. Surrender; Payments.
Without limiting the generality of the foregoing provisions of this
Article:
(a) No agreement to accept a surrender of all or any part of
the Demised Premises shall be valid unless in writing, signed by
Landlord. The delivery of keys to the Demised Premises to an employee
of Landlord or of its agent shall not operate as a termination of the
term of this lease or a surrender of the Demised Premises.
(b) The receipt by Landlord, or the payment by Tenant, of rent
or any other payment by Tenant with knowledge of breach of any
obligation of this lease shall not be deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser
amount than the correct amount of any rent or other charge due
hereunder shall be deemed to be other than a payment on account; nor
shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance or pursue any other remedy in
this lease or at law provided.
ARTICLE 43
Notices
43.01. Notices.
Except for rent bills, any notice, approval, consent, xxxx, statement
or other communication required or permitted to be given, rendered or made by
either party to the other, pursuant to this lease or pursuant to any applicable
law or requirement of public authority, shall be in writing (shall be sent in
duplicate to Landlord) and shall be delivered by registered or certified mail or
nationally recognized overnight carrier (e.g., Federal Express), addressed to
the other party at the address hereinabove set forth (in the case of notice to
Landlord, a second copy is to be delivered, in the same manner, to Xxxxxx Xxxxxx
Company, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attn: Senior Vice
President and General Counsel, and a third copy is to be delivered
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in the same manner to Glorious Sun Xxxxxx Xxxxxx, L.L.C., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xx. Xxxx Xxxx) and shall be deemed to have been
given, rendered, made or (in the case of any communication required by the
provisions of this lease to have been received before any period prescribed
herein for the taking of any action or the creation of any rights shall
commence) received, on the second business day following the day so mailed if
mailed in Westchester County and the third business day following the day so
mailed if mailed outside of Westchester County. Any notices, approvals,
consents, bills, statements or other communication given pursuant to this
Article by either party may be given by such party, their agents or attorneys.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices, bills, statements or other communications intended for
it.
ARTICLE 44
Estoppel Certificate-Recording
44.01. Tenant's Estoppel.
Tenant agrees, at any time and from time to time, upon ten days prior
notice from Landlord, to execute, acknowledge and deliver to Landlord and any
other person designated by Landlord, a statement in writing stating (i) that
this lease is unmodified and in full force and effect (or if there have been
modifications, that the lease is in full force and effect as modified and
stating the modifications), (ii) the dates to which the fixed rent, additional
rent and other charges, if any have been paid by Tenant, (iii) whether or not
Landlord is in default in the performance of any covenant, agreement or
condition contained in this lease and, if so, specifying in detail each such
default, (iv) whether or not there are then existing any set-offs or defenses
against the enforcement of any of the agreements, terms, covenants or conditions
hereof upon the part of Tenant to be performed or complied with and, if so,
specifying the same, and (v) the address to which notices to Tenant should be
sent. If requested by Landlord, the form of statement shall be, at Landlord's
election, as set forth on Exhibit B, annexed hereto and made part hereof. Any
such statement delivered pursuant hereto may be relied upon by the holder of any
interest in the Real Property, any prospective purchaser of the Real Property,
any mortgagee or prospective mortgagee of the Real Property or of Landlord's
interest, or any prospective assignee of any such mortgage.
44.02. Recording.
This lease shall not be recorded. At the request of Landlord, Tenant
shall promptly execute, acknowledge and deliver to Landlord a memorandum in form
satisfactory to Landlord with respect to this lease, and any amendment of or
other agreement supplementary to this lease, sufficient for recording.
ARTICLE 45
Brokerage
45.01. Brokerage.
Tenant covenants, warrants and represents that, in the
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negotiation of this lease, it dealt with no broker or any other person who could
legally claim to be entitled to receive a brokerage commission or finder's or
consultant's fee with respect to this transaction, except RM Management, LLC,
which commission Landlord shall pay per a separate agreement. Tenant shall
indemnify and hold Landlord harmless from and against any and all losses, costs,
damages, expenses, claims and liabilities (including court costs and attorneys'
fees and disbursements) arising out of any inaccuracy or alleged inaccuracy of
the above representation.
