Exhibit 10.1
AGREEMENT OF LEASE
BETWEEN
RECKSON OPERATING PARTNERSHIP, L.P.
AND
XXXXXXXXXX.XXX, INC.
TABLE OF CONTENTS
PAGE
SPACE.........................................................................1
TERM..........................................................................1
RENT..........................................................................2
USE ..........................................................................3
LANDLORD ALTERATION...........................................................4
SERVICES......................................................................5
LANDLORD'S REPAIRS............................................................5
WATER SUPPLY..................................................................5
PARKING FIELD.................................................................5
DIRECTORY.....................................................................5
TAXES AND OTHER CHARGES.......................................................6
TENANT'S REPAIRS..............................................................7
FIXTURES & INSTALLATIONS......................................................7
ALTERATIONS ..................................................................8
REQUIREMENTS OF LAW..........................................................11
END OF TERM .................................................................13
QUIET ENJOYMENT..............................................................14
SIGNS........................................................................14
RULES AND REGULATIONS........................................................14
RIGHT TO SUBLET OR ASSIGN....................................................15
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LANDLORD'S ACCESS TO PREMISES................................................18
SUBORDINATION................................................................19
PROPERTY LOSS, DAMAGE REIMBURSEMENT..........................................21
TENANT'S INDEMNITY...........................................................21
DESTRUCTION FIRE OR OTHER CASUALTY..........................................22
INSURANCE .................................................................23
EMINENT DOMAIN...............................................................25
NONLIABILITY OF LANDLORD.....................................................26
DEFAULT......................................................................26
TERMINATION ON DEFAULT.......................................................28
DAMAGES......................................................................29
SUMS DUE LANDLORD............................................................30
NO WAIVER....................................................................31
WAIVER OF TRIAL BY JURY......................................................32
NOTICES......................................................................32
INABILITY TO PERFORM.........................................................32
INTERRUPTION OF SERVICE......................................................33
CONDITIONS F LANDLORD'S LIABILITY............................................33
TENANT'S TAKING POSSESSION...................................................33
SUBSTITUTED PREMISES.........................................................34
ENTIRE AGREEMENT.............................................................34
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DEFINITIONS .................................................................35
PARTNERSHIP TENANT...........................................................35
SUCCESSORS, ASSIGNS, ETC.....................................................36
BROKER .................................................................36
CAPTIONS .................................................................36
NOTICE OF ACCIDENTS..........................................................36
TENANT'S AUTHORITY TO ENTER LEASE............................................37
LETTER OF CREDIT.............................................................37
RENEWAL OPTION...............................................................40
RIGHT OF OFFER...............................................................42
EXPANSION/RELOCATION OPTION..................................................44
SCHEDULE "A".................................................................47
SCHEDULE "B".................................................................50
SCHEDULE "C".................................................................52
SCHEDULE "D".................................................................55
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AGREEMENT OF LEASE, made as of this ____ day of July, 2000, between
RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, having its
principal office at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000 W, CS 5341, Melville, New
York 11747-0983 (hereinafter referred to as "Landlord"), and XXXXXXXXXX.XXX,
INC., a Delaware corporation, having its principal place of business at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxx 00000 (hereinafter referred to as
"Tenant").
WITNESSETH: Landlord and Tenant hereby covenant and agree as follows:
SPACE
1. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the space substantially as shown on the Rental Plan initialed by the
parties and made part hereof as Exhibit "1" ("Demised Premises" or "Premises")
in the building, located at 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx (hereinafter
referred to as the "Building"), and the parties stipulate and agree that such
space contains 6,721 square feet in a Building containing 98,729 square feet
which constitutes 6.81 percent of the area of the Building ("Tenant's
Proportionate Share").
TERM
2. The term ("Term", "term" or "Demised Term") of this lease shall
commence upon the execution of this lease. Subject to the provisions of this
Article 2, Tenant's right to occupy the Demised Premises and Tenant's obligation
to pay Rent (as defined in Article 3 hereof) and all items of additional rent
shall commence on September 1, 2000 (the "Rent Commencement Date"). The Term of
this lease shall expire on the day preceding the day which is five (5) years
after (a) the Rent Commencement Date, if such date is the first day of the first
full calendar month or (b) the first day of the first full calendar month
following the Rent Commencement Date, if such date is not the first day of a
calendar month (the "Expiration Date").
If on the foregoing date specified for the Rent Commencement
Date, the Premises shall not be "substantially completed" in accordance with
Schedule A annexed hereto and the Rental Plan annexed hereto as Exhibit 1, then,
the Rent Commencement Date shall be postponed until the date on which the
Premises shall be "substantially completed" and the Term of this lease shall be
extended so that the Expiration Date shall be five (5) years after the last day
of the month in which the Rent Commencement Date occurs. "Substantially
completed" as used herein is defined to mean when the only items to be completed
are those which do not interfere with the Tenant's occupancy and substantially
full enjoyment of the Premises and which do not interfere Tenant's preparation
for the conduct of its business operations; but if Landlord shall be delayed in
such "substantial completion" as a result of (i) Tenant's failure to furnish
plans and specifications by the date reasonably requested by Landlord; (ii)
Tenant's request for materials, finishes or installations other than Landlord's
Building standard; (iii) Tenant's changes in said plans; (iv) the performance or
completion of any work, labor or services by a party employed by Tenant; or (v)
Tenant's failure to approve, or approve as noted, final construction documents
within five (5) business days after such submission thereof to Tenant for
approval (all such delays being hereinafter referred to as "tenant
delay"); then the Rent Commencement Date shall be accelerated by the number of
days of such tenant delay (however, Landlord shall not be obligated to deliver
the Demised Premises to Tenant and Tenant shall not have the right to occupy the
Premises until Landlord's Initial Construction (hereinafter defined) is
"substantially completed"). Tenant waives any right to rescind this lease under
Section 223-a of the New York Real Property Law or any successor statute of
similar import then in force and further waives the right to recover any damages
which may result from Landlord's failure to deliver possession of the Premises
on the Rent Commencement Date set forth in the first paragraph of this Article.
A "Lease Year" shall be comprised of a period of twelve (12)
consecutive months. The first Lease Year shall commence on the Rent Commencement
Date but, notwithstanding the first sentence of this paragraph, if the Rent
Commencement Date is not the first day of a month, then the first Lease Year
shall include the additional period from the Rent Commencement Date to the end
of the then current month. Each succeeding Lease Year shall end on the
anniversary date of the last day of the preceding Lease Year. For example, if
the Rent Commencement date is September 1, 2000, the first Lease Year would
begin on September 1, 2000, and end on August 31, 2001, and each succeeding
Lease Year would end on August 31th. If, however, the Rent Commencement Date is
September 2, 2000 the first Lease Year would end on September 30, 2001, the
second Lease Year would commence on October 1, 2001, and each succeeding Lease
Year would end on September 30th.
Within five (5) business days after Landlord's delivery to Tenant of
a Rent Commencement Date Certificate (confirming the Rent Commencement Date
under this lease and, if applicable, the date of substantial completion), Tenant
will sign and return said Certificate to Landlord. If Tenant shall fail to sign
and return said certificate within such five (5) business day period, or to
object to the accuracy of the dates therein within such period, Tenant shall be
deemed to have approved the dates set forth in said certificate.
