LEASE AGREEMENT BETWEEN
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY,
AS LESSOR,
AND
COMMUNITY MEDICAL TRANSPORT, INC.,
AS LESSEE.
Premises:
0 Xxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Prepared By:
The Law Offices of
XXXXXX & XXXX, LLP
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
TABLE OF CONTENTS
ARTICLE 1 - DEMISE AND TERM OF DEMISE 1
ARTICLE 2 - RENT 2
ARTICLE 3 - TAXES AND COMMON AREA MAINTENANCE CHARGES 4
ARTICLE 4 - USE OF DEMISED PREMISES 10
ARTICLE 5- POSSESSION AND CONDITION OF DEMISED PREMISES 12
ARTICLE 6- UTILITIES, CLEANING, ETC. 137-
LIST OF EXHIBITS TO LEASE
EXHIBIT "A" THE METES AND BOUNDS DESCRIPTION OF THE PROPERTY
EXHIBIT "B" THE FLOOR PLANS OF THE DEMISED PREMISES
EXHIBIT "C" BUILDING RULES AND REGULATIONS
EXHIBIT "D" CLEANING SPECIFICATIONS
EXHIBIT "E" LESSOR'S WORK
EXHIBIT "F" This Exhibit Has Been Intentionally Omitted
EXHIBIT "G" STANDARD REQUIREMENTS FOR ALTERATIONS
TO BE PERFORMED BY LESSEES
AGREEMENT OF LEASE, dated as of September , 1997, between PRINCIPAL
MUTUAL LIFE INSURANCE COMPANY, having an office in care of Xxxxxxxxxx-Xxxxx
Management Corp., 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
(hereinafter referred to as "Lessor") and COMMUNITY MEDICAL TRANSPORT, INC., a
New York corporation, with offices at 0 Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxx
00000 (hereinafter referred to as "Lessee");
W I T N E S S E T H
WHEREAS, Lessor, is the owner in fee simple absolute of the land and
all the improvements erected thereon commonly known as 0 Xxxxxxx Xxxxx,
located in the City of White Plains, County of Westchester, State of New York
and more particularly described in EXHIBIT "A" annexed hereto (the
"Property");
WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to
hire from Lessor, a portion of the First (1st) Floor in the building known as
and located at 0 Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000 (the "Building")
on the Property and which shall be deemed to consist of approximately Seven
Thousand, Five Hundred and Ninety-Eight (7,598) rentable square feet
(hereinafter collectively referred to as the "Demised Premises") and as more
particularly described on the floor plans annexed hereto as EXHIBIT "B" and
made a part hereof; and
NOW, THEREFORE, in consideration of the foregoing and of the
covenants, conditions and agreements hereinafter set forth, Lessor and Lessee
agree as follows:
ARTICLE 1 - DEMISE AND TERM OF DEMISE
SECTION 1.01.A. Lessor, in consideration of the rents hereinafter
reserved and of the terms, covenants, conditions and agreements herein
contained on the part of Lessee to be paid, observed and fulfilled, does
hereby demise and lease the Demised Premises to Lessee and Lessee hereby hires
the same from Lessor, subject to the following:
(i) all present and future zoning ordinances, laws,
regulations, requirements and orders, including building restrictions
and regulations, and all other present and future ordinances, laws,
regulations, requirements and orders of all departments, boards,
bureaus, commission and bodies, of any municipal, county, state or
federal governments now or hereafter having or acquiring jurisdiction
of the Demised Premises, except that Lessor represents that on the
Commencement Date the Demised Premises shall be suitable for general
office use in accordance with the provisions of this Lease;
(ii) Taxes (as hereinafter defined) not yet due and payable;
and
(iii) all other present and future covenants, easements and
restrictions affecting the Property and the Demised Premises and the
revocable nature of any restriction, easement, agreement, ordinance
or right affecting the Property and the Demised Premises, provided,
however, that same do not prohibit the use of the Demised Premises
for general office use.
B. The Demised Premises are demised and leased unto Lessee, its
permitted successors and assigns, for a term ("Term") commencing on the
Commencement Date (as hereinafter defined) and expiring at noon on the last
day ("Expiration Date") of the first full month in which the Seventh (7th)
anniversary of the Rent Commencement Date (as hereinafter defined) falls,
unless the same shall sooner terminate pursuant to any of the terms,
covenants, conditions or agreements of this Lease or pursuant to law or be
extended pursuant to the provisions of Article 30 hereof.
SECTION 1.02. As used herein, the term "Commencement Date" shall mean
the date which is the sooner of: (i) the date that Lessor's Work (as
hereinafter defined) is substantially completed (in accordance with the
provisions of Section 34.02(e) hereof), and (ii) the date which is such number
of days prior to the Commencement Date as shall equal the number of days, if
any, by which commencement or performance of Lessor's Work shall have been
delayed by reason of Lessee's Delays (as hereinafter defined), or (iii) the
date upon which Lessee takes possession of all or any part of the Demised
Premises.
SECTION 1.03. As used herein, the term "Rent Commencement Date" shall
mean the date which is the Ninetieth (90th) day after the Commencement Date.
SECTION 1.04. Upon determination of the date which is the
Commencement Date and/or the Rent Commencement Date, as provided in this
Section, either party, upon the request of the other, shall execute and
deliver a statement setting forth the Commencement Date and/or the Rent
Commencement Date, but the failure of such party to execute and deliver such
statement shall not detract from the effectiveness of any of the provisions of
this Lease.
ARTICLE 2 - RENT
SECTION 2.01. Lessee shall pay to Lessor, or to such other person as
Lessor may from time to time designate, at the address specified in or
pursuant to Section 2.04, during the Term, fixed rent ("Fixed Rent"), over and
above the other and additional payments to be made by Lessee as hereinafter
provided, as follows:
A. During and in respect of the period from the Commencement
Date to the Rent Commencement Date (both dates inclusive), an amount
equal to Five Thousand, Six Hundred and Ninety-Eight and 50/100
($5,698.50) Dollars payable in equal monthly installments of One
Thousand, Eight Hundred and Ninety-Nine and 50/100 ($1,899.50)
Dollars; and
B. During and in respect of the period from the Rent
Commencement Date to the date preceding the Second (2nd) Anniversary
of the Rent Commencement Date (both dates inclusive), an amount each
year equal to One Hundred and Fifty-Nine Thousand, Five Hundred and
Fifty-Eight and 00/100 ($159,558.00) Dollars payable in equal monthly
installments of Thirteen Thousand, Two Hundred and Ninety-Six and
50/100 ($13,296.50) Dollars; and
C. During and in respect of the period from the Second (2nd)
Anniversary of the Rent Commencement Date to the date preceding the
Fourth (4th) Anniversary of the Rent Commencement Date (both dates
inclusive), an amount each year equal to One Hundred and Sixty-One
Thousand, Four Hundred and Fifty-Seven and 48/100 ($161,457.48)
Dollars payable in equal monthly installments of Thirteen Thousand,
Four Hundred and Fifty-Seven and 79/100 ($13,454.79) Dollars; and
D. During and in respect of the period from the Fourth (4th)
Anniversary of the Rent Commencement Date to the date preceding the
Sixth (6th) Anniversary of the Rent Commencement Date (both dates
inclusive), an amount each year equal to One Hundred and Sixty-Three
Thousand, Three Hundred and Fifty-Six and 96/100 ($163,356.96)
Dollars payable in equal monthly installments of Thirteen Thousand,
Six Hundred and Thirteen and 08/100 ($13,613.08) Dollars; and
E. During and in respect of the period from the Sixth (6th)
Anniversary of the Rent Commencement Date to the Expiration Date
(both dates inclusive), an amount equal to One Hundred and Sixty-Five
Thousand, Two Hundred and Fifty-Six and 56/100 ($165,256.56) Dollars
payable in equal monthly installments of Thirteen Thousand, Seven
Hundred and Seventy-One and 38/100 ($13,771.38) Dollars.
SECTION 2.02.A. Fixed Rent shall be paid in equal monthly
installments on the first day of each and every month during the Term without
any set off or deduction whatsoever; provided however, that if Fixed Rent
shall be payable for any period prior to the first day of the first full month
during the Term, then such Fixed Rent shall be paid in a proportionate amount
for the number of days in such period and paid as and when the first equal
monthly installment is payable as aforesaid. Notwithstanding the foregoing,
Lessee shall pay the first monthly installment of Fixed Rent upon execution of
this Lease.
SECTION 2.03. If Lessee shall fail to pay as and when due under this
Lease any Additional Rent (as hereinafter defined), and such failure shall not
be remedied within the grace period (if any) applicable thereto under this
Lease, Lessor shall have all of the rights and remedies provided in this Lease
as in the case of default in the payment of the Fixed Rent, including any
rights available to Lessor at law or in equity. Except as otherwise
specifically provided in this Lease, the Fixed Rent and Additional Rent shall
be paid without notice, demand, credit, abatement, deduction or setoff of any
kind whatsoever. The Fixed Rent and Additional Rent are sometimes referred to
collectively herein as "Rent."
SECTION 2.04. Lessee shall pay the Rent to Lessor in lawful money of
the United States of America which shall be legal tender for all debts, public
and private, at the time of payment, at the office of Lessor set forth above,
or to such other person or persons and/or at such other place or places as
Lessor may designate from time to time by notice to Lessee. Such payments may
be by check of Lessee, subject to collection, payable to the order of Lessor
or to such other person or persons as Lessor may designate from time to time
by notice to Lessee; any such payment shall be deemed made upon receipt
thereof, subject to collection.
SECTION 2.05. Any obligation of Lessee for payment of Rent which
shall have accrued with respect to any period during or prior to the Term
shall survive the expiration or termination of this Lease.
ARTICLE 3 - TAXES AND COMMON AREA MAINTENANCE CHARGES
SECTION 3.01. As used herein:
A. "Lessor's Statement" shall mean an instrument containing a
computation of any Additional Rent payable by Lessee to Lessor pursuant to
this Article.
B. "Common Area Maintenance Charges" shall mean all costs and
expenses of whatever kind or nature, whether or not herein specifically
mentioned or now contemplated, which are incurred by Lessor or Lessor's agents
in connection with the use, operation, repair or maintenance of the Building
and/or Property, including, but not limited to the following: (1) premiums and
other charges for insurance which Lessor is required or permitted to maintain
hereunder including, but not limited to, general comprehensive liability
insurance covering bodily injury, personal injury (including death), property
damage, public liability, non-hired automobile insurance, sign insurance,
plate glass insurance and any other insurance incurred by Lessor for the
Building and/or Property; (2) costs and expenses of performing repairs in or
to the Building and/or Property and the sidewalks and curbs adjacent thereto;
(3) costs and expenses of performing repairs, resurfacing of the parking lots
and any adjacent facilities; (4) costs and expenses of landscaping and
maintaining the grounds of the Building and/or Property; (5) costs and
expenses of snow and ice removal and/or treatment; (6) costs and expense of
rubbish, garbage and other refuse removal; (7) fees and disbursements payable
to Xxxxxxxxxx-Xxxxx Management Corp. ("RDM") to furnish management, repair, or
other services regarding the Building and/or Property, except that, in the
case of any such person who is affiliated with Lessor, such fees shall not
exceed that which is customary or reasonable in the industry for similar
buildings in Westchester County; (8) fees and disbursements payable to any
person (other than "RDM") to furnish management, repair or other services
regarding the Building and/or Property, except that, in the case of any such
person who is affiliated with Lessor, such fees shall not exceed that which is
customary or reasonable in the industry for similar buildings in Westchester
County; (9) cost and expenses of performing repairs to all structural walls,
roofs, and plate glass doors and windows, if any, which are not expressly made
part of the Building, Property or the Demised Premises; (10) cost of
refurbishing the common areas and modernizing and replacing equipment
servicing the common areas, including but not limited to regular painting of
non-tenanted areas at the Building and/or Property; (11) cost and expense of
maintenance and repairs of the structural elements of the Building and/or
Property; (12) costs and expenses of performing repair, maintenance and
replacement of lighting and lighting fixtures; (13) repair, maintenance, and
replacement of all or any part of the sprinkler system installed in any part
of the Building and/or Property; (14) cost of utilities, such as electricity,
water and sewer; (15) costs and expenses of performing repairs and maintenance
to all heating, ventilating and air conditioning equipment installed in any
part of the Building, including but not limited to that portion contained
within the Demised Premises; (16) cost and expense of performing repairs and
maintenance to utility lines, sanitary and storm sewer lines and culverts and
drainage facilities; (17) costs and expenses of providing and maintaining
security, if any; (18) costs and expenses of providing and maintaining traffic
control, if any; (19) labor costs and expenses of full or part time personnel
employed at the Property in connection with the operation of the Building at
or below the grade of building manager; (20) costs and expenses of providing
holiday and other decorations to the Building and/or Property; (21) costs and
expenses of performing repairs and maintenance to all elevators in any part of
the Building and/or Property; (22) cost and expense of providing and
maintaining xxxxxx and matron service at the Building and/or Property, if any;
(23) cost and expense of providing and performing cleaning and related
services; (24) cost and expense of providing window washing; (25) cost and
expense of all supplies; (26) wages, salaries, disability benefits, pensions,
hospitalization, retirement plans and group insurance respecting service and
maintenance employees of Lessor; (27) cost and expense of all uniforms and
working clothes for such employees and the cleaning thereof; (28) cost and
expense imposed on Lessor pursuant to law or to any collective bargaining
agreement with respect to such employees; (29) cost and expense of providing
and maintaining worker's compensation insurance, payroll, social security,
unemployment and other taxes now in effect or hereinafter imposed with respect
to such employees; (30) cost of all sales, utility and use taxes and other
taxes of like import now in effect or hereinafter imposed; (31) cost and
expense of all maintenance and service contracts for the Building and/or
Property; (32) cost of all other normal operating expenses of repair,
operation, and maintenance of the Building and/or Property; (33) cost and
expense of providing and maintaining loading dock and mail personnel, if any;
(34) cost and expense of all professional and consulting fees, including legal
and audit fees and all costs and disbursements incurred in connection
therewith; and (35) the cost of any capital equipment or capital expenditures,
to the extent provided for in Section 3.01.C. hereof;
provided, however, that the following items shall be excluded from Common Area
Maintenance Charges: (1) leasing commissions; (2) cost of repairs or
replacements incurred by reason of fire or other casualty (to the extent the
same is or would have been covered by insurance required to be maintained by
Lessor herein), or caused by the exercise of the right of eminent domain (to
the extent same is covered by any condemnation award) less any cost incurred
by Lessor in obtaining such insurance proceeds or condemnation award; (3)
costs incurred in performing work or furnishing services to or for individual
tenants (including Lessee) at such tenant's expense; (4) debt service on any
mortgages now or hereafter encumbering the Building and/or Property; (5) the
cost of performing or furnishing services for tenants other than Lessee at
Lessor's expense, to the extent that such work or service Lessor is obligated
to furnish to or for Lessee at Lessor's expense and (6) the cost of attorneys'
fees incurred in connection with negotiating and drafting leases with other
tenants, or in connection with disputes with other tenants; (7) costs incurred
in the sale or refinancing of the Building and/or Property; (8) interest or
penalties due to Lessor's violations of law; (9) advertising and promotional
expenses; (10) depreciation; and (11) leasehold improvements made for other
tenants.
C.1. If Lessor shall purchase or lease any item of capital equipment
or make any capital expenditure intended to result in savings or reductions in
the Common Area Maintenance Charges and which Lessor reasonably believes shall
provide Lessee with the benefit of a savings or reduction in such Common Area
Maintenance Charges based upon the advice of Lessor's consultants, then the
costs for same shall be included in the Common Area Maintenance Charges, to
the extent hereinafter set forth. Lessor shall deliver to Lessee, promptly
following Lessee's request, a copy of any concluded studies conducted by
Lessor which show anticipated savings or reductions in such Common Area
Maintenance Charges as a result of any planned capital expenditure or purchase
of capital equipment. The costs of capital equipment or capital expenditures
shall be included in the Common Area Maintenance Charges in the year in which
the costs are incurred and in any subsequent years, on a straight-line basis
(using applicable federal tax lives), to the extent that such items are
amortized over the useful life of such equipment and/or asset to which it
relates and only to the extent of such savings or reductions in Common Area
Maintenance Charges with an interest factor equal to two percent (2%) above
the interest rate payable on United States Treasury securities having a
maturity comparable to the useful life of such equipment and/or asset.
2. If Lessor shall purchase or lease any item of capital equipment or
make any other capital expenditure in order to comply with Legal Requirements,
Insurance Requirements or Environmental Laws (as those terms are hereinafter
defined) which become effective after the execution date of this Lease or in
order to benefit or increase the safety and security of the Building,
Property, or its tenants and/or invitees, then the costs for same shall be
included in Common Area Maintenance Charges for the year in which the costs
are incurred and subsequent years, on a straight-line basis, (using applicable
federal tax lives), with an interest factor equal to two percent (2%) above
the interest rate payable on United States Treasury securities having a
maturity comparable to the useful life of such items at the time Lessor
incurred said costs.
3. If during all or part of any year, including calendar year 1997,
(i) less than ninety-five percent (95%) of the leasable space in the Building
is occupied by tenants or occupants or (ii) Lessor shall furnish any
particular item(s) of work or service (which would constitute a common area
maintenance charge hereunder) to less than ninety-five percent (95%) of the
leasable portions of the Building or to only a portion of the Property, due to
the fact that less than ninety-five percent (95%) of the leasable portions of
the Building are occupied, or because such item of work or service is not
required or desired by the tenant of such portion, or such tenant is itself
obtaining and providing such item of work or service, or for other reasons,
then, for the purposes of computing the Additional Rent payable hereunder, the
amount of Common Area Maintenance Charges or the amount of the expenses
attributable to such item, as the case may be, for such period shall be deemed
to be increased by an amount equal to the additional costs and expenses which
would reasonably have been incurred during such period had the Building been
at least ninety-five percent (95%) occupied or had Lessor furnished such item
of work or services to such other portions of the Building or the Property.
X. Xxxxxx shall have the absolute right, at all times during the Term
and any Renewal Term, (as hereinafter defined) to increase, reduce, alter or
otherwise modify the way in which it uses, operates, repairs, or maintains the
Building and/or the Property and the cost thereof. Nothing contained herein
shall require Lessor to incur or provide any particular service or charge in
connection with its use, operation, repair or maintenance of the Building
and/or Property, it being agreed and understood that the items described in
Section 3.01.B. are by way of illustration only and shall not obligate Lessor
thereto, except that Lessor shall maintain the Building and Property as a
first class office building in Westchester County, New York.
E. The term "Taxes" shall mean all such taxes, assessments, use and
occupancy taxes in respect of this Lease and any subleases made hereunder,
water and sewer charges, rates and rents, water and other meter charges and
all such other charges, taxes, levies and sums of every kind or nature
whatsoever, general and special, extraordinary as well as ordinary, whether or
not now within the contemplation of the parties, as shall or may during or in
respect of the Term (or any period prior to the Term for which Fixed Rent is
payable) be assessed, levied, charged or imposed upon or become a lien on the
Property, Building, or Demised Premises, or any part thereof, or anything
appurtenant thereto, or the sidewalks, streets or roadways in front of,
adjacent to or appurtenant to the Property, Building or Demised Premises (and
which have a basis related in any way to the Property, Building, or Demised
Premises and/or the use or manner of use thereof), or which, if imposed on
Lessee or in respect of the Property, Building or Demised Premises and if not
paid by Lessee, would be collectible from Lessor, or which have been so
assessed, levied, charged or imposed prior to the Term (but, in the
last-mentioned case, only with respect to a period falling within the Term);
provided, however, that, except if and to the extent otherwise provided in the
succeeding sentence, "Taxes" shall not mean federal, state or local income
taxes, franchise, excise, gift, transfer, capital stock, estate, succession or
inheritance taxes or penalties or interest for late payment of any tax in
respect of which Lessee shall have duly made payment of Additional Rent as
herein provided. If, at any time during the Term, the methods of taxation
prevailing at the commencement of the Term shall be altered so that, in lieu
of or as a substitution in whole or in part for the taxes, assessments,
levies, impositions or charges now or hereafter levied, assessed or imposed on
real estate and the improvements thereon, shall be levied, assessed or imposed
any tax or other charge on or in respect of the Property, Building and/or
Demised Premises or the rents, income or gross receipts of Lessor therefrom
(including any county, town, municipal, state or federal levy), then such tax
or charge shall be deemed a Tax, but only to the extent that such Tax would be
payable if the Property, Building or Demised Premises, or the rent, income or
gross receipts received therefrom, were the only property of Lessor subject to
such Tax, and Lessee shall pay and discharge the same as herein provided in
respect of the payment of Taxes.
F. The term "School Tax Base" shall mean the amount of Taxes as
hereinabove defined, imposed, levied, assessed and/or collected on the
Property, for the 1997/1998 School Tax and "Town Tax Base" shall mean the
amount of Taxes as hereinabove defined, imposed, levied, assessed and/or
collected on the Property for the 1997 Town, County and State Tax.