ARTICLE 46
SECURITY
46.01. Security.
(a) Tenant has deposited with Landlord a sum of money (by check,
subject to collection) equal to $66,940.00, as security for the full and
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease. If Tenant defaults in respect of any of the terms,
provisions and conditions of this lease, including but not limited to, the
payment of rent and additional rent, Landlord may use, apply or retain the whole
or any part of the security so deposited to the extent required for the payment
of any rent and additional rent, or any other sum as to which Tenant is in
default, or for any sum which Landlord may expend or may be required to expend
by reason of Tenant's default in respect of any of the terms, covenants and
conditions of this lease, including but not limited to, any damages or
deficiency in the reletting of the Premises, whether such damages or deficiency
accrued before or after summary proceedings or other re-entry by Landlord. In
the event that Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security shall be
returned to Tenant after the date fixed as the Expiration Date and after
delivery of possession of the entire Premises to Landlord. If Landlord applies
or retains any part of the security so deposited, Tenant, upon demand, shall
deposit with Landlord the amount so applied or retained, so that Landlord shall
have the full deposit on hand at all times during the term of this lease. In the
event of a sale of the Land and Building or condominium unit of which the
Premises may be a part or leasing, conveyance or transfer of the Building or
condominium unit of which the Premises form a part, Landlord shall have the
right to transfer the security to the vendee, lessee or transferee and Landlord
shall thereupon be released by Tenant from all liability for the return of such
security; and Tenant agrees to look to the new Landlord solely for the return of
said security; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Landlord. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
(b) If this lease is in full force and effect one year after the
Commencement Date, Tenant has not paid any fixed rent or additional rent beyond
the applicable grace period more than twice during the first lease year and
Tenant is not in default hereunder, Landlord shall return to Tenant the sum of
$31,230.00 in accordance with the provisions hereof.*
ARTICLE 47
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Miscellaneous
47.01. Entire Agreement.
This lease contains the entire agreement between Landlord and Tenant
relating to the leasing of the Premises. Tenant expressly acknowledges and
agrees that Landlord has not made and is not making, and, in executing and
delivering this lease Tenant is not relying upon, any warranties,
representations, promises or statements, except to the extent that the same may
be expressly set forth in this lease.
47.02. Partial Invalidity.
If any term or provision of this lease, or the application thereof to
any person or circumstance, shall, to any extent, be invalid or unenforceable,
the remainder of this lease, or the application of such term or provision to
persons or circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and each term and provision of
this lease shall be valid and enforceable to the fullest extent permitted by
law.
47.03. Applicable Law.
This lease shall be deemed to have been made in Rockland County, and
shall be construed according to, and governed by, the laws of the State of New
York.
47.04. Lease Submission.
This lease is submitted to Tenant for signature, with the understanding
that it shall not bind Landlord unless and until it has been executed by
Landlord and delivered to Tenant or Tenant's attorney or agent.
47.05. Asterisks.
The asterisks set forth at various locations in this lease are set
forth for Landlord's internal administrative purposes, and are not intended to
refer to any other language or to be used for interpretive purposes.
47.06. Confidentiality.
Tenant agrees not to disclose the terms, covenants, conditions or other
facts with respect to this lease, to any person, business entity, association,
newspaper, periodical or other entity. This non-disclosure and confidentiality
agreement shall be binding upon Tenant without limitation as to time, and a
breach of this Section shall constitute a material breach of
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Tenant's obligations under this lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this lease
as of the day and year first above written.
GLORIOUS SUN XXXXXX XXXXXX, L.L.C.
By: RM Blue Hill, LLC, Member
By: /s/
-------------------------
Member/Manager
LONG DISTANCE DIRECT, INC.
By: /s/
-------------------------------
Vice-President
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WORK LETTER (SECTION 7.01)
WORK SCHEDULE OF LANDLORD'S RESPONSIBILITY
Landlord agrees at its sole expense and without charge to Tenant, to do the
following Building Standard Work in the demised premises:
A. General Construction:
1. Partitions
Landlord shall supply and install ceiling-high metal
stud drywall partitions with 5/8" sheet rock on both
sides. All partitions to be finished with 4" cove
base. Corridor and between tenant partitions shall be
of sound attenuating construction, extending to the
underside of the floor above.