Subject to the substantial completion provisions of this Article 2,
Landlord's ability to deliver the Demised Premises to Tenant by September 1,
2000 is conditioned upon Tenant executing and delivering this lease and
approving, signing and delivering the plans for Landlord's Initial Construction
(defined herein) on or before July 21, 2000. If Tenant shall fail to so execute
and deliver this lease or to approve, sign and deliver such plans on or before
such date, the date by which Landlord shall deliver the Demised Premises to
Tenant shall be delayed one (1) day for each day Tenant shall delay in so
executing and delivering this lease and approving, signing and delivering such
plans, and such delay shall be considered a tenant delay. In such event, the
Rent Commencement. Date shall be accelerated by the number of days of such
tenant delay (however, Landlord shall not be obligated to deliver the Demised
Premises to Tenant and Tenant shall nat have the right to occupy the Premises
until Landlord's Initial Construction (hereinafter defined) is "substantially
completed").
RENT
3. The annual minimum rental ("Rent" or "rent") is as follows:
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During the first Lease Year, the Rent shall be $163,488.36, payable $35,033.22
for the first month and $11,677.74 for each of the second through twelfth
months.
During the second Lease Year, the Rent shall be $145,106.40, payable in monthly
installments of $12,092.20.
During the third Lease Year, the Rent shall be $150,278.88, payable in monthly
installments of $12,523.24.
During the fourth Lease Year, the Rent shall be $155,658.24, payable in monthly
installments of $12,971.52.
During the fifth Lease Year, the Rent shall be $137,897.28, payable $13,437.73
for each of the first through tenth months and $1,759.99 for each of the
eleventh and twelfth months.
Tenant agrees to pay the Rent to Landlord, without notice or demand, in lawful
money of the United States which shall be legal tender in payment of the debts
and dues, public and private, at the time of payment in advance on the first day
of each calendar month during the Demised Term at the office of the Landlord, or
at such other place as Landlord shall designate, except that Tenant shall pay
the first monthly installment on the execution hereof. Tenant shall pay the Rent
as above and as hereinafter provided, without any set off or deduction
whatsoever. Should the Rent Commencement Date be a date other than the first day
of a calendar month, the Tenant shall pay a pro rata portion of the Rent on a
per diem basis, based upon the second full calendar month of the first Lease
Year, from such date to and including the last day of that current calendar
month, and the first Lease Year shall include said partial month. The Rent
payable for such partial month shall be in addition to the Rent payable pursuant
to the Rent schedule set forth above.
USE
4. (A) Tenant shall use and occupy the Demised Premises only for
executive and administrative offices related to the development, marketing and
sales of computer software and for no other purpose.
(B) Tenant shall not use or occupy, suffer or permit the
Premises, or any part thereof, to be used in any manner which would in any way,
in the reasonable judgment of Landlord, (i) violate any laws or regulations of
public authorities; (ii) make void or voidable any insurance policy then in
force with respect to the Building; (iii) impair the appearance, character or
reputation of the Building; (iv) discharge objectionable fumes, vapors or odors
into the Building, air-conditioning systems or Building flues or vents in such a
manner as to offend other occupants. The provisions of this Section shall not be
deemed to be limited in any way to or by the provisions of any other Section or
any Rule or Regulation.
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(C) The emplacement of any equipment which will impose an evenly
distributed floor load in excess of 100 pounds per square foot shall be done
only after written permission is received from the Landlord. Such permission
will be granted only after adequate proof is furnished by a professional
engineer that such floor loading will not endanger the structure. Business
machines and mechanical equipment in the Premises shall be placed and maintained
by Tenant, at Tenant's expense, in such manner as shall be sufficient in
Landlord's judgment to absorb vibration and noise and prevent annoyance or
inconvenience to Landlord or any other tenants or occupants of the Building.
(D) Tenant will not at any time use or occupy the Demised
Premises in violation of the certificate of occupancy (temporary or permanent)
issued for the Building or portion thereof of which the Demised Premises form a
part. Landlord shall deliver to Tenant a copy of the certificate of occupancy
for the Building within two (2) weeks of the date Landlord delivers fully
executed originals of this lease to Tenant.
(E) Except if specifically permitted under Section A of this
Article, Tenant shall not use the Demised Premises or permit the Demised
Premises to be used for a brokerage office or other office engaged in the sale
of stocks, bonds, options or other securities.
(F) Tenant agrees that the value of the Premises and the
reputation of the Landlord will be seriously injured if the Premises are used
for any obscene or pornographic purposes or if any obscene or pornographic
material is permitted on the Premises. Tenant further agrees that Tenant will
not permit any of these uses by Tenant or a sublessee or assignee of the
Premises. This Article 4(F) shall directly bind any successors in interest to
Tenant. Tenant agrees that if at any time Tenant violates any of the provisions
of this Article 4(F), such violation shall be deemed a breach of a substantial
obligation of the terms of this lease and objectionable conduct. Pornographic
material is defined for purposes of this Article 4(F) as any written or
pictorial matter with prurient appeal or any objects or instruments that are
primarily concerned with lewd in or prurient sexual activity. Obscene material
is defined here as it is in Penal Law Section 235.00.
LANDLORD ALTERATION
5. Landlord, at its sole cost and expense (unless otherwise noted on
either the Rental Plan annexed hereto as Exhibit 1, Schedule "A", the
preliminary plans and/or the construction drawings), will perform the work and
make the installations, as set forth in Schedule "A" annexed hereto and the
Rental Plan annexed hereto as Exhibit 1, which work is sometimes hereinafter
referred to as the "Landlord's Initial Construction". In the event that there is
a conflict or inconsistency between the provisions of this lease (including the
Exhibits and Schedules annexed hereto) and the work set forth on the final
construction documents to be prepared by Landlord for Landlord's Initial
Construction and approved by Landlord and Tenant after the date hereof, such
final construction documents shall be controlling.
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SERVICES
6. As long as this Lease is in full force and effect, Landlord,
during the hours of 9:00 A.M. to 8:00 P.M. on weekdays ("Working Hours"),
excluding legal holidays, shall furnish the Demised Premises with heat and
air-conditioning in the respective seasons, and provide the Demised Premises
with electricity for lighting and usual office equipment as set forth in
Schedule "C". Tenant, with the consent of Landlord, which consent shall not be
unreasonably withheld, shall have the right to designate other hours, so long as
the total hours per week do not exceed fifty-five (55), subject to the
provisions of Schedule "C". At any hours other than the aforementioned, such
services will be provided at Tenant's expense in accordance with Schedule "C".
LANDLORD'S REPAIRS
7. Landlord, at its sole cost and expense, will make all the repairs
to and provide the maintenance for the Demised Premises (excluding painting and
decorating) and for all public areas and facilities as set forth in Schedule
"B", except such repairs and maintenance as may be necessitated by the
negligence, improper care or use of such premises and facilities by Tenant, its
agents, employees, licensees or invitees, which will be made by Landlord at
Tenant's expense.
WATER SUPPLY
8. Landlord, at its sole cost and expense, shall furnish hot and
cold or tempered water for lavatory, kitchenette and drinking purposes only.
