Exhibit 10.3
AGREEMENT OF LEASE
Property Address: 000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx
Xxxxxxxx: 125 Bethpage Associates
0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Tenant: Toymax Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Date: April 7, 1997
INDEX
Article Article Heading Page
------- --------------- ----
1 Premises and Term of Lease ...................................... 1
2 Definitions ..................................................... 7
3 Rent ............................................................ 12
4 Rent Adjustment ................................................. 13
5 Common Areas .................................................... 18
6 Electricity ..................................................... 20
7 Assignment, Mortgaging, Subletting, Etc. ........................ 22
8 Mortgages ....................................................... 28
9 Use ............................................................. 30
10 Quiet Enjoyment ................................................. 32
11 Brokerage ....................................................... 33
12 Compliance with Laws ............................................ 33
13 Insurance ....................................................... 35
14 Rules and Regulations ........................................... 38
15 Tenant Changes .................................................. 39
16 Discharge of Liens .............................................. 41
17 Tenant's Property ............................................... 42
18 Repairs and Maintenance ......................................... 43
19 Services and Functions .......................................... 45
20 Access, Changes in Building Facilities, Name .................... 48
21 Notice of Accidents ............................................. 50
22 Non-Liability and Indemnification ............................... 50
23 Destruction or Damage ........................................... 52
24 Eminent Domain .................................................. 54
25 Surrender ....................................................... 56
26 Bankruptcy, Conditions of Limitation ............................ 57
27 Re-Entry by Landlord ............................................ 59
28 Damages ......................................................... 60
29 Waivers ......................................................... 62
30 No Other Waivers or Modifications ............................... 62
31 Curing Tenant's Defaults, Additional Rent ....................... 63
32 Parties Bound ................................................... 65
33 Notices ......................................................... 66
34 Estoppel Certificate, Memorandum ................................ 68
35 Arbitration ..................................................... 68
36 No Other Representations, Construction,
Governing Law ................................................... 70
37 Antenna ......................................................... 71
38 Miscellaneous ................................................... 74
Exhibits
A - Landlord's Work Letter (first appearing on page 1)
B - Intentionally Omitted
C - Metes and Bounds Description
of the Land (first appearing on page 8)
D - Plan of Premises (first appearing on page 9)
E - Rules and Regulations (first appearing on page 38)
F - Cleaning and Rubbish Removal
Specifications (first appearing on page 47)
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AGREEMENT OF LEASE made as of the 7th day of April, 1997, between
125 Bethpage Associates, a New York limited partnership (hereinafter referred to
as "Landlord") and Toymax Inc., a New York corporation (hereinafter referred to
as "Tenant").
It is hereby mutually covenanted and agreed by and between the
parties hereto that this Lease is made for space within the Building known as
000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx, upon the agreements, terms,
covenants and conditions hereinafter set forth.
ARTICLE 1
Premises and Term of Lease
SECTION 1.01. Landlord does hereby demise and lease to Tenant, and
Tenant does hereby hire and take the Premises from Landlord;
TO HAVE AND TO HOLD for a term which shall commence on a date (the
"Commencement Date") which shall be the later to occur of May 1, 1997 and the
date on which the Premises shall be deemed to be ready for occupancy, and shall
expire on the last day of the seventh Lease Year unless the Term shall be sooner
terminated as provided pursuant to any of the provisions of this Lease or
pursuant to a Requirement. Notwithstanding the foregoing, this Lease shall be
null and void if the Commencement Date shall not have occurred by the last day
of the fifth year from the date hereof.
1.02. The work required of Landlord under Exhibit A annexed hereto
and made a part hereof ("Landlord's Work Letter"), a copy of which Tenant
acknowledges it has reviewed, is referred to in this Lease as the "Landlord's
Work". Except for Landlord's Work, Tenant shall accept the Premises "as is" on
the date hereof and Landlord shall not be required to perform any work, render
any services or furnish or install any materials, fixtures or equipment to the
Project or the Premises in order that the Premises be ready for occupancy.
If Landlord's Work shall not have been completed (subject to the
occurrence of a Tenant's Delay, as defined in Section 1.05 hereof, but without
regard to an event or condition within the purview of Sections 22.04 or 22.05
hereof) on or before April 21, 1997, Tenant as its sole remedy, on not less
than three Business Days' prior notice to Landlord, given subsequent to April
25, 1997, may complete Landlord's Work (other than with respect to HVAC Systems
servicing the Premises) if it
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shall not have been completed by Landlord prior thereto. If Tenant makes such
election, (a) the Commencement Date shall conclusively be deemed to have
occurred on May 1, 1997, notwithstanding anything to the contrary in this Lease,
including but not limited to the non-completion of Landlord's Work unless the
Premises are occupied by others (and provision for such occupancy does not
appear in this Lease), and (b) the remainder of Landlord's Work shall be
effected by Tenant in accordance with Article 15 hereof, provided, however, that
Section 15.03(k) shall not apply. Any amount reasonably paid by Tenant and
necessary to complete Landlord's Work shall be reimbursed by Landlord to Tenant
within thirty (30) days after demand made by Tenant subsequent to the
Commencement Date, together with Interest from and after the date such
reimbursement is due and payable. The foregoing demand shall be accompanied by a
statement from Tenant in reasonable detail specifying the amount required to be
paid by Landlord. If reimbursement is not received by Tenant in accordance with
the foregoing statement, Tenant's sole remedy shall be a right to offset the
amount to which Tenant is entitled, as aforesaid, against payments of Net Annual
Rent thereafter becoming due and payable. The term "Interest", as used in this
Lease, means two (2) percentage points plus the annual interest rate then
charged by The Chase Manhattan Bank to its most creditworthy customers for loans
in excess of one million dollars having a three (3) month term.
1.03. All installations, facilities, materials and work other than
Landlord's Work which may be undertaken by or for Tenant to equip, finish and
decorate the Premises for its initial occupancy by Tenant are hereinafter called
"Tenant's Work".
1.04. The Premises shall conclusively be deemed ready for occupancy
when Landlord's Work shall have been completed and exclusive (unless provision
for occupancy of the Premises by others appears in this Lease) possession of the
Premises shall have been tendered to Tenant. Such possession shall be deemed to
have been given when Landlord shall have truthfully notified Tenant that it is
making such tender. Landlord's Work shall conclusively be deemed to be completed
despite the fact that (y) minor or insubstantial details of construction,
decoration or mechanical adjustment remain to be performed or (z) portions
thereof, under good construction scheduling practices, should not be completed
until other uncompleted Tenant's Work is to be completed. Landlord will give
Tenant notice at least fifteen (15) days in advance of the date when Landlord
expects the Premises to be ready for occupancy by Tenant, but Landlord shall not
incur any liability whatsoever to Tenant in the event the Premises is not ready
for occupancy as set forth in such notice and no further notice shall be
required to be given by Landlord. Notwithstanding the occurrence of the
Commencement Date by reason of the application of the foregoing criteria,
Landlord shall
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complete any incomplete Landlord's Work with diligence thereafter. The
provisions of this Section 1.04 shall not be applicable if Tenant shall have
made the "self-help election" in the second paragraph of Section 1.02 hereof.
1.05. The date, for all purposes of this Lease, as of which
Landlord's Work shall conclusively be deemed to be completed shall be the date
on which Landlord's Work reasonably would have been completed except for delays
resulting from Tenant's failure (a) to comply with the provisions of this Lease,
or (b) an act or omission of Tenant (or its architects, engineers, contractors
or agents) which has the effect of delaying the completion of Landlord's Work
(any of the foregoing being a "Tenant's Delay").
1.06. If and when business operations within the Premises or any
part or parts thereof shall commence, it shall be conclusively presumed that the
Premises were ready for occupancy. The Premises will conclusively be deemed in
satisfactory condition as of the Commencement Date, unless within thirty (30)
days after such date, Tenant shall give Landlord notice specifying the respects
in which the Premises are not in satisfactory condition.
1.07. Landlord shall fix the Commencement Date and shall notify
Tenant of the date so fixed. When the Commencement Date has so been determined,
the parties thereafter, at Landlord's request, shall execute a written
instrument confirming such date as the Commencement Date. Within thirty (30)
days after Landlord shall have fixed the Commencement Date, as aforesaid, but
not thereafter, Tenant shall have the right to deliver a certificate to Landlord
specifying in reasonable detail the reasons why Tenant asserts that the
Commencement Date has not occurred. In the event that Tenant delivers said
certificate to Landlord within the specified thirty (30) day period, either
party shall have a period of thirty (30) days after such delivery to submit the
matter to Arbitration. Pending the determination of such dispute, Tenant shall
pay Rental based upon Landlord's determination that the Commencement Date has
occurred without prejudice to Tenant's position. If, after Arbitration, it is
determined that the Commencement Date was not the date so fixed by Landlord, any
payments made by Tenant to Landlord for periods prior to the proper Commencement
Date shall be credited by Landlord against Net Annual Rent first due thereafter
under this Lease.
1.08. Landlord, itself or through others engaged by Landlord, shall
prosecute the Landlord's Work to completion, in a good and workmanlike manner
and with reasonable diligence, in accordance with the Landlord's Work Letter.
Tenant will take all action and will not omit the taking of any action necessary
or
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advisable in order for Landlord to fulfill its obligations pursuant to the
preceding sentence. Landlord's Work shall be accomplished subject to and in
accordance with the following:
(a) Tenant acknowledges that Landlord has furnished Tenant
with a certificate of occupancy for the Premises (Certificate of Occupancy No. A
13735).
Landlord indemnifies and holds Tenant harmless, subject to the
provisions of Section 32.06 hereof, against all loss and damage, including
reasonable (i) attorney fees, (ii) roving expenses, and (iii) the monthly
marginal increase, if any, in Rental for similar alternate premises in the area,
resulting from a Governmental Authority or a party entitled to do so pursuant to
the Covenants and Restrictions contained in Liber 6921 cp. 325, preventing
Tenant from occupying any part of the premises as a general and executive office
solely by reason of the failure of Landlord to obtain any Approval requisite to
such occupancy.
(b) Whether a Tenant's Delay has occurred and the extent of
any claimed Tenant's Delay shall be determined in the following manner:
Landlord shall notify Tenant of its claim that a Tenant's
Delay has occurred and the estimated length of any claimed Tenant's Delay within
a reasonable time after the information necessary to ascertain the existence of
or to estimate the length of such delay is available (which notice shall include
the reasons for Landlord's estimate) and the existence of and the length of such
Tenant's Delay shall be deemed to be as so stated and/or estimated unless,
within ten Business Days after the giving of such notice, Tenant shall notify
the Landlord of any disagreement therewith (including Tenant's reasons
therefor). If a dispute shall be unresolved with respect to whether and/or to
what extent there was a Tenant's Delay such dispute shall be resolved by
Arbitration. Pending resolution of said dispute, the parties shall proceed in
accordance with Landlord's estimate and the provisions of this Lease. Either
party may initiate such Arbitration by a notice to the other demanding
Arbitration and setting forth the nature of the dispute.
(c) Tenant agrees that if substantial completion of Landlord's
Work or the occurrence of the Commencement Date is delayed by any Tenant's
Delay, Tenant shall, in addition to other rights and remedies of Landlord, pay
the costs and damages Landlord may sustain by reason of such Tenant's Delay,
which amount shall not exceed the amount of Net Annual Rent and Additional Rent
that Landlord may lose by reason of such delay as
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well as any other actual loss that Landlord may suffer by reason thereof.
(d) Landlord shall be deemed to have adhered to Landlord's
Work Letter, notwithstanding that Landlord shall make changes in Landlord's Work
required by a Requirement or field conditions or which do not, to a noticeable
extent, adversely affect the Premises or Tenant's use or occupancy thereof; and
all such changes shall be accepted by Tenant.
(e) Notwithstanding anything in this Lease to the contrary,
Tenant shall have no right to make changes in Landlord's Work without Landlord's
prior written consent, which consent may be arbitrarily withheld.
(f) Landlord recognizes the confidence placed in it by Tenant
pursuant to this Section 1.08 and agrees to furnish its skill and judgment in
furthering the provisions of this Section 1.08 and to perform or cause the
performance of Landlord's Work in what Landlord considers to be the best and
soundest way and in an expeditious and economical manner consistent with the
respective interests of Landlord and Tenant, as reflected in this Lease.
(g) Landlord will have no obligation to commit more personnel,
facilities or material to complete Landlord's Work then is commonly committed to
like work performed in the ordinary course or to perform Landlord's Work during
other than Regular Hours. The provisions of the preceding sentence will apply,
amongst others, to situations relating to Tenant's Delay.
(h) Tenant shall have the right of reasonable access to the
Premises to inspect Landlord's Work, subject to the limitations and obligations
imposed on Tenant and its employees, contractors, agents and representatives in
respect thereof elsewhere in this Lease. Landlord or its representatives will
meet with Tenant and its representatives at reasonable times, intervals and
places to discuss all aspects of Landlord's Work which Tenant reasonably
requires.
1.09. Landlord's Work shall be performed by Landlord at Landlord's
expense and without contribution by Tenant except that Tenant has paid Landlord
Fifty Two Thousand Five Hundred ($52,500.00) Dollars, i.e., $2.63 multiplied by
the Area of the Premises, ("Tenant's Contribution") as Tenant's contribution
toward the cost of Landlord's Work and the commission payable to the Broker.
[see Article 11 herein.]
1.10. Tenant (which term as used in this Section 1.10 shall
include agents, contractors, employees and invitees of
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Tenant) shall be entitled to access to the Premises prior to the Commencement
Date for the purpose of performing Tenant's Work.
Tenant's Work shall be performed by Tenant in accordance with the
provisions of Article 15 hereof (including Section 15.03 (d)) as though Tenant's
Work was Tenant Changes, provided however, that in addition to the provisions of
Article 15 hereof, Tenant's Work shall be performed in accordance with the
following:
(a) Performance of Landlord's Work shall have reached a point
where performance of Tenant's Work, in Landlord's reasonable judgment, will not
delay or hamper Landlord in the completion of Landlord's Work.
(b) Neither Tenant's Work nor performance thereof shall
conflict with the prosecution of Landlord's Work or violate Requirements.
(c) Landlord reserves the right to deny Tenant access to the
Premises and/or to request Tenant to withdraw therefrom and cease all work being
performed by it or on its behalf by any person, firm or corporation other than
Landlord, if Landlord shall, in its reasonable judgment, determine that such
entry or the commencement and/or the continuance of Tenant's Work shall
interfere with, hamper or prevent Landlord from proceeding with the completion
of the Premises and/or Landlord's Work at the earliest possible date. Any
dispute with respect to the provisions of this Section 1.10(c) shall be resolved
by Arbitration. Pending resolution of said dispute, Tenant shall comply with
Landlord's denial and request to withdraw. Either party may initiate Arbitration
by a notice to the other demanding Arbitration and setting forth the nature of
the dispute.
(d) Tenant agrees that should the Tenant enter upon the
Premises for the purpose of performing Tenant's Work (as well as anytime during
the Term, Tenant Changes), the labor employed by Tenant or anyone performing
such work for or on behalf of Tenant shall always be harmonious and compatible
with the labor employed by Landlord or any contractors or subcontractors of
Landlord. Should such labor cause a "labor problem" with Landlord's labor,
Landlord may require Tenant to withdraw from such Premises until such condition
no longer exists.
(e) In the event Tenant shall enter upon the Project,
inclusive of the Building and the Premises, prior to the Commencement Date,
unless and to the extent Landlord is entitled to and receives compensation from
its insurance carrier and such insurance carrier shall have granted Tenant, by
name or generally, a waiver of subrogation with regard thereto, Tenant
6
agrees to indemnify and save Landlord harmless, from and against any and all
claims, losses, liabilities and damages arising from such entry or attributable
to Tenant's acts, omissions or negligence while within the Project or any part
or parts thereof.
(f) Any entry by Tenant, its agents, contractors, employees
and invitees, in or on the Project prior to the Commencement Date shall be at
Tenant's sole risk, except for the wilful acts or negligence of Landlord or its
employees, agents and contractors.
1.11. Landlord and Tenant further agree that, except for breach of
the following warranty, any failure to have the Premises ready or available for
occupancy by Tenant on the Commencement Date, as aforesaid, shall not affect the
obligations of the Tenant under this Lease, and the Commencement Date shall be
established pursuant to the other provisions of this Lease at such time as the
Premises are ready and available for occupancy by Tenant. Landlord warrants that
the Premises are vacant and no third party has or will have any occupancy rights
in respect thereof, unless provision for occupancy of the Premises by third
parties appears in this Lease.
1.12. The pertinent provisions of this Article 1 shall be deemed to
be an express provision to the contrary under Section 223-a of the Real Property
Law of the State of New York and any other law of like import now or hereafter
in force.
ARTICLE 2
Definitions
SECTION 2.01. The terms defined in this Article shall, for all
purposes of this Lease and all agreements supplemental hereto, have the meaning
herein specified.
(a) "Approvals" shall mean all licenses, permits, permissions
and approvals from a Governmental Authority, if any, necessary (i) to commence
and to prosecute Landlord's Work, Tenant's Work, or Tenant Changes, as the case
may be, to completion and (ii) to enable Tenant to legally use or occupy the
Premises as contemplated by this Lease.
(b) "Arbitration" shall have the meaning referred to in
Article 35 of this Lease.
(c) "Area of the Building" shall mean the rentable square foot
area of the Building (which the parties have agreed shall be deemed to be 40,000
rentable square feet) and "Area of
7
the Premises" shall mean the rentable square foot area of the premises (which
the parties have agreed shall be deemed to be 20,000 rentable square feet).
Should it become necessary to recalculate the Area of the Building or the Area
of the Premises by reason of a change therein hereafter occurring, such
calculation shall be made by adding any increase and subtracting any decrease in
rentable square feet of space specified in the first sentence hereof. The number
of square feet of rentable square feet to be added to or subtracted from the
area specified in the first sentence hereof shall be determined pursuant to the
"Standard Method of Floor Measurement for Office Buildings", then current, of
the Real Estate Board of New York, Inc. (except that space excluded thereunder
shall be included in determining the Area of the Premises, if such space is
available for the benefit of Tenant, but not for the benefit of occupants of
other rentable area within the Buildings), and dividing the resultant
calculation of square foot area by 0.82. In no event, except for events and
conditions arising by reason of a Taking (defined in Artic1e 19 hereof), shall
the Proportionate Share (as hereafter defined) be increased by reason of the
provisions hereof.
(d) "Building" shall mean the building of which the Premises
are a part, and "Buildings" shall mean all buildings (including the Building) at
the time located on the Land.
(e) "Governmental Authority" shall mean the United States, the
State in which the Premises are located, and any political subdivision thereof,
and any agency, department, commission, board, bureau or instrumentality of any
of them, and, except in the calculation of Taxes, any regulatory body such as a
Board of Fire Underwriters.
(f) "Improvements" shall mean the Building and other
improvements (including buildings) now or hereafter on the Land.
(g) "Land" shall mean the parcel of land described in Exhibit
C annexed hereto and made a part hereof. Landlord reserves the right to increase
or decrease the area of the Land, provided that in so doing the rights of Tenant
under this Lease, including those pertaining to parking spaces, are not
materially adversely affected to a significant extent.
(h) "Landlord" shall mean only the owner, for the time being,
or the mortgagee in possession, for the time being of the Project (or the owner
of a lease of the Project), so that in the event of any conveyances, transfers
or assignments of said Project or of said lease, or in the event of a further
lease of the Project, the said Landlord shall be and hereby is entirely freed
and relieved of all covenants and obligations of Landlord hereunder (the
"Relieved Clause"), and it shall be deemed and
8
construed without further agreement between the parties or their successors in
interest, or between one or both of the parties and the grantee, transferee or
assignee, or the lessee of the Project, that the grantee, transferee or
assignee, or the lessee of the Project has assumed and agreed to carry out any
and all covenants and obligations of Landlord, hereunder. The Relieved Clause
shall not be construed to relieve an insurer from any responsibility which such
insurer otherwise might have under any insurance policy which Landlord maintains
with respect to the Project and any such construction is expressly negated.
(i) "Lease" shall mean this instrument as it hereafter may be
amended.