G. The term "School Tax Year" shall mean each period of twelve (12)
consecutive months commencing as of the first day of July of each such period;
and "Town Tax Year" shall mean each period of twelve (12) consecutive months
commencing as of the first day of January of each such period, in which any
part of the term of this Lease shall occur, or such other periods of twelve
(12) months as may be adopted as the fiscal year for real estate tax purposes.
SECTION 3.02.A. Lessee shall pay to Lessor, as Additional Rent,
during or in respect of the period from the Rent Commencement Date to the
Expiration Date (both dates inclusive) for each School Tax Year and Town Tax
Year or portion thereof, its proportionate share ("Lessee's Proportionate
Share", as hereinafter defined) of increases in Taxes which will be imposed,
levied, assessed or collected on the Property, and/or Building of which the
Demised Premises are a part, for such School Tax Year and/or Town Tax Year, as
the case may be, over the respective tax bases regardless of whether such
increase results from a higher tax rate and/or an increase in the assessed
valuation of either the Property or Building or any other tax. Reasonable fees
and expenses, if any, incurred in obtaining any reduction in assessed
valuation from the tentative assessment to the final assessment shall also be
considered an increase in Taxes for the purpose of this provision. Such
payments shall be made by Lessee as Additional Rent in equal monthly
installments during the applicable tax year together with the payment of Fixed
Rent. Copies of tax bills applicable to the School Tax Base and the Town Tax
Base, as the case may be, and to any such applicable tax year shall be made
available by Lessor for inspection by Lessee during normal business hours. In
the event of any reduction in Taxes after final assessment and with respect to
which Lessee has paid its proportionate share, any such reduction, less fees
and expenses incurred to obtain such reduction shall be refunded in
proportionate amounts to Lessee.
B. If Lessor obtains a reduction of either the School Tax Base or
Town Tax Base by final determination of legal proceedings or otherwise, then:
(i) the School Tax Base or Town Tax Base shall be correspondingly revised,
(ii) all Tax payments theretofore paid or payable hereunder shall be
recomputed on the basis of such reduction, (iii) Lessee shall pay to Lessor as
Additional Rent, within thirty (30) days after receipt of a xxxx therefor, any
deficiency between the amount of such Tax payments theretofore computed and
the amount thereof due as a result of such recomputations and (iv) all future
Tax payments shall be computed using the revised School Tax Base and Town Tax
Base.
SECTION 3.03.A. Lessee shall pay to Lessor, as Additional Rent,
during or in respect of the period from the Rent Commencement Date to the
Expiration Date (both dates inclusive) for each calendar year or portion
thereof, Lessee's Proportionate Share of the increases in the Common Area
Maintenance Charges over the over the Base Common Area Maintenance Charges (as
hereinafter defined). Such payments shall be made by Lessee as Additional Rent
in equal monthly installments during the applicable calendar year together
with the payment of Fixed Rent.
B. The term "Base Common Area Maintenance Charges" shall mean the
Common Area Maintenance Charges in effect for the calendar year ending
December 31, 1997.
SECTION 3.04.A. At any time hereafter and from time to time, Lessor
may furnish to Lessee a Lessor's Statement setting forth (i) Lessor's actual
Common Area Maintenance Charges (or any one or more items thereof) and/or
actual Taxes for a period which shall have expired only if a final statement
has not been previously rendered, and/or (ii) Lessor's reasonable estimate of
Common Area Maintenance Charges and/or Taxes for a succeeding period. Within
Thirty (30) days next following rendition of each such Lessor's Statement,
Lessee shall pay to Lessor the entire amount, if any, shown on such Lessor's
Statement as being due with respect to any period which shall have expired. In
addition, Lessee shall pay to Lessor, on the first day of each month following
rendition of each such Lessor's Statement, on account of the estimated
Additional Rent thereafter payable, a proportionate sum of the total
Additional Rent shown upon such Lessor's Statement as being Lessor's
reasonable estimate for a succeeding period on an annual basis (it being
agreed that Lessor's estimate shall in any event be deemed reasonable if it is
based on actual Common Area Maintenance Charges (or any one or more items
thereof) and/or actual Taxes for a period which shall have expired immediately
prior thereto, so that one month prior to the end of such period, Lessee's
Proportionate Share of the increase shall be paid in full, and Lessee shall
continue to pay Additional Rent on such basis until receipt of a subsequent
Lessor's Statement. Such Additional Rent shall be due and payable at the same
time as each monthly installment of Fixed Rent.
B. A reconciliation shall be made upon each Lessor's Statement as
follows: Lessee shall be debited with any Common Area Maintenance Charges
and/or Taxes payable as shown on such Lessor's Statement, and credited with
the aggregate of the total amount, if any, paid by Lessee in accordance with
the provisions of the preceding paragraph on account of the estimated
Additional Rent, for the period or item in question, and, within thirty (30)
days next following rendition of such Lessor's Statement, Lessee shall pay
Lessor the amount of any net debit balance shown thereon or Lessor shall apply
against the next ensuing installments of Fixed Rent the net credit balance
shown thereon.
C. Without limiting the preceding provisions of Section 3.04, it is
understood that Lessor shall furnish a Lessor's Statement, for each calendar
year falling wholly or partially within the Term.
SECTION 3.05. A. Lessor's failure to render Lessor's Statements with
respect to any period shall not prejudice Lessor's right to render a Lessor's
Statement with respect to that or any subsequent period. The obligations of
Lessor and Lessee under the provisions of this Article with respect to
Additional Rent shall survive the expiration or any sooner termination of the
Term.
B. Each Lessor's Statement shall be conclusive and binding
upon Lessee unless within thirty (30) days after receipt of such Lessor's
Statement, Lessee shall notify Lessor that it disputes the reasonableness or
correctness of Lessor's Statement, specifying the respects in which Lessor's
Statement is claimed to be unreasonable or incorrect. Pending the
determination of such dispute by agreement or arbitration (as hereinafter
provided), Lessee shall pay Additional Rent in accordance with the applicable
Lessor's Statement, and such payment will be without prejudice to Lessee's
position. If the dispute shall be finally determined in Lessee's favor by
arbitration, Lessor shall forthwith pay Lessee the amount of Lessee's
overpayment of Additional Rent resulting from compliance with Lessor's
Statement together with interest thereon at the legal rate from the date of
such payment by Lessee. Lessor, upon request of Lessee, shall either make
available to Lessee such documentation as may be in Lessor's possession to
support a particular Common Area Maintenance Charge or permit Lessee to
examine relevant portions of Lessor's books and records.
C. The parties hereto agree that any dispute solely with respect to
Common Area Maintenance Costs shall be finally determined by binding
arbitration in accordance with rules and regulations promulgated by the
American Arbitration Association at its offices closest to the City of White
Plains, New York. Notwithstanding the foregoing, Lessor shall have the right
to commence summary or other judicial proceedings to recover Rent, possession
of the Demised Premises or in connection with the termination of this Lease.
In the event that any matter is submitted to arbitration, the party seeking
arbitration shall designate an arbitrator by giving notice to the other party
as to the name of such arbitrator and if such arbitrator is not satisfactory
to the other party, then the other party shall designate its own arbitrator
within twenty (20) days after receiving the notice of the party first
designating an arbitrator. Failure by the party not initiating the arbitration
process to designate an arbitrator within said twenty (20) day period shall be
deemed acceptance of the arbitrator designated by the party initiating the
arbitration process. If two arbitrators are so designated by the parties, then
those two arbitrators shall designate a third arbitrator within twenty (20)
days after the designation of the second arbitrator. In the event that the two
arbitrators are unable to agree upon the third arbitrator within said twenty
(20) day period, then in such event, either party or the arbitrator for such
party, may apply to the office of the American Arbitration Association nearest
to the City of White Plains, New York for the appointment of the third
arbitrator. The sole or three arbitrators so designated, as the case may be,
shall resolve the matter in dispute by majority within twenty (20) days after
such designations. Any such resolution shall be final and binding upon the
parties hereto. In making their determination, the arbitrators shall not
enlarge upon, or alter or amend, this Lease or Lessor's or Lessee's rights as
provided in this Lease, it being understood that the sole issue for
determination by the arbitrators shall be matter submitted to them for
arbitration. Lessor and Lessee may, at their own cost and expense, be
represented by counsel and employ expert and other witnesses in any such
arbitration. If only one arbitrator is used, each party shall share equally in
the arbitrators fees. If three arbitrators are used, the parties shall each
pay their own arbitrators and shall share equally in the charges for the third
arbitrator. If in their decision, the arbitrators shall specify that either of
the parties is the prevailing party, which right the arbitrators shall have,
the party prevailing shall be entitled to reasonable counsel fees and the
party not prevailing shall also pay the charges and expenses of all three
arbitrators.
SECTION 3.06. Lessee shall pay and discharge, or cause to be paid and
discharged, the following items, regardless of to whom or how incurred, all
taxes and assessments, if any, which shall or may during the Term be charged,
levied, assessed or imposed upon, or become a lien upon, the personal property
of Lessee used in the operation of the Demised Premises and which, if not paid
by Lessee, would be collectible from Lessor.
ARTICLE 4 - USE OF DEMISED PREMISES
SECTION 4.01.A. Subject to the provisions of this Article, Lessee
shall have the right to use the Demised Premises for general office purposes
and for no other purposes.
X. Xxxxxx does hereby grant unto Lessee the privilege and a license
to Twenty-Nine (29) non-reserved parking spaces in the parking area located on
the Property, for a period to be coterminous with the Term of this Lease.
Lessee agrees that Lessor shall have the right, in its sole and absolute
discretion, upon thirty (30) days written notice to Lessee, to change the
location of all reserved parking spaces in the event that Lessor determines to
change the area, level, location and arrangement of parking areas and other
facilities; to build multistory parking facilities; to temporarily restrict
parking by lessees, their officers, agents and employees; and to close all or
any portion of said areas or facilities to such extent as may be legally
sufficient to prevent a dedication thereof or the accrual of any right to any
person or the public therein; to close temporarily all or any portion of the
parking areas or facilities to discourage non-customer parking, provided,
however, that in no event shall number of parking spaces available at the
Property be less than the number required by law. The license and privilege
hereby granted shall apply only to those duly registered and operating private
passenger motor vehicle(s) owned and operated by Licensee or Licensee's
employees, invitees and contractors and shall not be transferable to any other
person or used for any other purpose other than as herein provided.
SECTION 4.02. Lessee shall not use or occupy the Demised Premises in
any manner or suffer or permit the Demised Premises or any part thereof to be
used in any manner, or do or suffer or permit anything to be done in the
Demised Premises, or bring anything into the Demised Premises or suffer or
permit anything to be brought into the Demised Premises, which would in any
way do any of the following: (a) violate any of the provisions of the Mortgage
(as hereinafter defined) or Superior Lease (as hereinafter defined); (b)
violate any Legal Requirements, Insurance Requirements or Environmental Laws
(as such terms are hereinafter defined); (c) make void or voidable any
insurance policy then in force with respect to the Demised Premises, Building
or Property; (d) make unobtainable from insurance companies authorized to do
business in the State of New York and rated by Best's Insurance Rating Service
with a rating at least equal to A:XII, at standard rates without any special
premium or charge, any fire or other casualty insurance with extended
coverage, or rental, liability or boiler insurance, or other insurance
provided for in Section 11.01 or otherwise may be required to be furnished by
Lessor under the terms of the Mortgage or Superior Lease with respect to the
Demised Premises; (e) cause physical damage to the Demised Premises, Building
or Property, or any part thereof; (f) constitute a public or private nuisance;
(g) substantially impair the appearance or character of the Demised Premises,
Building or Property; (h) discharge or cause the discharge of objectionable
substances, fumes, vapors or odors from the Demised Premises not otherwise in
compliance with Legal Requirements, Insurance Requirements and Environmental
Laws; (i) cause Lessee to default in the observance and performance of any of
its other obligations to be observed and performed under this Lease; (j)
unreasonably interfere with the effectiveness or accessibility of the utility,
mechanical, electrical and other systems installed or located anywhere at the
Demised Premises, or (k) violate any of the Building's Rules and Regulations
annexed hereto as EXHIBIT "C," as same may be amended from time to time,
provided, however, that nothing contained in sections (a) through (k) shall
prohibit the use of the Demised Premises for the purposes set forth in Section
4.01 of this Lease.
SECTION 4.03. If any governmental license or permit shall be required
for the proper and lawful conduct of Lessee's business in the Demised Premises
or any part thereof, then Lessee, at its sole cost and expense, shall duly
procure and thereafter maintain such license or permit and submit the same to
inspection by Lessor. Lessee shall, at all times, comply with the terms and
conditions of each such license or permit, but in no event shall failure to
procure and maintain same by Lessee affect Lessee's obligations hereunder.
Lessee shall not use or occupy the Demised Premises, or suffer or permit
anyone to use or occupy the Demised Premises, in violation of any certificate
of occupancy issued for the Building or Property.
SECTION 4.04. Lessor shall obtain a certificate(s) of occupancy
required for Lessee's occupancy of the Demised Premises upon substantial
completion of Lessor's Work (as that term is hereinafter defined).
SECTION 4.05. Lessee shall not place, or suffer, or permit anyone to
place a load upon any floor of the Building that exceeds the floor load per
square foot that such floor was designed to carry and which is allowed by
certificate, rule, regulation, permit or law, nor shall Lessee overload, or
suffer, or permit anyone to overload any wall, roof, land surface, pavement,
landing or equipment on the Demised Premises.
SECTION 4.06. Lessee shall not use, or suffer, or permit anyone to
use, on or across the Demised Premises, Building or Property, any equipment
having caterpillar-type tracks or tires, or any other equipment which would be
damaging to the Demised Premises, Building or Property or any road surface or
blacktopping thereon.
SECTION 4.07. A. Lessee shall not release, discharge or dispose of,
or permit, or suffer any release, discharge or disposal of any Hazardous
Material at the Demised Premises in violation of any Environmental Law (as
hereinafter defined). Lessee shall not permit or suffer the manufacture,
generation, storage, transmission or presence of any Hazardous Material over
or upon the Demised Premises in violation of any Environmental Law.
B. Lessee shall: (i) promptly, upon learning thereof, notify
Lessor of any violation of, or non-compliance with, potential violation of or
non-compliance with, or liability or potential liability under, any
Environmental Law concerning the Demised Premises, (ii) promptly make (and
deliver to Lessor copies of) all reports or notices that Lessee is required to
make under any Environmental Law concerning the Demised Premises and maintain
in current status all permits and licenses required under any Environmental
Law concerning the Demised Premises, (iii) immediately comply with any orders,
actions or demands of any Governmental Authority (as herein defined) with
respect to the discharge, clean-up or removal of Hazardous Materials at or
from the Demised Premises due to a breach of a covenant set forth in Section
4.07.A, (iv) pay when due the cost of removal of, treatment of, or the taking
of remedial action with respect to, any Hazardous Material on the Demised
Premises which is required by an Environmental Law due to a breach of a
covenant set forth in Section 4.07.A, (v) keep the Demised Premises free of
any lien imposed pursuant to any Environmental Law in respect of a breach of a
covenant set forth in Section 4.07.A, (vi) from time to time, upon the request
of Lessor, execute such affidavits, certificates and statements concerning
Lessee's knowledge and belief concerning the presence of Hazardous Materials
on the Demised Premises and (vii) otherwise comply with all Environmental Laws
concerning the Demised Premises.
SECTION 4.08 Lessor shall include Lessee's name on any internal
Building directory and on the floor directional signs. Other than the
foregoing, Lessee shall not place or suffer to be placed or maintain any sign,
awning or canopy upon or outside the Demised Premises or in the Building; nor
shall Lessee place at the store front any sign, decoration, lettering or
advertising matter of any kind without first obtaining Lessor's written
approval and consent in each instance. In the event that Lessor gives its
consent hereunder, all signs shall be of a size, color and design as is
approved in writing by Lessor and shall be installed where designated by
Lessor and maintained in good condition, repair and appearance at all times,
according to Lessor's standards and the laws of the municipality having
jurisdiction over such signs. If Lessor shall deem it necessary to remove any
sign in order to paint or to make any repairs, alterations or improvements in
or upon the Demised Premises or any part thereof, Lessor shall have the right
to do so, provided the same be removed and replaced at Lessor's cost and
expense unless having been occasioned by fault of Lessee. Lessor shall have
the right, with or without notice to Lessee, to remove any signs (paper or
otherwise) installed by Lessee in violation of this paragraph and to charge
Lessee the cost of such removal without liability to Lessee for such removal.
SECTION 4.09 No property, other than such as might normally be
brought upon or kept in the Demised Premises as incidental to the reasonable
use of the Demised Premises for the purposes herein permitted, will be brought
upon or kept in the Demised Premises.
ARTICLE 5- POSSESSION AND CONDITION OF DEMISED PREMISES
SECTION 5.01. Lessee has inspected the Demised Premises and subject
to latent defects and Lessor's obligations under Section 8.01, Lessee accepts
the Demised Premises in their "AS IS" state and condition on the Commencement
Date and without any representation or warranty (except as expressly set forth
herein), express or implied, in fact or by law, by Lessor, and without
recourse to Lessor, as to the nature, condition or usability thereof or as to
the use or occupancy which may be made thereof.
SECTION 5.02. If delivery of possession to the Demised Premises to
Lessee is delayed by reason of Unavoidable Delays (as hereinafter defined),
then this Lease and the validity thereof shall not be affected thereby and
Lessee shall not be entitled to terminate this Lease, to claim actual or
constructive eviction, partial or total, or to be compensated for loss or
injury suffered as a result thereof, nor shall the same be construed in any
way to extend the Term, provided, however, that, notwithstanding the
provisions of Article 1, the Commencement Date shall be deemed to occur only
if and when possession of the Demised Premises is made available to Lessee.
SECTION 5.03. The provisions of this Article shall be considered an
express provision to the contrary governing delivery of possession of the
Demised Premises and any law providing for such a contingency in the absence
of such express agreement now or hereafter enacted shall have no application
in such case to the extent inconsistent with this Lease.
ARTICLE 6- UTILITIES, CLEANING, ETC.
SECTION 6.01.A. During the Term hereof and any Renewal Term, Lessor
shall furnish to Lessee, during Normal Working Hours (as hereinafter defined):
(a) necessary elevator facilities; (b) heat to the Demised Premises; (c) water
for ordinary lavatory purposes, but if Lessee uses or consumes water for any
other purposes or in unusual quantities (of which fact Lessor shall be the
sole judge), Lessor may install a water meter at Lessee's expense in good
working order and repair to register such water consumption and Lessee shall
pay for water consumed as shown on said meter as Additional Rent as and when
bills are rendered; (d) air conditioning and/or cooling; (e) ventilation; and
(f) electricity for Building lighting and normal Building equipment and other
incidental equipment ("Utility Service").
B. Except as otherwise specifically provided for in this Lease,
Lessor represents and warrants that Lessee shall have access (by elevator) to
the Demised Premises Twenty-Four (24) hours a day, Seven (7) days a week.
C.1. The air conditioning and/or cooling system shall be capable of
substantially meeting the following maximum performance specifications:
Inside Condition Outside Condition
(Degrees) (Degrees)
Cooling Season 78(degree)F dry bulb 95(degree)F dry bulb
50% RH 75(degree)F wet bulb
Heating Season 72(degree)F dry bulb 0(degree)F
2. The foregoing performance standards shall be inapplicable where
the Demises Premises are occupied by more than an average of one person for
each 150 square feet of Lessee's floor space or if Lessee installs and
operates machines and appliances, the connected electrical load of which when
combined with the load of all lighting fixtures and all occupancy factors
exceeds four xxxxx per usable square foot of Lessee's floor space in any one
room or other area or in any area used other than for offices. If due to use
of the Demised Premises in a manner exceeding the aforementioned occupancy and
electrical load criteria, or due to rearrangement of partitioning after the
initial preparation of the Demised Premises, interference with normal
operation of the air conditioning in the Demised Premises results,
necessitating changes in the air conditioning system servicing the Demised
Premises, such changes shall be made by Lessor upon written notice to Tenant
and Tenant's sole cost and expense. Tenant agrees to keep all windows closed,
and to lower and close window coverings when necessary because of the sun's
position whenever the said air conditioning system is in operation, and Lessee
agrees at all times to cooperate fully with Lessor and to abide by all the
regulations and requirements which Lessor may prescribe for the proper
functioning and protection of the said air conditioning system. Lessor,
throughout the Term, shall have free and unrestricted access to any and all
air conditioning facilities in the Demised Premises.
SECTION 6.02. During the Term hereof and any Renewal Term, Lessor
shall furnish to Lessee cleaning services for the Demised Premises in
accordance with the Cleaning Specifications annexed hereto as EXHIBIT "D".