PARKING FIELD
9. Tenant shall have the right to use thirty-four (34) parking
spaces (of which spaces, six (6) shall be designated as reserved) for the
parking of automobiles of the Tenant, its employees and invitees, in the parking
area designated for tenants of the Building (hereinafter sometimes referred to
as "Building Parking Area"), subject to the Rules and Regulations now or
hereafter adopted by Landlord. Tenant shall not use nor permit any of its
officers, agents or employees to use any parking spaces in excess of Tenant's
allotted number of spaces therein.
DIRECTORY
10. Landlord will furnish on the building directory listings
requested by Tenant, not to exceed two (2) listings. Landlord will also furnish,
on the directional sign in the Building, one (1) listing requested by Tenant.
Such initial listings will be made at Landlord's expense and any subsequent
changes by Tenant shall be made at Tenant's expense (which expense shall not
exceed Landlord's Building standard charge). Landlord's acceptance of any name
for listing on the directory or the directional sign will not be deemed, nor
will it substitute for, Landlord's consent, as required by this lease, to any
sublease, assignment or other occupancy of the Premises.
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TAXES AND OTHER CHARGES
11. (A) As used in and for the purposes of this Article 11, the
following definitions shall apply:
(i) "Taxes" shall be the real estate taxes, assessments,
special or otherwise, sewer rents, rates and charges, and any other governmental
charges, general, specific, ordinary or extraordinary, foreseen or unforeseen,
levied on a calendar year or fiscal year basis against the Real Property. If at
any time during the Term the method of taxation prevailing at the date hereof
shall be altered so that there shall be levied, assessed or imposed in lieu of,
or as in addition to, or as a substitute for, the whole or any part of the
taxes, levies, impositions or charges now levied, assessed or imposed on all or
any part of the Real Property (a) a tax, assessment, levy, imposition or charge
based upon the rents received by Landlord, whether or not wholly or partially as
a capital levy or otherwise, or (b) a tax, assessment, levy, imposition or
charge measured by or based in whole or in part upon all or any part of the Real
Property and imposed on Landlord, or (c) a license fee measured by the rent
payable by Tenant to Landlord, or (d) any other tax, levy, imposition, charge or
license fee however described or imposed; then all such taxes, levies,
impositions, charges or license fees or any part thereof, so measured or based,
shall be deemed to be Taxes.
(ii) "Base Year Taxes" shall be the taxes actually due and
payable with respect to 2000/2001 tax year.
(iii) "Escalation Year" shall mean each calendar year which
shall include any part of the Demised Term.
(iv) "Real Property" shall be the land upon which the
Building stands and any part or parts thereof utilized for parking, landscaped
areas or otherwise used in connection with the Building, and the Building and
other improvements appurtenant thereto.
(B) The Tenant shall pay the Landlord increases in Taxes levied
against the Real Property as follows: If the Taxes actually due and payable with
respect to the Real Property in any Escalation Year shall be increased above the
Base Year Taxes, then the Tenant shall pay to the Landlord, as additional rent
for such Escalation Year, a sum equal to Tenant's Proportionate Share of said
increase ("Tenant's Tax Payment" or "Tax Payment").
(C) Landlord shall render to Tenant a statement containing a
computation of Tenant's Tax Payment ("Landlord's Statement"). Within fifteen
(15) days after the rendition of the Landlord's Statement, Tenant shall pay to
Landlord the amount of Tenant's Tax Payment. On the first day of each month
following the rendition of each Landlord's Statement, Tenant shall pay to
Landlord, on account of Tenant's next Tax Payment, a sum equal to one-twelfth
(1/12th) of Tenant's last Tax Payment due hereunder, which sum shall be subject
to adjustment for subsequent increases in Taxes.
(D) If during the Term Taxes are required to be paid as a tax
escrow payment to a mortgagee, then, at Landlord's option, the installments of
Tenant's Tax Payment shall be
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correspondingly accelerated so that Tenant's Tax Payment or any installment
thereof shall be due and payable by Tenant to Landlord at least thirty (30) days
prior to the date such payment is due to such mortgagee.
(E) Tenant shall not, without Landlord's prior written consent,
institute or maintain any action, proceeding or application in any court or body
or with any governmental authority for the purpose of changing the Taxes.
(F) Landlord's failure to render a Landlord's Statement with
respect to any Escalation Year shall not prejudice Landlord's right to render a
Landlord's Statement with respect to any Escalation Year. The obligation of
Landlord and Tenant under the provisions of this Article with respect to any
additional rent for any Escalation Year shall survive the expiration or any
sooner termination of the Demised Term.
TENANT'S REPAIRS
12. Tenant shall take good care of the Demised Premises and, subject
to the provisions of Article 7 hereof, Landlord at the expense of Tenant, shall
make as and when needed as a result of misuse or neglect by Tenant or Tenant's
servants, employees, agents or licensees, all repairs in and about the Demised
Premises necessary to preserve them in good order and condition. Except as
provided in Article 24 hereof, there shall be no allowance to Tenant for a
diminution of rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord, Tenant or
others making any repairs, alterations, additions or improvements in or to any
portion of the Building or of Demised Premises, or in or to the fixtures,
appurtenances or equipment thereof, and no liability upon Landlord for failure
of Landlord or others to make any repairs, alterations, additions or
improvements in or to any portion of the Building or of the Demised Premises, or
in or to the fixtures, appurtenances or equipment thereof.
FIXTURES & INSTALLATIONS
13. All appurtenances, fixtures, improvements, additions and other
property attached to or built into the Demised Premises, whether by Landlord or
Tenant or others, and whether at Landlord's expense, or Tenant's expense, or the
joint expense of Landlord and Tenant, shall be and remain the property of
Landlord (except for purposes of sales tax which shall remain Tenant's
obligation). All trade fixtures, furniture, furnishings and other articles of
movable personal property owned by Tenant and located within the Premises
(collectively, "Tenant's Property") may be removed from the Premises by Tenant
at any time during the Term. Tenant, before so removing Tenant's Property, shall
establish to Landlord's satisfaction that no structural damage or change will
result from such removal and that Tenant can and promptly will repair and
restore any damage caused by such removal without cost or charge to Landlord.
Any such repair and removal shall itself be deemed an Alteration (as defined in
Article 14 below) within the purview of this lease. Any Tenant's Property for
which Landlord shall have granted any allowance, contribution or credit to
Tenant shall, at Landlord's option, not be so removed. All the outside walls of
the Demised Premises
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including corridor walls and the outside entrance doors to the Demised Premises,
any balconies, terraces or roofs adjacent to the Demised Premises, and any space
in the Demised Premises used for shafts, stacks, pipes, conduits, ducts or other
building facilities, and the use thereof, as well as access thereto in and
through the Demised Premises for the purpose of operation, maintenance,
decoration and repair, are expressly reserved to Landlord, and Landlord does not
convey any rights to Tenant therein. Notwithstanding the foregoing, Tenant shall
enjoy full right of access to the Demised Premises through the public entrances,
public corridors and public areas within the Building.