(j) "Lease Year" shall mean a period of twelve consecutive
full calendar months. The first Lease Year shall begin on the Commencement Date
if the Commencement Date shall occur on the first day of the calendar month,
and, if not, then the first Lease Year shall commence on the first day of the
calendar month next following the Commencement Date. Each succeeding Lease Year
shall commence on the anniversary date of the first Lease Year. Any portion of
the Term which is less than a full Lease Year, such as a period from the
Commencement Date to and including the last day of the month in which it occurs
or a period at the end of the Term arising by reason of an early termination for
whatever reason of the Term, shall be deemed a partial Lease Year, and all of
the provisions of this Lease, relating to a Lease Year, including the payment of
Net Annual Rent, shall be applicable to a partial Lease Year on a pro rata
basis, so to speak, determined by a fraction, the numerator of which is the
number of days within the partial Lease Year and the denominator of which is
360.
(k) Intentionally Omitted
(l) Intentionally Omitted
(m) "Net Annual Rent" shall have the meaning ascribed to it in
Article 3 hereof.
(n) "Premises" shall mean the space hatched on the plan
annexed hereto as Exhibit D and made a part hereof, together with all fixtures
and appurtenances now or during the Term attached or otherwise affixed thereto
except Tenant's Property which may be removed pursuant to the provisions of
Article 17 of this Lease. Common Areas within the Premises (such as staircases)
do not constitute a part thereof.
(o) "Project" shall mean the Land and the Improvements.
9
(p) "Proportionate Share" shall mean a fraction, stated as a
percentage, the numerator of which is the Area of the Premises and the
denominator of which is the Area of the Building. The percentage so attained is
limited by the last sentence of Section 2.01(c) hereon. At present, the
Proportionate Share is 50%.
(q) "Rental" shall have the meaning ascribed to it in Article
3 hereof.
(r) Intentionally Omitted
(s) "Requirement" shall mean any law, ordinance, order, rule
or regulation, now existing or hereafter enacted, of a Governmental Authority,
which imposes a duty or obligation on Landlord or Tenant or both of them.
(t) "Taxes" shall mean (i) all or any (A) taxes, (B)
betterment assessments for future offsite improvements only, (C) subject to (B)
preceding, but only when specifically applicable, water and sewer rents, taxes
or charges and (D) levies, general or special, ordinary or extraordinary,
unforeseen or foreseen, of any kind or nature whatsoever, which are or may be
assessed, levied or imposed by a Governmental Authority in respect of all or any
part of the Project, its equipment and other personal property, additions and
improvements thereto, wherever located, now existing or hereafter occurring, and
whensoever made or whomsoever benefitting, and the sidewalks, streets or other
public areas in front of or adjacent thereto, including any tax, excise or fee
measured by or payable with respect to Rental and/or the Project or any part
thereof not payable pursuant to Section 4.16 of this Lease, and (ii) any
reasonable expenses incurred by or on behalf of Landlord in contesting any item
set forth in clause (i) of this sentence or the assessed valuations of all of
any part of the Project. If, due to a future change, a new or additional
franchise, income, profit or other tax, assessment, excise or imposition,
however designated, shall be levied against Landlord, and/or the Project or any
part thereof, in addition to, or in substitution, in whole or in part, for any
tax, assessment, excise or imposition which would constitute "Taxes", such tax,
assessment, excise or imposition shall be deemed for the purposes hereof to be
included within the term "Taxes", and further provided that such substituted
item of taxation shall be determined as if the Project were the only asset of
Landlord. If it can be readily determined, the burden of proof thereon being on
Tenant, that an income tax imposed by the State of New York or any political
subdivision thereof, including but not limited to the Village of Plainview,
hereafter shall be reduced or eliminated in whole or in part and (i) replaced by
a tax imposed on commercial real estate, or (ii) a tax imposed on rents, such
tax shall not be a
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Tax within the definition of Taxes. For the purposes of the definition of Taxes,
(i) tax equivalent payments (or payments in lieu of Taxes), so-called, pursuant
to a ground lease or otherwise, attributable to the non-applicability in whole
or in part of Taxes to the Project or any part thereof shall, for all purpose
under this Lease, nonetheless be deemed "Taxes" and (ii) if any specific
assessment may be paid in installments pursuant to a Requirement, then, for the
purposes hereof, such specific assessment shall be deemed to be payable in the
maximum number of installments permitted by such Requirement. The term "Taxes"
does not include penalties, and/or interest except as otherwise provided in
Section 4.07 hereof, federal, state or local income, inheritance, gift, deed or
transfer taxes, or, taxes imposed by a Governmental Authority on the Project
(and not generally) to effect repayment to it of advances, in cash or in kind,
and interest on such advances, made by such Governmental Authority to remediate
an environmental condition or fund infrastructure improvements on, under or
within the Project.
(u) "Tax Year" shall mean a period of twelve (12) months now
or hereafter adopted as the fiscal year for the payment of any Taxes by a
political subdivision in which any part of the Land is located, it being
recognized that there may be multiple Tax Years by reason of the nature of any
such Taxes or the multiple identities of respective political subdivisions, or
otherwise.
(v) "Tenant" shall mean the party above named as Tenant and
all of the persons, firms, corporations and other parties comprising Tenant, and
any successor to Tenant; and whenever this Lease and the leasehold estate hereby
created shall be assigned or otherwise transferred in the manner specifically
permitted herein, then from and after such assignment or transfer, the term
"Tenant" shall also include the permitted assignee or transferee named therein,
as if such assignee or transferee had been named herein as Tenant.
(w) "Term" shall mean the term of years from and after the
Commencement Date as specified in Section 1.01 hereof.
(x) "Regular Hours" shall mean 8:00 A.M. to 6:00 P.M. on
Business Days.
(y) "Business Days" shall mean all days other than Saturday,
Sunday and days observed as a holiday by a bank which is a member of the New
York Clearing-house Association.
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ARTICLE 3
Rent
SECTION 3.0l. Tenant shall pay to Landlord at 0000 Xxxxxxx Xxxxxxxx,
Xxxxxxx, Xxx Xxxx 00000, or such other place as shall be designated from time to
time by notice from Landlord to Tenant, a Net Annual Rent at an annual rate as
follows:
Lease Year Net Annual Rent
---------- ---------------
1 $315,000.00
2 $324,450.00
3 $334,183.50
4 $344,209.00
5 $354,535.28
6 $365,171.33
7 $313,620.00
Net Annual Rent shall be payable in equal monthly installments, in advance, on
the first day of each month during the Term.
3.02. Tenant shall pay the Rental by its good and sufficient check
(subject to collection) drawn on a bank located within the State of New York.
3.03. In addition to the Net Annual Rent, Tenant shall also pay all
sums, costs, expenses, payments and deposits required of Tenant pursuant to the
terms of this Lease, and, in the event of any nonpayment of any of the foregoing
(hereinafter sometimes singularly or collectively referred to as "Additional
Rent") Landlord shall have (in addition to all other rights and remedies) all
the rights and remedies provided for in this Lease or by any Requirement in the
case of nonpayment of the Net Annual Rent.
3.04. Intentionally omitted.
3.05. All of the amounts payable by Tenant pursuant to this Lease
are sometimes herein referred to collectively as "Rental". All Rental, except as
specifically provided to the contrary in this Lease, shall be paid by Tenant as
provided in this Lease, without notice or demand, and without abatement,
deduction, counterclaim or set-off.
3.06. If Tenant shall fail to pay Landlord any item of Rental within
ten (10) days after such item is due, then Tenant shall also pay to Landlord,
promptly on demand, the greater of (a) interest upon the aforesaid sum at an
annual rate which shall be the lesser of (i) 2% plus the prime commercial
lending rate of
12
Citibank N.A. for 90 day unsecured loans then in effect, or (ii) the maximum
rate allowed by law, (b) $.05 for each dollar of the sum so due (applicable only
if the failure occurs more than once in any twelve month period), and (c)
$100.00. The interest provided for in subdivision (a) shall be payable for the
period commencing when the said unpaid sum was due and ending when the said sum
is paid.
3.07. If the Commencement Date occurs on other than the first day of
a calendar month, the Net Annual Rent for the calendar month in which the
Commencement Date occurs shall be prorated by a fraction, the numerator of which
is the number of days in such month within the Term, and the denominator is the
number of days within such month.
3.08. Tenant shall pay the first monthly installment of Net Annual
Rent on the execution of this Lease. If the Commencement Date is other than the
first day of a calendar month, the portion of such payment attributable to the
portion of such calendar month prior to the Commencement Date shall be credited
against the payments of Rental first occurring thereafter.
ARTICLE 4
Rent Adjustment
SECTION 4.01. If the Taxes payable for any Tax Year exceeds the Tax
Base, Tenant shall pay to Landlord, as Additional Rent for such Tax Year, an
amount ("Tenant's Tax Payment") equal to the Tenant's Proportionate Share of
such excess. The term "Tax Base" means the Taxes due and payable to one or more
Governmental Authorities without penalty or interest within the Tax Year
commencing January 1, 1997 with respect to General Taxes and July 1, 1997 with
respect to School Taxes imposed by the village of Plainview (the "Tax Base
Year"). Tenant has been made aware that hereafter the Tax Base may be reduced
and such reduction will result in an increase in Tenant's Tax Payment for Tax
Years subsequent to the Tax Base Year for which Tenant will be responsible and
will pay as provided in Section 4.14 hereof. Any increase in the assessed value
of the Project first effective with respect to any of the General Tax or the
School Tax immediately subsequent to the Tax Base Year of such tax and prior to
the third Tax Year after the Tax Base Year of such tax, shall not be recognized
in computing Taxes, to the extent that in each such Tax Year, the increase in
assessed value of the Project is in excess of the average increase in assessed
value for commercial office rental properties within the village of Plainview,
the burden of proof with respect to such increase
13
being on Tenant. Tenant's Tax Payment with respect to a Tax Year (or if Taxes
are payable in installments, the portion of Tenant's Tax Payment necessary to
pay such installment) shall be due and payable one month prior to the last day
on which Taxes or any installment thereof within such Tax Year is due and
payable to a Governmental Authority without penalty or interest. With reasonable
promptness after the Taxes for a Tax Year become known, Landlord shall furnish
Tenant with a statement (an "Escalation Statement") which shall specify the Tax
Base, the Taxes for the Tax Year to which the Escalation Statement pertains,
Tenant's Tax Payment for such Tax Year, the payment in respect thereof required
of Tenant, and if not previously furnished to Tenant, reasonable evidence of the
payment of Taxes (inclusive of interest and penalties thereon) for the preceding
Tax Year. Promptly after request made of Landlord by Tenant, Landlord will
furnish Tenant, if and when available, with a copy of the Tax Xxxx for the Tax
Year for which payment is required of Tenant. In no event shall a Tenant's Tax
Payment be due and payable by Tenant prior to twenty (20) days after Landlord
shall have furnished Tenant with the foregoing Escalation Statement with regard
to such Tenant's Tax Payment or the applicable portion thereof, establishing
that Taxes for the preceding Tax Year shall have been paid. If Tenant's Tax
Payment or any installment with respect to it is due and payable within sixty
(60) days after Landlord's receipt of a Tax xxxx for the applicable Tax Year, it
shall be sufficient if Landlord, in determining Tenant's Tax Payment, shall
utilize the latest available assessment valuation, multiplied by the latest
available tax rate. Promptly after the Tax rate and/or assessed valuation is
established for the period encompassed by Tenant's Tax Payment, Taxes shall be
recomputed by Landlord and any increase in Tenant's Tax Payment shall be due and
payable within thirty days after received by Tenant of a xxxx for such
deficiency, and any overpayment shall be refunded to Tenant within the same
thirty (30) day period, and if not so refunded, Tenant may deduct such refund
amount with Interest from the next installments of Net Annual Rent until all of
the foregoing shall have been paid in full.
4.02. Intentionally Omitted.
4.03. Tenant's Tax Payment for a Tax Year, only a part of which is
included within the Term, shall be apportioned so that Tenant shall pay the
portion thereof which the portion of the Tax Year within the Term bears to the
entire Tax Year, except that, at Landlord's option, if the Commencement Date
does not occur on the first day of a Tax Year, the first Tax Year shall also
include the period from the Commencement Date to the day preceding the first day
of the first Tax Year.
4.04. Intentionally Omitted.
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4.05. The benefit of any discount for the early payment or
prepayment of Taxes shall not be subtracted in determining Taxes and Tenant's
Tax Payment.
4.06. Except as specified in the following paragraph of this Section
4.06, Tenant shall not institute or maintain any action, proceeding or
application in any court or with any Governmental Authority or otherwise for the
purpose of changing the Taxes.
If Tenant requests, in writing, that Landlord seek a reduction in
the assessed valuation of the Project for a Tax Year specified in such notice at
least sixty days prior to the last date by which Landlord can do so, and
Landlord is not prevented, barred or estopped by agreement or arrangement with a
Governmental Authority or a Requirement from complying with such request and
provided further that Tenant indemnifies and holds Landlord harmless from any
costs and expenses, including reasonable attorneys fees in connection therewith,
Landlord shall comply with such request. Alternatively, if Landlord, within
thirty (30) days prior to the last date on which such action may be taken
notifies Tenant that it elects not to seek such reduction, Tenant may undertake
the appropriate action to do so at Tenant's sole cost and expense, in which case
Landlord shall cooperate with Tenant promptly and timely and provide Tenant with
any necessary information and execute any and all documents required in
connection thereto. Tenant may deduct its reasonable attorneys' fees and
expenses from any award derived from such action less its proportionate Share
thereof, prior to remitting the balance of the award to Landlord. Tenant shall
have no right to settle any such proceeding without first obtaining Landlord's
consent which will not be unreasonably withheld or delayed. Landlord shall not
be deemed unreasonable if it withholds its consent to a settlement which
provides for a covenant on the part of Landlord not to seek a reduction in the
Project's assessed valuation in subsequent years, but if it does so consent,
reasonable attorney's fees and expenses will be amortized on a straight line
basis over the number of Tax Years for which the increase in assessed value is
barred, and paid by Landlord to Tenant on the first day of each Tax Year, and if
not so paid, be deducted by Tenant from the next ensuing payment of Net Annual
Rent and Interest therefrom, until paid in full.
4.07. If, by reason of the failure of Tenant to pay Tenant's Tax
Payment to Landlord when due, a Governmental Authority or a Mortgagee imposes a
penalty or requires a penalty to be paid in respect of Taxes, then Tenant shall
be responsible in full, and without regard to the application of Tenant's
Proportionate Share for the payment of such penalty or interest, or both, to
Landlord, on demand, as Additional Rent. If one or more tenants within the
Building, including Tenant, shall be past
15
due on the payment of Taxes, the obligation hereunder shall be appropriately
adjusted and determined.
4.08 If Landlord shall receive a refund of Taxes for any Tax Year,
Tenant shall be entitled to a prompt refund of Tenant's Proportionate Share of
the portion of the refund attributable to Tenant's Tax Payment for such Tax
Year. Similarly, should Taxes for the Tax Base Year be reduced, no increase in
Tenant's Tax Payment attributable thereto shall be sought or obtained by
Landlord for any Tax Year which is more than three Tax Years prior to the Tax
Year in which such reduction was vested by action at law, settlement or like
proceeding. The provision hereof shall survive the expiration or sooner
termination of the Lease.
4.09. If it readily can be determined that in any Tax Year, an
increase in Taxes is attributable to improvements made by or for the benefit of
Tenant (other than Landlord's Work or other work required of Landlord
hereunder), Landlord, on notice to Tenant detailing the calculation, may in its
sole and absolute discretion, but need not, charge such increase or any part
thereof to Tenant, but if so charged, the amount of such charge shall be
deducted from Taxes and added to Tenant's Tax Payment. Should it subsequently be
determined by litigation, compromise or otherwise, including the withdrawal in
whole or in part of such election, that such charge or any part thereof was
erroneously made or attributable, the amount of such error shall be added back
to Taxes for such Tax Year and Tenant's Tax Payment shall be appropriately
reduced. Each such election made by Landlord shall be applicable only for the
Tax Year with regard to which it is made, and the making of such election by
Landlord, whether with respect to Tenant or another tenant, shall not require
the making of such election for any other Tax Year.
4.10. If it readily can be determined that in any Tax Year, an
increase in Taxes is attributable to improvements made by or for the tenant of
any premises within the Building other than the Premises (the "Improvement
Portion"), Tenant shall be entitled to a deduction in Tenant's Tax Payment for
such Tax Year and for any applicable subsequent Tax Year equal to the increase
in Taxes attributable to the Improvement Portion, multiplied by Tenant's
Proportionate Share, provided it shall make a demand therefor within one year of
such Tax Year and each applicable subsequent Tax Year. The burden of proof with
respect to all of the foregoing shall be on Tenant, and any dispute with respect
to the subject matter of this Section 4.10 shall be resolved by Arbitration.
Pending determination of such dispute, Tenant's Tax Payment shall be paid by
Tenant without any deduction attributable to the Improvement Portion. If, after
Arbitration, it is determined that Tenant is entitled to a reduction in Tenant's
Tax Payment which is attributable to the Improvement
16
Portion, any payments with respect thereto shall be payable to Tenant by
Landlord within thirty (30) days after Tenant shall furnish Landlord with a
certified copy of the Arbitrators' award.
4.11. Intentionally Omitted
4.12. Intentionally Omitted
4.13. Intentionally Omitted
4.14. Landlord's failure to render an Escalation Statement with
respect to any Tax Year shall not prejudice Landlord's right to thereafter
render an Escalation Statement with respect to such Tax Year or with respect to
any subsequent Tax Year, and Landlord may render one or more revised Escalation
Statements with respect to any Tax Year. Notwithstanding the foregoing, an
Escalation Statement first tendered more than two years after the date specified
in this Lease for its expiration shall be of no force or effect.
4.15. Each Escalation Statement shall be conclusive and binding upon
Tenant unless within ninety (90) days after receipt of such Escalation
Statement, Tenant shall notify Landlord that it disputes the correctness of such
Escalation Statement, specifying the particular respects in which such
Escalation Statement is claimed to be incorrect. Any dispute relating to an
Escalation Statement must be submitted to Arbitration within one hundred twenty
(120) days after the giving of such Escalation Statement. Pending such
determination, Tenant shall pay the disputed charge. If, after Arbitration, it
is determined that Tenant is entitled to a refund, such refund and any interest
thereon shall be credited by landlord against Net Annual Rent thereafter
becoming due and payable under this Lease until such refund and Interest thereon
shall have been paid in full.
4.16. Tenant shall pay to Landlord, as Additional Rent, any
occupancy tax or rent tax or any separate tax attributable to this Lease or the
leasehold estate created hereby or any investment or installation made by Tenant
in respect of the Premises or any personal property owned or used by Tenant in
or in connection with the Premises (including but not limited to Tenant's
Property) whether the same is now or hereafter in effect, required to be
primarily or secondarily paid by Landlord, either directly or as a lien or
charge against the Project or any part or parts thereof. Such tax shall be paid
by Tenant on the later to occur of (a) twenty (20) days after Tenant shall have
received a notice in reasonable detail requiring such payment and (b) thirty
days prior to the date such tax is payable to the Governmental Authority
imposing or entitled to such payment. The provisions of this Section 4.16 shall
not apply to a tax within the purview of the third sentence of Section 2.01(t).
Any tax
17
which is payable by Tenant under this Section 4.16 shall ipso facto be excluded
from the definition of Taxes in Section 2.01(t), and any tax which would be
payable by any other tenant in the Project if such tenant's lease contained the
equivalent of this Section 4.16, shall likewise be excluded from the definition
of Taxes in Section 2.01(t) of this Lease. No Tax otherwise payable under this
Section 4.16 shall be payable by Tenant if it is readily determinable (the
burden of proof being on Tenant) that the tax in question is (y) in lieu of an
income tax on the Landlord or (z) is in lieu of a Tax which would otherwise be
within the definition of Taxes in Section 2.01(t), in which latter event, the
Tax in question shall remain in the definition of Taxes in Section 2.01(t).
4.17. Landlord and Tenant's obligations under this Article 4 shall
survive the expiration or earlier termination of the Term.
4.18. In no event shall the Net Annual Rent ever be reduced by
operation of this Article 4.