SECTION 6.03.A. If Lessee uses the Demised Premises outside Normal
Working Hours, Lessee agrees to pay to Lessor an overtime charge to cover
Lessor's expenses for electricity for lighting and normal Building Equipment
(as hereinafter defined) and other incidental equipment, extra building
maintenance, building employee overtime, furnishing water for lavatories, air
cooling, heat, ventilation, wear and tear, etc.
B.1 Lessor shall furnish such overtime service to Lessee provided
that (i) Lessee pays to Lessor as Additional Rent special overtime charges
(the "Overtime Charge") therefore, which is presently at the rate of $150.00
per hour for Overtime Services, which Overtime Charge will be billed to Lessee
along with Lessee's next monthly installment of Fixed Rent if such service
shall have been furnished to Lessee prior to the fifteenth (15th) day of the
month or along with the subsequent monthly installment of Fixed Rent if such
service shall have been furnished to Lessee after the fifteenth (15th) day of
the month, (ii) that Lessee's request shall be received by Lessor by not later
than 2:00 P.M. on the day for which after hours service is requested (and by
not later than 2:00 P.M. on the day preceding any requested before-hours
service), (iii) that Lessor shall not be required to furnish such Overtime
Services to Lessee for more than twenty (20) hours in any one (1) week, and
(iv) the Building HVAC system is not then producing chilled water for future
HVAC use. Notwithstanding anything contained to the contrary in this Article
6, Lessee shall not be required to pay Overtime Charges for intermittent use
of the Demised Premises outside Normal Working Hours, provided that such use
shall not be on a scale and of a frequency so as to constitute the regular
operation of Lessee's business outside Normal Working Hours. In no event,
however, shall Lessor be obligated to supply heating or air conditioning
outside of Normal Working Hours unless Lessee shall request and pay for the
same as provided in this Article 6. In the event that Lessee and any other
tenant in the Building shall request Overtime Services, then, to the extent
that the Building Equipment permits same, Lessee and such other tenants shall
pay their proportionate share of the Overtime Charges.
2. Lessee agrees that the Overtime Charges, may from time to time, be
increased by Lessor, with not less than thirty (30) days prior written notice
to Lessee, if the rates at which Lessor purchases electrical energy from the
public utility corporation supplying electrical current to the Building of
which the Demised Premises are a part shall be increased, or any tax is
imposed upon Lessor's receipt from the sale or resale of electrical energy by
any Federal, State or Municipal Authority, or any charges incurred or taxes
payable by Lessor in connection therewith shall be increased. The Overtime
Charges shall be increased by an amount equal to the product of the respective
hourly rate times the percentage increase in the rates at which Lessor
purchases electrical energy from the public utility corporation as aforesaid.
SECTION 6.04.A. Lessee acknowledges and agrees that Lessor shall
furnish electrical current to Lessee ("Electric Service") for use in the
Demised Premises, excluding however, electrical current for supplemental
heating, ventilating and air conditioning units which shall be separately
metered as provided for in Section 6.05 hereof, based on the method of
including the use thereof within the Fixed Rent and, accordingly, Lessee
agrees that the Fixed Rent provided for in Article 2 of this Lease has been
increased to compensate Lessor for supplying Electric Service on the basis of
Two and 25/100 Dollars ($2.25) per square foot per annum for each square foot
contained in the Demised Premises (hereinafter referred to as the "Base
Charge") payable in equal monthly installments commencing on the Commencement
Date. By the execution of this Lease, Lessee acknowledges and agrees that the
Base Charge shall not be contestable by Lessee at a future date and shall only
be increased by Lessor at a future date in accordance with this Section.
Lessor will furnish electricity to Lessee through presently installed
electrical facilities for Lessee's reasonable use.
B.1. Lessee shall make no substantial alterations or additions to the
initial lighting, electrical appliances or office equipment without first
obtaining written consent from Lessor in each instance. Lessor warrants that
the electrical facilities servicing the Demised Premises is in good working
order and can accommodate a normal office installation with associated office
machinery and equipment. Lessee agrees that at all times its use of Electric
Service shall not exceed the capacity or overload any of the central and
appurtenant installations for Electric Service including, but not limited to
all wires, feeders, risers, electrical boxes, switches, outlets, connections,
and cables located in the Property, Building, or Demised Premises or any other
mechanical equipment spaces located therein. Lessee's use of Electric Service
shall not interfere with the use thereof by other occupants of the Property,
or Building and shall be of such a nature, as determined by Lessor in its sole
judgment and discretion, so as not cause permanent damage or injury to the
Demised Premises or the Building of which the Demised Premises are a part, or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expense, or interfere with or disturb
other tenants or occupants.
2. If at any time prior to or during the Term or any Renewal Term of
this Lease, subject to the restrictions contained elsewhere in this Lease: (i)
Lessee installs substantial additional or substituted lighting, electrical
appliances, office equipment or otherwise increases its use of Electric
Service, and/or; (ii) subject to the provisions of Article 8 of this Lease,
electrical feeders, risers, wiring or other electrical facilities serving the
Demised Premises shall be installed by Lessor, Lessee or others, on behalf of
Lessee or any person claiming through or under Lessee in addition to the
feeders, risers, wiring or other electrical facilities necessary to serve the
lighting fixtures, electrical appliances, office equipment and electrical
receptacles initially located in the Demised Premises; then the Fixed Rent
shall be increased by an amount determined by the electrical engineer selected
by Lessor who shall certify the amount of the Additional Rent to be increased
in writing to Lessor and Lessee. Following any such determination and
certification by the electrical engineer, this Lease shall automatically be
modified by increasing the Additional Rent by an amount equal to (i) the
product of the Base Charge times the percentage increase in Lessee's use of
electrical current over that for Lessee's initially installed lighting,
electrical appliances and office equipment and/or (ii) the product of the Base
Charge times the percentage increase in the potential additional electrical
energy made available to Lessee annually based upon the estimated capacity of
such additional electrical feeders, risers, wiring or other electrical
facilities, as the case may be. As evidence of such modification such
electrical engineer's certification shall be delivered by Lessor to Lessee and
also appended hereto. Any such increase shall be effective as of the date of
the first use by Lessee of such additional service and retroactive to such
date if necessary. In addition, Lessee shall pay to Lessor, as Additional
Rent, within ten (10) days of the date of a notice therefore from Lessor, the
total Cost (as hereinafter defined) to Lessor of the additional electrical
feeders, risers, wiring, or other electrical facilities serving the Demised
Premises.
C. If, at any time or times after the date of this Lease, the rates
at which Lessor purchases electrical energy from the public utility
corporation supplying electrical current to the Building of which the Demised
Premises are a part shall be increased, or any tax is imposed upon Lessor's
receipt from the sale or resale of electrical energy or gas or telephone
service to Lessee by any Federal, State or Municipal Authority, or any charges
incurred or taxes payable by Lessor in connection therewith shall be
increased, the Additional Rent shall be increased by an amount equal to the
product of the Base Charge times the percentage increase in the rates at which
Lessor purchases electrical energy from the public utility corporation as
aforesaid, over those rates in effect on the date of the calculation of the
Base Charge. Following any such rate increase or other charge, this Lease
shall automatically be modified by increasing the Additional Rent for the
remainder of the term hereof in accordance with this Subsection and, as
evidence of such modification, documentation of such rate increase or other
charge shall be delivered by Lessor to Lessee and also appended hereto. Any
such increase in the Additional Rent shall be effective as of the date of any
such increase in cost or other charge to Lessor and shall be retroactive to
such date if necessary.
D.1 Notwithstanding anything contained to the contrary in this
Article 6, Lessor shall have the right, at its option, to conduct a survey of
the Demised Premises by an independent electrical engineer of Lessor's
choosing at any time during the Term or any Renewal Term in order to determine
Lessee's actual use of electrical current therein (the "Electric Survey"). In
the event that the Electric Survey provided for in the preceding sentence
shall indicate that Lessee's use of electrical current then exceeds that at
the time of Lessee's initial installation of its lighting fixtures, electrical
appliances and office equipment, Lessee upon receipt of notice from Lessor
together with a copy of such Electrical Survey ("Lessor's Electric
Statement"), shall pay to Lessor an increase in Fixed Rent equal to an amount
determined by multiplying the Base Charge times the percentage increase in
Lessee's use of electrical current over that for Lessee's initially installed
lighting, electrical appliances and office equipment. Any such increase shall
be payable in accordance with the terms of this Article 6 and shall be
effective as of the date of Lessee's first increased use of electrical current
and shall be retroactive to such date, if necessary.
2. Lessor's Electric Statement shall be conclusive and binding upon
Lessee unless within One Hundred and Eighty (180) days after receipt of such
Lessor's Electric Statement, Lessee shall notify Lessor that it disputes the
reasonableness or correctness of Lessor's Electric Statement, specifying the
respects in which Lessor's Electric Statement is claimed to be unreasonable or
incorrect. Pending the determination of any such dispute respecting a Lessor's
Electric Statement by agreement or arbitration, Lessee shall pay such increase
in accordance with the applicable Lessor's Electric Statement, and such
payment will be without prejudice to Lessee's position. If the dispute shall
be finally determined in Lessee's favor by arbitration, Lessor shall forthwith
pay Lessee the amount of Lessee's overpayment resulting from compliance with
Lessor's Electric Statement together with interest thereon at the legal rate.
Lessor, upon request of Lessee, shall either make available to Lessee such
documentation as may be in Lessor's possession to support the Electric Survey
or permit Lessee, its agents and/or auditors to examine relevant portions of
the Building and the electrical facilities relating to and/or supplying
electric current to the Demised Premises.
SECTION 6.05.A. During the Term or any Renewal Term, Lessor shall
also furnish to Lessee electricity for supplemental heating, ventilating and
air conditioning systems servicing the Demised Premises ("Supplemental
Electric Service").
B. Lessee agrees that it shall purchase or receive such Supplemental
Electric Service directly from Lessor and to pay directly to Lessor all
charges for Supplemental Electric Service rendered or supplied to the Demised
Premises throughout the Term hereof, or any Renewal Term.
C. Lessee's consumption of Supplemental Electric Service shall be
measured by means of separate flow meters (hereinafter referred to as the
"Meters") installed by Lessor as part of Lessor's Work, and Lessee shall pay,
during the entire Term of this Lease, or any Renewal Term, all actual costs
and reasonable expenses including the payments of any taxes and/or penalties
in connection therewith for all Supplemental Electric Service used, consumed
or provided to the Demised Premises.
D. Lessee shall pay for all Supplemental Electric Service consumed,
used or provided to the Demised Premises as hereinabove provided within ten
(10) days after rendition of a xxxx for same by Lessor (the "Utility Xxxx").
Lessor shall xxxx Lessee at Lessor's actual expense to purchase all
Supplemental Electric Service and Lessor shall be entitled to an
administrative fee of Five (5%) percent of all Supplemental Electric Service
charged or otherwise billed pursuant to the Utility Xxxx. All Supplemental
Electric Service billed by Lessor to Lessee shall be deemed Additional Rent.
Each Utility Xxxx shall be conclusive and binding upon Lessee unless within
One Hundred and Eighty (180) days after receipt of such Utility Xxxx Lessee
shall notify Lessor that it disputes the reasonableness or correctness of the
Utility Xxxx, specifying the respects in which the Utility Xxxx is claimed to
be unreasonable or incorrect. Pending the determination of such dispute by
agreement or otherwise, Lessee shall pay for Supplemental Electric Service in
accordance with the applicable Utility Xxxx, and such payment will be without
prejudice to Lessee's position. If the dispute shall be finally determined in
Lessee's favor by arbitration, Lessor shall forthwith pay Lessee the amount of
Lessee's overpayment of Supplemental Electric Service resulting from
compliance with the applicable Utility Xxxx together with interest thereon at
the legal rate. Lessor, upon request of Lessee, shall either make available to
Lessee such documentation as may be in Lessor's possession to support a
particular Utility Xxxx or permit Lessee to examine relevant portions of
Lessor's books and records.
E. Lessee agrees that at all times its use of Supplemental Electric
Service shall not exceed the capacity or overload any of the central and
appurtenant installations for Supplemental Electric Service including, but not
limited to all wires, feeders, risers, electrical boxes, switches, outlets,
connections, supply and return lines, fittings, ducts, pipes, chutes, cables,
conduits, water and refrigerant lines, registers, convertors, radiation
elements and dampers located in the Building, Demised Premises or any other
mechanical equipment spaces located therein. Lessee's use of Supplemental
Electric Service shall be of such a nature, as determined by Lessor in its
reasonable judgment and discretion, so as not cause permanent damage or injury
to the Demised Premises or the Building of which the Demised Premises are a
part, or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense, or materially
interfere with or disturb other tenants or occupants.
SECTION 6.06. Lessor reserves the right, upon reasonable written
notice and at reasonable times, except that no notice shall be required in the
event of an emergency, to stop, interrupt and/or suspend Utility Service,
Electric Service and/or Supplemental Electric Service when necessary by reason
of accident or for repairs, alterations, replacements or improvements
necessary or desirable in the judgement of Lessor for as long as may be
reasonably required by reason thereof. The repairs, alterations, replacements
or improvements shall be done with a minimum of inconvenience to Lessee and
upon reasonable notice to Lessee (except that no notice shall be required in
the event of an emergency) and Lessor shall pursue same with due diligence.
SECTION 6.07. Except to the extent caused by the wilful conduct or
negligent acts or omissions of Lessor, Lessor shall in no way be liable for
any loss, damage, or expense which Lessee may incur as a result of the change,
at any time, of the character or quality of Electric Service, Supplemental
Electric Service, or Utility Service or any failure of or defect in Electric
Service, Supplemental Electric Service or Utility Service by reason of any
public or private utility company then supplying such service to the Property,
Building or the Demised Premises and Lessee agrees to hold the Lessor harmless
and to indemnify it from and against any loss, liability or damage in
connection therewith resulting from Lessee's negligent or wilful acts or
omissions. This indemnity shall survive the expiration or other termination of
this Lease.
ARTICLE 7- REPAIR AND MAINTENANCE
SECTION 7.01.A. Subject to the provisions of Section 7.02 hereof,
Lessee shall, during the Term of this Lease and any Renewal Term, at Lessee's
sole cost and expense, take good care of, maintain and make all repairs,
(other than structural) in the Demised Premises, and the fixtures and
equipment therein and appurtenances thereto, including but not limited to,
internal doors and entrances, door checks, internal signs, floor covering,
interior walls, columns and partitions; and lighting, heating, hot water,
plumbing and sewerage facilities, sprinkler system and sprinkler heads which
are located within the Demised Premises and serve exclusively the Demised
Premises.
B. If Lessee refuses or neglects to clean, maintain or make repairs
or otherwise fails to perform any of Lessee's repairs or maintenance
obligations hereunder, Lessor shall have the right, but shall not be
obligated, to make such repairs or perform on behalf of and for the account of
Lessee after thirty (30) days written notice to Lessee as provided for in
Article 21 of this Lease, except that lesser notice appropriate to the
circumstances shall be required in the event of an emergency. All sums so paid
by Lessor in connection with the payment or performance by it or any of the
obligations of Lessee hereunder and all actual and reasonable costs, expenses
and disbursements paid in connection therewith or enforcing or endeavoring to
enforce any right under or in connection with this Lease, or pursuant to law,
together with interest thereon at the maximum legal rate from the respective
dates of the making of such payment, shall constitute Additional Rent payable
by Lessee under this Lease and shall be paid by Lessee to Lessor upon demand
by Lessor. The provisions of this Section shall survive the expiration or
other termination of this Lease.
SECTION 7.02. Lessor shall not be required to make any repairs or
improvements of any kind upon the Demised Premises except for necessary
structural repairs to the Building or for damage caused by a casualty or
Lessor's negligent acts, excluding Lessee's property. Lessor shall during the
Term of this Lease and any Renewal Term, maintain and repair all common areas
and other facilities in or about the Property and/or the Building, exclusive
of doors, door frames, door checks, windows and window frames. Lessor shall
have the right to construct, maintain and operate lighting and other
facilities on all said areas and improvements; to police the same; to change
the area, level, location and arrangement of parking areas and other
facilities; to build multistory parking facilities; to restrict parking by
Lessee's, their officers, directors, agents and employees, to enforce parking
charges (by operation of meters and otherwise); and to close all or any
portion of said areas or facilities to such extent as may be legally
sufficient to prevent a dedication thereof or the accrual of any right to any
person or the public therein; to close temporarily all or any portion of the
parking areas or facilities to discourage non-visitor parking. Lessor shall
operate and maintain the common areas in such manner as Lessor in its
discretion shall determine, and Lessor shall have full right and authority to
employ and discharge all personnel with respect thereto, provided, however,
that Lessor shall maintain the common areas as a first class office building
in Westchester County, New York. If Lessor shall designate an employee or
lessee parking area or areas, Lessee and its employees shall use only such
areas for parking and Lessee shall cooperate fully with Lessor in enforcing
this covenant.
SECTION 7.03. "Repairs" as used herein shall mean all repairs,
replacements, renewals, alterations, additions and betterments. All contracts
between Lessee and others for installations, maintenance, and repairs and
alterations involving the Demised Premises, including maintenance agreements,
shall be subject to the prior written approval of Lessor, not to be
unreasonably withheld or delayed.
SECTION 7.04. Lessor shall not be required to make any repairs or
replacements to the common areas occasioned by the act or negligence of
Lessee, its agents, employees, invitees, customers, licensees, or contractors,
except to the extent that Lessor is reimbursed therefor under any policy of
insurance permitting waiver of liability and containing a waiver of
subrogation, except as otherwise provided in this Article and Article 12 of
this Lease.
ARTICLE 8- LESSOR'S WORK; LESSOR'S ALLOWANCE; LESSEE'S WORK
SECTION 8.01.A.1. Lessor (which term as used herein may be deemed to
mean Lessor and/or Lessor's affiliated or non-affiliated general contractor)
shall act as general contractor with respect to the build-out of the Demised
Premises (the "Work") and, in such capacity, shall perform the Work on behalf
of Lessee and in accordance with the plans annexed hereto as EXHIBIT "E" (the
"Plans"), which Plans, Lessor and Lessee have approved. Lessor and Lessee
agree that Lessor shall not be obligated to contribute more than One Hundred
and Eighty Thousand, Nine Hundred and Twenty-Five and 00/100 ($180,925.00)
Dollars, including architectural, space planning, engineering fees and
construction documents for the completion of the Work (Lessor's Allowance")
and Lessee agrees that any costs to complete the Work in excess of Lessor's
Allowance shall be the sole responsibility and obligation of Lessee. Lessor
agrees that it will spend Lessor's Allowance for the performance of the Work.
Upon disbursement of Lessor's Allowance, Lessor shall have no further
obligation or liability whatsoever to Lessee for funding the Work and it is
expressly understood and agreed that Lessee shall be obligated to complete, at
its sole cost and expense, the Work, whether or not Lessor's Allowance is
sufficient to fund such completion.
2. Any increase in the scope of Work to be performed by Lessor beyond
that contained in the Plans ("Extra Work") shall be approved as follows: (i) a
written request for any such Extra Work (including any and all change orders)
defining the scope of such Extra Work plus any possible time delay and
containing an "Extra Work Cost Estimate" shall be prepared by Lessor for
review and acceptance by Lessee; and (ii) upon execution by Lessee of such
written request of Lessor, Lessor shall pursue completion of the Extra Work
stipulated therein at Lessee's sole cost and expense. Lessee shall pay to
Lessor the cost of the Extra Work upon the commencement of such Extra Work.
3. To the extent (i) Lessor (which term as used herein may be deemed
to mean Lessor and/or Lessor's affiliated or non-affiliated general
contractor) may be or is required to or actually does perform Work pursuant to
this Article 8, and/or (ii) Lessor performs other build-out or similar work or
alterations to the Demised Premises of any kind or any other demolition,
renovation or construction on Lessee's behalf during the term of this Lease,
pursuant to Article 25 of this Lease and otherwise, same shall be on a Cost
(as hereinafter defined) basis.
SECTION 8.02.A. Lessor shall use reasonable efforts to substantially
complete the Work within a reasonable period of time, subject to Unavoidable
Delays, but failure to complete the Work within a reasonable period of time
shall not effect the validity of this Lease. Lessor has not made, and makes,
no representations as to the date when the Work will be substantially
complete, and notwithstanding any date specified in this Lease, the same is
merely an estimate.
B. Lessee shall submit to Lessor, on or before the tenth (10th) day
following notice of substantial completion of the Work, a punch list setting
forth such details provided for in the Plans as remain to be completed and,
except as noted therein, Lessee shall be deemed to have accepted the Work as
of the date of substantial completion.