ALTERATIONS
14. (A) Tenant shall make no alterations, decorations,
installations, additions or improvements, except those installations, additions
and improvements performed as part Landlord's Initial Construction (hereinafter
collectively referred to as "Alterations") in or to the Demised Premises. Tenant
may make written request to Landlord that certain Alterations be made to the
Demised Premises, but all such Alterations shall be performed, if at all, (i) in
the sole and reasonable discretion of Landlord, (ii) by Landlord or its designee
and (iii) at the sole cost and expense of Tenant. Any Alteration to be performed
in, on or to the Demised Premises shall be performed by Landlord (which term as
used in this Article 14 (A) shall be deemed to include Landlord and/or
Landlord's contractor) and Tenant shall pay Landlord for all costs and charges
for such Alteration (including, without limitation, the cost of any drawings,
plans, layouts and/or specifications prepared by Landlord with respect to such
Alteration). Notwithstanding the foregoing, Tenant's installation of its
furniture shall not be deemed an Alteration, provided same is not required to be
wired to the Building electric system.
(B) In the event that Landlord, in its sole and absolute
discretion, permits Tenant to perform specific Alterations in lieu of Landlord
or Landlord's contractor (the "Permitted Alterations"), the following provisions
shall apply:
(i) All Permitted Alterations done by Tenant shall at all
times comply with (a) laws, rules, orders and regulations of governmental
authorities having jurisdiction thereof, and (b) rules and regulations of the
Landlord attached as Schedule D.
(ii) With respect to all Permitted Alterations, plans and
specifications prepared by and at the expense of Tenant shall be submitted to
Landlord for its prior written approval in accordance with the following
requirements:
(a) With respect to any Permitted Alterations to be
performed by Tenant pursuant to this lease, Tenant shall, at its expense,
furnish Landlord with complete architectural, mechanical and electrical
construction documents for work to be performed by Tenant, including, without
limitation, architectural, plumbing, electrical, mechanical and heating,
ventilating and air conditioning plans (the "Tenant's Plans"). All of the
Tenant's Plans shall: (x) be compatible with the Landlord's building plans, (y)
comply with all applicable laws and the rules, regulations,
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requirements and orders of any and all governmental agencies, departments or
bureaus having jurisdiction, and (z) be fully detailed, including locations and
complete dimensions;
(b) Tenant's Plans shall be subject to approval by
Landlord;
(c) Tenant shall, at Tenant's expense, (x) cause
Tenant's Plans to be filed with the governmental agencies having jurisdiction
thereover, (y) obtain when necessary all governmental permits, licenses and
authorizations required for the work to be done in connection therewith, and (z)
obtain all necessary certificates of occupancy, both temporary and permanent.
Landlord shall execute such documents as may be reasonably required in
connection with the foregoing and Landlord shall otherwise cooperate with Tenant
in connection with obtaining the foregoing, but without any expense to Landlord.
Tenant shall make no amendments or additions to Tenant's Plans without the prior
written consent of Landlord in each instance;
(d) No work shall commence in the Premises until (x)
Tenant has procured all necessary permits therefor and has delivered copies of
same to Landlord, (y) Tenant has procured a paid builder's risk insurance policy
naming Landlord as an additional insured and has delivered to Landlord a
certificate of insurance evidencing such policy, and (z) Tenant or its
contractor has procured a workmen's compensation insurance policy covering the
activities of all persons working at the Premises naming Landlord as an
additional insured and has delivered to Landlord a certificate of insurance
evidencing such policy;
(e) Tenant may use any licensed architect or engineer
to prepare its plans and to file for permits. However, all such plans and permit
applications shall be subject to review, revision and approval by Landlord or
its architect;
(f) Tenant, at its expense, shall perform all work in
connection with all Permitted Alterations, in accordance with Tenant's Plans,
and such work shall be subject to Landlord's supervisory fee charge of 10% of
the cost thereof. Notwithstanding the foregoing, the performance of Landlord's
Initial Construction shall not be subject to such supervisory fee. In receiving
such fee, Landlord assumes no responsibility for the quality or manner
(including, without limitation, the means, methods and/or techniques) in which
such work has been performed; and
(g) Tenant agrees that it will not, either directly or
indirectly, use any contractors and/or labor and/or materials if the use of such
contractors and/or labor and/or materials would or will create any difficulty
with other contractors and/or labor engaged by Tenant or Landlord or others in
the construction, maintenance or operation of the Building or any part thereof.
(iii) Tenant's Permitted Alterations shall be subject to the
following additional conditions: (a) the Permitted Alterations will not result
in a violation of, or require a change in, any Certificate of Occupancy
applicable to the Premises or the Building; (b) the outside appearance,
character or use of the Building shall not be affected; (c) no part of the
Building outside
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of the Premises shall be physically affected; (d) the proper functioning of any
air-conditioning, elevator, plumbing, electrical, sanitary, mechanical and other
service or utility system of the Building shall not be affected.
(iv) Tenant shall defend, indemnify and save harmless
Landlord against any and all mechanics' and other liens filed in connection with
its Permitted Alterations, repairs or installations, including the liens of any
conditional sales of, or chattel mortgages upon, any materials, fixtures or
articles so installed in and constituting part of the Premises and against any
loss, cost, liability, claim, damage and expense, including reasonable counsel
fees, penalties and fines incurred in connection with any such lien, conditional
sale or chattel mortgage or any action or proceeding brought thereon. As a
condition precedent to Landlord's consent to the making by Tenant of Permitted
Alterations, Tenant agrees to obtain and deliver to Landlord, written and
unconditional waivers of mechanics' liens for all work, labor and services to be
performed and materials to be furnished, signed by all contractors,
subcontractors, materialmen and laborers to become involved in such work.
(v) Tenant, at its expense, shall procure the satisfaction or
discharge of all such liens within thirty (30) days of the filing of such lien
against the Premises or the Building. If Tenant shall fail to cause such lien to
be discharged within the aforesaid period, then, in addition to any other right
or remedy, Landlord may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, and in any such event Landlord
shall be entitled, if Landlord so elects, to compel the prosecution of an action
for the foreclosure of such lien by the lienor and to pay the amount of the
judgment in favor of the lienor with interest, costs and allowances. Any amount
so paid by Landlord, and all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon at the maximum rate
permitted by law from the respective dates of Landlord's making of the payments
or incurring of the cost and expense, shall constitute additional rent and shall
be paid on demand.
(vi) Nothing in this lease contained shall be construed in
any way as constituting the consent or request of Landlord, expressed or
implied, to any contractor, subcontractor, laborer or materialman for the
performance of any labor or the furnishing of any material for any improvement,
alteration or repair of the Premises, nor as giving any right or authority to
contract for the rendering of any services or the furnishing of any materials
that would give rise to the filing of any mechanics' liens against the Premises.
(C) Tenant shall not be permitted to make, or to engage a
contractor or artist to make, any Alterations, decorations, installations,
additions or other improvements ("Visual Alteration") which may be considered a
work of visual art of any kind, and/or which might fall within the protections
of the Visual Artists Rights Act of 1990 ("VARA") unless:
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(i) Tenant obtains, from each artist and/or contractor who
will be involved in said Visual Alteration, valid written waivers of such
artist's and/or contractor's rights under VARA in form and content reasonably
acceptable to Landlord; and
(ii) Landlord consents to such Visual Alteration in
writing.
In the event that a claim is brought under VARA with respect to any
Visual Alteration performed in or about the Building by or at the request of
Tenant or Tenant's agents or employees, Tenant shall indemnify and hold harmless
Landlord against and from any and all such claims. If any action or proceeding
shall be brought against Landlord by reason of such claim under VARA, Tenant
agrees that Tenant, at its expense, will resist and defend such action or
proceeding and will employ counsel satisfactory to Landlord therefor. Tenant
shall also pay any and all damages sustained by Landlord as a result of such
claim, including, without limitation, attorney's fees and the cost to Landlord
of complying with VARA protections (which shall include damages sustained as a
result of Landlord's inability to remove Visual Alterations from the Premises).