2. Doors
Landlord shall supply and install necessary doors.
All interior tenant doors to be solid core veneer 3'
x 7' and shall be furnished complete with bucks,
1-1/2 pair butts, door stops and latch sets.
3. Ceilings
Landlord shall supply and install a 2' x 4' textured
acoustical ceiling tile laid in a tee system
throughout all tenant areas.
4. Electrical
Landlord shall supply and install:
a. Lighting
Recessed building standard 2' x 4' prismatic
light fixtures with T12 lamps. Initial
xxxxxxx by Landlord; all subsequent
replacements by Tenant.
b. Outlets
Duplex convenience wall outlets as shown on
the floor plan attached hereto and made a
part hereof.
c. Switches
Wall switches in each private office and one
switch at entrance to open areas.
5. Telephone
Tenant shall make arrangements with any telephone
company or computer vendor for installation of
telephone and computer service. Landlord will not
provide or initiate such service.
Plenum rated cables are to be suspended from slab
above and all damages as a result of Tenant's
telephone or computer cabling shall be Tenant's
responsibility.
6. Window Covering
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Building Standard 1" slat blinds will be provided at
all exterior windows in a uniform color throughout
the building. No substitution from Building Standard
will be permitted.
7. Painting
All partitions will be painted with two coats of flat
finish latex paint. Exposed metal surfaces, e.g.
convector enclosures, bucks will be painted two coats
semi-gloss enamel. Doors shall be furnished with
paint. Charge will be made for more than one color in
any one room. Selection will be from premixed
Building Standard Color Chart. Should Tenant desire
colors darker or different than the Building Standard
Color Chart, same colors shall be at Tenant's sole
expense.
8. Flooring
Landlord shall install Landlord's standard grade
carpet to be selected by Tenant from Landlord's
standard selection chart as to type and color.
9. Exterior and Public Areas
To the extent that the exterior of the Building, the
public areas thereof, viz lobby, elevator, corridors,
grounds, parking areas and walkways have not been
finished, Landlord will complete same at its costs
and expense in accordance with Building Standard.
10. Substitutions
Tenant may substitute like items for Building
Standard items, but no credits for Building Standard
items will be given against the cost of items so
substituted. No credit will be given for Building
Standard items not utilized by Tenant.
B. Heating, Ventilating and Air Conditioning:
The Landlord shall furnish and install a complete heating,
ventilating and year-round air conditioning system. The
equipment shall be capable of maintaining an indoor
temperature of 80 (degrees) F.D.B. at 50% R.H. during summer
(June through September) based on the local 2 1/2% outdoor
design condition as specified in the latest edition of the
"Ashrae Handbook of Fundamentals" and 68 (degrees) F.D.B. in
the winter based on local 97 1/2% design as specified in the
latest edition of the "Ashrae Handbook of Fundamentals".
The air conditioning system will provide fresh air in a
quantity of not less than .75 to 1.0 cubic feet per minute per
square foot of rentable floor area.
Real Estate Taxes assessed against any item of construction which is a part of
Landlord's standard work letter or customary installation are included as part
of the Lease terms set forth herein. If any additional specifications, extras or
non-standard items of improvement give rise to the assessment of additional real
estate taxes, such taxes shall be for the account of Tenant.
All selections or designations to be made by Tenant are to be made within five
(5) business days after request by Landlord. If
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Tenant has not made such designations or selections within said period, the
Landlord shall be authorized to do so on behalf of the Tenant.
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CLEANING SPECIFICATIONS (SECTION 20.02)
1. General
(a) All flooring to be swept and/or dust mopped on each business
day.
(b) All carpeting areas and rugs vacuumed twice weekly.
(c) All stairways to be swept each business day.
(d) Empty and wipe wastepaper baskets and ashtrays each business
day.
(e) Cigarette urns to be cleaned each business day and sand
replaced when necessary.