C. Except as provided herein, Lessee hereby waives any right to
terminate, cancel or rescind this Lease by reason of Lessor's failure to
complete the Work, to deliver possession of the Demised Premises or otherwise
perform its obligations under this Article, which Lessee might otherwise have
pursuant to any law now or hereafter in force or otherwise. Lessee further
waives the right to recover any damages which may result from Lessor's failure
to complete the Work, to deliver possession of the Demised Premises or
otherwise to perform its obligations under this Article.
SECTION 8.03. Following substantial completion of the Work, or
earlier by mutual consent, Lessee shall equip the Demised Premises with all
trade and operating fixtures, equipment, furniture, furnishings, and any and
all other items necessary as reasonably determined by Lessee for the proper
operation of Lessee's business (Lessee's Alterations"). All trade and
operating equipment permanently affixed to the Demised Premises by Lessee
shall not be subject to liens, conditional sales contracts, security
agreements or chattel mortgages. Within thirty (30) days after the
Commencement Date, or substantial completion of the Work, as the case may be,
Lessee shall complete all of Lessee's Alterations required on Lessee's part to
be performed in and at the Demised Premises under this Lease. Lessee shall
work compatibly, and not interfere, in Lessor's reasonable judgment, with
Lessor in the completion of the Work. Lessee shall at all times comply with
all of the terms of this Lease.
SECTION 8.04. Other than as specifically provided for in Section 8.03
hereof, Lessee shall not do any construction, work or alterations to the
Demised Premises, nor shall Lessee install any items other than Lessee's trade
fixtures without first: (1) obtaining Lessor's written consent and (2)
complying with all of the terms, covenants and conditions contained in
Lessor's Standard Requirements For Alterations To Be Performed by Lessees',
annexed hereto as EXHIBIT "G," as may be amended from time to time.
ARTICLE 9- COMPLIANCE WITH LAWS
SECTION 9.01. Lessor represents that the Demised Premises, the
Building and Property will comply with all Legal Requirements, Environmental
Laws and Insurance Requirements as of the Commencement Date.
SECTION 9.02. Throughout the Term of this Lease and all Renewal
Terms, Lessee shall promptly comply with all Legal Requirements, Environmental
Laws and Insurance Requirements whether or not such compliance involves
structural repairs or changes or be required on account of any particular use
to which the Demised Premises, or any part, may be put by Lessee, other than
general office use and whether or not any such Legal Requirements,
Environmental Laws, or Insurance Requirements be of a kind not now within the
contemplation of the parties hereto. Compliance by Lessee with Legal
Requirements, Environmental Laws, and Insurance Requirements shall be at
Lessee's sole cost and expense. Lessee shall not contest the application or
validity of any such Legal Requirements, Environmental Laws, or Insurance
Requirements without the prior written consent of Lessor in each such
instance, which consent shall not be unreasonably withheld or delayed,
provided, however, that (i) such contest shall not result in Lessor being in
default under any Superior Mortgages or Leases; (ii) does not impose any civil
or criminal liability on Lessor's officers, directors, shareholders or
partners; (iii) Lessee agrees to pay any and all fines and/or penalties
incurred, assessed or levied in connection with such contest; and (iv) Lessee
shall and does hereby indemnify and hold harmless Lessor, and Lessor's agents,
officers, directors, and employees, from and against any and all loss,
liability, fines, suits, claims, obligations, damages, penalties, demands and
actions, and costs and reasonable expenses of any kind or nature (including
architects' and attorneys' fees) due to or arising out of such contest. Any
repair or change required under this Section shall be deemed a repair for the
purposes of Article 7. With respect to actions necessary to comply with Legal
Requirements, Insurance Requirements and Environmental Laws which due to their
nature, can only be taken by Lessor, Lessor, at Lessee's expense, will
cooperate with Lessee in facilitating such compliance.
ARTICLE 10- RIGHTS RESERVED TO LESSOR
SECTION 10.01. Lessee shall permit Lessor, Lessor's agents, and its
invitees to enter the Demised Premises, or any part thereof, at all reasonable
times and on reasonable notice provided same does not unreasonably interfere
with Lessee's business and a representative of Lessee is present for the
purposes of (a) inspecting the same, (b) curing Events of Default of Lessee
(after Ten (10) days notice to Lessee, except that no notice shall be required
in case of an emergency), (c) showing the same to mortgagees, appraisers, or
prospective lenders, purchasers or lessees, (d) observing the performance by
Lessee of its obligations under this Lease, and (e) performing any act or
thing which Lessor may be obligated or have the right to do under this Lease
or otherwise. Lessor and any providers of Utility Services or other services
shall have the right to maintain existing utility, mechanical, electrical and
other systems and to enter upon the Demised Premises to make such repairs and
alterations therein or in or to the Demised Premises as may, in the opinion of
Lessor, be deemed necessary or advisable. Lessor shall not be liable for
inconvenience, annoyance, disturbance or loss of business to Lessee or any
sublessee by reason of making any repairs or the performance of any work, or
on account of bringing materials, tools, supplies and equipment into or
through the Demised Premises during the course thereof and the obligations of
Lessee under this Lease shall not be affected thereby. The rights provided in
this Article shall be exercised so as to minimize interference with access to
and/or use of the Demised Premises and/or Building by Lessee. Nothing
contained in this Article shall impose, or shall be construed to impose on
Lessor any obligation to maintain the systems referred to in this Article or
the Demised Premises or anything appurtenant thereto, or to make repairs or
alterations thereof or thereto, or to create any liability for any failure to
do so.
SECTION 10.02.A. Without abatement or diminution in rent, Lessor
reserves and shall have the following additional rights: (a) to change the
street address and/or the name of the Building of which the Demised Premises
are a part and/or the Property and/or the locations of entrances, passageways,
doors, doorways, corridors, elevators, stairs, toilets, or other public parts
of the Building and/or Property without liability to Lessee, (b) to approve in
writing all sources furnishing construction work, painting, decorating,
repairing, maintenance and any other work in or about the Demised Premises,
(c) to erect, use and maintain pipes and conduits in and through the Demised
Premises, (d) to charge to Lessee any expense including overtime cost incurred
by Lessor in the event that repairs, alterations, decorating or other work in
the Demised Premises are made or done after ordinary business hours at
Lessee's request, (e) to immediately enter and alter, renovate, and redecorate
the Demised Premises (without reduction or abatement of rent or incurring any
liability to Lessee for compensation), if during the last six (6) months of
the term or of a renewal term Lessee shall have removed all or substantially
all of Lessee's property therefrom, and (f) to grant to anyone the exclusive
right to conduct any particular business or undertaking in the Building of
which the Demised Premises are a part provided, however, that Lessor shall
take no action which adversely affects Lessee's access to and/or use of the
Demised Premises and/or Building..
X. Xxxxxx may exercise any or all of the foregoing rights hereby
reserved to Lessor without being deemed guilty of an eviction, actual or
constructive, or disturbance or interruption of Lessee's use or possession and
without being liable in any manner toward Lessee and without limitation or
abatement of rent or other compensation, and such acts shall have no effect on
this Lease.
ARTICLE 11- INSURANCE
SECTION 11.01. A. Lessee shall obtain and keep in full force and
effect during the Term, and during any earlier period of time when Lessee or
Lessee's agents, employees, or contractors may enter the Demised Premises at
its own cost and expense:
(1) commercial general liability insurance (with a
contractual liability endorsement covering the matters set forth in
Article 16) having a combined single limit of not less than Two
Million ($2,000,000.00) Dollars protecting Lessor, any Lessor's agent
which is acting as a property manager for the Property, the holder of
any Mortgage, or lessor under any Superior Lease and Lessee as
insureds (and naming each such person as an insured party or as an
additional insured) against any and all claims for bodily injury,
death or property damage occurring, during the Term and during any
earlier period of time when Lessee or Lessee's agents, employees, or
contractors may enter the Demised Premises;
(2) insurance (herein sometimes referred to as "Lessee's
fire (casualty) insurance") against loss or damage by any and all
risks and hazards to Lessee's Property (as hereinafter defined) for
the full replacement value thereof (including coverages which are
currently sometimes referred to as "all risk" with coverage written
on a replacement cost basis);
(3) workers' compensation and employees liability insurance
in accordance with the laws of the State of New York and all
Governmental Authorities having jurisdiction over the Demised
Premises and/or the Property; and
(4) Lessee shall insure and keep insured in the name of
Lessee, with the name of Lessor included as an additional insured, at
Lessee's expense (i) all internal plate glass in the Demised
Premises; (ii) if there is a steam boiler, steam generator, or any
other combustible device, mechanism or appliance in, on, adjoining or
beneath the Demised Premises, for the exclusive use of the Lessee,
Lessee shall insure and keep the same insured with a broad form
boiler insurance in the amount of at least Five Hundred Thousand
($500,000.00) Dollars. Lessee shall further insure, at Lessor's
request, against any other peril generally insured against by a
business of Lessee's type. B. Said insurance is to be written in form
and substance reasonably satisfactory to Lessor by an
insurance company, licensed to do business in the State of New York, which
shall be rated by Best's Insurance Rating Service with at least a rating equal
to A:XII. Lessee shall procure, maintain and place such insurance and pay all
premiums and charges therefor and upon failure to do so Lessor may, but shall
not be obligated to, procure, maintain and place such insurance or make such
payments, and in such event Lessee agrees to pay the amount thereof plus
interest at the maximum legal rate then prevailing, to Lessor on demand as
Additional Rent. If Lessee has other locations that it owns or leases, said
policy shall include an aggregate per location endorsement. Lessee shall cause
to be included in all such insurance policies (i) a provision to the effect
that the same will not be canceled or modified except upon not less than
thirty (30) days prior written notice to the Lessor, and (ii) a provision to
the effect that the naming of any person other than Lessee as an insured shall
not obligate such person to pay any premium. Each such Lessee's fire
(casualty) insurance policy shall contain an agreement by the insurer that the
act or omission of one insured will not invalidate the policy as to any other
insured. Not less than ten (10) days prior to the Commencement Date the
appropriate certificates and paid receipts therefor, (together with a
photocopy of the policy, if Lessor shall so request) shall be deposited with
Lessor. Any renewals or endorsements thereto shall also be deposited with
Lessor, not less than ten (10) days prior to the expiration date of the policy
being renewed, replaced or endorsed, to the end that said insurance shall be
in full force and effect at all times during the Term.
SECTION 11.02. Lessee agrees to use reasonable efforts to include in
each of its insurance policies (insuring the Demised Premises and Lessor's
property therein, against loss occasioned by fire or other casualty) a waiver
of the insurer's right of subrogation against the Lessor, or if such waiver
should be unobtainable or unenforceable, (a) an express agreement that such
policy shall not be invalidated if the insured waives or has waived before the
casualty the right of recovery against any party responsible for a casualty
covered by the policy, or (b) any other form of permission for the release of
the other party, or (c) the inclusion of the Lessor as an additional insured.
Lessee, upon request from Lessor from time to time, will furnish evidence of
the nature of the insurance arrangements made concerning the subject matter of
this Section.
SECTION 11.03. As long as both parties' fire (casualty) insurance
policies then in force include the waiver of subrogation or agreement or
permission to release liability referred to in Section 11.02 or name the other
party as an additional insured, each party hereby waives (and agrees to cause
any other permitted occupants of the Demised Premises to execute and deliver
to the other party written instruments waiving) any right of recovery against
the other party, the holder of the Mortgage, or Superior Lease, and any
servants, employees, agents or contractors of the other party, or of any such
lessor or holder, or of any such other tenants or occupants, for any loss
occasioned by fire or other casualty, that is an insured risk under Lessee's
fire (casualty) insurance policies. In the event that at any time either
party's fire (casualty) insurance carriers shall not include such or similar
provisions in the other party's fire (casualty) insurance policies, the
waivers set forth in the foregoing sentence shall be deemed of no further
force and effect. During any period when either party fails to maintain such
fire (casualty) insurance, for the purposes of the first sentence of this
Section there shall be deemed to be in effect such fire (casualty) insurance
meeting the requirements of such sentence.
SECTION 11.04. Nothing contained in this Lease shall (i) relieve
Lessee of any liability to Lessor or to its insurance carriers which Lessee
may have under law or the provisions of this Lease in connection with any
damage to the Demised Premises by fire or other casualty; (ii) impose upon
Lessor any duty to procure or maintain any kinds of insurance or any
particular amounts or limits of any such kinds of insurance.
SECTION 11.05. Lessor shall insure the Building with all risk
insurance coverage in such amounts so as to avoid co-insurance and Lessor
agrees that such policies shall contain a waiver of subrogation in favor of
Lessee.
ARTICLE 12 - DAMAGE OR DESTRUCTION
SECTION 12.01. If the Demised Premises or any part thereof shall be
damaged by fire or other casualty, Lessee shall give prompt notice thereof to
Lessor and Lessor shall proceed (subject to the provisions of this Article)
with reasonable diligence to repair or cause to be repaired such damage.
Except as provided in Section 12.05, the Fixed Rent shall be abated
proportionately to the extent that the Demised Premises shall have been
rendered Untenantable (as hereinafter defined), such abatement to be from the
date of such damage or destruction to the date the Demised Premises shall no
longer be Untenantable.
SECTION 12.02. If the Demised Premises shall be totally damaged or
the whole of the Demised Premises shall be rendered Untenantable by fire or
other casualty, and Lessor has not terminated this Lease pursuant to Section
12.03 and Lessor has not completed the making of the required repairs and
restored and rebuilt the Demised Premises and/or access thereto within one (1)
year from the date of such damage or destruction to the condition the Demised
Premises were in on the Commencement Date (except for Lessee's Property) and
such additional time after such date, as shall equal the aggregate period
Lessor may have been delayed in doing so by Unavoidable Delays or adjustment
of insurance, Lessee may serve notice on Lessor of its intention to terminate
this Lease and if within thirty (30) days thereafter, Lessor shall not have
substantially completed the making of the required repairs and restored and
rebuilt the Demised Premises to the condition the Demised Premises were in on
the Commencement Date (except for Lessee's Property), then in such events,
this Lease shall terminate on the expiration of such thirty (30) day period as
if such termination date were the Expiration Date, and the Fixed Rent and
Additional Rent shall be apportioned as of the of such fire or other casualty
and any prepaid portion of Fixed Rent and Additional Rent for any period after
such date shall be refunded by Lessor to Lessee.
SECTION 12.03.A. If the Demised Premises shall be totally damaged or
the whole or substantially all of the Demised Premises shall be rendered
Untenantable by fire or other casualty or if the Demised Premises shall be so
damaged by fire or other casualty that substantial alteration or
reconstruction shall, in Lessor's reasonable opinion, be required, then and in
such events Lessor may, at its option, terminate this Lease and the Term and
estate hereby granted by giving Lessee not less than thirty (30) days, nor
more than sixty (60) days, notice of such termination, within ninety (90) days
after the date of such damage. In the event that such notice of termination
shall be given, this Lease and the Term and estate hereby granted shall
terminate as of the date provided in such notice of termination (whether or
not the Term shall have commenced) with the same effect as if that were the
Expiration Date, and the Fixed Rent and Additional Rent shall be apportioned
as of the date of such fire or other casualty, and any prepaid portion of
Fixed Rent and Additional Rent for any period after such date shall be
refunded by Lessor to Lessee.
B. If the Demised Premises shall be totally damaged or the whole or
substantially all of the Demised Premises shall be rendered untenantable by
fire or other casualty, and Lessor has not terminated this Lease as provided
in Section 12.03.A., Lessor shall notify Lessee, within ninety (90) days after
such fire or other casualty, as to the estimated period of time necessary to
complete the required repairs and restore and rebuild the Demised Premises to
the condition the Demised Premises were in on the Commencement Date (except
for Lessee's Property). If such Lessor's estimate exceeds one (1) year, from
the date of such notice, or if Lessor falls to deliver such notice, then in
such events, Lessee may serve on Lessor, within thirty (30) days of its
receipt of Lessor's notice, or the expiration of the ninety (90) days after
such fire or other casualty, as the case may be, (time being of the essence
with respect thereto), notice of its intention to terminate this Lease on a
date which shall be not more than thirty (30) days from the date of Lessee's
notice. If Lessee gives notice of its intention to cancel this Lease as
provided herein, then in such event, this Lease shall terminate on the
expiration of such thirty (30) day period as if such termination date were the
Expiration Date, and the Fixed Rent and Additional Rent shall be apportioned
as of the date of such fire or other casualty and any prepaid portion of Fixed
Rent and Additional Rent for any period after such date shall be refunded by
Lessor to Lessee. Lessee's failure to notify Lessor within the thirty (30) day
period shall be deemed a waiver of the right to terminate this Lease.
SECTION 12.04. Lessor shall not be liable for any inconvenience or
annoyance to Lessee or injury to the business of Lessee resulting in any way
from such damage by fire or other casualty or the repair thereof.
SECTION 12.05. Lessee shall restore all improvements made by Lessee
to the Demised Premises, at Lessee's sole cost and expense. Nothing herein
contained shall relieve Lessee from any liability to the Lessor or to its
insurers in connection with any damage to the Property, Building or Demised
Premises by fire or other casualty if Lessee shall be legally liable in such
respect. Notwithstanding any of the foregoing provisions of this Article, if
by reason of some action or inaction on the part of Lessee or any of its
employees, agents, officers, directors or contractors, Lessor or the holder of
the Mortgage or Superior Lease shall be unable to collect all of the insurance
proceeds (including rent insurance proceeds) applicable to damage or
destruction of the Demised Premises by fire or other cause, then, without
prejudice to any other remedy which may be available against Lessee, the
abatement of Fixed Rent provided for in this Article shall not be effective to
the extent of the uncollected insurance proceeds.
SECTION 12.06. This Lease shall be considered an express agreement to
the contrary governing any case of damage to or destruction of the Demised
Premises or any part thereof by fire or other casualty, and any law providing
for such a contingency in the absence of such express agreement, now or
hereafter enacted, shall have no application in such case to the extent
inconsistent with this Lease.
SECTION 12.07. Lessee shall, at its own cost and expense, remove all
of Lessee's property from the Demised Premises as Lessor shall require in
order to repair and restore the Demised Premises and Lessor shall not be
obligated to commence repairs or restoration of the Demised Premises until
such property has been removed by Lessee from the damaged portion of the
Demised Premises. Should Lessee neglect, fail, or refuse to remove its
aforesaid property within thirty (30) days after such damage or destruction,
the provisions for abatement of Fixed Rent contained herein shall be suspended
and of no force and effect whatsoever until Lessee has completed such removal.
In no event shall the Lessor be required to repair or replace Lessee's
merchandise, trade fixtures, furniture, furnishings, inventory and equipment.
ARTICLE 13 - CURING DEFAULTS; FEES AND EXPENSES
SECTION 13.01. If Lessee shall default in the full and prompt
performance of any covenant contained herein and to be performed on Lessee's
part, Lessor, after thirty (30) days notice to Lessee (except that a lesser
notice appropriate to the circumstances shall be required in case of an
emergency), without being under any obligation to do so and without thereby
waiving such default may perform such covenant for the account and at the
expense of Lessee and may enter upon the Demised Premises for any such purpose
and take all action thereon as may be necessary therefor. All sums so paid by
Lessor in connection with the payment or performance by it of any of the
obligations of Lessee hereunder and all actual and reasonable costs, expenses
and disbursements paid in connection therewith or enforcing or endeavoring to
enforce any right under or in connection with this Lease, or pursuant to law,
together with interest thereon at the maximum legal rate from the respective
dates of the making of each such payment, shall constitute Additional Rent
payable by Lessee under this Lease and shall be paid by Lessee to Lessor upon
demand by Lessor. The provisions of this Section shall survive the expiration
or other termination of this Lease.