ARTICLE 5
Common Areas
SECTION 5.01. The Project now contains areas (referred to in this
Lease as "Common Areas") such as, by way of illustration, parking areas and
driveways, an exercise facility, common corridors, landscaped areas, lobbies and
public rest rooms, for utilization as provided in Section 5.03 hereof. Tenant
agrees that Landlord, in its discretion, may, at any time and from time to time,
without diminution in the Rental, increase, reduce, change or eliminate the
number, type, size, location, elevation, nature and use of any of the Common
Areas or the facilities therein or the amenities constituting a part thereof,
provided, however, that in so doing, Landlord does not materially and adversely
affect (a) access to and from the Premises and the Common Areas, (b) access to
and from East Bethpage Road and the parking spaces reserved for Tenant as
provided in the third sentence of Section 5.05 hereof, (c) Tenant's use of the
Premises pursuant to the first paragraph of Section 9.01 hereof, (d) Tenant's
use of the parking spaces referenced in (b) preceding within the Common Areas,
(e) the location of Tenant's access to the men's and women's lavatory now in
closest proximity to an interior entrance door to the Premises, or (f) the
location of Tenant's access to the exercise facility referenced in the paragraph
following.
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Throughout the term, Landlord shall keep the existing exercise
facility within the Building open for the use of Tenant and other Building
tenants and their employees and shall maintain it at its existing level in
accordance with non-discriminatory, as applied to Tenant, rules and regulations
imposed by Landlord with respect to such exercise facility, provided, however,
that no such rule or regulation shall impose a charge and limit the days or
hours of such use. Nothing herein contained shall be deemed to create third
party beneficiary rights in others including other Building tenants. While
Landlord shall not offer the use of the exercise facility to others, it shall be
under no obligation to effect or attain such exclusive use and shall have no
accountability if such result is not attained.
5.02. Landlord shall light, clean, maintain, repair and, if and to
the extent necessary, make replacements to portions of the Common Areas so that
the respective elements therein may be used for their intended purposes in a
manner consistent with operating procedures generally followed in similar
non-governmental and non-institutional projects in the area of the Project.
5.03. Tenant and its employees and invitees shall have the
non-exclusive right, in common with other tenants and occupants within the
Project and their respective employees and invitees and Landlord and its
employees, agents and contractors, to use the Common Areas for their intended
purposes, subject to such reasonable and non-discriminatory, to Tenant, rules
and regulations as Landlord may from time to time adopt with regard to the
Common Areas. Landlord will not grant the right to use any of the Common Areas
to anyone other than parties referenced in the preceding sentence. Tenant
further agrees, after receiving notice thereof, to abide by such rules and
regulations and to use reasonable efforts to cause its employees and invitees to
conform thereto. Landlord may at any time temporarily close any part of the
Common Areas (including the exercise facility referenced in Section 5.01
preceding), to make repairs or changes or to prevent (a) the use thereof by
persons who are not Permitted Users or (b) the acquisition of public rights in
any such area, and may act in and with respect to the Common Areas as it in its
judgment determines may be necessary or desirable.
5.04. Notwithstanding anything in this Lease contained to the
contrary, Tenant agrees that it will not use, or permit, or suffer the use by
its employees or invitees of (i) areas, within the Common Areas not designated
as parking spaces for parking or (ii) parking spaces for other than passenger
automobiles.
5.05. Landlord agrees that, subject to the provisions of Article 24
hereof, it will provide and maintain, as part of
19
the Common Areas (and without specific charge therefor), a parking area within
the Project containing parking spaces at least equal to the product obtained by
multiplying the Area of the Building by five (5) and dividing that product by
1,000. Tenant shall be entitled to utilize such parking spaces in common with
Landlord and other tenants of the Building, inclusive of their contractors and
agents and their respective employees, and future invitees. Tenant shall have
the right to place its name within up to twenty (20) parking spaces identified
on Exhibit D hereto in the manner designated by Landlord to be the standard for
such designation. Landlord shall have no responsibility to take any action to
effect or attain such exclusive use for Tenant and shall have no accountability
if such result is not attained.
5.06. Tenant shall have the right for a period of six (6)
consecutive months from the Commencement Date to keep a trailer within such
portion of the parking area of the Project as may be designated by Landlord in
its sole and arbitrary discretion. The foregoing trailer shall be used solely
for the purpose of storing Tenant's merchandise and at all times shall be under
the sole and exclusive control of Tenant which hereby indemnifies and exonerates
Landlord from all loss, liability, claim, damage and costs, including reasonable
attorneys' fees relating to the trailer and its contents except if caused by
Landlord's gross negligence or wilful misconduct.
ARTICLE 6
Electricity
SECTION 6.01. Landlord has and reserves the exclusive right to and
shall (a) select one or more entity companies each an ("Electric Company") to
provide electrical service to the Project and (b) furnish electric current to
the Premises, inclusive of the HVAC Systems furnishing HVAC Services to the
Premises on a submetering basis and Tenant agrees to purchase such electric
current from Landlord or Landlord's designated agent at terms and rates set,
from time to time, during the Term by Landlord. Tenant shall not be required to
pay Landlord more than the amount calculated by applying to the measured demand
and/or usage of electric current in or furnished to the Building, the average
rate per unit of measurement, inclusive of applicable taxes, surcharges, demand
charges, energy charges, fuel adjustment charges, time of day charges and other
charges, payable by Landlord for electric current furnished to the Premises by
the utility (public or private) servicing the Building. No meter measuring
electric current furnished to the Premises shall measure electric current
furnished to any other area within the Project, and if it does, Tenant shall
have no
20
obligation to pay for any electric current it may utilize which is measured by
such meter. Such meter shall not include electric current to provide HVAC
Services within the Premises unless the HVAC System services the Premises
exclusively. If more than one meter shall be used to measure electric current
furnished to the Premises, such electric service shall be computed cumulatively
for all such meters unless Tenant, if it were purchasing electric current
directly from the utility, would have been required to use and be billed
separately for more than one meter therefore pursuant to Requirements. Should
any tax or charge in the nature thereof (not constituting an income tax) be
imposed upon Landlord's receipt from the sale or resale of electric current to
the Premises, then the pro rata share thereof allocable to the electric current
furnished to the Premises shall be passed on to and paid by Tenant. Bills for
such metered utilization of electric current and all other accessory charges as
heretofore indicated shall identify all meters measuring electric current
furnished to the Premises to which such xxxx relates and shall be paid by Tenant
not more than thirty (30) days after being billed therefor by Landlord. Such
bills shall (a) shall specify the meter readings of each meter recording the
electrical current consumed in or with respect to the Premises, (b) shall be
accompanied by the utility company's xxxx or bills with respect to charges for
the same period (or periods, or the applicable portions of each) as the
foregoing xxxx being furnished by Landlord to the Tenant, and (c) shall be
rendered monthly or at such less frequent intervals as Landlord may determine.
Landlord reserves the right to discontinue furnishing electric
current to the Premises on not less than 30 days notice to Tenant or upon such
shorter notice as may be required by order or other action of a Governmental
Authority or by Requirement. In such event, this Lease shall continue in full
force and effect and shall be unaffected thereby except only that from and after
the effective date of such discontinuance, Landlord shall not be obligated to
furnish electric current to the Premises. No such discontinuance shall effect a
reduction in Rental. If pursuant to the foregoing, Landlord shall discontinue
furnishing electric current to the Premises, Tenant shall arrange to obtain
electric current directly from the utility serving the Building. Such electric
current may be furnished to the Premises by such utility by means of the then
existing Building feeders, risers and wiring (including any meters measuring
such consumption utilized for such purpose at the time) to the extent that the
same are available, suitable and safe for such purpose. All other additional
panel boards, meters, feeders, risers, wiring and other conductors and equipment
required to obtain electric current to the Premises of substantially the same
quantity, quality and character from such utility shall be installed by
Landlord. Landlord shall pay the cost thereof. Unless required to do so by
Governmental Authority or by applicable law, Landlord
21
shall not discontinue furnishing electric current to the Premises until,
provided Tenant acts diligently in doing so, Tenant has obtained an alternative
electric energy source from the utility serving the Building, and unless it
shall make a similar election with regard to substantially all other of its
tenants within the Building.
6.02. At Landlord's option, it shall furnish and install all
lighting tubes, lamps, bulbs and ballasts used in the Premises and Tenant shall
pay Landlord's reasonable charges therefor, as Additional Rent, within thirty
(30) days after Landlord shall have billed Tenant for such charges.
6.03. Tenant's use of electric current in the Premises shall not at
any time exceed the capacity of any of the electrical conductors and equipment
in or otherwise serving the Premises.
6.04. Intentionally Omitted
6.05. Landlord shall have no liability to Tenant for any loss,
damage or expense sustained or incurred by reason of any change, failure,
inadequacy, unsuitability or defect in the supply or character of the electric
energy furnished to the Premises or if the quantity or character of the electric
energy is no longer available or suitable for Tenant's requirements, except for
any actual damage suffered by Tenant by reason of any such failure, inadequacy
or defect caused solely by the negligence, willful misconduct or default beyond
any applicable cure period of Landlord.
6.06. Tenant to the extent reasonably necessary shall allow the
Electric Company, if requested to do so by Landlord, access to the Premises and
to the lines, feeders, risers, wiring and equipment serving the Premises.
ARTICLE 7
Assignment, Mortgaging, Subletting, Etc.
SECTION 7.01. Tenant shall not voluntarily or involuntarily (a)
assign or otherwise transfer this Lease or the estate hereby granted, (b) sublet
the Premises or any part thereof (c) allow the Premises to be used or occupied
by others (an "Occupancy Right"), or (d) mortgage, pledge or encumber this Lease
or the Premises or any part thereof, without, in each instance, obtaining the
prior consent of Landlord, except as otherwise expressly provided in this
Article 7. For purposes of this Article 7, (i) the transfer of a majority of the
issued and
22
outstanding capital stock of any corporate tenant, or of a corporate subtenant,
or the transfer of a majority of the total interest in any partnership tenant or
subtenant, however accomplished, whether in a single transaction or in a series
of related or unrelated transactions, shall be deemed an assignment of this
Lease, or of such sublease, as the case may be, (ii) any person or legal
representative of Tenant, to whom Tenant's interest under this Lease passes by
operation of law, or otherwise, shall be bound by the provisions of this Article
7, and (iii) a material modification or amendment of a sublease shall be deemed
a sublease.
7.02. The provisions of Section 7.01(a) and (b) hereof shall not
apply to a transfer (a) to an entity resulting from the merger or consolidation
of Tenant provided that the resultant entity has a net worth at least equal to
or in excess of the net worth of Tenant immediately prior to such merger, or
consolidation or transfer), or (b) a transfer referred to in clause (i) of the
second sentence of Section 7.01 or to an entity into which substantially all of
Tenant's assets are transferred, provided that with respect to this subdivision
(b), (i) such transfer is not principally for the purpose of transferring this
Lease or the leasehold estate created hereby, and (ii) the resultant entity has
a net worth at least equal to or in excess of the net worth of Tenant
immediately prior to such merger, or consolidation or transfer). The provisions
of subdivisions (a), (b) and/or (c) of Section 7.01 shall not apply to
assignments, sublettings or Occupancy Rights granted to an Affiliated Entity,
provided the same is not principally for the purpose of avoiding the application
of Section 7.01 of this Lease. As used in this Section 7.02, an "Affiliated
Entity" means an entity controlled by, controlling or under common control with
the Tenant.
7.03. Any assignment, subletting or Occupancy Right, whether or not
Landlord's consent is required, shall be made only if, and shall not be
effective unless, all of the following shall have been furnished to Landlord at
least ten (10) Business Days prior to the effective date of the contemplated
assignment, subletting or grant of Occupancy Right:
(a) The name and business address of the proposed subtenant,
assignee, or grantee of any Occupancy Right ("Occupancy Grantee"), information
with respect to the nature and character of the proposed subtenant's, assignee's
or Occupancy Grantee's business and business activities generally and within the
Premises, and current financial information with respect to the net worth,
credit and financial responsibility of the proposed subtenant, assignee or
Occupancy Grantee;
(b) In the case of an assignment, an executed counterpart
thereof, and all ancillary agreements with the
23
proposed assignee (including all documents from which the considerations to be
received by Tenant referred to in Section 7.07 hereof can be ascertained);
(c) In the case of a subletting, an executed counterpart of
the sublease and all ancillary agreements with the sublessee (including all
documents from which the considerations to be received by Tenant referred to in
Section 7.07 hereof can be ascertained);
(d) In the case of an Occupancy Right, a fully executed copy
of the agreement creating the same and all ancillary agreements pertaining
thereto;
(e) In the case of an assignment, a notarially acknowledged
agreement executed by the assignee, in form and substance reasonably
satisfactory to Landlord, whereby the assignee shall assume and agree to fulfill
the obligations and performance of this Lease and the assignment and agree to be
personally bound by and upon the covenants, agreements, terms, provisions and
conditions hereof on the part of Tenant to be performed or observed and whereby
the assignee shall agree that the provisions of Section 7.01 hereof shall,
notwithstanding such an assignment or transfer, continue to be binding upon it
in the future;
(f) Tenant together with requesting Landlord's consent
hereunder shall obligate itself to pay Landlord as Additional Rent the
reasonable out of pocket, direct costs incurred by Landlord to review the
request and to prepare the requested consent or approval, including any
reasonable attorneys' fees incurred by Landlord;
Each sublease and assignment referred to in clause (c) of this
Section 7.03 shall specifically state that (i) it is subject to all of the
terms, covenants, agreements, provisions, and conditions of this Lease, as the
same may be amended (ii) a consent by Landlord thereto shall not be deemed or
construed to modify, amend or affect the terms and provisions of this Lease, or
Tenant's obligations hereunder, which shall continue to apply to the Premises,
and the occupants thereof, as if the sublease, assignment or Occupancy Right had
not been made, (iii) if Tenant defaults in the payment of any Rental, Landlord
is authorized to collect any Rental due or accruing from any assignee, subtenant
or other occupant of the Premises and to apply the net amounts collected to the
Rental, (iv) the receipt by Landlord of any amounts from an assignee or
subtenant, or other occupant of any part of the Premises shall not be deemed or
construed as releasing Tenant from Tenant's obligations hereunder or the
acceptance of that party as a direct tenant, and (v) at the option of Landlord,
in the case of a sublease, if this Lease
24
shall terminate or expire, the sublease shall nonetheless continue in full force
and effect and the subtenant thereunder shall attorn to the Landlord as a direct
lease between Landlord and such Sublessee, provided, however, that in case such
option is exercised by Landlord and notwithstanding such attornment, the
Landlord shall not be (A) liable for any previous act or omission of Tenant,
unless it is also a continuing obligation of Landlord under this Lease, (B)
subject to any counterclaim, defense or offset to which such subtenant may be
entitled against Tenant, (C) bound by any modification or amendment of such
sublease made without Landlord's consent, or by any previous payment of more
than one month's Rental, and (D) liable to the subtenant beyond Landlord's
interest in and to the subleased space.
7.04. Tenant covenants that, notwithstanding any assignment of this
Lease or of the leasehold estate created thereby by the Tenant or any
subletting, in whole or in part, of any portion of the Premises, whether or not
in violation of the provisions of this Lease, and notwithstanding the acceptance
of Rental by Landlord from an assignee or transferee or any other party, Tenant
shall remain fully and primarily liable throughout the Term (inclusive of any
renewals or extensions thereof) for the payment of the Rental due and to become
due under this Lease and for the performance of all of the covenants,
agreements, terms, provisions and conditions of this Lease on the part of Tenant
to be performed or observed.
7.05. The liability of Tenant, and the due performance by Tenant of
the obligations on its part to be performed under this Lease, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made with a mesne assignee of Tenant by Landlord or any grantee or assignee of
Landlord, by way of mortgage or otherwise, extending the time of or modifying
any of the obligations contained in this Lease, or by any waiver or failure of
Landlord to enforce any of the obligations on Tenant's part to be performed
under this Lease. If any such agreement or modification operates to increase the
obligations of the assigning Tenant, the liability under this Section 7.05 of
the assigning Tenant or any of its successors in interest, (unless such party
shall have expressly consented in writing to such agreement or modification)
shall continue to be no greater than if such agreement or modification had not
been made. To charge an assigning Tenant, Landlord must give such assigning
Tenant the same notice of default that it is required to give the defaulting
Tenant. An assigning Tenant shall have the same right to cure a default
hereunder on the part of the Tenant at the time as such Tenant, provided, only,
that such cure be effected within the same period of time as is available to
such Tenant. Each Tenant acknowledges and consents to the foregoing right given
to an assigning Tenant. Except as heretofore provided, no demand or notice of
any default from Landlord shall be required, Tenant and
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each assigning Tenant hereby expressly waiving any such other demand or notice.
7.06. Landlord shall not unreasonably withhold or delay its consent
where such consent is required (i) to an assignment of this Lease and the
leasehold estate hereby created, (ii) a subletting of the whole or any part of
the Premise, or (iii) an Occupancy Right, provided:
(a) The proposed subtenant, assignee or Occupancy Grantee is a
party whose reputation, financial net worth (as to assignments only), credit and
financial responsibility is, considering the responsibilities involved,
reasonably satisfactory to Landlord;
(b) The nature and character of the proposed subtenant,
assignee or Occupancy Grantee, its business or activities and intended use of
the Premises is, in Landlord's reasonable judgment, in keeping with the
standards of the Building and the area in which the Premises are located and
does not conflict with the provisions of Article 9 of this Lease;
(c) Intentionally Omitted.
(d) Tenant shall have complied with all of the provisions of
Section 7.03;
(e) In the case of a subletting of a portion of the Premises,
(i) the portion so sublet shall be regular in shape and suitable for normal
renting purposes; (ii) there shall be no more than two (2) other subleases of
the Premises in effect, (iii) the portion of the Premises so sublet (or occupied
by parties other than the Tenant) in the aggregate shall not exceed fifty (50%)
percent of the Area of the Premises and no subletting shall be for or leave a
balance of the Area of the Premises of less than 2,500 rentable square feet of
space and (iv) Tenant shall provide reasonably appropriate means of ingress and
egress to and from the sublet space, separate the sublet space from the
remainder of the Premises, and pay, when due, all of the costs of doing so; and
(f) In any subletting (i) the proposed subtenant shall not
then be an occupant of any part of the Project or an entity which controls, is
controlled by or under common control with any such occupant or party; (ii) the
proposed subletting shall be advertised or otherwise published at a rental rate
not less than that then being charged under leases being entered into by
Landlord for comparable space within the Building for a comparable term of
years.
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7.07. In the event of an assignment or subletting other than one
specified in Section 7.02 hereof, but inclusive of one pursuant to a Requirement
(such as the Bankruptcy Code, unless the transaction is otherwise within the
purview of Section 7.02 hereof), Tenant shall pay to Landlord, as Additional
Rent, one-half of,
(a) in the case of an assignment, an amount equal to all sums
and other consideration paid to Tenant by the assignee for or by reason of such
assignment (including, but not limited to, sums payable for the sale or rental
of Tenant's fixtures, leasehold improvements, equipment, furniture, furnishings
or other personal property (collectively "Property"), less the sum of (i) in the
case of a sale of Property ("Net Value"), the then net unamortized or
undepreciated cost thereof determined on the basis of Tenant's federal income
tax returns), (ii) reasonable brokerage commissions and legal fees paid by
Tenant with respect to such assignment, and (iii) reasonable costs paid by
Tenant in making changes in the layout and finish of the Premises at the request
of the assignee, but only to the extent that the payments referenced in (ii) and
(iii) are not reimbursed by the assignee to Tenant; and
(b) in the case of a sublease, any Rental, additional charge
or other consideration payable under or with respect to the sublease to Tenant
by the subtenant (including, but not limited to, sums payable for the sale or
rental of Property, less the sum of (i) in the case of a sale of Property, the
Net Value thereof which is in excess of the sum of the rents payable during the
term of the sublease in respect of the subleased space (at the rate per square
foot payable by Tenant hereunder), (ii) reasonable brokerage commissions and
legal fees paid by Tenant in connection with entering into any such sublease,
and (iii) reasonable costs paid by the Tenant in making changes in the layout
and finish of the subleased space at the request of the subtenant but only to
the extent that the payments referenced in (ii) and (iii) are not reimbursed by
such subtenant to Tenant.
The provisions of clause (iii) in this subdivision (b) and in
subdivision (a) preceding, shall be deemed satisfied (and such costs shall be
subtracted from the gross) if such reimbursement constitutes part of the
consideration paid by the assignee, in the case of (a), and the subtenant, in
the case of (b).
(c) At Tenant's option, it may use fair market value as the
deductible with respect to personal property in lieu of Net Value in clauses (a)
and (b) preceding, provided, however, that any dispute as to the fair market
value shall be resolved by Arbitration.