Failure of Tenant to strictly comply with the provisions of this Article 14(C)
shall be deemed a default under this lease, and Landlord shall be entitled to
pursue all appropriate remedies provided herein, as well as at law or in equity.
The provisions of this Article 14 (C) shall survive the expiration or sooner
termination of this lease.
REQUIREMENTS OF LAW
15. (A) Tenant, at Tenant's sole cost and expense, shall comply with
all statutes, laws, ordinances, orders, regulations and notices of Federal,
State, County and Municipal authorities, and with all directions, pursuant to
law, of all public officers, which shall impose any duty upon Landlord or Tenant
with respect to the Demised Premises or the use or occupation thereof, except
that Tenant shall not be required to make any structural alterations in order so
to comply unless such alterations shall be necessitated or occasioned, in whole
or in part, by the acts, omissions, or negligence of Tenant or any person
claiming through or under Tenant or any of their servants, employees,
contractors, agents, visitors or licensees, or by the use or occupancy or manner
of use or occupancy of the Demised Premises by Tenant, or any such person, in
which case such structural alterations shall be made by Landlord at Tenant's
sole cost and expense.
(B) The parties acknowledge that there are certain Federal,
State and local laws, regulations and guidelines now in effect and that
additional laws, regulations and guidelines may hereafter be enacted, relating
to or affecting the Premises, the Building, and the land of which the Premises
and the Building may be a part, concerning the impact on the environment of
construction, land use, the maintenance and operation of structures and the
conduct of business. Tenant will not cause, or permit to be caused, any act or
practice, by negligence, omission, or otherwise, that would adversely affect the
environment or do anything or permit anything to be done that would violate any
of said laws, regulations, or guidelines. Any violation of this covenant shall
be an event of default under this lease.
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(C) Tenant shall keep or cause the Premises to be kept free of
Hazardous Materials (hereinafter defined). Without limiting the foregoing,
Tenant shall not cause or permit the Premises to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer, produce
or process Hazardous Materials, except in compliance with all applicable
Federal, State and Local laws or regulations, nor shall Tenant cause or permit,
as a result of any intentional or unintentional act or omission on the part of
Tenant or any person or entity claiming through or under Tenant or any of their
employees, contractors, agents, visitors or licensees (collectively, "Related
Parties"), a release of Hazardous Materials onto the Premises or onto any other
property. Tenant shall comply with and ensure compliance by all Related Parties
with all applicable Federal, State and Local laws, ordinances, rules and
regulations, whenever and by whomever triggered, and shall obtain and comply
with, and ensure that all Related Parties obtain and comply with, any and all
approvals, registrations or permits required thereunder. With respect to
Hazardous Materials for which Tenant is responsible hereunder, Tenant shall (i)
conduct and complete all investigations, studies, samplings, and testing, and
all remedial removal and other actions necessary to clean up and remove such
Hazardous Materials, on, from, or affecting the Premises (a) in accordance with
all applicable Federal, State and Local laws, ordinances, rules, regulations,
policies, orders and directives, and (b) to the satisfaction of Landlord, and
(ii) defend, indemnify, and hold harmless Landlord, its employees, agents,
officers, and directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs, or expenses of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of, or in any way
related to, (a) the presence, disposal, release, or threatened release of such
Hazardous Materials which are on, from, or affecting the soil, water,
vegetation, buildings, personal property, persons, animals, or otherwise; (b)
any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Materials; (c) any lawsuit
brought or threatened, settlement reached, or government order relating to such
Hazardous Materials; and/or (d) any violation of laws, orders, regulations,
requirements, or demands of government authorities, or any policies or
requirements of Landlord which are based upon or in any way related to such
Hazardous Materials, including, without limitation, attorney and consultant
fees, investigation and laboratory fees, court costs, and litigation expenses.
In the event this lease is terminated, or Tenant is dispossessed, Tenant shall
deliver the Premises to Landlord free of any and all Hazardous Materials so that
the conditions of the Premises shall conform with all applicable Federal, State
and Local laws, ordinances, rules or regulations affecting the Premises. For
purposes of this paragraph, "Hazardous Materials" includes, without limitation,
any flammable explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or related materials defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections 1801 et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Sections 9601, et seq.),
and in the regulations adopted and publications promulgated pursuant thereto, or
any other Federal, State or Local environmental law, ordinance, rule, or
regulation.
(D) Landlord hereby represents and warrants to Tenant that, to
the best of Landlord's knowledge, as of the date hereof, there exist no
Hazardous Materials in or upon the Demised Premises or the common areas of the
Building in violation of applicable law. In the event
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of a breach of the foregoing representation and warranty, Landlord hereby
covenants to remove or encapsulate any such Hazardous Materials, in the manner
required by applicable law.
END OF TERM
16. (A) Upon the expiration or other termination of the Term of this
lease, Tenant shall, at its own expense, quit and surrender to Landlord the
Demised Premises, broom clean, in good order and condition, ordinary wear, tear
and damage by fire or other insured casualty excepted, and Tenant shall remove
all of its personal property and shall pay to Landlord the cost to repair all
damage to the Demised Premises or the Building occasioned by such removal. All
fixtures, and all paneling, partitions, railings, staircases and like
installations, installed in the Demised Premises at any time, either by Tenant
or by Landlord on Tenant's behalf, shall become the property of Landlord and
shall remain upon and be surrendered with the Premises unless Landlord elects to
have such installations (other than painting and carpeting) removed at Tenant's
expense, in which event, the same shall be removed and the Demised Premises
returned to its original condition prior to expiration of the Term hereof, at
Tenant's expense. Notwithstanding the foregoing, in the event Tenant requests
that Landlord notify Tenant whether a particular Alteration must be removed upon
the expiration or sooner termination of this lease, Landlord shall so notify
Tenant simultaneously with Landlord's consent thereto. Any property not removed
from the Premises shall be deemed abandoned by Tenant and may be retained by
Landlord, as its property, or disposed of in any manner deemed appropriate by
the Landlord. Any expense incurred by Landlord in removing or disposing of such
property shall be reimbursed to Landlord by Tenant on demand. Tenant expressly
waives, for itself and for any person claiming through or under Tenant, any
rights which Tenant or any such person may have under the provisions of Section
2201 of the New York Civil Practice Law and Rules and of any successor law of
like import then in force, in connection with any holdover or summary proceeding
which Landlord may institute to enforce the foregoing provisions of this
Article. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of the Term of this lease. If the last day
of the Term of this lease or any renewal hereof falls on Sunday or a legal
holiday, this lease shall expire on the business day immediately preceding.
Tenant's obligations under this Article 16 shall survive the Expiration Date or
sooner termination of this lease.