(f) Floors, walls and interior surfaces of lobby, elevators and
public corridors to be maintained as required.
(g) Dust furniture and window xxxxx as required.
(h) Water coolers to be wiped each business day.
(i) Entrance lobby glass to be washed or wiped each business day.
2. Lavatories Daily (Business Days)
(a) All flooring to be swept and washed using disinfectant in
water.
(b) All basins, bowls, urinals and toilet seats to be washed.
(c) All mirrors to be washed.
(d) Paper towel and sanitary disposal receptacles to be emptied
and cleaned.
(e) Toilet tissue holders and soap and paper towel dispensers to
be filled.
3. Windows
(a) Three times per year clean all exterior windows on the inside
only, provided that window xxxxx are free of articles and
access to the windows is not obstructed.
(b) Two times per year clean all exterior windows on the outside.
4. Venetian Blinds
Venetian blinds to be dusted annually.
5. Ledges and moldings
Ledges and moldings to be high dusted semi-annually as required.
6. Lighting Fixtures
Interior and exterior of lighting fixtures to be dusted annually as
required.
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Rules and Regulations (Section 38.01)
1. Any moving of furniture or equipment into or out of the Demised
Premises must be done by Tenant at its own cost and expense, on business days
after 6:00 P.M., or on Saturday subject, however, to the prior written consent
of Landlord. If such move requires use of an elevator, such move shall not be in
excess of such elevator's carrying load capacity.
2. The sidewalks, entrances, passages, lobby, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by Tenant or
used for any purpose other than ingress and egress to and from the Demised
Premises and Tenant shall not permit any of its invitees to congregate in any of
said areas. No door mat shall be placed or left in any public hall or outside
any entry door of the Demised Premises.
3. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades, or screens shall be attached
to or hung in, or used in connection with, any window or door of the Demised
Premises, without the prior consent of Landlord. Such curtains, blinds, shades
or screens must be of a quality, type, design and color, and attached in the
manner, approved by Landlord.
4. No sign, insignia, advertisements, object, notice or other lettering
shall be exhibited, inscribed, painted or affixed by any tenant on any part of
the outside or inside of the Demised Premises or the Buildings without the prior
written consent of Landlord. In the event of the violation of the foregoing by
Tenant, Landlord may remove the same without any liability, and may charge the
expense incurred in such removal to Tenant. Interior signs and lettering on
doors and directory tablets shall, if and when approved by Landlord, be
inscribed, painted or affixed by Landlord at the expense of Tenant, and shall be
of a size, color and style acceptable to Landlord.
5. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Buildings shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels, or other articles be placed on window xxxxx.
6. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Buildings, nor placed in the halls, corridors
or vestibules by Tenant.
7. Tenant shall not discharge or permit to be discharged any materials
which may cause damage into waste lines, vents or flues of the Buildings. The
water and wash closets and other plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed, and no
sweepings, rubbish, rags, corrosives, acids or other substances shall be thrown
or deposited therein. All damages resulting from any misuse of the fixtures
shall be borne by the tenant who, or whose invitees, shall have caused the same.
8. Tenant shall not xxxx, paint, drill into, or in any way deface any
part of the Demised Premises or the Buildings. No boring, cutting or stringing
of wires shall be permitted, except with the prior consent of Landlord, and as
Landlord may direct. Tenant shall not 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 material, soluble in water, the use of cement and
other similar adhesive material being expressly prohibited.
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9. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the Demised Premises.
10. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television which, in Landlord's
judgment, might disturb other tenants in the Buildings, shall be made or
permitted by Tenant. Nothing shall be done or permitted in the Demised Premises
by Tenant which would impair or interfere with the use or enjoyment by any other
tenant of any other space in the Buildings. Tenant shall not throw anything out
of the doors, windows of skylights or down the passageways.
11. Neither Tenant nor its invitees shall bring or keep upon the
Demised Premises any explosive fluid, chemical or substance, nor any inflammable
or combustible objects or materials.