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(d) The sums payable under subdivisions (a) and (b) preceding
shall be paid by Tenant to Landlord as and when paid by the subtenant or
assignee, as the case may be, net of reasonable third party collection fees paid
by Tenant; and
(e) Tenant shall furnish Landlord with a written statement,
semi-annually, certified by Tenant or a responsible employee of Tenant, from
which the Additional Rent to which Landlord may be entitled by reason of the
application of clauses (a) and (b) hereunder can be determined. Tenant shall
keep books of account in accordance with generally accepted accounting
principles consistently applied and supporting material relating to the matters
reflected in clauses (a) and (b) hereof, and shall make the same available to
Landlord at all reasonable times for inspection at the Premises or at Tenant's
main office, as determined by Landlord, for the purpose of verifying any
statement furnished or to be furnished by Tenant. Landlord shall have the right
to delegate this inspection to a duly authorized representative and, in
addition, may make such copies thereof as it reasonably requires, but only for
the purposes enumerated in this clause.
7.08. The consent or waiver of consent by Landlord in any instance
to an assignment or subletting shall not in any way be construed or deemed to
relieve Tenant, (which term as used in this Section 7.08 shall have the meaning
reflected in Section 2.01(v) hereof without regard to the word "permitted"
contained therein), from obtaining the prior consent of Landlord to an
assignment or subletting in each and every subsequent instance.
ARTICLE 8
Mortgages
SECTION 8.01. The Tenant's interest in this Lease and the leasehold
estate created hereby is and shall be subject and subordinate to any ground or
underlying lease or leasehold mortgage and to any mortgage or other lien or
charge in the nature thereof now or hereafter affecting all or any part of the
Project. Each and all of the foregoing leases, mortgages, liens and charges are
referred to in this Lease as a "Mortgage" and the holder thereof or the landlord
thereunder as a "Mortgagee". This clause shall be self-operative and no further
instrument or subordination shall be required by any mortgagee or lessee. In
confirmation of such subordination, Tenant shall execute promptly any
certificate that Landlord may request.
The preceding paragraph of this Section 8.01 shall be of no force or
effect with respect to a Mortgage hereafter first
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affecting all or any part of the Premises unless and until Landlord shall, with
respect to such Mortgage, furnish Tenant with an agreement from the Mortgagee,
in recordable form (the "SNDA"), to the effect that so long as no Event of
Default exists on the part of Tenant under this Lease, or any event has
occurred, which has continued to exist for such period of time (after notice, if
any, required by this Lease) as would entitle Landlord to terminate this Lease
or would cause, without any action of Landlord, the termination of this Lease or
would entitle Landlord to dispossess Tenant (each hereinafter in this paragraph,
but not elsewhere in this Lease, called a "Default Condition"), Tenant shall not
be joined as a party defendant in any action or proceeding which may be
instituted or taken by the then Mortgagee under any such Mortgage for the
purpose of terminating such ground or underlying lease or for the purpose of
foreclosing any such Mortgage, by reason of any default under any such Mortgage,
(unless applicable law requires Tenant to be made a party thereto as a condition
to proceeding against the Mortgagor or otherwise protecting the Mortgagee's
rights and remedies, in which case the Mortgagee may join the Tenant as a
defendant in any such action or proceeding for such purposes and not to
terminate the Lease) and, so long as no Event of Default or Default Condition
shall exist (x) Tenant shall not be evicted from the Premises, (y) Tenant's
leasehold estate hereunder shall not be terminated or disturbed and (z) the
Mortgagee shall recognize this Lease and Tenant's rights under this Lease shall
not be affected in any way, other than as heretofore specified in this
paragraph.
Landlord represents that on the date hereof, no Mortgage exists.
8.02. Provided that it shall have been tendered with the SNDA,
Tenant agrees that if requested by the Mortgagee, it will agree in writing that
if the Mortgagee, or any person claiming under such Mortgagee becomes the
Landlord hereunder, it will recognize such Mortgagee or other person as its
Landlord under this Lease. Alternatively, if so requested by such Mortgagee, or
other person, Tenant, as tenant, will enter into a new lease with said Mortgagee
or other person, as landlord, for the remaining Term and otherwise on the same
terms and conditions as this Lease. Notwithstanding anything herein contained to
the contrary, under no circumstances shall any such Mortgagee or other person
(including a purchaser, assignee or lessee, as the case may be, whether or not
it shall have succeeded to the interest of Landlord) be (a) liable for any act,
omission or default of any prior Landlord, unless it pertains to a condition
which is of a continuing nature, in which event the successor Landlord shall
have the same cure period which shall commence as of the later to occur of (i)
such successor Landlord succeeds to the interest of Landlord under this Lease,
and (ii) the date on
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which Tenant shall have given the successor Landlord as successor landlord,
notice of such condition, (b) subject to any offset, claim or defense which the
Tenant may have against any prior Landlord other than any of such specified in
this Lease, other than one of which the Mortgagee, at the time it becomes such,
has actual knowledge as to which it consents in writing, (c) bound by any Rental
that Tenant might have paid to any Landlord other than itself for other than the
current payment or installment thereof, or (d) bound by any modification,
amendment, termination, cancellation or surrender of the Lease made without its
prior written approval unless it had actual written notice of any of such which
it shall have received from Tenant prior to such Mortgagee, or other person
having acquired its interest, howsoever designated in the Premises.
8.03. If a Mortgagee or proposed mortgagee shall request reasonable
modifications of this Lease which do not adversely affect Tenant other than to
an immaterial extent, Tenant will not unreasonably delay or defer or withhold
making such modifications.
8.04. In the event of any act or omission of Landlord which would
give Tenant the right, immediately or after lapse of a period of time, to cancel
or terminate this Lease, or to claim a partial or total eviction, Tenant shall
not exercise such right (i) until it has given written notice of such act or
omission to the Mortgagee whose name and address shall previously have been
furnished to Tenant in writing and (ii) unless such act or omission shall be one
which is not capable of being remedied by Landlord or such Mortgagee within a
reasonable period of time, until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice and following
the time when such Mortgagee shall have become entitled under such Mortgage, to
remedy the same (which reasonable period shall in no event be less than the
period to which Landlord would be entitled under this Lease or otherwise, after
similar notice, to effect such remedy), provided such Mortgagee shall with due
diligence give Tenant written notice of its intention to, and commence and
continue to remedy such act or omission.
ARTICLE 9
Use
SECTION 9.01. The Premises shall be used by Tenant for general and
executive offices (including occupancy uses reasonably and normally required in
connection with the use of office space for general and executive offices),
activities accessory to such use, including design and art work and for no
30
other purpose; provided, however, that Tenant may examine but not repair its
merchandise returned to it by customers so long as in doing so, it does not
violate Requirements.
Those portions, if any, of the Premises, which are designated as
toilets and utility areas, shall be used by Tenant only for the purposes for
which they are designated.
9.02. Tenant shall not use or permit the use of the Premises or any
part thereof in any way which would violate any of the covenants, agreements,
terms, provisions and conditions of this Lease or for any unlawful purposes or
in any unlawful manner or in violation of a Requirement such as but not limited
to the Certificate of Occupancy for the Premises or the Building, and Tenant
shall not suffer or permit the Premises or any part thereof to be used in any
manner or anything to be done therein or anything to be brought into or kept
therein which, in the judgment of Landlord, reasonably exercised, shall (i)
impair the character, reputation or appearance of the Project, or (ii) impair or
interfere with any of the Project services or the proper and economic servicing
of the Project, or (iii) be a nuisance.
9.03. If any license or permit of a Governmental Authority other
than an Approval, specifically required pursuant to another provision of this
Lease to be obtained by Landlord, shall be required for the proper and lawful
conduct of Tenant's business or other activity carried on in the Premises, and
if the failure to secure such license or permit might or would, in any way,
affect Landlord, then Tenant, at Tenant's expense, shall duly procure and
thereafter maintain such license or permit and submit the same for inspection by
Landlord. Tenant, at Tenant's expense, shall, at all times, comply with the
requirements of each such license or permit.
9.04. The use of the Premises for the purposes specified in the
first paragraph of Section 9.01 hereof shall not in any event be deemed to
include, and Tenant shall not use, suffer or permit the use of the Premises or
any part thereof for the sale, preparation or consumption of food or beverages
(alcoholic or non-alcoholic), provided, however, that Tenant may maintain an
eating area for its employees at which their food, purchased off-premises, may
be refrigerated and/or warmed, and coffee and tea may be prepared, and (ii) from
time to time, but no more than four times in any twelve month period, sponsor a
function within the Premises for its business invitees so long as no sale or
charge is involved, at which beverages (alcoholic and non-alcoholic) and food
may be prepared and consumed.
9.05. No signs, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by
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tenant on any part of the outside or (if it can be seen outside the Premises)
inside of the Premises or the Building without the prior written consent of the
Landlord other than a lawn sign at the place indicated on Exhibit D hereto. In
the event of the violation of the foregoing by Tenant, Landlord may remove the
sign without any liability, and may charge the expense incurred by such removal
to the Tenant. Landlord shall have the right to prohibit any advertising by
Tenant which, in the reasonable opinion of Landlord, impairs the reputation of
the Building or its desirability as a building or space therein available for
rent, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
9.06. Intentionally omitted.
9.07. During the Term, no part of the Premises shall be used or
permitted to be used by Tenant and no part of the Building, (no reference being
made to the Premises), shall be used or permitted to be used by Landlord,
notwithstanding that such use or occupancy may otherwise be permitted under the
terms of the first paragraph of Section 9.01 hereof, as a banking or safe
deposit business or a money exchange, as a stock brokerage office, for the
conduct of a school of any kind, other than a child care center or a preschool,
an employment agency, for the furnishing of health care services, for the
conduct of any business or activity, which by the nature of its use or manner of
use creates or fosters an unusual risk to the security of the Building or any of
its tenants or occupants, for the manufacturing, repairing or servicing of
products or goods, or for the retail sale or rental of goods or merchandise.
9.08. Intentionally Omitted
9.09. During the Term, subject to contrary provisions of this Lease,
Tenant shall have the right of access to the Premises, twenty-four (24) hours a
day, seven (7) days a week.
ARTICLE 10
Quiet Enjoyment
SECTION 10.01. So long as Tenant pays all of the Rental when due
hereunder and performs all of Tenant's other obligations hereunder, Tenant shall
peaceably and quietly have, hold and enjoy the Premises subject, nevertheless,
to the terms and provisions of this Lease.
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ARTICLE 11
Brokerage
SECTION 11.01. Tenant covenants, represents and warrants that Tenant
has had no dealings or negotiations with any broker, finder or agent other than
Xxxx Xxxxxxxxxxx, Associates (the "Broker") with respect to this Lease or the
negotiation thereof. Based thereon, Landlord agrees to hold harmless and
indemnify Tenant from and against any and all cost, expense (including
reasonable attorneys' fees) or liability for any compensation, commissions or
charges claimed by any broker, finder or agent with respect to this Lease or the
negotiation thereof except to the extent that the same arises out of Tenant's
acts or omissions. Tenant agrees to hold harmless and indemnify Landlord from
and against any and all cost, expense (including reasonable attorneys' fees) or
liability for any compensation, commissions or charges claimed by any broker,
finder or agent with respect to this Lease or the negotiation thereof, based in
any part upon Tenant's breach of the provisions contained in the first sentence
of this Section.
ARTICLE 12
Compliance With Laws
SECTION 12.01. Tenant shall comply, at its cost and expense, with
all Requirements applicable to Tenant's manner or use, occupancy or operation of
the Premises.
12.02. Tenant, subject to the provisions of Section 12.03 hereof,
covenants and agrees not to suffer, permit, introduce or maintain in, on or
about any portion of the Premises, any hazardous or toxic materials, wastes and
substances which are defined, determined or identified as such in any laws,
rules or regulations (whether now existing or hereafter enacted or promulgated)
of any Governmental Authority having jurisdiction or any judicial or
administrative interpretation of any thereof, and/or any asbestos,
polychlorinated biphenyls or petroleum products including any judicial or
administrative orders or judgments. Any such asbestos, polychlorinated
biphenyls, petroleum products and any such other materials, wastes and
substances are herein collectively called 'Hazardous Materials'. Tenant further
covenants and agrees to indemnify, protect and save Landlord harmless against
and from any and all damages, losses, liabilities, demands, defenses, judgments,
suits, proceedings, costs, disbursements or expenses of any kind or of any
nature whatsoever (including, without limitation, attorneys'
33
and experts' fees and disbursements) which may at any time be imposed upon,
incurred by or asserted or awarded against Landlord and arising from or out
of any Hazardous Materials on, in, under or affecting all or any portion of the
Project, Building, or Premises, introduced by, or on behalf of Tenant,
including without limitation (i) the costs of removal of any and all Hazardous
Materials from all or any portion of the Building, Project or Premises, (ii)
additional costs required to take necessary precautions to protect against the
release of Hazardous Materials on, in, under or affecting the Building, Project
or Premises, into the air, any body of water, any other public domain or any
surrounding areas, (iii) any costs incurred to comply, in connection with all or
any portion of the Building, Project or Premises, with all applicable laws,
orders, judgments and regulations with respect to Hazardous Materials and (iv)
costs reasonably incurred by Landlord in determining whether the provisions
hereof have been violated. Nothing herein shall prohibit Tenant from using
minimal quantities of cleaning fluid and office supplies which may constitute
Hazardous Materials but which are customarily present in premises devoted to
office use provided that such use in the Premises is in compliance with
Requirements and all such Hazardous Materials are removed from the Premises
prior to the expiration or sooner termination of the Lease. The preceding
portions of this provision do not apply to Hazardous Materials which may be
located in the Project or Building, inclusive of the Premises at or prior to the
first to occur of (i) the Commencement Date and (ii) the initial commencement
(heretofore or hereafter) of any work, construction, repairs, installations, or
alterations therein by Tenant.
12.03. Landlord covenants and agrees to remediate, with diligence
and in compliance with Requirements, all Hazardous Materials now within the
Premises or hereafter introduced into the Premises by it or by any of its agents
or contractors and to indemnify, protect and save Tenant harmless from and
against any and all damages, losses, liability, demands, defenses, judgments,
suits, proceedings, costs, disbursements or expenses of any kind or of any
nature whatsoever (including, without limitation, attorneys' and experts' fees
and disbursements) which may at any time be imposed by, incurred by or asserted
or awarded against Tenant arising out of the failure of Landlord to do so.
12.04. The provisions of Sections 12.01, 12.02 and 12.03 shall
survive the expiration or sooner termination of this Lease.
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ARTICLE 13
Insurance
SECTION 13.01. Tenant shall not, by virtue of its manner of use,
occupancy or operation of the Premises, violate, or permit the violation of, any
condition imposed by any insurance policy required to be maintained by either
Landlord or Tenant under this Lease, and shall not do, or permit anything to be
done, or keep or permit anything to be kept in the Premises, which would
increase the premium rate for the property damage insurance specified in the
first paragraph of Section 13.05 hereof over the rate which would otherwise then
be in effect (unless Tenant pays the resulting premium as provided in Section
3.03 hereof) or which would result in insurance companies of good standing
refusing to insure the Building or any of such property in amount reasonably
satisfactory to Landlord. The provisions of this Section shall have no
application to the use of the Premises for general and administrative offices.
13.02. Landlord and Tenant shall each secure, if obtainable, an
appropriate clause in, or an endorsement upon, each insurance policy obtained by
it and covering the Building, the Premises, the Common Areas and its personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive their rights of subrogation with
respect to claims, liabilities, losses, damages, costs and/or expenses
(collectively "losses") payable under any such policy or policies and agree that
such policy or policies shall not be invalidated should the insured waive, in
writing, prior to a loss, any or all right of recovery against any party for
losses covered by such policy or policies. The waiver of the right of
subrogation or permission for waiver of any claim hereinbefore referred to shall
extend to the agents of each party and its employees and, in the case of Tenant,
shall also extend to all other persons and entities occupying or using the
Premises in accordance with the terms of this Lease. If and to the extent that
such waiver or permission can be obtained only upon payment of an additional
reasonable charge then the party benefiting from the waiver or permission shall
pay such charge upon demand, or shall be deemed to have agreed that the party
obtaining the insurance coverage in question shall be free of any further
obligations under the provisions hereof relating to such waiver or permission as
to the party benefitting therefrom who shall have not paid such charge.
If the waiver of subrogation in the foregoing paragraph of this
Section 13.02 shall be available, and insofar as may be permitted by the terms
of the insurance policies carried by it, each party, provided its right of full
recovery under its policy
35
or policies aforesaid is not adversely affected or prejudiced thereby, hereby
releases the other with respect to any claim including a claim for negligence)
which it might otherwise have against the other party for loss, damages or
destruction with respect to its property by fire or other casualty including
rental value or business interest, as the case may be) occurring during the Term
covered under its policy or policies.
Landlord and Tenant shall be entitled to the benefits of the first
and second paragraph of this Section 13.02 only to the extent that its losses
are covered by insurance at the time of the occurrence.
Landlord and Tenant hereby agree to advise the other promptly if the
clauses to be included in their respective policies as provided in the preceding
two paragraphs cannot be obtained. Each hereby also agree to notify the other
promptly of any cancellation or changes of the terms of any such policy which
would affect such clauses.
13.03. Intentionally omitted.
13.04. If any dispute shall arise between Landlord and Tenant with
respect to the incurrence or amount of any additional insurance premium referred
to in Section 13.02 or 13.03, the dispute shall be determined by Arbitration.
13.05. Landlord, from and after the date of this Lease, agrees to
maintain during the Term, Property Damage Insurance covering the Building in an
amount equal to the replacement value thereof, exclusive of foundations,
excavations and footings. Such insurance shall be provided on a special cause of
loss (e.g., "all-risk") basis of coverage. Such policy may contain a
commercially prudent deductible, provided, however, that in case of a loss
covered thereunder, Landlord shall advance the amount of such deductible as and
to the extent needed to effect the requisite coverage.
Tenant shall not carry separate or additional insurance concurrent
in form or contributing in the event of loss with that required of Landlord
pursuant to the preceding paragraph.
13.06. Tenant covenants and agrees to maintain from and after the
first to occur of the commencement of Tenant's Work, the installation of
Tenant's Property, and the Commencement Date, and to keep in force during the
Term for the benefit of Tenant as the insured and naming Landlord (and its
designees) as additional insureds, a commercial general liability insurance
policy protecting Landlord (and its designees) and Tenant against any liability,
customarily covered by such a policy, occasioned by any occurrence within the
Premises. Such policy is to be written
36
by good and solvent insurance companies licensed in the State of New York
satisfactory to Landlord in the reasonable exercise of its discretion, and shall
be in limits of liability thereunder of not less than the amount of Five Million
($5,000,000) Dollars per occurrence for bodily or personal injury (including
death) and for property damage. Such insurance may be carried under a blanket
policy covering the Premises and other locations of Tenant, if any, provided,
however, that such policy specifically references the Premises and sets the
foregoing limits of liability for the Premises. Such policy may contain a
commercially prudent deductible, provided, however, that in case of a liability
covered thereunder, Tenant shall advance the amount of such deductible as and to
the extent needed to effect the requisite coverage. Such policy shall also
include a provision that no act or omission of Tenant which may result in loss
or damage, including death, to persons or property, shall affect or limit the
obligations of the insurance company in respect of Landlord or its designee.
Prior to the time such insurance is first required to be carried by Tenant and
thereafter, not less than fifteen (15) days prior to the effective date of any
such policy, Tenant agrees to deliver to Landlord a certificate from the insurer
evidencing such insurance. Said certificate shall contain an endorsement that
such insurance may not be cancelled or modified except upon thirty (30) days'
prior notice to Landlord.
13.07. Landlord covenants and agrees to maintain from and after the
date hereof and to keep in force during the Term for the benefit of Landlord,
naming Landlord as the insured (and its designees, at the option of Landlord as
a named or additional insured), and Tenant as an additional insured, a
commercial general liability insurance policy protecting Landlord (and its
designees) and Tenant against any liability, customarily covered by such a
policy, occasioned by any occurrence within the Common Areas. Such policy is to
be written by good and solvent insurance companies licensed in the State of New
York, and shall be in limits of liability thereunder of not less than the amount
of Five Million ($5,000,000) Dollars per occurrence for bodily or personal
injury (including death) and for property damage. Such insurance may be carried
under a blanket policy covering the Project and other locations of Landlord, if
any, provided, however, that such policy specifically references the Project and
sets the foregoing limits of liability for the Project. If the aggregate limit
of such insurance applying to the Project is reduced by the payment of a claim
or establishment of a reserve, Landlord shall take immediate commercially
reasonable steps to have the required aggregate limit restored by endorsement to
the existing policy or the purchase of an additional insurance policy. Such
policy may contain a commercially prudent deductible, provided, however, that in
case of a liability covered thereunder, Landlord shall advance the amount of
such
37
deductible as and to the extent needed to effect the requisite coverage. Such
policy shall also include a provision that no act or omission of Tenant sha1l
affect or limit the obligations of the insurance company in respect of Landlord
or its designee. Prior to the time such insurance is first required to be
carried by Tenant and thereafter, not less than fifteen (15) days prior to the
effective date of any such policy, Tenant agrees to deliver to Landlord a
certificate from the insurer evidencing such insurance. Said certificate shall
contain an endorsement that such insurance may not be cancelled or modified
except upon thirty (30) days' prior notice to Landlord.