ARTICLE 14 - DEFAULT PROVISIONS
SECTION 14.01. A. If any one or more of the following events
shall happen and shall not have been cured within any applicable grace
period herein provided:
(1) if default shall be made in the due and punctual payment
of Fixed Rent or Additional Rent payable by Lessee under this Lease
when and as the same shall become due and payable, and such default
shall continue for a period of five (5) days after written notice
thereof from Lessor to Lessee (provided that no such notice shall be
required if, during the period of one (1) year immediately preceding
the date of default, there shall have been two (2) or more defaults
in the due and punctual payment of Fixed Rent or Additional Rent
payable by Lessee under this Lease when and as the same shall have
been due and payable); or
(2) if default shall be made by Lessee in performance of, or
compliance with, any of the covenants, agreements or conditions
contained in this Lease and either (i) in the case of a default or a
contingency which can with due diligence be cured within thirty (30)
days, such default shall continue for a period of thirty (30) days
after written notice thereof from Lessor to Lessee, or (ii) in the
case of a default or a contingency which cannot with due diligence be
cured within thirty (30) days, Lessee shall fail, after written
notice thereof from Lessor, to proceed promptly and with all due
diligence to commence to cure the same and thereafter to prosecute
the curing of such default with all due diligence (it being intended
that, in connection with a default which is not susceptible of being
cured with due diligence within thirty (30) days the time of Lessee
within which to cure the same shall be extended for such period as
may be necessary for the curing thereof with all due diligence); or
(3) if Lessee shall file a voluntary petition seeking an
order or relief under Title 11 of the United States Code or similar
law of any jurisdiction applicable to Lessee, or Lessee shall be
adjudicated a debtor, bankrupt or insolvent, or shall file any
petition or answer seeking, consenting to or acquiescing in any order
for relief, reorganization, arrangement, composition, adjustment,
winding-up, liquidation, dissolution or similar relief with respect
to Lessee or its debts under the present or any future bankruptcy act
or any other present or future applicable federal, state or other
statute or law, or shall file an answer admitting or failing to deny
the material allegations of a petition against it for any such relief
or shall generally not, or shall be unable to, pay its debts as they
become due or shall admit in writing in any filing with any court or
Governmental Authority its insolvency or its inability to pay its
debts as they become due, or shall make a general assignment for the
benefit of creditors or shall seek or consent or acquiesce in the
appointment of any trustee, receiver, examiner, assignee,
sequestrator, custodian or liquidator or similar official of Lessee
or of all or any part of Lessee's property or if Lessee shall take
any action in furtherance of or authorizing any of the foregoing; or
if Lessee shall call a meeting of, or propose any form of
arrangement, composition, extension or adjustment with, its creditors
holding a majority in amount of Lessee's outstanding indebtedness; or
(4) if any case, proceeding or other action shall be
commenced or instituted against Lessee, seeking to adjudicate lessee
a bankrupt or insolvent, or seeking an order for relief against
Lessee as debtor, or reorganization, arrangement, composition,
adjustment, winding-up, liquidation, dissolution or similar relief
with respect to Lessee or its debts under the present or any future
bankruptcy act or any other present or future applicable federal,
state or other statute or law, or seeking appointment of any trustee,
receiver, examiner, assignee, sequestrator, custodian or liquidator
or similar official of Lessee or of all or part of Lessee's property,
which either (i) results in the entry of an order for relief,
adjudication of bankruptcy or insolvency or such an appointment or
the issuance or entry of any other order having similar effect or
(ii) remains undismissed for a period of ninety (90) days; or if any
case, proceeding or other action shall be commenced or instituted
against Lessee seeking issuance of a warrant of execution, attachment
restraint or similar process against Lessee or any of Lessee's
property which results in the taking or occupancy of the Demised
Premises or an attempt to take or occupy the Demised Premises which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within ninety (90) days after the entry thereof; or
(5) if any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted to the unexpired
balance of the Term would, by operation of law or otherwise, devolve
upon or pass to any person other than Lessee, except as is expressly
permitted under Article 27, or if default shall be made by Lessee in
the performance of, or compliance with, the covenants, agreements and
conditions set forth in Article 27; or
(6) if Lessee's (other than Lessee herein named) obligations
under this Lease shall have been guaranteed by any person other than
Lessee and such person shall default in observance or performance of
any term, covenant or condition to be observed or performed by such
person under the instrument or agreement containing such guarantee;
or
(7) if any financial statement or other information
furnished to Lessor by Lessee in connection with this Lease is
materially false or misleading; or
(8) if Lessee shall default in the observance or performance
of any term, covenant or condition on Lessee's part to be observed or
performed under the provisions of Section 35.09; or
(9) if Lessee is the subject of a Chapter 11 reorganization
under the Bankruptcy Reform Act of 1978 and such reorganization is
not confirmed within eighteen (18) months from the time of filing of
a voluntary or involuntary petition thereunder (it being understood
that in such event Lessee consents to the termination of the
automatic stay provisions of Section 362 of such Act);
then and in any such event (hereinafter sometimes called an "Event of
Default") Lessor may give written notice ("Termination Notice") to Lessee
specifying such Event of Default or Events of Default and stating that this
Lease and the Term shall expire and terminate on the date specified in the
Termination Notice, which shall be at least seven (7) days after the giving of
the Termination Notice, and on the date specified therein this Lease and the
Term and all rights of Lessee under this Lease shall expire and terminate, it
being the intention of the Lessor and Lessee hereby to create conditional
limitations, and Lessee shall remain liable as provided in Article 15 and in
accordance with those provisions of this Lease which are specifically stated
herein to survive the expiration or other termination of this Lease.
B. Notwithstanding the provisions of Section 14.01.A, if there shall
be an Event of Default at any time or from time to time under the provisions
of subdivision (1) of Section 14.01.A, Lessor may, in lieu of giving a
Termination Notice, at any time after the occurrence of any such Event of
Default and during the continuance thereof, institute an action for the
recovery of the Fixed Rent and/or Additional Rent in respect of which an Event
of Default shall have occurred and be continuing. Neither the commencement of
any such action for the recovery of Fixed Rent and/or Additional rent nor the
prosecution thereof shall be deemed a waiver of Lessor's right to give a
Termination Notice in respect of any such Event of Default during the
continuance thereof and Lessor may, notwithstanding the commencement and
prosecution of any such action, give a Termination Notice and terminate this
Lease pursuant to Section 14.01.A at any time during the continuance of such
Event of Default.
C. If, at any time, (i) Lessee shall be comprised of two or more
persons, or (ii) Lessee's obligations under this Lease shall have been
guaranteed by any person other than Lessee, or (iii) Lessee's interest in this
Lease shall have been assigned, the word "Lessee", as used in subdivisions
(4), (5) and (9) of Section 14.01.A, shall be deemed to mean any one or more
of the persons primarily or secondarily liable for Lessee's obligations under
this Lease. Any monies received by Lessor from or on behalf of Lessee during
the pendency of any proceeding of the types referred to in said subdivisions
(4), (5) and (9) of Section 14.01.A shall be deemed paid as compensation for
the use and occupation of the Demised Premises and the acceptance of any such
compensation by Lessor shall not be deemed an acceptance of rent or a waiver
on the part of Lessor of any rights under Section 14.01.
SECTION 14.02. In the event that this Lease shall be terminated as
provided in this Article, Lessor or Lessor's agents may, immediately, or at
any time thereafter, without further notice, enter upon and re-enter the
Demised Premises and possess and repossess itself thereof, by summary
proceedings, ejectment or otherwise, and have, hold and enjoy the Demised
Premises and the right to receive all income of and from the same. No re-entry
by Lessor pursuant to this Article shall be deemed an acceptance of a
surrender of this Lease nor shall it absolve or discharge Lessee from any
liability under this Lease.
SECTION 14.03. In the event that this Lease shall be terminated as
provided in this Article, Lessor may, at any time or from time to time
thereafter, relet the Demised Premises or any part thereof, for such term or
terms (which may be greater or less than the period which would otherwise have
constituted the balance of the Term) and on such conditions (which may include
concessions or free rent, which shall, however, be amortized over the entire
term for the purpose of determining damages under Article 15) as Lessor may
determine, to any tenant which it may deem suitable and satisfactory and for
any use and purpose it may deem appropriate and may collect and receive the
rents therefor. Lessor shall use commercially reasonable methods in making
such reletting. Lessor, at its option, may make such repairs, alterations,
additions, improvements, decorations and other physical changes in and to the
Demised Premises as Lessor considers advisable or necessary in connection with
any such reletting or proposed reletting, without relieving Lessee of any
liability under this Lease or otherwise affecting any such liability. Lessor
shall in no way be responsible or liable for any failure to relet the Demised
Premises, or any part thereof, or for any failure to collect any rent due upon
such reletting. Lessor shall not in any event be required to pay Lessee (but
shall credit Lessee, to the extent set forth in Article 15, with) any sums
received by Lessor on a reletting of the Demised Premises, or any part
thereof, whether or not in excess of the rent reserved in this Lease.
SECTION 14.04. Lessee, on its own behalf and on behalf of all persons
claiming through or under Lessee including all creditors, does hereby waive
any and all rights and privileges, so far as is permitted by law, which Lessee
and all such persons might otherwise have under any present or future law, to
(i) the service of any notice of intention to re-enter or institute legal
proceedings to that end, excluding service of process, (ii) redeem the Demised
Premises, (iii) re-enter or repossess the Demised Premises, or (iv) restore
the operation of this Lease, after Lessee shall have been dispossessed by a
judgment or by warrant of any court or judge, or after any re-entry by Lessor
or after any expiration or termination of this Lease and the Term, whether
such dispossess, re-entry, expiration or termination shall be by operation of
law or pursuant to the provisions of this Lease. The words "re-enter,"
"re-entry" and "re-entered" as used in this Lease shall not be deemed to be
restricted to their technical legal meanings.
SECTION 14.05. In the event the Lessee shall dispute the validity or
amount, or the time or manner of payment of, any rent claimed by Lessor to be
due from Lessee under this Lease, Lessee shall nevertheless pay the same and
such payment may be without prejudice to Lessee's position if Lessee so
requests at the time of payment. If the dispute shall be finally determined in
Lessee's favor by a court of competent jurisdiction, Lessor shall within a
reasonable period of time not to exceed sixty (60) days pay Lessee the amount
of Lessee's overpayment of such rent. Lessee's failure to observe and perform
the provisions of this Section shall be deemed a default under subdivision (1)
of Section 14.01.A.
ARTICLE 15 - MEASURE OF DAMAGES IN EVENT OF DEFAULT
SECTION 15.01. A. In the event that this Lease be terminated pursuant
to Article 14 as a result of an Event of Default on the part of the Lessee and
whether or not the Demised Premises be relet, Lessor shall be entitled to
retain all monies, if any, paid by Lessee to Lessor, whether as advance rent
or otherwise, but such monies shall be credited by Lessor against any rent due
at the time of such termination, or at Lessor's option, against any damages
payable by Lessee, and Lessor shall be entitled to recover from Lessee, and
Lessee shall pay to Lessor the following:
(a) All rent to the date upon which this Lease and the Term shall
have terminated, and
(b) All expenses reasonably incurred by Lessor in recovering
possession of the Demised Premises (including summary proceedings),
restoring the Demised Premises to good order and condition,
maintaining the Demised Premises in good order and condition while
vacant, altering or otherwise preparing the same for reletting, and
in reletting the Demised Premises (including brokerage commissions
and legal expenses), the same to be paid by Lessee to Lessor on
demand, and
(c) The amount by which the rent which, but for the termination of
this Lease, would have been payable under this Lease from the date of
termination to the Expiration Date exceeds the rental and other
income, if any, collected by Lessor in respect of the Demised
Premises, or any part thereof, subject nevertheless to the provisions
of Section 14.03, said amount to be due and payable by Lessee to
Lessor on the several days on which the rent reserved in this Lease
would have become due and payable for the period which otherwise
would have constituted the unexpired portion of the Term (that is to
say, upon each of such days Lessee shall pay to Lessor the amount of
deficiency then existing).
B. Whether or not Lessor shall have collected any monthly
deficiencies aforesaid, Lessor shall be entitled to recover from Lessee on
demand, as and for liquidated damages, a lump sum payment equal to the amount
by which the Fixed Rent and Additional Rent payable hereunder for the period
which otherwise would have constituted the unexpired portion of the Term (due
account being taken of amounts, if any, collected under clause [c] of Section
15.01.A, and conclusively presuming the Additional Rent to be the same as was
payable for the year immediately preceding such termination or re-entry and
thereafter increasing by two (2%) percent per annum) exceeds the then rental
value of the Demised Premises for the same period both discounted at a rate
equal to then applicable Treasury Rate to present value. If the Demised
Premises or any part thereof be relet by Lessor for the unexpired portion of
the Term, or any part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent reserved upon
such reletting shall be deemed prima facie to be the fair and reasonable
rental value for the part or the whole of the Demised Premises so relet during
the term of the reletting. Nothing herein contained shall limit or prejudice
the right of the Lessor to prove for and obtain as damages by reason of such
termination 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 or less than
the amount of liquidated damages referred to above (due account to be taken,
however, of the amounts, if any, collected under this Article 15).
SECTION 15.02. In no event shall Lessee be entitled to receive any
excess of the rental and other income collected by Lessor in respect of the
Demised Premises over the sums payable by Lessee to Lessor hereunder. In no
event shall Lessee be entitled in any suit for the collection of damages
pursuant to this Article to a credit in respect of any such rental and other
income, except to the extent that such rental and other income is allocable to
the portion of the Term in respect of which such suit is brought and is
actually received by Lessor prior to the entry of judgment in such suit.
SECTION 15.03. Separate actions may be maintained by Lessor against
Lessee from time to time to recover any damages which, at the commencement of
any such action, have then or theretofore become due and payable to Lessor
under Article 14, without waiting until the end of the Term and without
prejudice to Lessor's right to collect damages thereafter.
ARTICLE 16 - INDEMNIFICATION
SECTION 16.01. Notwithstanding that joint or concurrent liability may
be imposed upon either party by statute, ordinance, rule, regulation, order or
court decision, and notwithstanding any insurance furnished by either party
pursuant hereto or otherwise, Lessee shall and does hereby indemnify and hold
Lessor and its agents, officers, directors, and employees, harmless from and
against any and all loss, liability, fines, suits, claims, obligations,
damages, penalties, demands and actions, and costs and reasonable expenses of
any kind or nature (including architects', engineers' and attorneys' fees) due
to or arising out of any of the following:
(a) any work or thing done in, on or about the Demised
Premises, Building or the Property or any part thereof or any use,
possession, occupation, condition, operation, maintenance, repair or
management of the Demised Premises, Building or the Property or any
part thereof, by Lessee or anyone claiming through or under Lessee or
the respective employees, agents, licensees, contractors, servants or
sublessees of Lessee or any such person;
(b) any act or omission on the part of Lessee or any person
claiming through or under Lessee, or the respective employees,
agents, licensees, invitees, contractors, servants or sublessees of
Lessee or any such person; or
(c) any accident or injury to any person (including death)
or damage to property (including loss of property) occurring in, on,
or about the Demised Premises, Building or the Property or any part
thereof, due to the act or omission by Lessee, its employees, agents,
licensees, invitees, contractors or servants.
The provisions of this Section 16.01 shall survive the expiration or
termination of this Lease. Any sums payable by Lessee to Lessor under this
Section 16.01 shall be due and payable on demand.
SECTION 16.02. Lessor and Lessor's agents, officers, directors, and
employees shall not be liable for any of the following, however caused, other
than by negligent (only to extent covered by Lessor's insurance) or wilful
acts: (a) failure of any Utility Service, (b) damage to Lessee's property on
the Demised Premises caused by or resulting from any cause whatsoever,
including explosion, falling plaster, vermin, smoke, gasoline, oil, Hazardous
Materials, steam, gas electricity, earthquake, subsidence of land, hurricane,
tornado, flood, wind or similar storms or disturbances or water, rain, ice or
snow which may be upon, or leak or flow from, any street, road, parking lot,
sewer, gas main or subsurface area, or from any part of the Property, or
leakage of gasoline, oil or other substances from pipes, pipelines,
appliances, storage tanks, sewers or plumbing works in or at the Property, or
from any other place, or from the breaking of any electrical wire or the
breaking, bursting or leaking of water or Hazardous Materials from any
plumbing or sprinkler system, or any other pipe or storage tanks in, on, under
or about the Property, (c) interference with light or other incorporeal
hereditaments, and (d) loss by theft or otherwise of Lessee's Property or the
property of any person claiming through or under Lessee. Any employees of
Lessor to whom any property shall be entrusted by or on behalf of Lessee shall
be deemed to be acting as Lessee's agents with respect to such property and
neither Lessor nor Lessor's agents shall be liable for any loss or for damage
to any such property by theft or otherwise. This Section 16.02 shall not be
construed as a provision for indemnification.
SECTION 16.03. Except as otherwise provided for in this Lease, Lessor
shall and does hereby indemnify and hold harmless Lessee and Lessee's agents
from and against any and all loss, liability, fines, suits, claims,
obligations, damages, penalties, demands and actions, and costs and reasonable
expenses of any kind or nature (including architects' and attorneys' fees) due
to or arising out of the negligence or willful misconduct of Lessor, its
agents, officers, directors and employees and contractors. In case of any
obligation of Lessor to indemnify Lessee pursuant to this Section, such
obligation shall be subject to and conditioned upon (x) the receipt by Lessor
of prompt written notice of the claim with respect to which indemnification is
sought and (y) Lessor's having had reasonable opportunity to conduct the
defense of such claim in such manner as it deems appropriate, with the full
cooperation of Lessee, and using counsel reasonably acceptable to Lessor.
ARTICLE 17 - MECHANIC'S AND OTHER LIENS
SECTION 17.01. If any mechanic's, laborer's or materialman's lien
shall be at any time be filed against the Demised Premises, Building or
Property, or any part thereof with respect to any work done, or caused to be
done, or labor or materials furnished, or caused to be furnished, by Lessee or
anyone claiming through or under Lessee (except for Lessor's Work), Lessee,
within thirty (30) days after notice of the filing thereof, shall cause the
same to be discharged of record by payment, deposit, bond, order of a court of
competent jurisdiction or otherwise. If Lessee shall fail to cause such lien
to be discharged within the period aforesaid, then, in addition to any other
right or remedy, Lessor may, but shall not be obligated to, discharge the same
by bonding proceedings, if permitted by law (and if not so permitted, by
deposit in court). Any amount so paid by Lessor, including all costs and
expenses paid by Lessor in connection therewith, together with interest
thereon at the maximum legal rate from the respective dates of Lessor's so
paying any such amount, cost or expense, shall constitute Additional Rent
payable by Lessee under this Lease and shall be paid by Lessee to Lessor on
demand.
ARTICLE 18 - CONDEMNATION
SECTION 18.01. If the whole of the Demised Premises, or such part
thereof as will render the remainder Untenantable, shall be acquired or
condemned for any public or quasi-public use or purpose, this Lease and the
Term shall end as of the date of vesting of title in the condemning authority
with the same effect as if said date were the Expiration Date. If only a part
of the Demised Premises shall be so acquired or condemned then, except as
otherwise provided in this Article, this Lease and the Term shall continue in
force and effect but, from and after the date of the vesting of title, the
Fixed Rent shall be an amount which bears the same ratio to the Fixed Rent
payable immediately prior to such condemnation pursuant to this Lease as the
value of the untaken portion of the Demised Premises (appraised after taking
and repair of any damage to the Demised Premises pursuant to this Section)
bears to the value of the entire Demised Premises immediately before the
taking. The value of the Demised Premises before and after the taking shall be
determined for the purposes of this Section by an independent licensed
appraiser chosen by Lessor. If more than sixty (60%) percent of the total area
of the Building included in the Demised Premises immediately prior to
acquisition or condemnation is so acquired or condemned, or if by reason of
such acquisition or condemnation, Lessee no longer has reasonable means of
access to the Demised Premises, then in such event, either party, may give
notice to the other party within sixty (60) days next following the date upon
which Lessee have received notice of vesting of title, thirty (30) days notice
of termination of this Lease. In the event any such thirty (30) day notice of
termination is given by Lessor or Lessee, this Lease and the Term shall
terminate upon the expiration of said thirty (30) days with the same effect as
if that date were the Expiration Date. If a part of the Demised Premises shall
be so acquired or condemned, and the Term shall not be terminated pursuant to
the provisions of this Section, Lessor, at Lessor's expense, shall restore
that part of the Demised Premises not so acquired or condemned to a
self-contained unit. In the event of any termination of this Lease and the
Term pursuant to the provisions of this Section, the Fixed Rent and Additional
Rent shall be apportioned as of the date of sooner termination and any prepaid
portion of the Fixed Rent and Additional Rent for any period after such date
shall be refunded by Lessor to Lessee, subject to the claims, if any, of
Lessor against Lessee hereunder or otherwise.
SECTION 18.02. In the event of any acquisition or condemnation of all
or part of the Demised Premises for any public or quasi-public use or purpose,
Lessor shall be entitled to receive the entire award for such acquisition or
condemnation, Lessee shall have no claim against Lessor or the condemning
authority for the value of any unexpired portion of the Term and Lessee hereby
expressly assigns to Lessor all of its right, title and interest in and to any
such award, and also agrees to execute any and all further documents that may
be required in order to facilitate the collection thereof by Lessor. Nothing
contained in this Section shall be deemed to prevent Lessee from making a
separate claim in any condemnation proceeding for moving expenses and for the
value of any Lessee's Property which would be removable at the end of the Term
pursuant to the provisions hereof, directly against any governmental authority
authorized to exercise the power of eminent domain, provided that applicable
statutes permit such awards and any award to Lessor is not diminished or
adversely affected thereby.
SECTION 18.03. The terms "condemnation" and "acquisition" as used in
this Article shall include any agreement in lieu of or in anticipation of the
exercise of the power of eminent domain between Lessor and/or any Superior
Mortgage and any governmental authority authorized to exercise the power of
eminent domain.