(B) In the event of any holding over by Tenant after the
expiration or termination of this lease without the consent of Landlord, Tenant
shall:
(i) pay as holdover rental for each month of the holdover
tenancy an amount equal to the greater of (a) the fair market rental value of
the Premises for such month (as reasonably determined by Landlord) or (b) one
hundred and seventy-five x(475%) percent of the Rent payable by Tenant for the
third month prior to the Expiration Date of the term of this lease, and
otherwise observe, fulfill and perform all of its obligations under this lease,
including but not limited to, those pertaining to additional rent, in accordance
with its terms;
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(ii) be liable to Landlord for any payment or rent concession
which Landlord may be required to make to any tenant in order to induce such
tenant not to terminate an executed lease covering all or any portion of the
Premises by reason of the holdover over by Tenant; and
(iii) be liable to Landlord for any damages suffered by
Landlord as the result of Tenant's failure to surrender the Premises.
No holding over by Tenant after the Term shall operate to extend the
Term.
The holdover, with respect to all or any part of the Premises, of a
person deriving an interest in the Premises from or through Tenant, including,
but not limited to, an assignee or subtenant, shall be deemed a holdover by
Tenant.
Notwithstanding anything in this Article contained to the contrary,
the acceptance of any Rent paid by Tenant pursuant to this Paragraph 16(B),
shall not preclude Landlord from commencing and prosecuting a holdover or
eviction action or proceeding or any action or proceeding in the nature thereof.
The preceding sentence shall be deemed to be an "agreement expressly providing
otherwise" within the meaning of Section 232-c of the Real Property Law of the
State of New York and any successor law of like import.
QUIET ENJOYMENT
17. Landlord covenants and agrees with Tenant that upon Tenant
paying the Rent and additional rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the Demised Premises during the Term of this
lease without hindrance or molestation by anyone claiming by or through
Landlord, subject, nevertheless, to the terms, covenants and conditions of this
lease including, but not limited to, Article 22.
SIGNS
18. Tenant shall not place any signs or lettering of any nature on
or in any window or on the exterior of the Building or elsewhere within the
Demised Premises such as will be visible from the street. Tenant shall not place
any sign or lettering in the public corridors or on the doors (except for
Landlord's standard name plaque). Tenant shall have the right to install
Tenant's logo on the angled wall inside the main entrance to the Premises,
subject to Landlord's approval as to form and content, which approval shall not
be unreasonably withheld or delayed).
RULES AND REGULATIONS
19. Tenant and Tenant's agents, employees, visitors, and licensees
shall faithfully observe and comply with, and shall not permit violation of, the
Rules and Regulations set forth on Schedule
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D annexed hereto and made part hereof, and with such further reasonable Rules
and Regulations as Landlord at any time may make and communicate in writing to
Tenant which, in Landlord's judgment, shall be necessary for the reputation,
safety, care and appearance of the Building and the land allocated to it or the
preservation of good order therein, or the operation or maintenance of the
Building, and such land, its equipment, or the more useful occupancy or the
comfort of the tenants or others in the Building. Landlord shall not be liable
to Tenant for the violation of any of said Rules and Regulations, or the breach
of any covenant or condition, in any lease by any other tenant in the Building.
RIGHT TO SUBLET OR ASSIGN
20. (A) Tenant covenants that it shall not assign this lease nor
sublet the Demised Premises or any part thereof by operation of law or
otherwise, including, without limitation, an assignment or subletting as defined
in (D) below, without the prior written consent of Landlord in each instance
(which consent shall not be unreasonably withheld or delayed), except on the
conditions hereinafter stated. Tenant may assign this lease or sublet all or a
portion of the Demised Premises with Landlord's written consent (which consent
shall not be unreasonably withheld or delayed), provided:
(i) That such assignment or sublease is for a use which is in
compliance with this lease and the then existing zoning regulations and the
Certificate of Occupancy;
(ii) That, at the time of such assignment or subletting, there
is no default, beyond any notice and grace period provided herein for the cure
thereof, under the terms of this lease on the Tenant's part;
(iii) That, in the event of an assignment, the assignee shall
assume in writing the performance of all of the terms and obligations of the
within lease;
(iv) That a duplicate original of said assignment or sublease
shall be delivered by certified mail to the Landlord at the address herein set
forth within ten (10) days from the said assignment or sublease and within
ninety (90) days of the date that Tenant first advises Landlord of the name and
address of the proposed subtenant or assignee, as required pursuant to
subparagraph (B) hereof;
(v) Such assignment or subletting shall not, however, release
the within Tenant or any successor tenant or any guarantor from their liability
for the full and faithful performance of all of the terms and conditions of this
lease;
(vi) If this lease be assigned, or if the Demised Premises or
any part thereof be underlet or occupied by anybody other than Tenant, Landlord
may after default by Tenant collect rent from the assignee, undertenant or
occupant, and apply the net amount collected to the rent herein reserved; and
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(vii) That, in the event Tenant shall request Landlord's consent
to a proposed assignment of this lease or proposed sublease of all or a portion
of the Demised Premises, Tenant shall pay or reimburse to Landlord the
reasonable attorney fees incurred by Landlord in processing such request.
(B) Notwithstanding anything contained in this Article 20 to the
contrary, no assignment or underletting, except an assignment or underletting
made pursuant to the provisions of Article 20(C) below, shall be made by Tenant
in any event until Tenant has offered to terminate this lease as of the last day
of any calendar month during the Term hereof and to vacate and surrender the
Demised Premises to Landlord on the date fixed in the notice served by Tenant
upon Landlord (which date shall be prior to the date of such proposed assignment
or the commencement date of such proposed lease). Simultaneously with said offer
to terminate this lease, Tenant shall advise the Landlord, in writing, of the
name and address of the proposed assignee or subtenant, a reasonably detailed
statement of the proposed subtenant/assignee's business (which must be of a
character and use consistent with other tenants in the Building), reasonably
detailed financial references, and all the terms, covenants, and conditions of
the proposed sublease or assignment.
(C) Tenant may, without the consent of Landlord, assign this lease
to an affiliated (i.e., a corporation 20% or more of whose capital stock is
owned by the same stockholders owning 20% or more of Tenant's capital stock),
parent or subsidiary corporation of Tenant or to a corporation to which it sells
or assigns all or substantially all of its assets or stock or with which it may
be consolidated or merged (herein referred to as a "Tenant Affiliate"), provided
such purchasing, consolidated, merged, affiliated or subsidiary corporation
shall, in writing, assume and agree to perform all of the obligations of Tenant
under this lease and it shall deliver such assumption with a copy of such
assignment to Landlord within ten (10) days thereafter, and provided further
than Tenant shall not be released or discharged from any liability under this
lease by reason of such assignment.
(D) For purposes of this Article 20, (i) the transfer of a majority
of the issued and outstanding capital stock of any corporate tenant, or of a
corporate subtenant, or the transfer of a majority of the total interest in any
partnership tenant or subtenant, however accomplished, whether in a single
transaction or in a series of related or unrelated transactions, shall be deemed
an assignment of this lease, or of such sublease, as the case may be; (ii) any
person or legal representative of Tenant, to whom Tenant's interest under this
lease passes by operation of law or otherwise, shall be bound by the provisions
of this Article 20; and (iii) a modification or amendment of a sublease shall be
deemed a sublease.