ARTICLE 14
Rules and Regulations
SECTION 14.01. Tenant shall faithfully observe and comply with the
Rules and Regulations annexed hereto as Exhibit E, and such reasonable changes
therein (whether by modification, elimination or addition) as Landlord at any
time or times hereafter may make and communicate in writing to Tenant on not
less than ten (10) days prior notice, provided, however, that in case of a
conflict or inconsistency between the provisions of this Lease and any of the
Rules and Regulations as originally promulgated or as changed, the provisions of
this Lease shall control, and Tenant shall use reasonable efforts to have its
employees, agents and invitees do so, as well. No such Rules and Regulations
will be enforced against Tenant or "tenant" in a manner which discriminates
Tenant from other like tenants in the Project. At Landlord's option, wherever
the term "Tenant" appears in the Rules and Regulations, such term shall be
construed to include the employees, agents, contractors, licensees undertenants,
Occupancy Grantees, and invitees of such "Tenant" or "tenant".
14.02. Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to Tenant to enforce the Rules and
Regulations or the terms, covenants or conditions in any other lease, as against
any other tenant, and Landlord shall not be liable to Tenant for violation of
the same by any other tenant or its employees, agents or visitors.
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ARTICLE 15
Tenant Changes
SECTION 15.01. Subject to Section 15.02, Tenant will take no
alterations, installations, repairs, additions, improvements or replacements
(hereinafter singularly and collectively called "Tenant Changes") in, to or
about the Premises without Landlord's prior consent. [For the purpose of this
Article 15 only, Landlord shall be deemed to have consented to a Tenant Change
if prior to the expiration of ten days from the request for such consent made by
Tenant in the manner provided in Article 33 hereof, Landlord shall not have
advised tenant, in writing, in the manner provided in Article 33 hereof, that it
does not consent to such Tenant Change.]
15.02. Landlord's consent shall not be unreasonably withheld or
delayed for non-structural Tenant Changes within the Premises, and shall not be
required for painting, carpeting (other than by glue or other adhesive),
installation (inclusive of wiring) of telephones and computers, and similar
activities performed in the ordinary course within the Premises, using standard
materials, colors and installations.
15.03. Tenant Changes including but not limited to those consented
to or approved by Landlord or within the purview of Section 15.02 hereof shall
be performed in accordance with the following provisions:
(a) No part of the Building or the Project shall be adversely
affected;
(b) The functioning of any of the mechanical, HVAC,
electrical, sanitary, fire alarm and other systems of the Building, including
those within or serving the Premises, shall not be adversely affected, and the
usage of such systems by Tenant shall not be increased in any way that might
have a material adverse affect on any such system;
(c) At least ten Business Days prior to commencement of any
Tenant Changes, Tenant will furnish Landlord with a statement in reasonable
detail of the nature and scope of the proposed Tenant Changes, and an estimate
of the cost thereof, and if the cost of the proposed Tenant Changes can
reasonably be estimated by Landlord to exceed $50,000, or if required by a
Requirement, Tenant shall furnish coordinated plans and specifications for the
proposed Tenant Changes, prepared and signed by an architect licensed by the
State of New York selected by Tenant and to whom Landlord has no reasonable
objection, who shall also prepare the foregoing estimate; and if the nature of
39
the proposed Tenant Changes, regardless of cost, in the reasonable discretion of
Landlord requires it, the foregoing plans and specifications must also be
approved by a professional engineer, licensed by the State of New York and
selected by Landlord, whose reasonable charge shall be paid by Tenant.
(d) Intentionally omitted;
(e) Tenant Changes shall be done only by contractors and
subcontractors satisfactory to and first approved by Landlord. Such approval
will not be unreasonably withheld. However, elements of such Tenant Changes,
regardless of cost, of a nature described in subdivisions (a) and (b) hereof
shall be performed by contractors or subcontractors, as the case may be,
satisfactory to and first approved by Landlord;
(f) Tenant Changes shall be effected, at such times and in
such manner so as not to interfere, except to an insignificant extent, with the
use and occupancy of their premises by other tenants or others or with the
Common Areas, and shall be at least equal in quality to the materials and
workmanship in the Premises on the Commencement Date;
(g) Tenant Changes shall be commenced promptly and prosecuted
to completion by Tenant diligently and in a good and workmanlike manner;
(h) Tenant Changes shall be effected in compliance with
Landlord's Work Letter, Requirements and this Lease (including applicable
provisions other than this Article 15);
(i) Tenant Changes are to be effected in a manner which will
not (i) unreasonably interfere with or disturb other tenants or occupants of the
Building, or (ii) cause or create a dangerous or hazardous condition;
(j) Tenant Changes are to be effected so as not directly or
indirectly, create any difficulty with other contractors and/or labor engaged by
Landlord or others engaged in the construction, use or operation of the Project
or any part thereof (including the Premises);
(k) All costs and expenses of or incidental to Tenant Changes,
including those reflected in clause (d) of this Section 15.03, shall be borne
solely by Tenant who with respect to a Tenant Change which can reasonably be
estimated to have a total cost in excess of $10,000.00, shall establish to the
reasonable satisfaction of Landlord prior to the commencement thereof and during
its progress that these costs can and will be paid when due and that completion
of the Tenant Changes will be effected as herein and in the other provisions of
this Lease
40
provided. [The ability to pay such costs will be deemed established if Tenant
can show that it has sufficient cash on hand, cash flow and bank lines of credit
that will enable it to meet these costs when due and payable (the "Financial
Condition")];
(l) Tenant shall keep financial or cost accounting records of
all Tenant Changes and Tenant's Work for a period of three years after the
expiration or sooner termination of the Term and shall, within ten (10) Business
Days after request by Landlord, furnish copies thereof to Landlord; and
(m) Throughout the performance of Tenant Changes, Tenant, in
addition to and not in limitation of the provisions of Article 13 hereof, shall
maintain or cause to be maintained (i) Worker's Compensation insurance, in
statutory limits, for all eligible workmen engaged in performing Tenant Changes
and (ii) Builder's All-Risk insurance in an amount equal to the value of Tenant
Changes on the completion thereof naming Landlord and Tenant as insureds, as
their interests may appear, and shall furnish Landlord with certificates
evidencing the existence of such insurance prior to the commencement of any
Tenant's Work, each of which by its terms shall state that such insurance is not
to be terminated without giving Landlord not less than thirty days prior notice
of such termination.
15.04. Landlord's approval of Tenant Changes or of plans,
specifications or working drawings therefor or of the architect or professional
engineer shall create no responsibility or liability on the part of Landlord, as
to the contents of such plans, specifications and drawings, for their
completeness, design sufficiency, or for the performance of the architect or
professional engineer or for compliance with Requirements, or otherwise in
respect of or attributable to any of the foregoing.
ARTICLE 16
Discharge of Liens
SECTION 16.01. Tenant shall not create or cause to be created any
lien, encumbrance or charge upon the Project or any part thereof or the income
therefrom, including but not limited to a mechanic's lien, for work claimed to
have been performed for or on behalf of Tenant or materials claimed to have been
furnished to or for Tenant, and Tenant shall not cause, create or suffer any
other matter or thing whereby the estate, rights and interest of Landlord in the
Premises or any part thereof might be impaired.
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16.02. If any lien, encumbrance or charge within the purview of
Section 16.01 shall at any time be filed against the Premises or any part
thereof, Tenant, within forty-five (45) days after receiving notice of such
filing, shall cause such lien to be discharged, and if it is not, then in
addition to any other right or remedy, Landlord, on not less than ten (10) days
prior notice to Tenant, may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, and in any such event Landlord
shall be entitled, if Landlord so elects, to compel the prosecution of an action
for the foreclosure of such lien by the lienor and to pay the amount of the
judgment in favor of the lienor with interest, costs and allowances. Any amount
so paid by Landlord and all reasonable costs and expenses incurred by Landlord
in connection therewith, shall constitute Additional Rent payable to Landlord on
demand.
16.03. Nothing in this Lease contained shall be deemed or construed
in any way as constituting the consent or request of Landlord, express or
implied by inference or otherwise, to any contractor, subcontractor, laborer or
materialman for the performance of any labor or the furnishing of labor or
materials for any specific improvement, alteration to or repair of the Premises
or any part thereof, nor as giving Tenant any right, power or authority to
contract for or permit the rendering of any services or the furnishing of any
materials that would give rise to the filing of any lien against the Premises or
any part thereof. Notice is hereby given that Landlord shall not be liable for
any work performed or to be performed at the Premises for Tenant or any
subtenant, or any materials furnished or to be furnished at the Premises for
Tenant or any subtenant, upon credit, and that no mechanic's or other lien for
such work or materials shall attach to or affect the estate or interest of
Landlord in and to the Premises. Landlord shall have the right to post and keep
posted on the Premises any notices which Landlord may be required to post for
the protection of Landlord and the Premises from any lien.
16.04. This Article does not apply to any work to be performed or
materials to be furnished by Landlord which is required of it under this Lease.
ARTICLE 17
Tenant's Property
SECTION 17.01. All fixtures, equipment, improvements, installations
and appurtenances attached to, built into or a part of the Premises at or prior
to the commencement or during the
42
Term, including but not limited to Tenant's Work and Tenant Changes, whether by
Landlord at its own expense or at the expense of Tenant, shall be and remain a
part of the Premises, shall be deemed the property of Landlord and shall not be
removed by Tenant, except as hereinafter in this Article 17 express1y provided.
17.02. Tenant's Work, Tenant Changes and all furniture, furnishings
and other articles of movable personal property owned by Tenant and located
within the Premises (collectively, "Tenant's Property") may be removed from the
Premises by Tenant at any time during the Term. Tenant, before so removing
Tenant's Property shall establish to Landlord's satisfaction that Tenant can and
promptly will repair and restore any damage caused by such removal without cost
or charge to Landlord, and the Financial Condition shall apply thereto. Any such
repair and removal shall itself be deemed a Tenant Change within the purview of
this Lease. Any Tenant's Property for which Landlord hereafter shall grant an
allowance, contribution or credit to Tenant, at Landlord's option, shall not be
so removed except as hereinafter in this Article 17 expressly provided.
17.03. Tenant's Property and other property of the Tenant (except
money, securities and other like valuables) which shall remain in the Premises
after the termination or expiration of this Lease may, at the option of the
Landlord, be deemed to have been abandoned, and, provided that Landlord shall
give Tenant at least ten (10) days prior notice of its intention to do so, in
such case either may be retained by Landlord as its property or may be disposed
of, without accountability, in such manner as Landlord may see fit, at Tenant's
expense, inclusive of the reasonable cost of repairing any damage caused by such
removal to the extent not attributable to Landlord's negligence or wilful
misconduct should Landlord have effected such removal.
ARTICLE 18
Repairs and Maintenance
SECTION 18.01. Tenant shall, at its sole cost and expense, take good
care of the Premises, and shall make all repairs thereto, attributable to (a)
the moving, installation, removal, use or operation of Tenant's Work, Tenant
Changes, or Tenant's Property or property of Tenant (not constituting Tenant's
Property) or of parties acting for or at the instance of Tenant or those
deriving their interest in the Premises through or under Tenant or (b) the
wrongful acts, omissions, negligence or improper conduct of Tenant or any other
parties referenced in clause (a) preceding or (c) to the extent not within the
purview
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of (a) preceding, with respect to Tenant's Work, Tenant Changes or Tenant's
Property. All such repairs shall be quality and class equal to the original work
or installations. As used in this Section 18.01, and in Section 18.02 following,
the term "repairs" or derivatives thereof shall include "replacements" where
applicable. Tenant shall promptly notify Landlord of the need for any such
repairs.
18.02. Landlord shall make all repairs, including load-bearing
repairs to the Building and the Premises (including the HVAC Systems), as and to
the extent needed for the Premises to be used and occupied as provided in the
first paragraph of Section 9.01 hereof, except for those repairs for which
Tenant is responsible pursuant to Section 18.01 hereof or any other provisions
of this Lease.
The provisions of Sections 18.01 and 18.02 hereof shall not apply to
repairs required by reason of a Taking or fire or other casualty.
18.03. Except for matters attributable to Landlord's negligence
(with regard to which Tenant is not contributorily negligent) or willful
misconduct, Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease, or Requirements, to make in or to any portion of the Project.
18.04. Tenant shall not place a load upon the floor of the Premises
exceeding the floor load per square foot areas which such floor was designed to
carry and which is allowed by law.
18.05. Machines and mechanical equipment used by Tenant which cause
vibration, noise, cold or heat that may be transmitted to the Building structure
or to any leased space to such a degree as to be objectionable to Landlord or to
any other tenant in the Building shall be placed and maintained by Tenant at its
expense so as to absorb such vibration, noise, cold or heat, and to prevent its
transmission.
18.06. Except as otherwise specifically provided in this Lease,
there shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of the Landlord by reason of inconvenience, annoyance or
injury to business arising from the making by Landlord of any repairs,
alterations, additions or improvements in or to any portion of the Premises or
in or to fixtures, appurtenances, systems or equipment thereof. Landlord shall
exercise reasonable diligence so as to minimize any interference with Tenant's
business
44
operations by reason of any of the foregoing, but shall not be required to
perform the same on an overtime or premium pay basis.
ARTICLE 19
Services and Functions
SECTION 19.01. Landlord will not be required to furnish any
services, except as otherwise specifically provided in this Lease.
19.02. Landlord reserves the right, without any liability to
Landlord, except as otherwise expressly provided in this Lease, to stop service
of any one or more of the systems serving the Project, inclusive of the Premises
and cease to perform any service required to be performed by it under this
Lease, whenever and for so long as may be necessary, using reasonable efforts to
minimize the stoppage by reason of accidents, emergencies, strikes or the making
of repairs or changes which Landlord is required by this Lease or by Requirement
to make or in good xxxxx xxxxx necessary, by reason of any other cause beyond
Landlord's reasonable control.
19.03. Tenant shall utilize only the heating, ventilating and air
conditioning equipment servicing the Premises (the "HVAC Systems") to furnish
heating, ventilation and air conditioning (the "HVAC Services") to the Premises
and, subject to the capacity of the heating system to do so if properly operated
by Tenant, shall furnish heat to the Premises at such times and in such
quantities, so that its failure to do so shall not be a material cause of (a)
pipes and equipment within the Building, inclusive of the Premises, bursting or
being damaged by weather conditions or (b) discomfort to occupants of other
space within the Building. Landlord shall not be obligated to install any other
or additional HVAC Systems or any part or parts thereof in the Premises or to
furnish any HVAC Services to the Premises.
The air conditioning system servicing the Premises shall be capable
of maintaining in the Premises a maximum of 78 degrees FDB, 55% relative
humidity when the outdoor temperature is between 95 degrees FDB and 75 degrees
FDB with the prevailing wind velocity not exceeding 13 miles per hour.
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The performance specified in the preceding paragraph shall be
conditioned upon the following criteria:
(i) Population One person per 150
Density square feet of useable
area within the
Premises
(ii) Lighting and 5 xxxxx per square foot
Electrical Load of usable area within
the Premises
(iii) Exhaust and 1/10 CFM per
Ventilation square foot of useable
Load area within the
Premises.
The heating system servicing the Premises shall be capable of
maintaining in the Premises a minimum of 70 degrees FDB when the outdoor
temperature is not less than 0 degrees FDB and the prevailing wind velocity does
not exceed 15 miles per hour.
Use of the Premises or any part thereof, in a manner, such as by way
of illustration and not in limitation, excessive occupancy or connected
electrical load or rearrangement of partitioning, which interferes with normal
operation of the HVAC Systems may require changes in the HVAC Systems serving
the Premises. Such changes, so occasioned, shall be made by Tenant, at its sole
cost and expense, as a Tenant's Change pursuant to Article 15 of this Lease.
Landlord represents that the electric service dedicated exclusively
to the Premises is capable of a capacity of 5 xxxxx per square foot of usable
area within the Premises.
The HVAC Systems servicing the Premises are operated by Tenant from
controls located within the Premises. Landlord has informed Tenant that the
windows of the Premises and the Building are sealed, and that the Premises may
become uninhabitable and the air therein may become unbreathable if Tenant fails
to operate the HVAC Systems. Any use or occupancy of the Premises when Tenant
does not operate the HVAC Systems shall be at the sole risk, responsibility and
hazard of Tenant, and Landlord shall have no responsibility or liability
therefor. Such condition of the Premises shall not constitute nor be deemed to
be a breach or a violation by Landlord of this Lease or of any provision
thereof, nor shall it be deemed an actual or constructive eviction nor shall
Tenant claim or be entitled to claim any abatement of Rental nor make any claim
for any damages or compensation by reason of such condition of the Premises.
46
Tenant shall cause and keep entirely unobstructed all the vents, intakes,
outlets and grilles, at all times and shall comply with and observe all
regulations and requirements prescribed by Landlord for the proper functioning
of the HVAC Systems.
19.04. Intentionally omitted.
19.05. The cleaning and rubbish removal services which will be
furnished by Landlord, at its expense, are set out in the Cleaning, Rubbish
Removal and Security Specifications annexed hereto as Exhibit F and made a part
hereof. Tenant shall pay to Landlord, within thirty (30) days after demand, the
costs incurred by Landlord for (a) extra cleaning work in the Premises required
because of (i) misuse or neglect on the part of Tenant or its employees,
contractors, agents or invitees, (ii) use of portions of the Premises for
preparation, serving or consumption of food or beverages for functions as
provided in Section 9.04(a) of this Lease, (iii) data processing or reproducing
operations in excess of normal office usage, and (iv) non-building standard
materials or finishes installed by Tenant or at its request, Landlord and Tenant
acknowledging that Landlord's Work is not non-building standard, and (b) removal
from the Premises and the Building of so much of any refuse and rubbish of
Tenant as shall exceed that ordinarily accumulated daily in the routine of
business office occupancy. Landlord, its cleaning contractor and their employees
shall have After Hours access to the Premises for cleaning purposes and the use
(at Tenant's expense) of light and power in the Premises as reasonably required
for the purpose of cleaning the Premises in accordance with Landlord's
obligations hereunder.
19.06. Landlord shall provide exterminating services within the
Premises during the Term, as shall be necessary to maintain the Premises free of
insects or vermin. Tenant agrees not to use the Premises in such manner which
can reasonably be anticipated to propagate the existence of such insects or
vermin.
19.07. Landlord shall furnish adequate cold water in the kitchen
located within the Premises. Landlord represents that there is an operating hot
water heater within the Premises. Such water shall be used only for drinking and
the preparation of food or beverages permitted in Section 9.04 hereof and for
dishwashing purposes.
19.08. No discontinuance or cutoff of utilities or services shall be
construed as an eviction or disturbance of possession giving Tenant an election
to terminate this Lease, unless caused solely by the wilful misconduct or
default of Landlord beyond any applicable cure period. Landlord shall use
reasonable efforts to give Tenant reasonable advance notice of
47
any discontinuance and cutoff of utilities or services and of the anticipated
period thereof.
19.09. Intentionally omitted.
ARTICLE 20
Access, Changes in Building Facilities, Name
SECTION 20.01. Except for the inside surfaces of all walls, windows
and doors bounding the Premises, all of the Project, including exterior Building
walls, core corridor walls and doors and any core corridor entrance, any
terraces or roofs adjacent to the Premises, and any space in or adjacent to the
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other Building facilities, and the use thereof, as
well as access thereto through the Premises for the purposes of operation,
maintenance, decoration and repair, are reserved to Landlord.