ARTICLE 19 - COVENANT OF QUIET ENJOYMENT
SECTION 19.01. If and so long as no Event of Default shall have
occurred and be continuing, Lessor covenants and agrees that Lessee shall be
entitled to peaceably and quietly enjoy the Demised Premises and Lessee's
possession of the Demised Premises will not be disturbed by Lessor, its
successors and assigns, subject, however, to the terms of this Lease
(including those set forth in Sections 24.01 and 24.02), the Mortgage,
Superior Lease and any and/or all other agreements and any amendments thereto,
to which this Lease is subordinated.
ARTICLE 20 - WAIVER OF COUNTERCLAIM AND JURY TRIAL
SECTION 20.01. In the event that Lessor shall commence any summary or
other proceedings or action for non-payment of rent hereunder, Lessee shall
not interpose any counterclaim of any nature or description in such proceeding
or action, unless such non-interposition would effect a waiver of Lessee's
right to assert such claim against Lessor in a separate action or proceeding.
The provisions of this Article shall survive the expiration or other
termination of this Lease.
ARTICLE 21 - NOTICES
SECTION 21.01. A. Except as otherwise expressly provided in this
Lease, any bills, statements, notices, demands, requests, consents or other
communications given or required to be given under this Lease shall be
effective only if rendered or given in writing and
(a) If to Lessee, then, at the option of Lessor, (i)
addressed to Lessee's address as set forth in this Lease, with copies
thereof to Parker, Duryee, Xxxxxx & Xxxx, P.C., 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx, Esq., or to
such other address as Lessee may designate as its new address for
such purpose by notice given to Lessor in accordance with the
provisions of this Section, or (ii) delivered personally to Lessee,
or (iii) by overnight courier,
(b) If to Lessor, then, at the option of Lessee, (i)
addressed to Lessor's address as set forth in this Lease, with copies
thereof to Xxxxxx & Xxxx, LLP, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq., or to such
other address as Lessor may designate as its new address for such
purpose by notice given to Lessee in accordance with the provisions
of this Section, or (ii) delivered personally to Lessor, or (iii) by
overnight courier.
B. Any such xxxx, statement, notice, demand, request, consent or
other communication shall be deemed to have been rendered or given: (i) on the
date delivered, if delivered to Lessee personally, or by overnight courier and
(ii) on the expiration of five (5) days after mailing, if mailed to Lessor or
Lessee as provided in this Section. Any notice by a party signed by counsel
for such party shall be deemed a notice signed by such party.
ARTICLE 22 - WAIVERS AND SURRENDERS TO BE IN WRITING
SECTION 22.01. The receipt of full or partial rent by Lessor with
knowledge of any breach of this Lease by Lessee or of any default on the part
of the Lessee in the observance or performance of any of the provisions or
covenants of this Lease shall not be deemed to be a waiver of any such
provision, covenant or breach of this Lease provided, however, that acceptance
of a payment of rent shall be valid pro tanto. No waiver or modification by
Lessor, unless in writing, and signed by Lessor, shall discharge or invalidate
any provision or covenant or affect the right of Lessor to enforce the same in
the event of any subsequent breach or default. The failure on the part of
Lessor to insist in any one or more instances upon the strict performance of
any of the provisions or covenants of this Lease, or to enforce any covenant
or provision herein contained or to exercise any right, remedy or election
herein contained consequent upon a breach of any provision of this Lease,
shall not affect or alter this Lease or be construed as a waiver or
relinquishment for the future of such one or more provisions or covenants or
of the right to insist upon strict performance or to exercise such right,
remedy or election, but the same shall continue and remain in full force and
effect with respect to any existing or subsequent breach, act or omission,
whether of a similar nature or otherwise. The receipt by Lessor of any rent or
any other sum of money or any other consideration hereunder paid by Lessee
after the termination, in any manner, of the Term, or after the giving by
Lessor of the Termination Notice, shall not reinstate, continue or extend the
Term, or destroy, or in any manner impair the efficacy of any such Termination
Notice, as may have been given hereunder by Lessor to Lessee prior to the
receipt of any such rent, or other sum of money or other consideration, unless
so agreed to in writing and signed by Lessor. Neither acceptance of the keys
or any other act or thing done by Lessor or any agent or employee shall be
deemed to be an acceptance of a surrender of the Demised Premises, or any part
thereof, excepting only an agreement in writing signed by Lessor. No payment
by Lessee or receipt by Lessor of a lesser amount than the correct rent shall
be deemed to be other than a payment on account, nor shall any endorsement or
statement on any check, as distinguished from any letter accompanying such
check or payment, be deemed to effect or evidence an accord and satisfaction,
and Lessor may accept such check or payment without prejudice to Lessor's
right to recover the balance or pursue any other remedy in this Lease
provided.
SECTION 22.02. No waiver or modification by Lessee, unless in
writing, and signed by Lessee, shall discharge or invalidate any provision or
covenant or affect the right of Lessee to enforce the same in the event of any
subsequent breach or default. The failure on the part of Lessee to insist in
any one or more instances upon the strict performance of any of the provisions
or covenants of this Lease, or to enforce any covenant or provision herein
contained or to exercise any right, remedy or election herein contained
consequent upon a breach of any provision of this Lease, shall not affect or
alter this Lease or be construed as a waiver or relinquishment for the future
of such one or more provisions or covenants or of the right to insist upon
strict performance or to exercise such right, remedy or election, but the same
shall continue and remain in full force and effect with respect to any
existing or subsequent breach, act or omission, whether of a similar nature or
otherwise.
ARTICLE 23- RIGHTS CUMULATIVE
SECTION 23.01. Each right and remedy of the parties shall be
cumulative and to the extent permitted by law, the exercise or beginning of
the exercise by such party of any one or more of the rights or remedies of
such party shall not preclude the simultaneous or later exercise by such party
of any or all other rights or remedies; provided, however, that this sentence
shall not be construed to entitle any party to satisfaction of more than one
remedy in respect of a particular breach. In the event of any breach or
threatened breach by Lessee or Lessor or any persons claiming through or under
Lessee or Lessor of any of the agreements, terms, covenants or conditions
contained in this Lease, the other party shall be entitled to enjoin such
breach or threatened breach (if entitled to do so at law or in equity or by
statue or otherwise) and shall have the right to invoke any right or remedy
allowed by law or in equity or by statute or otherwise as if re-entry, summary
proceedings or other specific remedies were not provided for in this Lease.
ARTICLE 24- CONVEYANCE; LIABILITY OF PARTIES
SECTION 24.01. The term "Lessor" as used herein shall mean and
include only the owner or owners at the time in question of the Lessor's
interest in this Lease so that in the event of any transfer or transfers (by
operation of law or otherwise) of Lessor's entire interest in this Lease,
Lessor herein named (and in the case of any subsequent transfers or
conveyances, the then transferor) shall be and hereby is automatically freed
and relieved, from and after the date of such transfer or conveyance, of all
liability in respect of the performance of any covenants or obligations on the
part of the Lessor contained in this Lease thereafter to be performed,
provided that the transferee shall be deemed to have assumed and agreed to
perform subject to the limitation of this Article (and without further
agreement between or among the parties or their successors in interest, and/or
the transferee) and only during and in respect of the transferee's period of
ownership, all of the terms, covenants and conditions in this Lease contained
on the part of Lessor to be performed, which terms, covenants, and conditions
shall be deemed to "run with the land", it being intended hereby that the
terms, covenants and conditions contained in this Lease on the part of the
Lessor to be performed shall, subject as aforesaid, be binding on Lessor, its
successors and assigns, only during and in respect of their respective
successive periods of ownership.
SECTION 24.02. In the event of a breach by Lessor of any provisions,
covenants or obligations of this Lease to be performed by Lessor, the monetary
liability of Lessor in relation to any such breach shall be limited to the
equity of Lessor in the Demised Premises (including insurance proceeds, sale
proceeds and/or condemnation awards), and Lessee shall look only to Lessor's
equity in the Demised Premises (including insurance proceeds, sale proceeds
and/or condemnation awards) for the performance and observance of the terms,
covenants, conditions and obligations of this Lease to be performed or
observed by Lessor and for the satisfaction of Lessee's remedies for the
collection of any award, judgment or other judicial process requiring the
payment of money by Lessor in the event of a default in the full and prompt
payment and performance of any Lessor's obligations hereunder and in no event
shall any of the partners constituting Lessor (the "Partners"), nor the
partners, shareholders, officers or directors of Lessor or the Partners shall
be liable for the performance of Lessor's obligations under this Lease, nor
shall any of the Partners assets be liable to any levy, execution, restraint,
award, claim of any kind whatsoever arising out of, or in any way related to
this Lease.
SECTION 24.03. The term "Lessee" as used in this Lease shall mean and
include Lessee named herein and, during and in respect of their respective
successive periods of ownership, each subsequent owner or owners of the
leasehold estate created by this Lease. For all purposes of this Lease and
without affecting the rights of, and obligations between, Lessee herein named
and any transferee, notwithstanding any transfer (by operation or law or
otherwise) of title to the leasehold estate created by this Lease by Lessee
herein named or by any subsequent owner of such estate and notwithstanding the
assumption by any transferee of the obligations of the Lessee hereunder,
Lessee herein named, as between Lessor and Lessee herein named, shall remain
primarily liable as primary obligor and not as a surety, for the full and
prompt payment and performance of Lessee's obligations hereunder and, without
limiting the generality of the foregoing or of Article 28, shall remain fully
and directly responsible and liable to Lessor for all acts and omissions on
the part of any transferee subsequent to it in violation of any obligation of
this Lease.
ARTICLE 25- CHANGES AND ALTERATIONS BY LESSEE
SECTION 25.01.A. Lessee shall have no right to make any alteration,
change, additions or improvement, structural or otherwise (an "Alteration"),
to the Demised Premises or any appurtenances thereto without the prior written
consent of Lessor in each instance, which consent shall not be unreasonably
withheld, or delayed. Notwithstanding the foregoing, Lessee shall have the
right, without Lessor's consent, to decorate the Demised Premises, excluding,
however, paint, carpeting and wall coverings.
B. If Lessor shall grant its consent to the making of an Alteration,
then the same shall (i) be performed at the sole cost and expense of Lessee,
(ii) be performed in a good and workmanlike manner, and in compliance with all
applicable Legal Requirements (including existing zoning requirements),
Insurance Requirements and Environmental Laws, (iii) be consistent with the
use of the Demised Premises provided for herein, (iv) not in any way render
the Demised Premises other than a complete, self containing operating unit,
(v) in the case of a structural alteration, be performed in accordance with
plans and specifications approved prior to the commencement of any work by the
appropriate Governmental Authorities and by Lessor, (vi) be of such nature so
as not to lessen the fair market value of the Demised Premises when completed,
and (vii) be performed under the supervision of a licensed architect approved
by Lessor and in accordance with Lessor's Standard Requirements For
Alterations To Be Performed By Lessees', as may be amended from time to time.
SECTION 25.02.A. Any and all Alterations made in accordance with
Section 25.01 shall immediately become the property of Lessor, provided,
however, that if, in accordance with the provisions of Sections 25.02.B and
29.02, Lessee shall have the option to and shall remove its trade fixtures,
provided that same are not affixed to or such removal would otherwise damage
the Demised Premises, then the same shall cease to be property of the Lessor
upon removal.
B. Except for Lessee's Work as provided for in Article 8 of this
Lease, unless Lessor shall otherwise expressly indicate in writing at the time
of granting its consent to the making of a proposed Alteration, Lessee shall,
as and when provided in Section 29.02, restore the affected portion of the
Demised Premises to the state or condition thereof existing prior to the
making of such Alteration.
C. Any and all contractors to be involved in performing work shall be
subject to Lessor's prior approval, which shall not be unreasonably withheld.
D. Prior to commencing any work at the Demised Premises, Lessee shall
furnish Lessor with evidence reasonably satisfactory to Lessor of such
insurance as Lessor may require and such insurance shall be in full force and
effect during such work and will cover, by endorsement or otherwise, the risk
during the course of such work.
E. In the event of any Alteration as provided for in this Article,
the Rent payable hereunder shall not be reduced or abated in any manner
whatsoever.
F. No Alterations shall involve the permanent removal of any
fixtures, equipment or other property in the Demised Premises which are not
Lessee's property, unless Lessor's prior written consent is first obtained and
unless such fixtures, equipment or other property shall be promptly replaced,
at Lessee's expense and free of superior title, liens and claims, with
fixtures, equipment or other property (as the case may be) of like utility and
at least equal value (which replaced fixtures, equipment or other property
shall thereupon become the property of Lessor), unless Lessor shall otherwise
expressly consent in writing.
SECTION 25.03. Notwithstanding anything herein to the contrary,
Lessor shall have the option of performing any and all Alterations which cost
in excess of Twenty Thousand and 00/100 ($20,000.00) Dollars pursuant to
Article 25 of this Lease on Lessee's behalf and at Lessee's Cost.
ARTICLE 26 - CERTIFICATES
SECTION 26.01. The parties hereto agree at any time and from time to
time, within twenty (20) days after request by the other, to execute,
acknowledge and deliver a statement certifying (i) the Commencement Date
and/or Rent Commencement Date hereunder, (ii) that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the
Lease is in full force and effect as modified and stating the modifications),
(iii) the dates to which the Fixed Rent and Additional Rent have been paid,
and (iv) whether or not to the knowledge of the signer of such statement (a)
the other party is in default in keeping, observing or performing any term,
covenant, agreement, provision, condition or limitation contained in this
Lease and, if in default, specifying each such default, (b) either party is
holding any funds under this Lease in which the other has an interest (and, if
so, specifying the party holding such funds and the nature and amount
thereof), and (c) there is any amount then due and payable to either party by
the other, it being intended that any such statement delivered pursuant to
this Section may be relied upon by Lessor, Lessee, any mortgagee, superior
lessor or any person who may and does become a mortgagee, superior lessee, any
person who may and does become a purchaser or assignee of Lessor's interest in
this Lease or the mortgagee's interest in any mortgage or the lessor's
interest in the Superior Lease.
ARTICLE- 27 ASSIGNMENTS, SUBLEASES AND MORTGAGES
SECTION 27.01.A. Except as otherwise specifically provided in this
Article, neither this Lease, nor the Term and estate hereby granted, nor any
part thereof, nor the interest of Lessee in any sublease or the rental
thereunder, shall be assigned, mortgaged, pledged, encumbered or otherwise
transferred by Lessee or Lessee's legal representatives or successors in
interest, by operation of law or otherwise, and neither the Demised Premises,
nor any part thereof, nor any Lessee's Property, shall be encumbered in any
manner by reason of any act or omission on the part of Lessee or anyone
claiming under or through Lessee, or shall be sublet or be used or occupied or
permitted to be used or occupied or utilized for desk or storage space by
anyone other than Lessee or for any purpose other than as specifically
permitted by this Lease, without the prior written consent of Lessor in each
case, which consent may not be unreasonably withheld, conditioned or delayed.
If Lessee is other than a public company, a transfer (including any issuance
of stock) of an aggregate of fifty (50%) percent or more stock, partnership
interest or other equity interest in Lessee by any party or parties in
interest shall be deemed an assignment of this Lease. Notwithstanding the
foregoing, Lessee shall have the right, upon at least Thirty (30) days prior
written notice to Lessor, to assign or sublease this Lease, in its entirety,
to any of its affiliated or subsidiary companies.
B. If Lessee is a corporation, upon at least Thirty (30) days prior
notice to Lessor, this Lease in its entirety may be assigned without Lessor's
consent to a corporation into which Lessee merges or consolidates, or which
controls, is controlled by or under common control with Lessee, so long as the
Demised Premises continue to be used for the use described in Article 4 of
this Lease; the transfer is not principally for the purpose of transferring
the leasehold estate created hereby; the net worth of the assignee is at least
equal to or in excess of the net worth of Lessee at the time of execution of
this Lease and immediately prior to such assignment or the assignee can
otherwise secure and guaranty the payment to Lessor or all rent and any other
amounts due from Lessee pursuant to this Lease in a manner reasonably
satisfactory to Lessor; the assignee assumes by documents satisfactory to
Lessor all of Lessee's obligations to be performed under this Lease, and;
provided such assignment shall be subject to all of the other terms and
conditions of this Lease.
SECTION 27.02. If this Lease be assigned, whether or not in violation
of the provisions of this Lease, Lessor may collect rent from the assignee,
and Lessor shall be entitled to receive, as Additional, Rent, any and all
consideration paid to Lessee in connection with such assignment promptly after
receipt thereof by Lessee and any and all considerations payable to Lessee in
connection with such assignment as and when Lessee would be entitled to
receive the same. The provisions of the preceding sentence shall be in full
force and effect notwithstanding that Lessee has sought the protection of any
provisions of the bankruptcy law (as hereinafter defined) or if a petition has
been filed against Lessee under such bankruptcy law. If the Demised Premises
or any part thereof be sublet or be used or occupied by anybody other than
Lessee, whether or not in violation of this Lease, Lessor may, after default
by Lessee and expiration of Lessee's time to cure such default, if any,
collect rent from the sublessee or occupant. In either event, Lessor shall
apply the net amount collected to the rents herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver of
any of the provisions of Section 27.01, or the acceptance of the assignee,
sublessee or occupant as tenant, or a release of Lessee from the further
performance by Lessee of Lessee's obligations under this Lease. The consent by
Lessor to an assignment, mortgaging or subletting pursuant to any provision of
this Lease shall not in any way be considered to relieve Lessee from obtaining
the express consent of Lessor for any other or further assignment, mortgaging
or subletting. References in this Lease to use or occupancy by anyone other
than Lessee shall not be construed as limited to sublessees and those claiming
under or through sublessees but as including also licensees and other claiming
under or through Lessee, immediately or remotely. The listing of any name
other than that of Lessee on any door of the Demised Premises or on any sign
on the Demised Premises, or otherwise, shall not operate to vest in the person
so named any right or interest in this Lease or in the Demised Premises, or be
deemed to constitute, or serve as a substitute for, any prior consent of
Lessor required under this Article, and it is understood that any such listing
shall constitute a privilege extended by Lessor which shall be revocable at
Lessor's will by notice to Lessee. Lessee agrees to pay to Lessor any
reasonable counsel fees incurred by Lessor in connection with any proposed
assignment of Lessee's interest in this Lease or any proposed subletting of
the Demised Premises or any part thereof. Neither any assignment of Lessee's
interest in this Lease nor any subletting, occupancy or use of the Demised
Premises or any part thereof by any person other than Lessee as provided in
this Article, nor any application of any such rent as provided in this Article
shall, under any circumstances, relieve Lessee herein named of its obligations
fully to observe and perform the terms, covenants and conditions of this Lease
on Lessee's part to be observed and performed.
SECTION 27.03. A. Notwithstanding anything contained in Sections
27.01 and 27.02, in the event that, at any time or from time to time during
the Term, Lessee desires to sublet all or any part of the Demised Premises,
Lessee shall notify Lessor of such desire and shall: (i) submit to Lessor in
writing the name and address of the proposed subtenant, a reasonably detailed
statement of the proposed subtenant's business, reasonably detailed financial
references for the proposed subtenant and any other information reasonably
requested by Lessor, and (ii) submit to Lessor a copy of the proposed
sublease.
B. If a proposed assignment or sublease requires Lessor's consent,
then upon receipt of such notice Lessor shall thereupon have the option and
right, exercisable within Ten (10) days of receipt of such notice from Lessee,
to terminate this Lease effective as of a date specified by Lessor in such
notice which date shall not be later than Thirty (30) days after the date of
Lessor's notice. Notwithstanding the foregoing, Lessor shall not have the
right to terminate this Lease as provided for in the preceding sentence in
connection with a sublease(s) which in the aggregate, do not constitute more
than Twenty (20%) percent of the rentable square footage of the Demised
Premises.
C. If within ten (10) business days after Lessee shall have requested
the consent of Lessor to any assignment or subletting under this Article, and
shall have submitted all items required hereby, Lessor does not exercise its
option to terminate this Lease, the term of the proposed assignment or
sublease may commence upon Lessor's consent, which consent may not be
unreasonably withheld, it being agreed that if within such ten (10) business
day period Lessor does not advise Lessee that such consent is granted, such
consent shall be deemed granted by Lessor. Lessor, however, shall not in any
event be obligated to consent to the proposed sublease or the commencement of
the term unless: (i) in the reasonable judgment of Lessor the proposed
subtenant is of a character and financial worth such as is in keeping with the
standards of Lessor in those respects for the Demised Premises, and the nature
of the proposed subtenant's business and its reputation are in keeping with
the character of the Demised Premises and the use thereof, (ii) the purpose
for which the proposed subtenant intends to use the portion of the Demised
Premises sublet to it are uses expressly permitted by and not expressly
prohibited by this Lease; (iii) the proposed sublease shall prohibit any
assignment or subletting; (iv) no Event of Default shall have occurred and be
continuing and (v) Lessee shall reimburse Lessor for all reasonable costs that
may be incurred by Lessor in connection with the said sublease, including the
costs of making investigations as to the acceptability of a proposed subtenant
and legal costs incurred in connection with the granting of any requested
consent.