(E) Whenever Tenant shall claim under this Article or any other part
of this lease that Landlord has unreasonably withheld or delayed its consent to
some request of Tenant, Tenant shall have no claim for damages by reason of such
alleged withholding or delay, and Tenant's sole remedy thereof shall be a right
to obtain specific performance or injunction but in no event with recovery of
damages. Tenant shall have the right, in the event Landlord has withheld its
consent to an assignment or subletting, to elect to submit its claim that
Landlord has unreasonably withheld or delayed its
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consent to a sublease or assignment in violation of the terms hereof to
expedited arbitration. Such arbitration will be governed by the laws of the
State of New York and, when not in conflict with such law, by the general
procedures'in the commercial arbitration rules of the American Arbitration
Association. The arbitrator shall be limited to deciding the sole issue of
whether Landlord has unreasonably withheld or delayed its consent to the subject
assignment or subletting and in no event shall the arbitrator be empowered to
award Tenant damages.
(F) Tenant shall not mortgage, pledge, hypothecate or otherwise
encumber its interest under this lease without Landlord's prior written consent.
(G) Notwithstanding anything contained in this Article 20 to the
contrary, no assignment or underletting shall be made by Tenant to any brokerage
firm.
(H) Without affecting any of its other obligations under this lease,
except with respect to any permitted assignment or subletting under Article
20(C) hereof, Tenant will pay Landlord as additional rent one half of any sums
or other economic consideration, which (i) are due and payable to Tenant as a
result of any permitted assignment or subletting whether or not referred to as
rentals under the assignment or sublease (after deducting therefrom the
reasonable costs and expenses incurred by Tenant in connection with the
assignment or subletting in question provided such costs were approved by
Landlord when it approved the assignment or sublease); and (ii) exceed in total
the sums which Tenant is obligated to pay Landlord under this lease (prorated to
reflect obligations allocable to that portion of the Demised Premises subject to
such assignment or sublease), it being the express intention of the parties that
Landlord and Tenant shall share equally in any profit by reason of such sublease
or assignment. The failure or inability of the assignee or subtenant to pay rent
pursuant to the assignment or sublease will not relieve Tenant from its
obligations to Landlord under this Article 20(H). Tenant will not amend the
assignment or sublease in such a way as to reduce or delay payment of amounts
which are provided in the assignment or sublease approved by Landlord.
(I) Landlord agrees that it shall not unreasonably withhold its
consent to a subletting or assignment in accordance with the terms of this
Article 20. In determining reasonableness, there shall be taken into account the
character and reputation of the proposed subtenant or assignee, the specific
nature of the proposed subtenant's or assignee's business and whether same is in
keeping with other tenancies in the building; the financial standing of the
proposed subtenant or assignee; and the impact of all of the foregoing upon the
Building and the other tenants of Landlord therein. Landlord shall not be deemed
to have unreasonably withheld its consent if it refuses to consent to a
subletting or assignment to an existing tenant in any building which is owned by
Landlord or its affiliate or to a proposed subtenant or assignee with whom
Landlord is negotiating a lease or if at the time of Tenant's request, Tenant is
in default, beyond applicable grace and notice periods provided herein for the
cure thereof, of any of the terms, covenants and conditions of this lease to be
performed by Tenant. At least thirty (30) days prior to any proposed subletting
or assignment, Tenant shall submit to Landlord a written notice of the proposed
subletting or assignment, which notice shall contain or be accompanied by the
following information:
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(i) the name and address of the proposed subtenant or assignee;
(ii) the nature and character of the business of the proposed
subtenant or assignee and its proposed use of the premises to be demised;
(iii) the most recent three (3) years of balance sheets and profit
and loss statements of the proposed subtenant or assignee or other financial
information satisfactory to Landlord; and
(iv) such shall be accompanied by a copy of the proposed sublease or
assignment of lease (which agreement need not be forwarded in executed form).
Without limiting the right of Landlord to withhold its consent to any proposed
assignment of this lease or subletting of all or any portion of the Demised
Premises, Tenant specifically acknowledges and agrees that it and anyone holding
through Tenant shall not sublet or assign all or any portion of the Demised
Premises to any subtenant or assignee who will use the Demised Premises or a
portion thereof for any of the following designated uses nor for any other use
which is substantially similar to any one of the following designated uses:
(i) federal, state or local governmental division, department or
agency which generates heavy public traffic, including, without limitation,
court, social security offices, labor department office, drug enforcement
agency, motor vehicle agency, postal service, military recruitment office;
(ii) union or labor organization;
(iii) office for the practice of medicine, dentistry or the
rendering of other health related services;
(iv) chemical or pharmaceutical company, provided, however, that the
subletting or assignment to such a company which will use the premises only for
executive, general and sales offices and waive the right to conduct any research
and development shall not be prohibited;
(v) insurance claims office, including, but not limited to,
unemployment insurance or worker's compensation insurance; or
(vi) brokerage firm.
LANDLORD'S ACCESS TO PREMISES
21. (A) Landlord or Landlord's agents shall have the right to enter
and/or pass through the Demised Premises at all reasonable times on reasonable
notice, except in an emergency, to examine the same, and to show them to ground
lessors, prospective purchasers or lessees or mortgagees of the Building, and to
make such repairs, improvements or additions as Landlord may deem necessary or
desirable, and Landlord shall be allowed to take all material into and upon
and/or through said Demised Premises that may be required therefor. During the
twelve (12) months prior
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to the expiration of the Term of this lease, or any renewal term, Landlord may
exhibit the Demised Premises to prospective tenants or purchasers at all
reasonable hours and without unreasonably interfering with Tenant's business. If
Tenant shall not be personally present to open and permit an entry into said
premises at any time, when for any reason an entry therein shall be necessary or
permissible, Landlord or Landlord's agents may enter the same by a master key,
or forcibly, without rendering Landlord or such agent liable therefor (if during
such entry Landlord or Landlord's agents shall accord reasonable care to
Tenant's property).
(B) Landlord shall also have the right, at any time, to change
the arrangement and/or location of entrances or passageways, doors and doorways,
and corridors, elevators, stairs, toilets, or other public parts of the
Building, provided, however, that Landlord shall make no change in the
arrangement and/or location of entrances or passageways or other public parts of
the Building which will adversely affect in any material manner Tenant's use and
enjoyment of the Demised Premises. Landlord shall also have the right, at any
time, to name the Building, including, but not limited to, the use of
appropriate signs and/or lettering on any or all entrances to the Building, and
to change the name, number or designation by which the Building is commonly
known.
(C) Neither this lease nor any use by Tenant shall give Tenant
any right or easement to the use of any door or passage or concourse connecting
with any other building or to any public conveniences, and the use of such doors
and passages and concourse and of such conveniences may be regulated and/or
discontinued at any time and from time to time by Landlord without notice to
Tenant.
(D) The exercise by Landlord or its agents of any right reserved
to Landlord in this Article shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations under this lease, or
impose any liability upon Landlord, or its agents, or upon any lessor under any
ground or underlying lease, by reason of inconvenience or annoyance to Tenant,
or injury to or interruption of Tenant's business, or otherwise.
SUBORDINATION
22. (A) This lease and all rights of Tenant hereunder are, and shall
be, subject and subordinate in all respects to all ground leases and/or
underlying leases and to all mortgages and building loan agreements which may
now or hereafter be placed on or affect such leases and/or the Real Property of
which the Demised Premises form a part, or any part or parts of such Real
Property, and/or Landlord's interest or estate therein, and to each advance made
and/or hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor. This Section A shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute and deliver promptly any certificate that
Landlord and/or any mortgagee and/or the lessor under any ground or underlying
lease and/or their respective successors in interest may request.