20.02. Landlord, notwithstanding anything herein to the contrary,
shall have access to the Premises upon reasonable prior notice to Tenant (except
in an emergency, in which case Landlord shall use reasonable efforts to provide
such notice as is possible under the circumstances) for the purpose of making
any changes, alterations, additions, improvements, repairs or replacements in or
to the Project (including the Premises) and the fixtures and equipment thereof,
and in so doing may bring into the Premises and store the material therein
necessary to accomplish the foregoing. Landlord shall use reasonable efforts to
minimize the adverse effect on Tenant of any such entry onto the Premises.
In addition, Landlord may install, maintain and use pipes, ducts and
conduits in and through the Premises, if it is unable reasonably to accomplish
any such installation outside the Premises, provided, however, in accomplishing
any of the foregoing within the Premises, there shall be no more than an
insignificant obstruction of the means of access to the Premises or interference
with the use of the Premises.
20.03. So long as Tenant occupies at least ten thousand (10,000)
rentable square feet of the Premises, Landlord will not name the Building for a
tenant at the Project, and, if required to do so by a Requirement, reserves the
right to change the name or address of the Building at any time and from time to
time. If at any time any windows of Premises are temporarily darkened or
obstructed incident to or by reason of repairs, replacements, maintenance and/or
cleaning in, on, to or about the Building or
48
any part or parts thereof, or are temporarily closed or rendered inoperable,
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.
20.04. Except for matters attributable to Landlord's negligence
(with regard to which Tenant is not contributorily negligent) or wilful
misconduct, there shall be no allowance to Tenant for a diminution of rental
value and no liability on the part of Landlord by reason of inconvenience,
annoyance, interruption or injury to business arising from Landlord, Tenant or
others making any changes, alterations, additions, improvements, repairs or
replacements in or to any portion of the Project, inclusive of the Building and
the Premises, or in or to fixtures, appurtenances or equipment thereof, and no
liability upon Landlord for failure of Landlord or others to make any changes,
alterations, additions, improvements, repairs or replacements in or to any
portion of the Project, inclusive of the Building and the Premises, or in or to
the fixtures, appurtenances or equipment thereof.
20.05. Landlord or Landlord's agents and designees, during Regular
Hours, on reasonable advance notice to Tenant, shall have the right to enter
and/or pass through the Premises or any part thereof to examine the Premises and
to show them to actual and prospective Mortgagees and to prospective purchasers,
of the Project or any part thereof, or Landlord's interest therein.
20.06. During the period of twelve (12) months prior to the
expiration or termination of this Lease, Landlord, in a non-intrusive manner,
may exhibit the Premises to prospective tenants during Regular Hours on
reasonable advance notice to Tenant.
20.07. Wherever in a provision of this Lease, reference is made to
the right of Landlord to enter the Premises for an activity therein referenced,
the term "Landlord" shall mean and include its representatives and designees.
20.08. Landlord shall correct all damage it shall have caused to the
Premises in effecting the provisions of Section 20.02 preceding, promptly after
completion.
20.09. No sign shall be placed on the exterior of the Building
(including the roof) identifying one of its tenants or the nature of any
tenant's business.
20.10. Landlord shall have the right to allow Project tenants and
occupants to install an identification lawn sign near
49
the entrance to its premises, provided that such lawn sign does not block the
front of Tenant's laws sign at its location specified in Section 9.05 hereof.
Tenant's identification lawn sign shall be fabricated and installed
by Tenant in accordance with the standard specified in Exhibit D hereto at
Tenant's cost, but thereafter shall be maintained by Landlord at its expense.
ARTICLE 21
Notice of Accidents
SECTION 21.01. Tenant shall give notice to Landlord, promptly after
Tenant learns thereof, of (i) any accident in or about the Premises for which
Landlord might be liable, (ii) all fires and other casualties within the
Premises, (iii) all damages to or defects in the Premises, including the
fixtures, equipment and appurtenances thereof for the repair of which Landlord
might be responsible, and (iv) all damage to or defects in any parts of
appurtenances of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator and other systems located in or passing through the
Premises or any part thereof.
ARTICLE 22
Non-Liability and Indemnification
SECTION 22.01. Landlord shall not be liable to Tenant for any
personal injury (including death) to Tenant or to any other person or for any
damage to, or loss (by theft or otherwise) of, any Tenant Property or the
property of any other person, irrespective of the cause of such injury, damage
or loss, unless caused by or due to the negligence or, wilful misconduct of
Landlord, it being understood that no property, other than such as might
normally be brought upon or kept in the Premises as an incident to the
reasonable use of the Premises for the purposes herein permitted, will be
brought upon or be kept in the Premises.
22.02. Tenant shall indemnify and save harmless Landlord and its
agents against and from (a) any and all claims, liabilities, losses and damages
(i) arising from or attributable to (x) the use, occupancy or operation of the
Premises or of any business therein, or (y) any work or thing whatsoever done,
or any condition created (other than by Landlord) in or about the Premises
during the Term or during the period of time, if any,
50
prior to the Commencement Date that Tenant may have access to the Premises, or
(ii) arising from or attributable to any negligent or otherwise wrongful act or
omission of Tenant or any of its subtenants or its or their employees, agents,
contractors or invitees, and (b) all costs, expenses and liabilities incurred in
or in connection with each such claim or action or proceeding brought thereon.
In case any action or proceeding be brought against Landlord by reason of any
such claim, Tenant, upon notice from Landlord, shall resist and defend such
action or proceeding. The provisions of the indemnities herein given shall not
inure to the benefit of Landlord's insurer if and to the extent such insurer
shall, under the terms of this Lease, be required to give Tenant a waiver of
subrogation in respect thereof or to Landlord or its insurer if and to the
extent Landlord shall have released Tenant as provided in the second paragraph
of Section 13.02 hereof.
22.03. Any employee or agent of Landlord to whom any property shall
be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and Landlord shall not be liable for any
loss of or damage to any such property by theft or otherwise.
22.04. This Lease and the obligations of Tenant hereunder shall be
in no way affected, impaired or excused because Landlord is unable to fulfill,
or is delayed in fulfilling, any of its obligations to Tenant under this Lease
(other than an obligation requiring a payment of money by Landlord) by reason of
strike, other labor trouble, governmental pre-emption or priorities or other
controls in connection with a national or other public emergency or shortages of
fuel, supplies or labor resulting therefrom, or other like cause beyond
Landlord's reasonable control.
22.05. Notwithstanding anything to the contrary elsewhere contained
in this Lease, Landlord shall be excused from fulfilling an obligation to Tenant
under this Lease or doing so within a date by which such obligation is required
to be performed, and vice versa, to the extent it is unable to fulfill or is
delayed in fulfilling such obligation under this Lease by reason of strike,
other labor trouble, governmental pre-emption or priorities or controls in
connection with a national or other public emergency, shortages of fuel,
supplies or labor resulting therefrom, acts of God, fire, casualty, acts or
omissions of Tenant or its agents, servants, employees or invitees or a cause
beyond Landlord's reasonable control. The foregoing provisions shall not apply
to an obligation requiring a payment of money by or applicable to, either
Landlord or Tenant. The time within which Landlord or Tenant, as the case may
be, is required to attain such fulfillment shall be extended not less than one
day for each day or any fraction thereof of any such delay.
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22.06. Except for willful misconduct, negligence or default beyond
any applicable cure period of Landlord, no (i) act or omission of Landlord or
its agents or employees or any other party, including Tenant, (ii) failure of
any Project or Building systems, or machinery or equipment serving the Project
(including the Building or the Premises), (iii) personal injury or property
damage caused by third parties, or (iv) inconvenience or annoyance to Tenant or
injury to or interruption of Tenant's business by reason of anything referred to
in the foregoing shall impose any liability on Landlord. No representation,
guaranty or warranty is made that the communications or security systems,
devices or procedures of the Building or Project, if any, will be effective to
prevent injury to Tenant or any other person or damage to, or loss (by theft or
otherwise) of, any of the property of Tenant or the property of any other
person, and Landlord reserves the right to discontinue or modify at any time
such communications or security systems or procedures without liability to
Landlord.
ARTICLE 23
Destruction or Damage
SECTION 23.01. If any part or parts of the Project (inclusive of the
Building) shall be partially or totally damaged or destroyed by fire or other
casualty, then whether or not the damage or destruction shall have resulted from
the fault or neglect of Tenant, or its employees, agents or visitors (and if
this Lease shall not have been terminated as in this Article 23 hereinafter
provided), Landlord shall repair the damage and restore the affected part of the
Project, at its expense, with reasonable dispatch after notice to it of the
damage or destruction; provided, however, that Landlord shall not be required to
repair or replace (a) Tenant's Property, Tenant's Work or Tenant Changes, or (b)
portions of the Building, outside of the Premises not necessary to make the
Premises tenantable.
23.02. If the Building or the Premises shall be damaged or destroyed
in whole or in part by fire or other casualty, the Rental shall xxxxx to the
extent that as a result thereof the Premises shall have been rendered
untenantable for the period from the date of such damage or destruction to the
date the damage shall be repaired or restored, provided, however, that should
Tenant reoccupy a portion of the Premises for the conduct of its business during
the period the restoration work is taking place and prior to the date that the
same are made completely tenantable, Rental allocable to such portion shall be
payable by Tenant from the date of such occupancy. If the Lease shall terminate
by reason of damage or destruction referenced in this
52
Article 33, Rental shall be adjusted as of the effective date of such
termination.
23.03. If (a) the Premises shall be totally damaged or destroyed by
fire or other cause1 or (b) if the Building shall be so damaged or destroyed by
fire or other cause as to require a reasonably estimated (i) expenditure of more
than forty (40%) percent of the full replacement value of the Building
immediately prior to the casualty, or (ii) period of more than one (1) year to
repair or restore the Building and/or the Premises, then in any such case,
Landlord may terminate this Lease by giving Tenant notice to such effect within
ninety (90) days after the date of the casualty. In case of any damage or
destruction mentioned in this Article 23, Tenant, may terminate this Lease by
not less than sixty (60) days prior notice to Landlord, if, subject to the
application of Sections 22.03 and 22.04 hereof, Landlord has not completed the
making of the required repairs and/or restored the Building and the Premises
within twelve (12) months from the date of such damage or destruction. If the
Premises shall be damaged or destroyed by fire or other casualty within the last
twelve months of the Term, either Landlord or Tenant may terminate this Lease by
notice given to the other not more than thirty days after such fire or other
casualty if it can be estimated that such damage or destruction cannot be
repaired and restored within three months after the date on which such notice of
termination shall be given. Such termination shall be effective thirty days
after the giving by either Landlord or Tenant of such notice.
23.04. Intentionally omitted.
23.05. Landlord shall not be obligated to repair any damage to or to
replace or clean Tenant's Property other than Tenant's Property which is a
leasehold improvement.
23.06. Tenant shall not carry separate or additional insurance
concurrent in form or contributing in the event of any loss or damage with any
casualty insurance carried by Landlord.
23.07. The provisions of this Article 23 shall be considered an
express agreement governing any cause of damage or destruction of the Premises
by fire or other casualty, and Section 227 of the Real Property Law of the State
of New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
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ARTICLE 24
Eminent Domain
SECTION 24.01. In the event of a permanent taking by any
Governmental Authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance in lieu thereof (all and any of
which being hereafter referred to as a "Taking") of (a) the whole of the
Project, or (b) any part of the Premises deemed material by Tenant, the Term
shall cease as of the date (the "Law Date") title thereto shall be vested in or
possession thereof shall be taken by such Governmental Authority, whichever
first occurs.
Within thirty (30) days after Landlord's receipt of a written notice
from a Governmental Authority of a Taking it shall furnish Tenant with a copy of
such notice, together with a copy of all materials which accompanied such
notice.
24.02. If there shall be a Taking of less than the whole of the
Project, then, provided there is no Taking of any part of the Premises deemed
material by Tenant (in which event, Section 24.01 hereof would be applicable),
the Term shall cease as of the Law Date with respect to the part of the Project
which is the subject of the Taking (and not otherwise), and there shall be an
abatement or reduction of Rental as provided in Section 24.03 hereof. If,
however, the Taking shall be of more than twenty (25%) percent of the parking
spaces within the Project, or, of more than ten (10%) percent of the Common
Areas within the Building, either Landlord or Tenant shall have the right to
terminate this Lease by notice given to the other no later than thirty (30) days
subsequent to the Law Date and effective sixty (60) days thereafter.
In the event of any termination pursuant to the preceding paragraph
of this Section 24.02 or a termination pursuant to Section 24.01, Landlord shall
make an appropriate refund of Rental paid for a period subsequent to the Law
Date. Landlord may negate Tenant's termination of the Lease which is based on
the Taking of more than twenty (20%) percent of the parking spaces within the
Project by notice given within fifteen (15) days subsequent to the date of
Tenant's notice of termination advising Tenant that land on which replacement
parking spaces may be constructed and used by occupants of the Project is
available on or in close proximity of the Land and that such parking spaces will
be constructed thereon by or on behalf of Landlord diligently, in a good and
workmanlike manner and in compliance with Requirements.
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A determination of the materiality of the Taking of any part of the
Premises, as provided in this Section 24.02 and 24.01 preceding, shall be made
by Tenant no later than thirty (30) days subsequent to the Law Date and notice
with respect thereto given to Landlord, within the same thirty (30) day period.
If Tenant shall not have made such election within the preceding time period
available to Tenant to do so, it shall conclusively be deemed that such Taking
of a part of the Premises is not material. If, on the other hand, Tenant, within
the prescribed period, shall have made a determination that the Taking of a part
of the Premises is material and notified Landlord of such election within such
time period, Landlord may dispute that determination by so notifying Tenant no
more than thirty (30) days after Landlord's receipt of Tenant's determination
that the Taking was material. Either Landlord or Tenant shall have a thirty (30)
day period to submit such dispute to Arbitration, failing which, Tenant's
determination of materiality shall prevail and the burden of proof in such
dispute shall be on Tenant.
24.03. In the event of a Taking, Tenant shall pay Rental without
abatement or reduction up to and including the Law Date. If notwithstanding a
Taking, this Lease shall continue, then, as of the day subsequent to the Law
Date, Tenant's Proportionate Share thereafter shall be computed in the
proportion that the remaining Area of the Premises bears to the remaining Area
of the Building, and there shall be a just and equitable reduction in Net Annual
Rent attributable to such a loss of parking spaces, or reduction in the Area of
the Premises.
24.04. If this Lease shall continue notwithstanding a Taking,
Landlord shall diligently make all necessary repairs or alterations so as to
constitute the remaining Project (inclusive of the remaining Premises) to the
extent reasonably attainable, a complete architectural and tenantable unit.
24.05. All compensation awarded for a Taking, whether for the whole
or a part of the Premises, the Buildings or the Land or otherwise, shall be the
property of Landlord, whether such damages shall be awarded as compensation for
diminution in the value of the leasehold or to the fee of the Premises, and
Tenant hereby assigns to Landlord all of Tenant's right, title and interest in
and to any and all such compensation. Nonetheless, Tenant shall be entitled to
claim, prove and receive in the condemnation proceeding such awards as may be
allowed, but only if such awards shall be made in addition to and shall not
result in a reduction of the award for the Project.
24.06. Any dispute between Tenant or Landlord as to the extent of
the abatement or reduction of Net Annual Rent, as
55
provided in Section 24.03 hereof, shall be resolved by Arbitration.
ARTICLE 25
Surrender
SECTION 25.01. On the expiration or sooner termination of this
Lease, or upon any re-entry by Landlord upon the Premises as provided in Article
27 hereof, Tenant shall quit and surrender the Premises to Landlord in the
condition in which it is required to be kept and maintained by Tenant pursuant
to the terms of this Lease, and Tenant shall remove all of Tenant's Property
therefrom except as otherwise expressly provided in this Lease. The provisions
hereof shall survive the expiration or other termination of the Term.
25.02. In the event of any holding over by Tenant after the
expiration or termination of this Lease without the consent or Landlord, Tenant
shall pay as holdover Net Annual Rent for each month (or part of a month) of the
holdover tenancy Forty Three Thousand ($43,000) Dollars (the "Holdover
Payment"), and otherwise shall observe, fulfill and perform all of its
obligations under this Lease, including but not limited to, those pertaining to
Additional Rent, in accordance with its terms, and, commencing with the fourth
month of the holdover, in addition, Tenant shall be liable to Landlord for (a)
any payment or rent concession which Landlord may be required to make to any
tenant in order to induce such tenant not to terminate an executed lease
covering all or any portion of the Premises by reason of the holding over by
Tenant, and (b) any special (but not speculative) damages suffered by Landlord
as the result of Tenant's failure to surrender the Premises. Amounts received by
Landlord in satisfaction of (a) and (b) preceding (collectively, the "Holdover
Damages") , shall reduce each Holdover Payment received by the Landlord
commencing with the third month of the holdover by Fourteen Thousand Three
Hundred ($14,300) Dollars until the aggregate reduction of the Holdover Payments
equals the Holdover Damages.
No holding over by Tenant after the Term shall operate to extend the
Term.
The holdover, with respect to all or any part of the Premises, of a
person deriving an interest in the Premises from or through Tenant, including,
but not limited to an assignee or subtenant, shall be deemed a holdover by
Tenant.
Tenant expressly waives, for itself and for any person claiming
through or under Tenant, any rights which Tenant or such
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person may have to a stay of any holdover or eviction action or proceeding, or
other action or proceeding which Landlord may institute to enforce the
provisions of this Article.
Notwithstanding anything in this Article contained to the contrary,
the acceptance of any Rental paid by Tenant pursuant to this Section 25.02,
shall not preclude Landlord from commencing and prosecuting a holdover or
eviction action or proceeding or any action or proceeding in the nature thereof.
The preceding sentence shall be deemed to be an "agreement expressly providing
otherwise" within the meaning of Section 232-c of the Real Property Law of the
State of New York and any successor law of like import.
ARTICLE 26
Bankruptcy, Conditions of Limitation
SECTION 26.01. Intentionally Omitted.
26.02. This Lease and the Term and estate hereby granted are subject
to further limitation as follows:
(a) whenever Tenant shall default in the payment of any
installment of Net Annual Rent, or in the payment of any Additional Rent or any
other Rental on any day upon which the same ought to be paid, and such default
shall continue for ten (10) days after Landlord shall have given Tenant a notice
specifying such default, or
(b) whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations
hereunder, other than a matter specified in any of the other Subsections of this
Section 26.02, and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a
notice specifying the same, or in the case of a situation heretofore referenced
in this subsection (b) which cannot with due diligence be cured within a period
of thirty (30) days and the continuance of which for the period required for
cure will not subject Landlord to the risk of criminal liability or termination
or foreclosure of any Mortgage, if Tenant shall not, (i) within said thirty (30)
day period advise Landlord of Tenant's intention to duly institute all steps
necessary to remedy such situation, (ii) duly institute within said thirty (30)
day period, and thereafter diligently prosecute the completion of all steps
necessary to remedy the same and (iii) complete such remedy within such time
after the date of the
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giving of said notice by Landlord as shall reasonable be necessary, or
(c) whenever any event shall occur or any contingency shall
arise whereby this Lease or the estate hereby granted or the unexpired balance
of the Term would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted in
Article 7, or
(d) Intentionally omitted.
(e) Intentionally omitted.
(f) whenever Tenant shall default in the due keeping,
observing or performance of any covenant, agreement, provision or condition in
(i) Article 9 (other than Section 9.03), and such default shall continue and
shall not be remedied by Tenant within thirty days after Landlord shall have
given Tenant a notice specifying such default, or (ii) Section 9.03 in which
event the provisions of subdivision (b) of this Section 26.02 shall be
applicable, or (iii) Section 16.02 hereof, and if such default shall continue
and shall not be remedied by Tenant within three (3) Business Days after Tenant
shall have received a notice specifying such default,
then in any of said cases set forth in the foregoing Subsections (a), (b), (c)
and (f) preceding, each such event or condition being herein referred to as an
"Event of Default", Landlord may give to Tenant a notice of intention to end the
Term at the expiration of five (5) days from the date of the service of such
notice of intention, and upon the expiration of said five (5) days this Lease
and the Term and estate hereby granted, whether or not the Term shall
theretofore have commenced, shall terminate, but Tenant shall remain liable for
damages as provided in Article 28.
26.03. If Tenant shall default under this Lease prior to the
Commencement Date, Landlord shall have all of the rights and remedies in this
Lease provided, should such default have occurred subsequent to the Commencement
Date, and it will be conclusively assumed for such purposes that the Term
commenced on and as of the date of such default. Nothing herein contained shall
be construed to negate Tenant's rights, to utilize any applicable cure periods
available to it pursuant to specific provisions of this Lease.