D. With respect to each and every subletting authorized by the
provisions of this Article it is further agreed and understood between Lessor
and Lessee that: (i) the subletting shall be, and each such sublease shall
expressly provide that is, subject and subordinate at all times and in all
respects, to this Lease, (ii) no subletting shall be for a term ending later
than one day prior to the Expiration Date originally provided for herein and
that part, if any, of the proposed term of any sublease which shall extend
beyond a date one day prior to the Expiration Date originally provided for
herein (or any sooner date of the expiration of the term or termination of
this Lease) is hereby deemed to be a nullity, (iii) there shall be delivered
to Lessor, within ten (10) days after the commencement of the term of the
proposed sublease, notice of such commencement and a fully executed copy of
the proposed sublease (unless previously submitted) and (iv) Lessee shall pay
to Lessor, as Additional Rent, all of the rents, additional charges and other
consideration arising from such subletting as shall for any period exceed the
aggregate of the rents payable under this Lease for the subleased space of the
same period less the brokerage commissions and attorneys' fees and
disbursements reasonably incurred by Lessee for such subletting, allocated to
such period on a straight line basis over the term of such subletting.
E. Anything herein contained to the contrary notwithstanding: (i)
Lessee shall not advertise but may list its space for subletting or
assignment, and may list its space at a rental rate lower than the rental rate
then being paid by Lessee to Lessor only with respect to subletting (but not
assignment) and (ii) No assignment or subletting shall be made to any person
or entity which shall at that time otherwise be a tenant, sub-tenant or other
occupant of any part of the Property or which shall within the prior Six (6)
months have been negotiating with Lessor to become such a tenant, sub-tenant
or occupant of the Property.
ARTICLE 28 - SUBORDINATION
SECTION 28.01. Subject to the provisions of Section 28.02, this
Lease, and all rights of Lessee hereunder, are and shall be subject and
subordinate in all respects to (a) all present and future ground leases,
overriding leases and underlying leases and/or grants of term of the Property,
the Building, the Building Equipment and/or any appurtenance thereto of which
Lessor has notified Lessee (collectively, the "Superior Lease"), (b) all
mortgages and building loan agreements, including leasehold mortgages, deeds
of trust, and building loan agreements, which may now or hereafter affect the
Property, the Building, the Building Equipment and/or any appurtenance
thereto, of which Lessor has notified Lessee (collectively, the "Mortgage"),
whether or not the Mortgage shall also cover other land and/or buildings, and
(c) each and every advance made or hereafter to be made under the Mortgage and
to all renewals, modifications, replacements, substitutions and extensions of
any Superior Lease and the Mortgage and spreaders and consolidations of the
Mortgage. The provisions of this Section shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Lessee shall promptly execute and deliver, at its own cost and
expense, an instrument in recordable form to evidence such subordination,
provided, however, that such instrument has been prepared by Lessor and
submitted to Lessee for execution and delivery. If, in connection with the
obtaining, continuing or renewing of financing for which the Demised Premises
or the interest of the lessee under the Superior Lease represents collateral
in whole or in part, a bank, insurance company or other lender shall request
reasonable modifications of this Lease as a condition of such financing,
Lessee will not unreasonably withhold or delay its consent thereto, provided
that such modifications do not increase the monetary obligations of Lessee
under this Lease or materially increase the other obligations of Lessee
hereunder or materially and adversely affect the rights of Lessee under this
Lease. Lessor represents that as of the Commencement Date the Property shall
not be encumbered by a Mortgage or Superior Lease.
SECTION 28.02. The subordination provided in Section 28.01 shall be
effective as between Lessee herein named and any lessor under a future
Superior Lease, or any holder of a future Mortgage, as the case may be, only
if such lessor or holder delivers to Lessee an agreement providing in
substance, that if and so long as no Event of Default shall have occurred and
be continuing, this Lease shall continue upon its then executory terms and
conditions and possession of the Demised Premises held by Lessee herein named
will not be disturbed by such person in the event of a default under the
underlying lease or the Mortgage, as the case may be. The foregoing provisions
of this Section shall endure to the benefit of Lessee herein named and shall
apply notwithstanding that, as a matter of law, this Lease may terminate upon
the termination of the Superior Lease, or the foreclosure (including judgment
of foreclosure and sale) of the Mortgage.
SECTION 28.03. If at any time prior to the expiration of the Term,
the holder of the Mortgage shall become the owner of the Demised Premises as a
result of foreclosure of its mortgage or by reason of an assignment of the
lessee's interest under any such lease or conveyance of the Demised Premises,
Lessee agrees, at the election and upon demand of any owner of the Demised
Premises, or of the holder of any Mortgage or Superior Lease (including a
leasehold mortgage) in possession of the Demised Premises, to attorn, from
time to time, to any such owner, or lessee, upon the then executory terms and
conditions of this Lease, provided that such owner, holder or lessee, as the
case may be, shall then be entitled to possession of the Demised Premises. No
such owner, holder or lessee shall be liable for any previous acts or omission
of Lessor under this Lease (except that this provision shall not be construed
to relieve such person from any obligation thereafter to be performed), nor
shall such owner holder or Lessee be subject to any offset which shall have
theretofore accrued to Lessee against Lessor, or be bound by any previous
modification of this Lease, not expressly provided for in this Lease, entered
into after the date of the Mortgage, or Superior Lease, or by any previous
prepayment of more than one month's Fixed Rent. The foregoing provisions of
this Section shall enure to the benefit of any such owner, holder or lessee,
shall apply notwithstanding that, as a matter of law, this Lease may terminate
upon the termination of the Superior Lease, or the foreclosure (including
judgment of foreclosure and sale) of the Mortgage, shall be self-operative
upon any such demand, and no further instrument shall be required to give
effect to said provisions. Lessee, however, upon demand of any such owner,
holder or lessee, agrees to execute, from time to time, instruments in
confirmation of the foregoing provisions of this Section, acknowledging such
attornment and setting forth the terms and conditions of its tenancy. Nothing
contained in this Section shall be construed to impair any right otherwise
exercisable by any such owner, holder or lessee.
ARTICLE 29 - SURRENDER; REMOVAL OF LESSEE'S PROPERTY
SECTION 29.01. On the last day of the Term or on the earlier
termination of the Term, Lessee shall peaceably and quietly leave, surrender
and deliver the Demised Premises to Lessor, together with (a) all alterations,
changes, additions and improvements, which may have been made upon the Demised
Premises, and (b) except for Lessee's Property, Lessee's Work as defined in
Article 8 of this Lease, all fixtures and articles of personal property of any
kind or nature which Lessee may have installed or affixed on, in, or to the
Demised Premises for use in connection with the operation and maintenance of
the Demised Premises (whether or not said property be deemed to be fixtures),
all of the foregoing to be surrendered in good, substantial and sufficient
repair, order and condition, reasonable use, wear and tear, and damage by fire
or other casualty, excepted, and free of occupants and sublessees.
SECTION 29.02. On or prior to the Expiration Date or any earlier
termination of this Lease, Lessee shall remove Lessee's Property, and any
items referred to in clauses (a) or (b) of Section 29.01, which Lessor shall
request Lessee to remove (unless Lessor shall have waived such right as to any
item referred to in clause (a) of Section 29.01 at the time of the granting of
consent with respect thereto under Article 25), and Lessee shall pay or cause
to be paid the cost of repairing or remedying any damage caused thereby,
provided that no item of Lessee's Property may be removed if its removal would
impair the integrity (structural or otherwise) of the Building or Building
Equipment. All property not so removed shall be deemed abandoned and may
either be retained by Lessor as its property or disposed of, without
accountability, at Lessee's sole cost, expense and risk, in such manner as
Lessor may see fit.
SECTION 29.03. If the Demised Premises are not surrendered in
accordance with the provisions of this Article upon the expiration or
termination of this Lease, Lessor shall have all rights given at law or in
equity, in the case of holdovers, to remove Lessee and anyone claiming through
or under Lessee. In any event, Lessee shall and does hereby indemnify Lessor
against all loss or liability arising from delay by Lessee in so surrendering
the Demised Premises, including any claims made by any succeeding lessees
founded on such delay. Lessee expressly waives, for itself and for any person
claiming through or under Lessee (including creditors), any rights which
lessee or any such person may have under the provisions of any law in
connection with any holdover summary proceedings which Lessor may institute to
enforce the provisions of this Article. Lessee's obligations under this
Article shall survive the expiration or termination of this Lease.
SECTION 29.04. Lessee acknowledges the extreme importance to Lessor
that possession of the Demised Premises be surrendered at the expiration or
sooner termination of this Lease. In the event that Lessee fails to vacate the
Demised Premises at the expiration or sooner termination of this Lease, Lessee
shall be obligated to pay Lessor damages in an amount equal to One Hundred and
Fifty (150%) Percent of the annual Fixed Rent and Additional Rent provided for
on the day preceding the Expiration Date for such period of time that Lessee
holds over on a per diem basis.
ARTICLE 30 - RENEWAL TERM
SECTION 30.01. Lessee named herein, shall have the right, at its
option, to extend this Lease for the Demised Premises (including any
Additional Space as hereinafter defined) for a term ("Renewal Term") of Five
(5) years (to commence on the Expiration Date originally provided for herein
and to end at noon on the Fifth (5th) anniversary of such Expiration Date
originally provided for herein) by giving Lessor notice of such election at
any time but not less than Nine (9) months prior to the Expiration Date
originally provided for herein (time being of the essence with respect
thereto), and upon the giving of such notice this Lease thereupon shall,
subject to the provisions of Section 30.02, be automatically extended for the
Renewal Term with the same force and effect as if the Renewal Term had been
originally included in the Term, without the execution of any further
instrument.
SECTION 30.02. Any notice of election to exercise the option to
extend as hereinbefore provided must be in writing and sent to Lessor as
provided in Article 21. Neither the option granted to Lessee in this Article
to extend the Term, nor the exercise of such option by Lessee, named herein
shall prevent Lessor from exercising any option or right granted or reserved
to Lessor in this Lease to terminate this Lease, and the effective exercise of
any such right of termination by Lessor shall terminate any such renewal or
extension and any right of Lessee to any such renewal or extension, whether or
not Lessee shall have exercised any such option to extend the Term. Any such
option or right on the part of Lessor to terminate this Lease pursuant to the
provisions hereof shall continue during any Renewal Term.
SECTION 30.03. All of the terms, covenants and conditions of this
Lease shall continue in full force and effect during the Renewal Term except
that (i) the Fixed Rent for the Renewal Term shall be as provided in Section
30.04 (all other rent and charges payable by Lessee remaining unaffected), and
(b) there shall be no further privilege of extension of this Lease beyond the
Renewal Term.
SECTION 30.04. A. During the Renewal Term, Lessee shall pay to Lessor
annual Fixed Rent, at the same times and in the same manner as in the Term
originally provided for, at the annual rate equal to Ninety-Five (95%) percent
of the annual fair rental value of the Demised Premises (without deduction for
the cash value of free rent and leasehold improvements), which renewing,
non-equity tenants are then receiving in connection with a lease for
comparable space in a building of the same age, quality, size, location,
services, amenities, quality of construction and appearance to that of the
Building on the date of the commencement of the Renewal Term with a term equal
to the Renewal Term and otherwise containing the same provisions as this Lease
contains, as determined by agreement between Lessor and Lessee. If, prior to
the commencement of the Renewal Term, Lessor and Lessee are unable to agree on
the amount of the annual Fixed Rent during the Renewal Term, then in such
event, the determination of such annual fair rental value shall be made by
arbitration pursuant to the provisions of Section 30.04. B. hereof. If the
Renewal Term, shall commence prior to determination of the amount of annual
Fixed Rent payable during the Renewal Term, either by agreement or by decision
of the arbitrators, Lessee, in the meantime, shall pay the monthly
installments of Fixed Rent at the annual rate payable under this Lease for the
year ending on the Expiration Date originally provided for herein. If monthly
installments of the amount agreed upon by Lessor and Lessee, or found by the
arbitrators, shall be greater than such amount, then Lessee, forthwith after
such agreement or arbitrators' decision, shall pay to Lessor, for the period
from the commencement of the Renewal Term to the last day of the calendar
month in which the agreement or the arbitrators' decision takes effect, the
difference between the monthly installments actually paid and the monthly
installments which should have been paid in accordance with such agreement or
arbitrator's decision, together with interest at the prime rate plus two (2%)
percent from the respective due dates of each monthly installment to the date
of payment pursuant to this paragraph; and, thereafter, Lessee shall pay the
monthly installments at the new rate. In no event shall the annual Fixed Rent
during the Renewal Term be less than the annual Fixed Rent payable immediately
prior to the Renewal Term.
B. (1) In the event that Lessor and Lessee are unable to agree on the
amount of the annual Fixed Rent during the Renewal Term, then either Lessor or
Lessee (hereinafter referred to as the "Initiating Party") may give the other
party (hereinafter called the "Responding Party") a notice designating the
name and address of the arbitrator designated by the Initiating Party to act
on its behalf in the arbitration process hereinafter described (the "Review
Notice").
(2) If the Initiating Party gives a Review Notice, then within twenty
(20) days after giving of such Review Notice, the Responding Party shall give
notice to Initiating Party specifying in such notice the name and address of
the arbitrator designated by the Responding Party to act on its behalf. In the
event the Responding Party shall fail to give such notice within such twenty
(20) day period, then the appointment of such arbitrator shall be made in the
same manner as hereinafter provided for the appointment of a third arbitrator
in a case where two arbitrators are appointed hereunder and the parties are
unable to agree to such appointment. The two arbitrators so chosen shall meet
within thirty (30) days after the second arbitrator is appointed and shall
exchange sealed envelopes each containing such arbitrators written
determination of the fair market rent of the Demised Premises based on the
criteria set forth in Section 30.04.A. The fair market rent specified by
Lessor's arbitrator shall be called the "Lessor's Submitted Value" and the
fair market rent specified by Lessee's arbitrator shall be called the
"Lessee's Submitted Value". Copies of such written determinations shall
promptly be sent to both Lessor and Lessee. Any failure of either such
arbitrator to meet and exchange such determinations shall be acceptance of the
other party's arbitrator's determination as to fair market rent, if, and only
if, such failure persists for five (5) days after notice to whom such
arbitrator is acting, and, provided that such five (5) day period shall be
extended by reason of any Unavoidable Delay. If the higher determination of
the fair market rent for the Demised Premises is not more than one hundred and
five (105%) percent of the lower determination of the fair market rent, then
the fair market rent for such space shall be deemed to be the average of the
two determinations. If, however, the higher determination is more than one
hundred and five (105%) percent of the lower determination, then within ten
(10) days of the date the arbitrators submitted their respective fair market
rent determinations, the two arbitrators shall appoint a third arbitrator. In
the event of their being unable to agree upon such appointment within ten (10)
days after the exchange of the sealed envelopes, the third arbitrator shall be
selected by the parties themselves if they can agree thereon within a further
period of 10 days. If the parties do not so agree, then either party, on
behalf of both and on notice to the other, may request such an appointment by
the American Arbitration Association (or any successor organization) in
accordance with its rules then prevailing or if the American Arbitration
Association (or any successor organization) shall fail to appoint said third
arbitrator within fifteen (15) days after such request is made, then either
party may apply for such appointment, on notice to the other, to the President
of the Westchester County Bar Association (who may consult with the Chairman
of the Real Property Law Committee of the Westchester County Bar Association).
Within ten (10) days after the appointment of such third arbitrator, the
Lessor's arbitrator shall submit Lessor's Submitted Value to such third
arbitrator and the Lessee's arbitrator shall submit Lessee's Submitted Value
to such third arbitrator. Such third arbitrator shall, within thirty (30) days
after the end of such fifteen (15) day period, make his own determination of
the fair market rent of the Demised Premises using the criteria set forth in
Section 30.04.A. hereof, and send copies of his determination promptly to both
Lessor and Lessee specifying whether Lessor's Submitted Value or Lessee's
Submitted Value was closer to the determination by such third arbitrator of
the fair market rent of the Demised Premises. Whichever of Lessor's Submitted
Value or Lessee's Submitted Value shall be closer to the determination by such
third arbitrator shall conclusively be deemed to be the fair market rent of
the Demised Premises.
(3) In no event shall the arbitrators enlarge upon, or alter or
amend, this Lease or Lessor's or Lessee's rights as provided in this Lease, it
being understood that the sole issue for determination by the arbitrators
shall be the single issue of fact of the annual fair rental value of the
Demised Premises as provided in paragraph A of this Section 30.01.
(4) Except as otherwise provided in the following sentence, the fees
and expenses of an arbitration proceeding shall be borne by the parties
equally. The fees of respective counsel engaged by the parties the fees and
expenses of expert witnesses and other witnesses called and the cost of
transcripts shall be borne by the parties engaging such counsel or calling
such witness or ordering such transcripts.
SECTION 30.05. The rights provided to Lessee to extend this Lease as
provided in Section 30.01 is conditioned in all respects upon (i) there being
no Event of Default in the observance or performance of any term, covenant,
condition or agreement of Lessee's part to be observed or performed under this
Lease both at the time the notice of exercise is given and immediately prior
to commencement of the Renewal Term, and (ii) there being no sublease in
effect (other than subleases with related corporations) with respect to the
Demised Premises or any part thereof immediately preceding the Expiration Date
originally provided for herein. Any termination, cancellation or surrender of
this Lease shall terminate any right of extension hereunder for the Renewal
Term.
ARTICLE 31- SECURITY DEPOSIT
SECTION 31.01. Lessee shall deposit with Lessor, upon execution of
this Lease, the sum of Twenty-Six Thousand, Five Hundred and Ninety-Three and
00/100 ($26,593.00) Dollars either in cash or by Letter of Credit as provided
in Section 31.02 as security for the faithful performance and observance by
Lessee of the terms, provisions, conditions and covenants of this Lease (the
"Security Deposit"). Lessee agrees that, in the event that Lessee defaults,
beyond all applicable grace and cure periods after notice, in respect of any
terms, provisions, conditions and covenants of this Lease (including the
payment of Rent), Lessor may notify the Issuing Bank (as such term is defined
in Section 31.02) and thereupon receive all of the monies represented by the
said Letter of Credit and use, apply, or retain the whole or any part of such
proceeds, as the case may be, to the extent required for the payment of Rent,
or any other sums as to which Lessee is in default, or for any sum that Lessor
may expend or may be required to expend by reason of Lessee's default, in
respect of the terms, provisions, conditions and covenants of this Lease
(including any damages or deficiency accrued before or after summary
proceedings or other re-entry by Lessor). In the event that Lessor applies or
retains any portion of the proceeds of such Letter of Credit, Lessee shall
forthwith restore the amount so retained or applied.
SECTION 31.02. Lessee shall deliver to Lessor a clean, irrevocable
and unconditional Letter of Credit issued by and drawn upon any commercial
bank reasonably acceptable to Lessor (the "Issuing Bank") with offices for
banking purposes in the City of New York, which Letter of Credit shall have a
term of not less than one year, be in a form and content reasonably
satisfactory to Lessor, be for the account of Lessor and be in the amount of
Twenty-Six Thousand, Five Hundred and Ninety-Three and 00/100 ($26,593.00)
Dollars. The Letter of Credit shall provide that:
A. the Issuing Bank shall pay to Lessor an amount up to the
face amount of the Letter of Credit upon presentation of only the
Letter of Credit, a sight draft in the amount to be drawn and an
affidavit of default;
B. the Letter of Credit shall be deemed to be automatically
renewed, without amendment, for consecutive periods of one year
during the Term of this Lease, unless the Issuing Bank sends written
notice ("Non-Renewal Notice") to Lessor by certified or registered
mail, return receipt requested, not less than thirty (30) days next
preceding the then expiration date of the Letter of Credit that it
elects not to renew such Letter of Credit;
X. Xxxxxx, after receipt of the Non-Renewal Notice, shall
have the right, exercisable by a sight draft only, to receive the
moneys represented by the Letter of Credit (which moneys shall be
held by Lessor as a cash deposit pursuant to the terms of this
Article 31 pending replacement of such Letter of Credit); and
D. Upon Lessor's sale of the Property, or Lessor's interest
therein, or a leasing of the Property, the Letter of Credit shall be
transferable by Lessor as provided in Section 31.03.
SECTION 31.03 In the event of a sale of the Property, or Lessor's
interest therein, or of a leasing of the Property, Lessor shall transfer the
Letter of Credit deposited hereunder to the vendee or lessee, and Lessor shall
thereupon be released by Lessee from all liability for the return of the
Letter of Credit to a new lessor. Lessee shall execute such documents as may
be necessary to accomplish such transfer or assignment of the Letter of
Credit.
SECTION 31.04. Lessee covenants that it will not assign or encumber,
or attempt to assign or encumber the monies or Letter of Credit deposited
hereunder as security, and that neither Lessor nor its successors and/or
assigns shall be bound by any such assignment, or attempted encumbrance.