12. Additional locks or bolts of any kind which shall not be operable
by the grand master key(s) for the Buildings shall not be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said grand master
key(s). Tenant shall, upon the termination of its tenancy, turn over to Landlord
all keys of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, Tenant and in the event of the loss of any keys furnished by
Landlord, Tenant shall pay to Landlord the cost thereof.
13. All removals from the Demised Premises or the Buildings, or the
moving or carrying in or out of any safes, freight, furniture, packages, boxes,
crates or any other object or matter of any description must take place during
such hours and in such elevators as Landlord or its agent may determine from
time to time. All deliveries of any nature whatsoever to the Buildings or the
Demised Premises must be made only through Building entrances specified for such
deliveries by Landlord. Landlord reserves the right to inspect all objects and
matter to be brought into the Buildings and to exclude from the Buildings all
objects and matter which violate any of these Rules and Regulations or the
Lease. Landlord may require any person leaving the Buildings with any package or
other object or matter, to submit a pass, listing such package or object or
matter, from the tenant from whose premises the package or other object or
matter is being removed, but the establishment and enforcement of such
requirement shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of such tenant.
Landlord shall, in no way, be liable to Tenant for damages or loss arising from
the admission, exclusion or ejection of any person to or from the Demised
Premises or the Buildings under the provisions of this Rule 13 or Rule 17
hereof.
14. Tenant shall not occupy or permit any portion of the Demised
Premises to be occupied as an office for a public stenographer or public typist,
or for the possession, storage, manufacture, or sale of beer, wine or liquor,
narcotics, drugs, tobacco in any form, or as a xxxxxx, beauty or manicure shop,
or as an employment bureau. Tenant shall not engage or pay any employees on the
Demised Premises, except those actually working for Tenant on the Demised
Premises, nor advertise for laborers giving an address at the Demised Premises.
Tenant shall not use the Demised Premises or any part thereof, or permit the
Demised Premises or any part thereof to be used, for manufacturing, or for sale
at auction of merchandise, goods or property of any kind.
15. Tenant shall not obtain, purchase or accept for use in the Demised
Premises ice, drinking water, food, beverage, towel, barbering, boot blacking,
cleaning, floor polishing or other similar services from any persons not
authorized by Landlord in
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writing to furnish such services, provided always that the charges for such
services by persons authorized by Landlord shall not be excessive. Such services
shall be furnished only at such hours, in such places within the Demised
Premises, and under such regulations as may be fixed by Landlord. Tenant shall
not purchase or contract for waxing, rug shampooing, venetian blind washing,
furniture polishing, lamp servicing, cleaning of electric fixtures, removal of
garbage or towel service in the Demised Premises except from contractors,
companies or persons so approved by the Landlord.
16. Landlord shall have the right to prohibit any advertising or
identifying sign by Tenant which in Landlord's judgment tends to impair the
reputation of the Buildings or their desirability as buildings for offices, and
upon notice from Landlord, Tenant shall refrain from or discontinue such
advertising or identifying sign.
17. Landlord reserves the right (although it is specifically understood
that Landlord shall not be obligated under any circumstances) to exclude from
the Building during hours other than regular business hours and days all persons
who do not present a pass to the Building signed by Landlord. All persons
entering and/or leaving the Building during hours other than regular business
hours and days may be required to sign a register. Landlord will furnish passes
to persons for whom any tenant requests same in writing. Tenant shall be
responsible for all persons for whom Tenant requests such pass and shall be
liable to Landlord for all acts or omissions of such persons. Landlord's
providing of services during other than regular business hours and days shall
not be interpreted to mean that the Buildings are in operation during such
after-hours; and, in lieu of possible darkness, lack of activity and lack of
such services during such after-hours, Tenant may wish to take measures
regarding security of its invitees using the Demised Premises during other than
regular business hours and days.
18. Tenant, before closing and leaving the Demised Premises at any
time, shall see that the lights are turned off. All entrance doors in the
Demised Premises shall be left locked by Tenant when the Demised Premises are
not in use. Entrance doors shall not be left open at any time.