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ARTICLE 27
Re-Entry by Landlord
SECTION 27.01. If this Lease shall terminate as in Article 26
provided, Landlord or Landlord's agents and employees may immediately or at any
time thereafter re-enter the Premises, or any part thereof, either by summary
dispossess proceedings or by any suitable action or proceeding at law, or by
other lawful means, without being liable to indictment, prosecution or damages
therefrom, to the end that Landlord may have, hold and enjoy the Premises again
free of the leasehold estate and interest established herein. 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 26 or if
Landlord shall re-enter the Premises under the provisions of this Article 27 or
in the event of the termination of this Lease, or of re-entry, by or under any
summary dispossess or other proceedings or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to
Landlord the Net Annual Rent and Additional Rent payable by Tenant to Landlord
up to the time of such termination of this Lease, or of such recovery of
possession of the Premises by Landlord, as the case may be, and shall also pay
to Landlord damages as provided in Article 28.
27.02. In the event of a breach or threatened breach by Landlord or
Tenant of any of its obligations under this Lease, the other of them shall also
have the right of injunction. The several remedies to which Landlord or Tenant
may resort hereunder are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which it may lawfully be entitled at any
time and each may invoke any remedy allowed at law or in equity as if specific
remedies were not provided for herein.
27.03. If this Lease shall terminate under the provisions of Article
26, or if Landlord shall re-enter the Premises under the provisions of this
Article 27, 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 Rental, security or otherwise, but such moneys shall be credited by
Landlord against any Rental 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 28 or pursuant to a Requirement.
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ARTICLE 28
Damages
SECTION 28.01. If this Lease is terminated under the provisions of
Article 26, or if Landlord shall re-enter the Premises under the provisions of
Article 27, Tenant shall pay to Landlord as damages, sums equal to the Rental,
payable upon the due date therefor specified herein following such termination
and until the last day of the Term had this Lease not been sooner terminated,
provided, however, that if Landlord shall re-let the Premises during said
period, Landlord shall credit Tenant with the net Rental received by Landlord
from such re-letting, such net Rental to be determined by first deducting from
the gross Rental as and when received by Landlord from such re-letting, the
expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Premises and in securing possession thereof, as well as the
expenses of re-letting, including altering and preparing the Premises for new
tenants, brokers' commissions, and all other expenses properly chargeable
against the Premises and the rental thereof; it being understood that any such
re-letting may be for all or any part of the Premises or for a period shorter or
longer than the remaining term of this Lease; but in no event shall Tenant be
entitled to receive any excess of such net Rental 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 Section 28.01 to a credit in respect of
any net Rental from a re-letting, except to the extent that such net Rentals are
actually received by Landlord. Landlord shall be under no obligation to relet
all or any part of the Premises or otherwise to mitigate damages. If the
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 Rental
received from such re-letting and of the expenses of re-letting. If the Premises
or any part thereof be re-let 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 re-letting shall,
prima facie, be the fair and reasonable Rental value for the Premises, or part
thereof, so re-let during the term of the re-letting. Each such payment shall be
due and payable by Tenant on receipt of a statement from Landlord setting forth
the Rental for such period, less the Rental value for the Premises as determined
in accordance with the provisions of the preceding sentence, subject, however,
to the cure period available to Tenant as provided in the next succeeding
paragraph.
Should Tenant default in making a payment required of it pursuant to
the preceding paragraph upon the due date therefor, a three day cure period
(without notice) and none other being
60
available for such purpose, Tenant, if Landlord, at any time thereafter, so
elects, shall pay Landlord a sum which at the time of such default represents
the present value of the excess (the "Excess"), if any, using a discount rate
equal to the sum of (a) two hundred (200) basis points plus (b) the annual
percentage yield of a U.S. Treasury instrument requiring periodic payments of
interest, as published in a public source of information nationally recognized
for accuracy in the reporting of trading in U.S. Treasury securities, such as
the New York Times and the Wall Street Journal, selected by Landlord, which has
a maturity date on (or if there not be any) a maturity date closest prior to the
expiration date of this Lease had it not sooner terminated of
(i) the aggregate of the Rental which would have been payable
by Tenant hereunder (as presumed in the first paragraph of this Section 28.01)
for the period commencing with the date of the default specified in the
preceding paragraph, and ending with the last day of the Term, had this Lease
not so terminated, over
(ii) if re-let, the aggregate Rental payable for the Premises
for the same period, and to the extent it is not fully rented, the Rental value
for the part not re-let, it being understood that the Rental value, as
determined by Landlord shall prima facie be the Rental value of the part of the
Premises not so relet.
This paragraph shall not be applicable if the Excess is a negative number.
28.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 26, or under any provision of law,
or had Landlord not re-entered the Premises.
28.03. Nothing herein contained shall be construed to limit or
preclude recovery by Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant. Nothing
herein contained shall be construed to limit or prejudice the right of Landlord
to prove for and obtain as damages by reason of the termination of this Lease or
re-entry of the Premises for the default of Tenant under this Lease, an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages are to be proved
whether or not such amount be greater, equal to, or less than any of the sums
referred to in Section 28.01.
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ARTICLE 29
Waivers
SECTION 29.01. 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
Premises or to have a continuance of this Lease for the Term after being
dispossessed or rejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as herein provided.
29.02. In the event that Tenant is in arrears in payment of Rental,
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.
29.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of landlord and tenant, Tenant's use or occupancy of the Premises,
including any claim of injury or damage, or any emergency or other statutory
remedy with respect thereto. Tenant also waives the provisions of any law
relating to notice and/or delay in levy of execution in case of an eviction or
dispossess, and of any other law of like import now or hereafter in effect. If
Landlord commences any summary proceeding, Tenant agrees that Tenant will not
interpose any counterclaim of whatever nature or description, other than a
mandatory counterclaim, in any such proceeding.
ARTICLE 30
No Other Waivers or Modifications
SECTION 30.01. The failure of either party to insist in any one or
more instances upon the strict performance 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
62
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, in whole or in part, unless such executory agreement is in writing,
refers expressly to this Lease and is signed by the party against whom
enforcement of the change, modification, waiver, release, discharge or
termination or effectuation of the abandonment is sought.
30.02. The following specific provisions of this Section 30.02 shall
not be deemed to limit the generality of Section 30.01:
(a) No agreement to accept a surrender of all or any part of
the Premises shall be valid unless in writing and signed by Landlord. The
delivery of keys to an employee of Landlord or of its agents shall not operate
as a termination of this Lease or a surrender of the Premises. If Tenant shall
at any time request Landlord to sublet the Premises for Tenant's account,
Landlord or its agent is authorized to receive said keys for such purpose
without releasing Tenant from any of its obligations under this Lease, and
Tenant hereby releases Landlord from any liability for loss or damage to any of
Tenant's property in connection with such subletting.
(b) The receipt by Landlord of Rental 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 Rental 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 31
Curing Defaults
SECTION 31.01. If Tenant shall default in the performance of any of
Tenant's obligations under this Lease, Landlord, without thereby waiving such
default, may (but shall not be obligated to) perform the same for the account
and at the expense of Tenant, without notice, in a case of emergency, and in
63
any other case, beyond the period provided for the cure thereof in this Lease.
All reasonable sums so paid by Landlord and all costs and expenses
reasonably incurred by Landlord in connection with the provisions of the
preceding paragraph, inclusive of attorneys' fees, shall be paid by Tenant to
Landlord within thirty (30) days of demand.
31.02. A. If Landlord shall fail to make any repairs required of
Landlord under this Lease, beyond the period provided for the cure thereof,
Tenant, without thereby waiving such default, may (but shall not be obligated
to) perform the same and to be reimbursed by Landlord for the reasonable costs
thereof inclusive of attorneys' fees if the failure of Landlord to make such
repairs materially and adversely impairs Tenant's ability to use the Premises
for the operation of its business pursuant to the first paragraph of Section
9.01 hereof.
B. Anything in this Section 31.02 to the contrary notwithstanding,
Landlord agrees that in the event of an emergency which poses the threat of
imminent, severe damage to Tenant, or its employees, or invitees, or to Tenant's
Property, and necessitates immediate repair, Tenant may proceed forthwith to
make such repair ("Emergency Repairs") if (i) it is unable to notify Landlord of
such emergency condition after using diligent efforts to contact and advise
Landlord of the need for such Emergency Repairs, or (ii) Landlord fails to make
Emergency repairs after being notified of the need to do so.
C. If Landlord fails to reimburse Tenant for repairs referenced in
B. preceding, within thirty days after Tenant shall furnish Landlord with a
statement in reasonable detail of the repairs effected and the costs thereof,
supported by invoices from third parties for the furnishing of materials or the
performance of work in connection with the making of such repairs, Tenant may
deduct the cost thereof from the installments of Net Annual Rent first becoming
due and payable after the date on which such reimbursement is first required to
be made.
D. If provisions of this Section 31.02 shall not apply to the
provisions of the second paragraph 1.02 hereof, and vice versa.
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ARTICLE 32
Parties Bound
SECTION 32.01. The obligations of this Lease shall bind and benefit
the successors and assigns of the Landlord and Tenant with the same effect as if
mentioned in each instance where a party is named or referred to, except that
(a) the provisions of Section 2.01(h) shall be applicable and prevail, (b) no
violation of the provisions of Article 7 shall operate to vest any rights in any
successor or assignee of Tenant and (c) the provisions of this Article 32 shall
not be construed as modifying the conditions of limitation contained in Article
26.
32.02. Notwithstanding anything in this Lease to the contrary (it
being intended that in case of a conflict, the provisions of this Section 32.02
always shall prevail and control), Tenant shall look only to the Landlord's
estate in the Project at the time recourse is sought for the satisfaction of
Tenant's remedies against Landlord or the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord hereunder and, no
other property or assets of Landlord shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies under or
with respect to this Lease, the relationship of landlord and tenant hereunder or
Tenant's use or occupancy of the Premises, or otherwise.
32.03. Without limiting the provisions of Section 32.02 hereof, any
agreement, obligation or liability of Landlord arising under this Lease is made,
entered into and incurred by Landlord upon the express condition that no
trustee, partner, shareholder, director, officer, employee, principal, parent,
agent or advisor of Landlord, assumes nor shall be held to any personal
liability hereunder for whatsoever reason including fault on the part, for
example, of any one or more of the foregoing, and resort shall not be had to the
private property of any such trustee, partner, shareholder, director, officer,
employee, principal, parent, agent or advisor.
32.04. Landlord shall be deemed in default under the terms of this
Lease only if Landlord shall fail to observe, fulfill or perform an obligation
specifically imposed on Landlord under the terms of this Lease and such failure
is not cured by Landlord within thirty (30) days after Tenant shall have given
Landlord notice of such failure, in reasonable detail, provided, however, that
so long as Landlord commences and prosecutes such cure with reasonable
diligence, Landlord will be allowed such additional time to effect such cure as
may be reasonably necessary without being deemed in default with respect to such
65
failure. No action taken by Landlord in connection with an such notice given to
it by Tenant shall be construed admission that any such default exists.
32.05. Intentionally omitted.
32.06. Under no circumstances shall the Landlord, and after the
Commencement Date, the Tenant, be liable for consequential, special, exemplary
or punitive damages or any damages in the nature of any of the foregoing or
damages for loss of business or business opportunities.
32.07. Landlord notwithstanding any contrary provisions of this
Lease, shall not be liable for damages to Tenant or its subtenants or an
Affiliated Entity, except for its negligence or willful misconduct or defaults
under this Lease after the expiration of applicable grace periods. Landlord
shall use reasonable diligence to make such repairs as may be required to
machinery or equipment within the Project to provide restoration of services
required hereunder to be provided by Landlord to Tenant and, where the cessation
or interruption of such service has occurred due to circumstances or conditions
beyond the Project boundaries, or the acts or omissions of others, to seek
restoration of such services by diligent application or request to the provider.
ARTICLE 33
Notices
SECTION 33.01. All notices, requests, and other communications
required or permitted under this Lease (each, a "notice") shall be in writing
and shall be deemed duly given only if delivered personally or by express
delivery service for next Business Day delivery (such as UPS Next Day Air and
Federal Express), or if sent by registered or certified U.S. Postal Service
mail, return receipt requested, first class, postage prepaid, to the following
addresses (or to another address of a party that such party elects to designate
in writing to all other addressees listed below):
(a) If to Tenant at:
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000, until the Commencement
Date and thereafter at the Premises
Attention: Xxxxxxx X. Xxxxx, Esq.
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with one copy for informational purposes to:
Xxxx Xxxxxx, Esq.
Xxxx Marks and Xxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(b) If to Landlord at:
0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
with one copy for informational purposes to:
Xxxxxxx X. Xxxxxx, Esq.
0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Such notice, including notice of a change of the party constituting
the Tenant or the Landlord or a change in a mailing address, shall be deemed to
have received (a) on the date it is delivered, if such day is a Business Day and
if it is not, the next Business Day, if it is delivered in person, (b) two
Business Days after the date on which it is delivered to the express delivery
service such as Federal Express, for next Business Day service, or (c) two
Business Days after it is delivered to a U.S. Postal Service post office or
depository, if it is sent by registered or certified mail. Notwithstanding the
foregoing, a notice given to meet a deadline shall be deemed received on the day
when given by any of the methods referenced in the preceding sentence in such
day is a Business Day, and if it is not, such notice shall be deemed to have
been given on the next Business Day following the day on which such notice shall
have been given.
Where reference is made to a copy being sent "for informational
purposes" it shall be construed that the party sending such copy will in good
faith endeavor to send it, but the failure to do so shall not affect the
viability of a notice to a Tenant or to a Landlord in the manner provided in
this Section 33.01.
A notice on behalf of a party hereto may be that of the attorney for
such party, provided that in such notice or accompanying it, such attorney shall
certify that it is the attorney for such party and has been authorized by such
party to furnish such notice.
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ARTICLE 34
Estoppel Certificate, Memorandum
SECTION 34.01. Each party agrees, at any time and from time to time,
as requested by the other party, upon not less than fifteen (15) days prior
notice, to execute and deliver to the other a statement certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications that the same is in full force as modified and stating the
modifications), certifying the dates to which the respective items of Rental
have been paid, and stating whether or not, to the best knowledge of the signer,
the other party is in default in performance of any of its obligations under
this Lease, and, if so, specifying each such default of which the signer may
have knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by others with whom the party requesting such
certificate may be dealing. Such statement, in the case of any statement
required of Tenant, shall also contain such additional provisions as reasonably
may be requested by a Mortgagee.
34.02. At the request of either party, Landlord and Tenant shall
promptly execute, acknowledge and deliver a memorandum with respect to this
Lease sufficient for recording. Such memorandum shall not in any circumstances
be deemed to change or otherwise affect any of the obligations or provisions of
this Lease.
ARTICLE 35
Arbitration
SECTION 35.01. When so specified in this Lease, any dispute,
controversy or claim arising out of this Lease shall be settled by expedited
mandatory arbitration as set forth in this Article 35.
35.02. Either party may demand arbitration by notifying the other
party in writing in accordance with the notice provisions of Article 33. The
notice shall describe the reasons for such demand, the amount involved, if any,
and the particular remedy sought. The notice shall also list the name of one
arbitrator qualified in accordance with Section 35.04.
35.03. The party that has not demanded arbitration shall respond to
the notice of demand within ten (10) calendar days of receipt of such notice by
delivering a written response
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in accordance with the notice provisions of Article 33. The response shall list
the name of a second arbitrator qualified in accordance with Section 35.04. The
response shall also describe counterclaims, if any, if such claims are
specifically arbitrable hereunder and permitted by the rules of the arbiter, the
amount involved, and the particular remedy sought. If a party fails to respond
timely to the notice of demand, the arbitrator selected by the party making such
demand under Section 35.02 shall resolve the dispute, controversy or claim
within thirty (30) calendar days of the deadline for response.
35.04. Any arbitrator selected in accordance with Sections 35.02 and
35.03 shall be a natural person not employed by either of the parties or any
parent or affiliated partnership, corporation or other enterprise thereof, shall
be a member of the American Arbitration Association (whose rules shall apply to
such arbitration) and shall have at least five (5) years experience arbitrating
real estate matters.
35.05. If a party responds timely to a notice of demand for
expedited arbitration under Section 35.03, the two arbitrators shall appoint a
third arbitrator who shall be qualified in accordance with Section 35.04. Such
third arbitrator shall be appointed within ten (10) calendar days of receipt by
the party demanding arbitration of notice of response provided for under Section
35.03. If the two arbitrators fail to timely appoint a third arbitrator, the
third arbitrator shall be appointed by the parties if they can agree within a
period of ten (10) calendar days. If the parties cannot timely agree, then
either party may request the appointment of such third arbitrator pursuant to an
action brought for such purpose before the Supreme Court, Nassau County;
provided that the other party shall not raise any question as to the Court's
full power and jurisdiction to entertain such application and to make such
appointment.
35.06. The arbitration hearing shall commence within thirty (30)
calendar days of appointment of the third arbitrator as described in Section
35.05. The hearing shall in no event last longer than two (2) calendar days.
There shall be no discovery or dispositive motion practice (such as motions for
summary judgment or to dismiss or the like) except as may be permitted by the
arbitrators; and any such discovery or dispositive motion practice permitted by
the arbitrators shall not in any way materially conflict with the time limits
contained herein. The arbitrators shall not be bound by any rules of civil
procedure or evidence, but rather shall consider such writings and oral
presentations as reasonable business persons would use in the conduct of their
day to day affairs, and may require the parties to submit some or all of their
case by written declaration or such other manner of presentation as the
arbitrators may determine to be appropriate. It is the intention
69
of the parties to limit live testimony and cross examination to the extent
absolutely necessary to insure a fair hearing to the parties on significant and
material issues. Venue of any arbitration hearing pursuant to this Article 35
shall be in Nassau County.
35.07. The arbitrators' decision shall be made in no event later
than ten (10) calendar days after the commencement of the arbitration hearing
described in Section 35.06. The award shall be final and judgment may be entered
in any court having jurisdiction thereof.
ARTICLE 36
No Other Representations, Construction, Governing Law
SECTION 36.01. Tenant expressly acknowledges and agrees that
Landlord has not made and is not making, and Tenant, in executing and delivering
this Lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
Lease or in any other written agreement which may be made between the parties
concurrently with the execution and delivery of this Lease and shall expressly
refer to this Lease. This Lease and said other written agreement(s) made
concurrently herewith, if any, are hereinafter referred to as the "Lease
Documents". It is understood and agreed that all understandings and agreements
heretofore had between the parties are merged in the Lease Documents, which
alone fully and completely express their agreement and that the same are entered
into after full investigation, neither party relying upon any statement or
representation not embodied in the Lease Documents, made by the other.
36.02. If any of the provisions of this Lease, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of said provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
36.03. This Lease shall be governed in all respects by the laws of
the State of New York.
36.04. No change, waiver or estoppel to this Lease or any of the
terms hereof shall be valid unless in writing and signed by the party against
whom enforcement of the change,
70
waiver or estoppel is sought. Except as otherwise in this Lease provided, no
termination of this Lease shall be valid unless in writing any signed by the
party against whom enforcement of the termination is sought.
36.05. Except as otherwise provided herein, the terms hereof shall
be binding upon and shall inure to the benefit of the heirs, executors,
administrators, successors and assigns, respectively of Landlord and Tenant.
36.06. This instrument may be executed in any number of
counterparts, each of which shall be deemed an original for all purposes and all
of which shall be one and the same document.
ARTICLE 37
Antenna
SECTION 37.01. Tenant shall have the right to install, operate and
maintain not more than one microwave, whip, or satellite dish antenna (the
"Antenna") on the upper surface of the Building (the "Roof"). The installation
of the Antenna shall be deemed a Tenant Change and within the purview of Section
15.03 hereof by reason of its cost and nature, provided, however, that the
provisions of Section 15.03(d) shall not apply to such installation.
37.02. Tenant, when it wishes to install the Antenna, shall give
notice thereof to Landlord together with Tenant proposed plans and
specifications therefor (the "Supplement") Landlord and Tenant, in good faith,
shall negotiate and resolve any changes Landlord requires in the Supplement,
inclusive of Antenna size. No work is to commence with respect to the Antenna
until the Supplement is signed or initialed and delivered by the parties hereto.