SECTION 31.05. In the event that Lessee shall fully and faithfully
comply with all of the terms, provisions, conditions and covenants of this
Lease, and provided further, that no Event of Default shall have occurred and
be continuing, the Security Deposit shall be returned to Lessee within thirty
(30) days after Lessee delivers possession of the Demised Premises to Lessor
as provided for in this Lease.
ARTICLE 32- BROKERS
SECTION 32.01. The parties hereto represent that in connection with
this Lease they have dealt with no broker other than Rostenberg Xxxxx Company,
Inc. and Xxxxxxxxx Realty, Inc. (the "Brokers") nor has either party had any
correspondence or other communication in connection with this Lease with any
other person who is a broker, and that so far as the parties are aware the
Brokers are the only brokers who negotiated this Lease. Each party hereby
indemnifies the other party and holds it harmless from any and all loss, cost,
liability, claim, damage, or expense (including court costs and attorneys'
fees) arising out of any inaccuracy of the above representation. Lessor agrees
to pay the Brokers all commissions due for its services pursuant to a separate
written agreement.
ARTICLE 33- RIGHT OF FIRST OFFER; ADDITIONAL SPACE
SECTION 33.01.A. From and after the Second (2nd) Anniversary of the
Rent Commencement Date, Lessor agrees that prior to offering for lease any
contiguous space on the First (1st) floor of the Building (subject to the
rights of other lessees), it shall give Lessee notice of and the right to, at
its option, expand the Demised Premises herein to include all such additional
space (the "Additional Space") with occupancy to commence on the Additional
Space Commencement Date (as hereinafter defined) and to end on the Expiration
Date originally provided for herein.
B. Lessee shall, within Ten (10) days after receipt of the notice
from Lessor that the Additional Space will become available for hire, notify
Lessor of its intention to lease the Additional Space (time being of the
essence with respect thereto). Lessee's failure to notify Lessor within the
Ten (10) day period shall be deemed a waiver of the right to hire the
Additional Space. In the event that Lessee shall elect to hire the Additional
Space, same shall be deemed added to and a part of the Demised Premises, with
the same force and effect as if originally so demised under this Lease as of
the Additional Space Commencement Date.
C. Lessee shall have the right to inspect the Additional Space prior
to exercising its rights herein. Lessee agrees to accept the Additional Space
in its "AS IS" state and condition on the Additional Space Commencement Date
without any representation or warranty, express or implied, in fact or by law,
by Lessor, and without recourse to Lessor, as to the nature, condition or
usability thereof or as to the use or occupancy which may be made thereof
D. As used herein the Additional Space Commencement Date shall be the
date which is the sooner of: (i) the date specified in Lessor's notice or (ii)
the date upon which Lessee occupies the Additional Space.
SECTION 32.02. Any notice of election to exercise the right to expand
the Demised Premises as hereinbefore provided must be in writing and sent to
Lessor as provided in Article 21. In addition, if prior to the exercise of the
right to expand the Demised Premises, Lessee herein named shall have assigned
this Lease, no notice by the then Lessee of election to exercise an option to
expand shall be valid unless joined in or consented to in writing by Lessee
herein named (which consent, in order for the exercise of such right to be
effective, shall be delivered to Lessor at or prior to the time of the
exercise of the right as to which consent of Lessee herein named had been
given). Neither the right granted to Lessee in this Article to expand the
Demised Premises, nor the exercise of such right by Lessee, shall prevent
Lessor from exercising any option or right granted or reserved to Lessor in
this Lease to terminate this Lease, and the effective exercise of any such
right of termination by Lessor shall terminate any such renewal or extension
and any right of Lessee to any such renewal or extension, whether or not
Lessee shall have exercised any such right to expand the Demised Premises. Any
such option or right on the part of Lessor to terminate this Lease pursuant to
the provisions hereof shall apply to the Additional Space.
SECTION 33.03.A. All of the terms, covenants and conditions of this
Lease applicable to the Demised Premises as originally constituted shall be
applicable to the Demised Premises including the Additional Space, except that
the annual Fixed Rent provided for in Article 2 shall be increased by the fair
market value of the Additional Space on the Additional Space Commencement Date
on a square footage basis as determined in accordance with the provisions of
Section 30.04 of this Lease and the gross square footage of the Additional
Space.
B. During and in respect of the Term hereof, Lessee's Proportionate
Share shall be increased by the gross square footage of all Additional Space
that Lessee occupies in the Building.
SECTION 33.04. If Lessee shall effectively exercise its right to hire
the Additional Space, Lessor and Lessee, upon demand of either, shall execute
and deliver to each other duplicate originals of an instrument, duly
acknowledged, setting forth (i) that the Demised Premises have been expanded
to include the Additional Space, (ii) the amount of such Additional Space,
(iii) the annual Fixed Rent payable during the Term, (iv) that such Additional
Space is upon and subject to all of the terms, covenants, conditions and
limitations contained herein, and (v) Lessee's Proportionate Share as
increased by the Additional Space.
SECTION 33.05. The right of Lessee to hire the Additional Space as
provided in Section 33.01 is conditioned in all respects upon there being no
Event of Default in the observance or performance of any term, covenant,
condition or agreement on Lessee's part to be observed or performed under this
Lease both at the time the notice of exercise is given and immediately prior
to Additional Space Commencement Date. Any termination, cancellation or
surrender of this Lease shall terminate Lessee's right to hire the Additional
Space.
ARTICLE 34- DEFINITIONS
SECTION 34.01 For the purposes of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires:
(a) "Additional Rent" shall mean all sums of money, other
than Fixed Rent, as shall become due from and payable by Lessee
hereunder.
(b) "Building" shall mean the building, structures and
improvements, and related facilities, including paved areas and all
parking lots adjacent and/or appurtenant thereto (other than
"Building Equipment", as such term is herein defined) known as and
located at 0 Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, now or
hereafter erected, constructed or situated on the land underlying or
appurtenant to the Building or any part thereof, together with all
alterations, additions and improvements thereto and all restorations
and replacements thereof.
(c) "Building Equipment" shall mean all machinery, systems,
apparatus, facilities, equipment and fixtures of every kind
whatsoever now or hereafter belonging, attached to and used
exclusively (whether or not same constitute fixtures), or procured
for exclusive use, in connection with the operation or maintenance of
the Building and/or Property, including water, sewer and gas
connections, all heating, electrical, lighting, and power equipment,
engines, furnaces, boilers, pumps, tanks, dynamos, motors,
generators, conduits, plumbing, cleaning, fire prevention,
refrigeration, ventilating, air cooling, air conditioning equipment
and apparatus, cranes, elevators, escalators, ducts and compressors
and any and all replacements thereof and additions thereto; but
excluding, however, (i) Lessee's Property, (ii) property of any
sublessee which sublessee may be authorized to remove from the
Building upon and subject to the terms and conditions of its sublease
and this Lease, (iii) property of contractors servicing the Building,
and (v) improvements for water, gas, and electricity and other
similar equipment or improvements owned by any public utility company
or any governmental agency or body.
(d) "Cost" shall mean that Lessor will perform all such
services on a "cost plus" basis, whereby Cost shall include, but not
be limited to, the cost of sub-contractors, material, equipment
rental, transportation and delivery items, permits, fees, taxes,
insurance's, debris removal, demolition, safety protection, labor,
supervision, project management, purchasing, expediting and material
handling, and shall also include a contingency, based on the
complexity of the work to be performed, of up to five percent (5%) of
the total of all such items otherwise included within such definition
(the "Trades"). In addition, with respect to Alterations as provided
for in Article 25 of this Lease, Cost shall also include Lessor's fee
for acting as general contractor which shall be equal to: (i)
Eighteen and Eighty Hundredths (18.80%) of the total cost of the
Trades, if such cost does not exceed One Hundred Thousand and 00/100
($100,000.00) Dollars; (ii) Sixteen and Sixty-Three Hundredths
(16.63%) Percent of the total cost of the Trades, if such costs are
between One Hundred, Thousand and One and 00/100 ($100,001.00)
Dollars and Three Hundred and Ninety Nine Thousand, Nine Hundred and
Ninety-Nine and 99/100 ($399,999.99) Dollars; or (iii) Fifteen and
Fifty-Six Hundredths (15.56%) Percent of the total cost of the
Trades, if such costs are in excess of Four Hundred Thousand and
00/100 ($400,000.00) Dollars.
(e) "Environmental Laws" shall mean any and all Federal,
state, local, or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees or requirements of any
Governmental Authority regulating, relating to or imposing liability
or standards of conduct concerning environmental conditions at the
Demised Premises, Building or Property as now or may at any time
hereafter be in effect, including but not limited to and without
limiting the generality of the foregoing, The Clean Water Act also
known as the Federal Water Pollution Control Act, 88 U.S.C.
ss.ss.1251 et seq., the Toxic Substance Control Act, 15 U.S.C.
ss.ss.2601 et seq., the Clean Air Act, 42 U.S.C. ss.ss.7401 et seq.,
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
ss.ss.186 et seq., the Safe Drinking Water Act, 42 U.S.C. ss.ss.300f
et seq., the Surface Mining Control and Reclamation Act, ss.1201 et
seq., 80 U.S.C. ss.1201 et seq., the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
ss.ss.9601 et seq., the Superfund Amendment and Reauthorization Act
of 1986 ("XXXX"), Public Law 99-499, 100 Stat. ss.1818, the Emergency
Planning and Community Right to Know Act, 42 U.S.C. ss.ss.1101 et
seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.
ss.ss.6901 et seq., and the Occupational Safety and Health Act as
amended ("OSHA"), 29 U.S.C. ss.655 and ss.657, together with any
amendments thereto, regulations promulgated thereunder and all
substitutions thereof.
(f) "Hazardous Material" shall mean (i) Any hazardous, toxic
or dangerous waste, substance or material defined as such in (or for
the purpose of) CERCLA, XXXX, RCRA, or any other Environmental Law as
now or at any time hereafter in effect; (ii) any other waste,
substance or material that exhibits any of the characteristics
enumerated in 40 C.F.R. ss.ss.261.20 through 261.24, inclusive, and
those extremely hazardous substances listed under Section 902 of XXXX
that are present in threshold planning or reportable quantities as
defined under XXXX and toxic or hazardous chemical substances that
are present in quantities that exceed exposure standards as those
terms are defined under Section 6 and 8 of OSHA and 29 C.F.R. Part
1910; (iii) any asbestos or asbestos containing substances whether or
not the same are defined as hazardous, toxic, dangerous waste, a
dangerous substance or dangerous material in any Environmental Law;
(iv) "Red Label" flammable materials; (v) all Laboratory Waste and
by-products; and (vi) all biohazardous materials.
(g) "Insurance Requirements" shall mean the rules,
regulations, orders and other requirements of any insurance rating or
regulatory organization having jurisdiction of, and which are
applicable to, the Demised Premises and of any liability, casualty,
or other insurance policy which either Lessor or Lessee is required
hereunder to maintain or may maintain hereunder.
(h) "Legal Requirements" shall mean the requirements of
every statute, law, ordinance, regulation, rule requirement, order or
directive, now or hereafter made by any Federal, state or local
government or any department, political subdivision, bureau, agency,
office or officer thereof, or any other governmental authority having
jurisdiction (a "Governmental Authority") with respect to and
applicable to (i) the Demised Premises and appurtenances thereto,
and/or (ii) the condition, equipment, maintenance, use or occupation
of the Demised Premises, including the making of an alteration or
addition in or to any structure upon, connected with or appurtenant
to the Demised Premises.
(i) "Lessee's Delays" shall mean any and all delays caused
by or attributable to any action or failure or refusal of Lessee to
perform a duty of, Lessee or any person claiming through or under
Lessee, or any agent, servant, employee, director, shareholder,
contractor or invitee of Lessee or any such person.
(j) "Lessee's Property" shall mean all articles of personal
property and fixtures and other property, which have been installed
or affixed on, in or to, or brought into, the Demised Premises, at
the expense of Lessee or any permitted sublessee of Lessee or other
permitted occupant of the Demised Premises and without any credit or
allowance by Lessor, which are not replacements or any property of
Lessor (whether any such replacement is made at Lessee's expense or
otherwise), and which do not constitute alterations, changes,
additions, or improvements to the Demised Premises or any
appurtenances thereto.
(k) "Lessee's Proportionate Share" shall mean a fraction the
numerator of which is equal to the gross square footage that Lessee
occupies in the Demised Premises, and the denominator of which is
equal to the total gross square footage of the Building as it
presently exists or may hereinafter be increased or enlarged. As of
the Commencement Date, the total square footage of the Building shall
be deemed to be One Hundred and Five Thousand, and Ninety-Three
(105,093) and Lessee's Proportionate Share shall be deemed to be
Seven and Twenty-Three Hundredths (7.23%) percent. Lessee and Lessor
agree that Lessee's Proportionate Share is not based upon any
particular method of measuring the Demised Premises and/or the
Building and represents an agreed upon percentage and shall not be
contestable by Lessee at a future date.
(l) "Lessor's Agents" shall be deemed to include agents,
servants, employees, directors, officers, shareholders and
contractors of Lessor.
(m) "Normal Working Hours" shall mean only those between the
hours of 8:00 A.M. and 6:00 P.M., Monday through Friday, and 8:00
A.M. and 1:00 P.M. on Saturday, exclusive of New Years Day, the day
designated as the legal holiday for the celebration of Washington's
Birthday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day
and Christmas Day.
(n) "Unavoidable Delays" shall mean any and all delays
beyond Lessor's reasonable control, including Lessee's Delays,
governmental restrictions, governmental preemption, strikes, labor
disputes, lockouts, shortages of labor and materials, enemy action,
civil commotions, riot, insurrection and fire, other casualty and
other acts of God.
(o) "Untenantable" shall mean actual inability to use space
in the Demised Premises for the purposes permitted by Section 4.01.
SECTION 34.02. For the purposes of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires:
(a) The terms "include", "including", and "such as" shall be
construed as if followed by the phrase "without being limited to".
(b) Whenever this Lease provides that Lessee shall pay
Lessor interest at the "maximum legal rate" then interest shall be
payable at the highest rate of interest permitted at the relevant
time by applicable law to be paid by Lessee without impairing the
validity or enforceability of this Lease and without incurring any
civil or criminal penalty.
(c) The term "obligations of this Lease" and words of
similar import, shall mean the covenants to pay Fixed Rent and
Additional Rent and all of the other covenants and conditions
contained in this Lease. Any provision in this Lease that one party
or the other or both shall do or not do or shall cause or permit or
not cause or permit a particular act, condition or circumstance shall
be deemed to mean that such party so covenants or both parties so
covenant, as the case may be.
(d) The term "repair" shall be deemed to include restoration
and replacement as may be necessary to achieve and/or maintain good
working order and condition.
(e) Reference to "substantially complete" and words of
similar import shall be deemed to mean, with regard to construction
work, completion but for such minor details of work, the
non-completion of which would not materially interfere with the
utility of the affected space and if a certificate is issued by an
independent architect or engineer stating that the work is
substantially complete, then such determination shall be conclusive
and binding upon the parties to this Lease.
(f) Reference to "termination of this Lease" includes
expiration or earlier termination of the Term or cancellation of this
Lease pursuant to any of the provisions of this Lease or to law. Upon
the termination of this Lease, the Term and estate hereby granted by
this Lease shall end at noon on the date of termination as if such
date were the date of expiration of the Term and neither party shall
have any further liability or obligation to the other after such
termination (i) except as shall be expressly provided for in this
Lease, and (ii) except for such obligations as by their nature or
under the circumstances can only be, or by the provisions of this
Lease, may be, performed after such termination, and, in any event,
unless expressly otherwise provided in this Lease, any liability for
a payment which shall have accrued to or with respect to any period
ending at the time of termination shall survive the termination of
this Lease.
ARTICLE 35- MISCELLANEOUS
SECTION 35.01. This Lease shall be governed in all respects by the
laws of the State of New York applicable to leases made and to be performed
wholly therein.
SECTION 35.02. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, single or plural, as the
identity of the person or persons or entity or entities in question may
require. The term "person" shall be deemed to include individuals,
corporations, partnerships, joint ventures, firms, associations and other
entities.
SECTION 35.03. All provisions of this Lease shall be deemed and
construed to be "conditions" as well as "covenants", as though the words
specifically expressing or importing covenants and conditions were used in
each separate provision hereof.
SECTION 35.04. If any provision of this Lease or application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
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.
SECTION 35.05. The article headings in this Lease are inserted only
as a matter of convenience and reference and are not to be given any effect
whatsoever in construing this Lease.
SECTION 35.06. This Lease contains the entire agreement between the
parties regarding the Demised Premises and shall not be modified in any manner
except by an instrument in writing executed by the parties or their respective
successors in interest. No waiver or modification by either party or any
provision or covenant of this Lease shall be deemed to have been made unless
such waiver is expressed in writing and signed by the party against whom such
waiver or modification is sought.
SECTION 35.07. Lessee agrees with Lessor that Lessee will not record
this Lease or any memorandum of this Lease without the prior written consent
of Lessor.
SECTION 35.08. The covenants, agreements, terms, provisions and
conditions contained in this Lease shall apply to and inure to the benefit of
and be binding upon Lessor and Lessee and their respective successors and
assigns, except as otherwise provided for herein.
SECTION 35.09. Upon request of Lessor, but not more often than once
each fiscal or calendar year, as the case may be, Lessee and any such person
shall submit to Lessor true, correct, current and complete financial
statements of Lessee and its affiliates, if any.
SECTION 35.10. Solely for the purposes of a proceeding under the
present or future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law (a "bankruptcy law"), the
following terms and conditions have been agreed upon by Lessor and Lessee:
(a) In the event of a default by Lessee under this Lease
continuing after the filing of a voluntary or involuntary petition (a
"pre-petition default") under any bankruptcy law, a period exceeding
thirty (30) days for curing such default shall in no event be deemed
reasonable.
(b) In order to be deemed adequate assurance by Lessee for
the cure of any pre-petition default, Lessee, or the trustee, as the
case may be, must (i) deposit with a banking institution selected by
Lessor securities, in negotiable form, issued by the United States of
America, with a fair market value, at all relevant times, equal to
twice the amount of rent due or the cost, as estimated by Lessor of
curing the pre-petition default, as the case may be, or (ii) grant to
Lessor a security interest or lien, which shall be superior to any
and all claims and liens, on any of Lessee's property that is valued
at liquidation at twice the amount of such rent or cost.
(c) In order to be deemed adequate assurance by Lessee, with
respect to the payment of rent due after the filing of a voluntary or
involuntary petition under any bankruptcy law, Lessee must (i)
deposit with a banking institution selected by Lessor securities in
negotiable form, issued by the United States of America, with a fair
market value, at all relevant times, of not less than six (6) months'
rent, or (ii) grant a security interest or lien, which shall be
superior to any and all claims and liens, in any of Lessee's property
that is valued at liquidation at not less than six (6) months' rent.
SECTION 35.11. Lessee represents and warrants: (i) that it is a
corporation duly organized and in good standing under the laws of the State of
New York, (ii) that it has all requisite authority to execute and to enter
into this Lease and that the execution of this Lease will not constitute a
violation of any internal by-law, agreement or other rule of governance, and
(iii) that the individual executing this Lease on behalf of Lessee is so
authorized and Lessee shall supply Lessor with a verified resolution or
similar written documentation evidencing such authority upon or prior to
Lessee's execution of this Lease.
IN WITNESS WHEREOF, the parties to this Lease have executed the same
on the day and in the year first above written.
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, (Lessor)
By: _________________________________L.S.
Name:
Title:
By: _________________________________L.S.
Name:
Title:
COMMUNITY MEDICAL TRANSPORT, INC., (Lessee)
By: _________________________________L.S.
Name:
Title:
STATE OF IOWA )
)ss.:
COUNTY OF POLK )
On the day of September, 1997, before me personally came , to me
known, who being by me duly sworn, did depose and say that he resides in Des
Moines, Iowa; that he is the of PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, an
Iowa Corporation described in and which executed the foregoing instrument;
That he signed his name thereto on behalf the Corporation described therein by
order of its board of directors.
Notary Public
STATE OF IOWA )
)ss.:
COUNTY OF POLK )
On the day of September, 1997, before me personally came , to me
known, who being by me duly sworn, did depose and say that he resides in Des
Moines, Iowa; that he is the of PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, an
Iowa Corporation described in and which executed the foregoing instrument;
That he signed his name thereto on behalf the Corporation described therein by
order of its board of directors.
Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
On the day of September, 1997, before me personally came , to me
known, who being by me duly sworn, did depose and say that he resides in ;
that he is the of COMMUNITY MEDICAL TRANSPORT, INC., a New York Corporation
described in and which executed the foregoing instrument; That he signed his
name thereto on behalf the Corporation described therein by order of its board
of directors.
Notary Public