19. Unless Landlord shall furnish electrical energy hereunder as a
service included in the rent, Tenant shall, at Tenant's expense, provide
artificial light and electrical energy for the employees of Landlord and/or
Landlord's contractors while doing janitorial service or other cleaning in the
Demised Premises and while making repairs or alterations in the Demised
Premises.
20. The Demised Premises shall not be used for lodging or sleeping or
for any immoral or illegal purpose.
21. The requirements of Tenant will be attended to only upon
application at the office of the Buildings. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
22. Canvassing, soliciting and peddling in the Buildings are prohibited
and Tenant shall cooperate to prevent the same.
23. There shall not be used in any space, or in any lobbies, corridors,
public halls or other public areas of the Buildings, in the moving or delivery
or receipt of safes, freights, furniture, packages, boxes, crates, paper, office
material, or any other object or thing, any hand trucks except those equipped
with rubber tires, side guards, and such other safeguards as Landlord shall
require. No move or delivery of any object or thing of whatever nature, other
than light-weight objects hand-carried by not more than one person, shall be
made without at least 24 hours prior
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notice by Tenant to Landlord and without Tenant, prior to any such move or
delivery, laying (without affixation or attachment to any part of the floor or
floor covering) adequate masonite or plywood sheets covering all lobby,
corridor, public hall and other public area floors of the Buildings (whether
carpeted or terrazzo) over which such move or delivery shall take place.
24. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Demised
Premises which would annoy other tenants or create a public or private nuisance.
No cooking shall be done in the Demised Premises except as is expressly
permitted in the lease.
25. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by lowering and closing venetian blinds
and/or drapes and curtains when the sun's rays fall directly on the windows of
the Demised Premises.
26. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Buildings, when, in its judgment, it
deems it necessary or desirable for the reputation, safety, care or appearance
of the Buildings, or the preservation of good order therein, or the operation or
maintenance of the Buildings or the equipment thereof, or the comfort of tenants
or others in the Buildings. No recision, alteration or waiver of any rule or
regulation in favor of one tenant shall operate as a recision, alteration or
waiver in favor of any other tenant.
27. Tenant, its employees, agents, licensees, contractors and
subtenants shall not litter any public areas of the Real Property (including the
walkways and parking areas located thereon).
28. Landlord shall not unreasonably withhold its consent to the
installation, maintenance and operation by Tenant in the Demised Premises of
data processing machines, office duplicating machines, teletype machines and
other business machines and machinery customarily used in offices in the
ordinary course of business, provided however, that Tenant shall comply with all
other obligations of this lease that may be applicable to or result from such
installation, maintenance or operation.
29. Landlord shall not unreasonably withhold or delay from Tenant any
approval provided for in the Rules and Regulations.
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EXHIBIT "B"
STATEMENT OF TENANT IN RE:
Date:
Re: Address:
Your Appl. #
Gentlemen:
It is our understanding that you have committed to place a mortgage
upon the subject premises and as a condition precedent thereof have required
this certification by the undersigned.
The undersigned, as Lessee, under that certain lease dated __________,
made with _______________________ as Lessor, hereby ratifies the said lease and
certifies that:
1. the undersigned has entered into occupancy of the premises
described in said lease on __________________;
2. the undersigned is presently open and conducting business with
the public in the premises;
3. the minimum rental in the annual amount of $________________
was payable from the date of occupancy ;
4. that said lease is in full force and effect and has not been
assigned, modified, supplemented or amended in any way (except
by agreement(s) dated __________), and neither party thereto
is in default thereunder;
5. that the same represents the entire agreement between the
parties as to this leasing;
6. that the term of said lease expires on ____________________;
7. that all conditions under said lease to be performed by the
Lessor have been satisfied, including but without limitation,
all co-tenancy requirements thereunder;
8. all required contributions by Lessor to Lessee on account of
Lessor's improvements have been received;
9. on this date there are no existing defenses or offsets which
the undersigned has against the enforcement of said lease by
the Lessor;
10. that no rental has been paid in advance and no security (or in
the amount of $_______________) has been deposited with
Lessor;
11. that rental for _____________, 19__, has been paid.
Very truly yours,
______________________ (Tenant)
By:_________________________
(Title)
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