37.03. The foregoing right is non-exclusive and Landlord reserves
the right to grant rights to others for the installation, maintenance and
operation of other equipment, including an earth station antenna, similar or
dissimilar to the Antenna, provided that no equipment installed subsequent to an
Antenna shall materially interfere with the operation of such Antenna.
37.04. This right is given on the condition, and Tenant agrees, that
the Antenna will be used solely and exclusively and incident to its own personal
operations, and that of an Affiliated Entity, it being agreed by Tenant that the
use of the Antenna will not benefit others and that Tenant will not impose a
71
charge, directly or indirectly, to others for the utilization of the Antenna or
for services which entail its use.
37.05. All sales taxes, use and occupancy taxes and taxes and
charges in the nature thereof with respect to the Antenna and the foregoing fee
are the responsibility of and shall be paid by the Tenant.
37.06. The installation, operation and maintenance of the Antenna
shall be in accordance with the following:
(a) The installation of the Antenna as well as all matters
relating to its operation and maintenance shall be at the sole cost and expense
of the Tenant;
(b) The Antenna will be installed, operated and maintained by
or for Tenant in a good and workmanlike manner and in compliance with
Requirements. Tenant shall be responsible, at its sole cost, to obtain all
Approvals for the installation, operation and maintenance of the Antenna;
(c) The Tenant will pay all charges for electric current
utilized in connection with the installation, operation and maintenance of the
Antenna. Landlord shall have no responsibility or liability by reason of the
interruption or suspension of electric service to the Antenna unless the same is
the direct result of negligence, wilful misconduct or default after the
expiration of any applicable grace period on the part of Landlord;
(d) Tenant agrees that the installation, operation and
maintenance of the Antenna will be conducted so as not to interfere with the
operation of the Building or the use and occupancy by tenants of their space in
the Building, and the utilization by Landlord or others of any equipment then
existing (including other antenna) in the Building or on the Roof; and
(e) Tenant agrees promptly to repair and replace all damage to
the Building, including the Roof arising by reason of or in connection with the
installation, operation and maintenance of the Antenna. In the event of the
failure of the Tenant to make any necessary repair or replacement with respect
to the Antenna, as aforesaid, Landlord may do so for its own account or in the
name of and for the account of Tenant but, in either event, Tenant shall be
responsible for all costs and expenses reasonably incurred in this connection by
Landlord.
37.07. Tenant shall provide whatever filters, isolation traps and
other devices, similar or dissimilar which are reasonable and feasible for the
elimination of any interference to other equipment (including other antenna) on
the Roof or in
72
the Building if such interference is caused by or attributable to the Antenna.
Landlord agrees that it will impose a similar requirement in any other agreement
for the placing of equipment (including other antenna) on the Roof and agrees to
be bound thereby with respect to any of its equipment (including other antenna)
placed on the Roof. Tenant shall also be responsible for the protection of the
Antenna to the exclusion of Landlord, whose responsibility in this regard is
expressly negated, from any and all induced wave energies, including, but not
limited to, lightning and induced energies from other radiated energies.
37.08. Should it be required by any Governmental Authority that the
location of the Antenna be changed, such change shall be effected promptly and
with diligence by Tenant and at its sole cost and expense. Landlord, in addition
to the foregoing, reserves the right, on prior notice, emergencies excepted, to
Tenant to make any and all repairs and replacements in and to the Roof or the
Building notwithstanding that any such repairs and replacements may cause
temporary interference with the Tenant's ability to operate and maintain the
Antenna; the Landlord agreeing, however, to make any such repairs and
replacements promptly and diligently in such reasonable manner as will keep any
such interference to a minimum. Tenant agrees to cooperate with Landlord to
every reasonable and feasible extent so as to enable Landlord to effect the
repairs and replacements reflected in the preceding sentence, including, if
necessary, temporarily relocating the Antenna at Tenant's expense.
37.09. Landlord shall not be liable or responsible for any
malfunction or non-functioning, actual or alleged, of the Antenna or for its
repair or maintenance or for any loss of or damage to the Antenna unless such
malfunction or non-functioning is the direct result of negligence, willful
misconduct or default after the expiration of any applicable cure period on the
part of Landlord. Conversely, Tenant shall not be responsible or liable for any
interference with other equipment now or hereafter installed on the Roof by
reason of its operation and maintenance of the Antenna unless the same is caused
by the Tenant's negligence or intentional misconduct or failure to observe,
fulfill or perform its obligations under this Agreement.
37.10. Tenant shall have access to the Antenna twenty-four (24)
hours a day, each and every day during the Term subject, nonetheless, to the
terms and provisions herein contained. Tenant covenants that, if it is given
keys or any other method of gaining access to the Antenna, it will not duplicate
or give the same to third parties. In this regard, and notwithstanding anything
otherwise contained in this Lease, neither Tenant nor any of its contractors or
designees shall be permitted, emergencies excepted, to do any work on the Roof,
except as otherwise expressly permitted by this Lease, without
73
receiving the prior consent, in writing, of Landlord, which consent Landlord
agrees it will not unreasonably withhold.
37.11. Upon the termination of this Lease for whatever reason,
Tenant, within thirty (30) days thereafter, as its sole cost and expense, shall
remove the Antenna from the Roof and restore and repair any damage resulting
from such removal. All of the terms and provisions of this Lease applicable to
the installation, maintenance and operation of the Antenna during the Term shall
be fully applicable to the aforesaid period within which Tenant is required to
effect the removal of the Antenna, except that Tenant shall have no right to
utilize the Antenna for any purpose. If Tenant does not effect removal of the
Antenna, as aforesaid, Landlord may do so and charge Tenant with the reasonable
cost thereof, inclusive of the cost of repairing and replacing any damage caused
thereby and Tenant agrees promptly to pay the same to Landlord. Alternatively,
at the expiration of the aforesaid removal period, Landlord may elect to
conclusively deem the Antenna abandoned by Tenant for all purposes and to treat
the same as Landlord's property without any responsibility, obligation or
liability to Tenant by reason thereof. If Landlord elects to remove the Antenna,
as aforesaid, at its option, it may dispose of or discard it without liability
to Tenant, store it and charge reasonable storage fees to Tenant.
ARTICLE 38
Miscellaneous
SECTION 38.01. Intentionally omitted.
38.02. Intentionally omitted.
38.03. Intentionally omitted.
38.04. Intentionally omitted.
38.05. Tenant shall not occupy (as opposed to use as permitted under
this Lease) any Common Areas or space in the Building (by assignment, sublease
or otherwise) other than the Premises, except with the prior written consent of
Landlord in each instance.
38.06. Tenant will not clean, nor require, permit, suffer or allow
any window in the Premises to be cleaned, from the outside in violation of
Section 202 of the Labor Law or of any Requirement.
74
38.07. Tenant agrees that its sole remedy in cases where Landlord's
reasonableness in exercising its judgment or withholding its consent or approval
is applicable pursuant to a specific provision of this Lease, or any rider or
separate agreement relating to this Lease, if any, shall be those in the nature
of an injunction, declaratory judgment, or specific performance, the rights to
money damages or other remedies being hereby specifically waived. Such disputes
shall be resolved in accordance with CPLR Section 30.31 et. seq., designated as
the "New York Simplified Procedure for Court Determination of Disputes".
Landlord and Tenant shall take or cause to be taken all action necessary and
proper to effect resolution of such disputes in accordance therewith.
38.08. The Article headings of this Lease are for convenience only
and are not to be given any effect whatsoever in construing this Lease.
38.09. The table of contents preceding this Lease but under the same
cover is for the purpose of convenience of references only and is not to be
deemed or construed in any way as part of this Lease, nor as supplemental
thereto or amendatory thereof.
38.10. This Lease shall not be binding upon Landlord unless and
until it is signed by Landlord and a signed copy thereof is delivered by
Landlord to Tenant.
38.11. The various items which are defined in other Articles of this
Lease or are defined in Exhibits annexed hereto, shall have the meanings
specified in such other Articles and Exhibits for all purposes of this Lease and
all agreements supplemental thereto, unless the context shall otherwise require.
38.12. If Landlord or Tenant consists of more than one party, the
obligations, representations, warranties and covenants of Landlord or Tenant, as
the case may be, hereunder are joint and several as to each such party.
38.13. Except as otherwise expressly provided in this Lease, each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed shall be deemed and construed as a separate and independent
covenant of Tenant, not dependent on the observance, fulfillment or performance
of any other provision of this Lease.
38.14. All payments, other than the payment of Net Annual Rent and
Tenant's Tax Payment required under this Lease of Landlord or Tenant shall bear
Interest (as defined in Section 1.02 hereof, unless such provision is
specifically negated in this Lease, from and after the date which is thirty (30)
days
75
after the date on which request for payment is made in the manner provided in
Article 33 hereof.
38.15. The Exhibits annexed to this Lease shall be deemed part of
this Lease with the same force and effect as if such Exhibits were numbered
Articles of this Lease.
38.16. All references in this Lease to numbered Articles, numbered
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 in which used.
38.17. All words and terms used in this Lease, regardless of the
number and gender in which used, shall be deemed to include any other number and
any other gender as the context in which used may require; and the use herein of
the words "successors and assigns" or "successors or assigns" of Landlord or
Tenant shall be deemed to include the heirs, legal representatives and assigns
of any individual Landlord or Tenant.
38.18. Intentionally omitted.
38.19. The terms "mortgage" and "deed of trust" are used
interchangeably in this Lease, are hereby given identical meanings, and where
applicable shall also refer to the notes and/or bonds or other evidence of
indebtedness and any chattel mortgages, conditional bills of sale, assignments
of rents, security agreements and financing statements executed and delivered in
connection with or as part of any such mortgage; as are the term "holder of the
mortgage", "mortgagee", "trustee" and "beneficiary"; and all of the foregoing
are applicable to any of the defined terms used in this Lease relating to a
mortgage or a holder thereof.
38.20. Unless the context in which used requires a different
construction, the words "herein", "hereof" and "hereunder" and words of similar
import refer to this Lease as a whole and not to any particular Section or
subdivision thereof.
38.21. The cover sheet hereto which immediately precedes the Index
is a part of this Lease, but in the event of a conflict between any of the
provisions of such cover sheet and those otherwise contained in the portion of
the Lease beginning on Page 1 hereof, the latter shall prevail and be
controlling.
76
38.22. The rule of the ejusdem generis shall not be applicable to
limit a general statement following or referable to an enumeration of specific
matters to matters similar to the matters specifically mentioned.
LANDLORD:
125 Bethpage Associates
By:/s/ Xxxxxx Xxxxxxxxxx
-----------------------
Xxxxxx Xxxxxxxxxx,
Its General Partner
TENANT:
Toymax Inc.
By:/s/ Xxxxxx Xxxxxxxxxx
-----------------------
Name:
Title: President
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NASSAU )
On the 7th day of April, 1997, before me personally came Xxxxxx
Xxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is the sole General Partner of 125 Bethpage Associates, a New York limited
partnership, described in and which executed the foregoing instrument; which
executed the foregoing instrument; that he had authority to sign the same as
the act and deed of 125 Bethpage Associates.
-----------------------
XXXXXXX X. XXXXXX
Notary Public, State of New York
No. 4850695
Qualified in Nassau County
Commission Expires January 20, 19__
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 7th day of April, 1997, before me personally came
Xxxxxx Xxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he resides at Laurel Hollow, NY; that he is the President of Toymax Inc.,
the corporation described in and which executed the foregoing document; and
that he signed his name thereto by order of the Board of Directors of said
corporation.
-------------------------------
Xxxxxxx Xxxxx
Notary Public State of New York
No. 4598530 Qual. Suffolk Co.
Commission Expires June 29, 1998
78
EXHIBIT "A"
Landlord's Work [ILLEGIBLE]
Map of Premises
EXHIBIT B
Intentionally Omitted
1
EXHIBIT C
Metes and Bounds Description
of the Land
ALL that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being at Plainview, Town of
Oyster Bay, County of Nassau and State of New York, bounded and described as
follows:
BEGINNING at a point on the easterly side of Bethpage State Parkway Extension
(Marginal Road), distant 1666.55 feet north as measured along the same from the
northwesterly end of arc connecting the easterly side of Bethpage State Parkway
Extension with the northerly side of Old Country Road;
THENCE Northerly along the easterly side of Bethpage State Parkway Extension on
a curve to the left with a radius of 10582.91 feet, a distance of 341.19 feet;
THENCE south 83 degrees 16 minutes 02 seconds east, 544.31 feet to the westerly
end of Map of Technical Industrial Park Section No. 1;
THENCE south 24 degrees 44 minutes 00 seconds west along said map, 321.62 feet;
THENCE south 14 degrees 40 minutes 000 seconds west along said map, 26.87 feet;
THENCE north 84 degrees 22 minutes 35 seconds west, 446.79 feet to the easterly
side of Bethpage State Parkway Extension at the point or place of BEGINNING.
1
EXHIBIT "D"
Signage
TOY MAX
PROPOSED SIGN
SATIN ANODIZED ALUMINUM SIGN
CABINET & SKIRT W/CUSTOM COLOR LETTERING
(COLOR TO BE APPROVED BY LANDLORD)
Xxxxxxxxxx Development Group,Ltd
0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
EXHIBIT E
Rules and Regulations
1. The rights of tenants (which term as used herein includes their
employees and invitees) in the Common Area, are limited to ingress to and egress
from the tenants' premises for such tenants, and no tenant shall use or permit
the use thereof for any other purpose. No tenant shall invite to the tenant's
premises or permit the visit of persons in such numbers or under such conditions
as to interfere with the use and enjoyment of any of the Common Areas and
facilities of the Building by other tenants. Fire exits and similar facilities
are for emergency use only, and they shall not be used for any other purposes by
the tenants. No tenant shall encumber or obstruct or permit the obstruction of
any of the Common Areas.
2. The cost of repairing any damage to the Common Areas caused by a
tenant or its invitees or employees shall be paid by such tenant.
3. The Landlord may refuse admission to the Common Areas during a
Non-Business Period to any person (including a tenant) not properly identified
and during a Non-Business Period may require all persons admitted to the Common
Areas to register with Landlord. A person (including a tenant) leaving the
Common Areas during a Non-Business Period may be required by the Landlord to
properly identify himself or herself and to register with the Landlord. A
Non-Business Period is a period of time which is not within Regular Hours. Each
tenant shall be responsible for its agents, employees and invitees and shall be
liable for all of their acts. Any person whose presence in the Common Areas or
in a tenant's premises at any time shall, in the judgment of the Landlord, be
prejudicial to the safety, character, reputation and interests of the Building
or its tenants, may be denied access to the Building or Common Areas or may be
ejected therefrom. In case of invasion, riot, public excitement or other
commotion, the Landlord may prevent all access to the Common Areas during the
continuance of the same for the safety of the tenants and protection of
property. The Landlord may require any person leaving the Common Areas with any
package or other object to exhibit a pass from the tenant from whose premises
the package or object is being removed, but the establishment and enforcement of
such requirements shall not impose any responsibility on the Landlord for the
protection of any tenant. The Landlord shall in no way be liable to any tenant
for damages or loss arising from the admission, exclusion or ejection of any
person to or from the tenant's premises or the Common Areas under the provisions
of this rule.
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4. Passenger elevators are to be used only for the movement of
persons, except as otherwise permitted on a specified occasion, at its sole
discretion.
5. Each tenant shall cooperate to prevent canvassing, soliciting and
distribution of handbills within the Project, and shall use reasonable efforts
to have its invitees and employees comply with these Rules and Regulations.
6. No awnings or other projections over or beyond the windows shall
be installed by any tenant.
7. No hand trucks, except those equipped with rubber tires and side
guards shall be used in any tenant's premises or in the Common Areas within the
Building.
8. All entrance doors in each tenant's premises shall be left locked
when the tenant's premises are not in use. Entrance doors to a tenant's premises
shall be kept closed at all times.
9. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building services or the proper and economic
heating, cleaning or other servicing of the Building (inclusive of the tenant's
premises), or the use or enjoyment by any other tenant of any other premises, no
tenant shall install any ventilating, air conditioning, electrical or other
equipment of any kind which, in the judgment of the Landlord, might cause any
such impairment or interference. No dangerous, inflammable, combustible or
explosive object or material shall be brought into the building by any tenant or
with the permission of any tenant.
10. No materials shall be discharged or permitted to be discharged
into waste lines, vents or flues which may damage them. The water and wash
closets and other plumbing fixtures in or serving any tenant's premises shall
not be used for any purpose other than the purpose for which they were designed
or constructed and no sweeping, rubbish, rags, acids or other foreign substances
shall be deposited therein. All damages resulting from any misuse of the
fixtures shall be borne by the tenant who, or whose employees, agents, or
invitees, shall have caused the same.
11. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows in any tenant's premises and no lock on any door
therein shall be changed or altered in any respect without Landlord's prior
consent which consent will not be unreasonably withheld or delayed. Upon the
termination of
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a tenant's lease, all keys (or equivalents) of the tenant's premises and toilet
rooms shall be delivered to the Landlord.
12. Each tenant shall, at its expanse, provide artificial light in
the premises demised to such tenant for Landlord's agents, contractors and
employees while performing services or making repairs or alterations in said
premises.
13. The tenant's employees and invitees shall not loiter around the
Common Areas.
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EXHIBIT F
Cleaning and Rubbish Removal
CLEANING - Tenant Premises
1. NIGHTLY - After Hours on Business Days:
(a) Empty and damp wipe all ashtrays.
(b) Empty and dust wipe all waste receptacles.
(c) Empty, clean and refill smoking urns as needed.
(d) Dust all areas within hand high reach, including window
xxxxx, wall ledges, chairs, desks, tables, baseboards,
file cabinets, radiators, pictures, and all manner of
office furniture.
(e) Sweep with treated cloths all composition tile
flooring.
(f) Vacuum all carpeted areas.
(g) Wash clean all water fountains and coolers, emptying
waste water as necessary.
(h) If applicable, terrace balconies Will be cleaned as
required (ordinary), and not to include trash and other
conditions introduced by Tenant, its employees and their
invitees.
2. QUARTERLY
(a) High dust all walls, ledges, pictures, anemostats and
registers of office areas not reached in normal nightly
cleaning.
(b) Dust all Venetian Blinds.
II. CLEANING - INTERIOR COMMON AREAS
1. NIGHTLY - After Hours on Business Days:
(a) Empty waste receptacles, as needed.
(b) Empty, clean and refill smoking urns as needed.
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(c) Remove gum from all Atrium flooring, as necessary.
(d) Auto scrub all Atrium stone flooring, as necessary.
(e) Spray buff stone flooring in entrance lobby and elevator
lobbies, as necessary.
(f) Vacuum or wash rubber mats as necessary.
(g) Remove finger marks where possible from painted walls,
partitions and doors.
(h) Remove finger marks from public door and wall surfaces.
(i) Clean interior surfaces of elevator cabs and wash and
wax composition tile flooring, or vacuum carpet, as
necessary.
(j) Wash clean all water fountains and coolers, emptying
waste water as necessary.
(k) Lavatories:
Wash, disinfect and dry all bowls, seats, urinals,
washbasins and mirrors, as necessary.
Wash and dry all metal work, as necessary.
Empty paper towel and sanitary napkin disposal
receptacles and remove to designated area.
Damp wipe exterior of waste cans and dispensing units,
as necessary.
Sweep and wash floors.
Dust all xxxxx, partitions and ledges, as necessary.
Insert toilet tissue, toweling and soap
dispensers, as necessary.
2. FOUR TIMES WEEKLY
(a) Sweep and dust stairways, as necessary.
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3. WEEKLY
(a) Wash booth partitions in lavatories.
(b) Wash all stairways.
4. MONTHLY
(a) Wash tile walls, in lavatories.
(b) Wash interior of waste cans, and sanitary disposal
containers in lavatories.
5. QUARTERLY
(a) Scrub and wax all composition tile flooring in public
corridors.
(b) Scrub and seal stone floor of entrance lobby.
(c) High dust all walls, ledges, pictures, anemostats and
registers of public areas not reached in normal nightly
cleaning.
6. ANNUALLY
(a) Lighting fixtures will be washed.
III. WINDOW CLEANING
(a) Clean entrance door glass and transoms - once weekly.
(b) Clean Atrium glass - once weekly.
(c) Clean Atrium skylight outside - once yearly.
(d) Clean exterior of perimeter windows - two times yearly.
IV. EXTERIOR COMMON AREAS
(a) Parking fields will be regularly swept, cleared of snow in
excess of two inches and generally maintained so as to be well
drained, properly surfaced and striped.
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