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(B) Without limitation of any of the provisions of this lease,
in the event that any mortgagee or its assigns shall succeed to the interest of
Landlord or of any successor-Landlord and/or shall have become lessee under a
new ground or underlying lease, then, at the option of such mortgagee, this
lease shall nevertheless continue in full force and effect and Tenant shall and
does hereby agree to attorn to such mortgagee or its assigns and to recognize
such mortgagee or its respective assigns as its Landlord.
(C) Tenant shall, at any time and from time to time, upon not
less than five (5) days prior notice by Landlord, execute, acknowledge and
deliver to Landlord a statement in writing certifying that this lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modification) and the dates to which the Rent, additional rent and other charges
have been paid in advance, if any, and stating whether or not to the best
knowledge of the signer of such certificate Landlord is in default in
performance of any covenant, agreement, term, provision or condition contained
in this lease, and if so, specifying each such default of which the signer may
have knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by any prospective purchaser or lessee of said real
property or any interest or estate therein, any mortgagee or prospective
mortgagee thereof, or any prospective assignee of any mortgage thereof. If, in
connection with obtaining financing for the Building and the land allocated to
it, a banking, insurance or other recognized institutional lender shall request
reasonable modifications in this lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or defer its consent thereof, provided
that such modifications do not increase the obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created. If, in
connection with such financing, such institutional lender shall require
financial audited information on the Tenant, Tenant shall promptly comply with
such request.
(D) The Tenant covenants and agrees that if by reason of a
default under any underlying lease (including an underlying lease through which
the Landlord derives its leasehold estate in the premises), such underlying
lease and the leasehold estate of the Landlord in the premises demised hereby is
terminated, providing notice has been given to the Tenant and leasehold
mortgagee, the Tenant will attorn to the then holder of the reversionary
interest in the premises demised by this lease or to anyone who shall succeed to
the interest of the Landlord or to the lessee of a new underlying lease entered
into pursuant to the provisions of such underlying lease, and will recognize
such holder and/or such lessee as the Tenant's landlord of this lease. The
Tenant agrees to execute and deliver, at any time and from time to time, upon
the request of the Landlord or of the lessor under any such underlying lease,
any instrument which may be necessary or appropriate to evidence such
attornment. The Tenant further waives the provision of any statute or rule of
law now or hereafter in effect which may give or purport to give the Tenant any
right of election to terminate this lease or to surrender possession of the
premises hereby in the event any proceeding is brought by the lessor under any
underlying lease to terminate the same, and agrees that unless and until any
such lessor, in connection with any such proceeding, shall elect to terminate
this lease and the rights of the Tenant hereunder, this lease shall not be
affected in any way whatsoever by any such proceeding.
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PROPERTY LOSS, DAMAGE REIMBURSEMENT
23. (A) Landlord or its agents shall not be liable for any damages
to property of Tenant or of others entrusted to employees of the Building, nor
for the loss of or damage to any property of Tenant by theft or otherwise.
Landlord or its agents shall not be liable for any injury or damage to persons
or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, electrical disturbance, water, rain or snow or leaks from any part
of the Building or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatsoever nature, unless caused by or due to the negligence of
Landlord, its agents, servants or employees; nor shall Landlord or its agents be
liable for any such damage caused by other tenants or persons in the Building or
caused by operations in construction of any private, public or quasipublic work;
nor shall Landlord be liable for any latent defect in the Demised Premises or in
the Building. If at any time any windows of the Demised Premises are temporarily
closed or darkened incident to or for the purpose of repairs, replacements,
maintenance and/or cleaning in, on, to or about the Building or any part or
parts thereof, Landlord shall not be liable for any damage Tenant may sustain
thereby and Tenant shall not be entitled to any compensation therefor nor
abatement of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall reimburse and compensate
Landlord as additional rent for all expenditures (including, without limitation,
reasonable attorneys' fees) made by, or damages or fines sustained or incurred
by, Landlord due to non-performance or non-compliance with or breach or failure
to observe any term, covenant or condition of this lease upon Tenant's part to
be kept, observed, performed or complied with. Tenant shall give immediate
notice to Landlord in case of fire or accidents in the Demised Premises or in
the Building or of defects therein or in any fixtures or equipment.
TENANT'S INDEMNITY
(B) Tenant shall indemnify and save harmless Landlord against
and from any and all claims by or on behalf of any person or persons, firm or
firms, corporation or corporations (including Landlord) arising from the conduct
or management of or from any work or other thing whatsoever done (other than by
Landlord or its contractors or the agents or employees of either) in and on the
Demised Premises during any period of occupancy by Tenant including, without
limitation, the Term of this lease and during the period of time, if any, prior
to the specified commencement date that Tenant may have been given access to the
Demised Premises for the purpose of making installations, and will further
indemnify and save harmless Landlord against and from any and all claims or
losses arising from any condition of the Demised Premises or Tenant's occupancy
thereof due to or arising from any act or omissions or negligence of Tenant or
any of its agents, contractors, servants, employees, licensees or invitees and
against and from all costs, expenses, and liabilities incurred in connection
with any such claim or loss or action or proceeding brought thereon (including
reasonable attorney fees and costs); and in case any action or proceeding be
brought against Landlord by reason of any such claim or loss, Tenant, upon
notice from Landlord, agrees that Tenant, at Tenant's expense, will resist or
defend such action or proceeding and will employ counsel therefor reasonably
satisfactory to Landlord.
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DESTRUCTION - FIRE OR OTHER CASUALTY
24. (A) If the Premises or any part thereof shall be damaged by fire
or other casualty and Tenant gives prompt notice thereof to Landlord, Landlord
shall proceed with reasonable diligence to repair or cause to be repaired such
damage. The Rent shall be abated to the extent that the Premises shall have been
rendered untenantable, such abatement to be from the date of such damage or
destruction to the date the Premises shall be substantially repaired or rebuilt,
in proportion which the area of the part of the Premises so rendered
untenantable bears to the total area of the Premises.
(B) If the Premises shall be totally damaged or rendered wholly
untenantable by fire or other casualty, and Landlord has not terminated this
lease pursuant to Subsection (C) and Landlord has not completed the making of
the required repairs and restored and rebuilt the Premises and/or access thereto
within twelve (12) months from the date of such damage or destruction, and such
additional time after such date (but in no event to exceed six (6) months) as
shall equal the aggregate period Landlord may have been delayed in doing so by
unavoidable delays or adjustment of insurance, Tenant may serve notice on
Landlord of its intention to terminate this lease, and, if within thirty (30)
days thereafter Landlord shall not have completed the making of the required
repairs and restored and rebuilt the Premises, this lease shall terminate on the
expiration of such thirty (30) day period as if such termination date were the
Expiration Date, and the Rent and additional rent shall be apportioned as of
such date and any prepaid portion of Rent and additional rent for any period
after such date shall be refunded by Landlord to Tenant.
(C) If the Premises shall be totally damaged or rendered wholly
untenantable by fire or other casualty or if the Building shall be so damaged by
fire or other casualty that substantial alteration or reconstruction of the
Building shall, in Landlord's opinion, be required (whether or not the Premises
shall have been damaged by such fire or other casualty), hen in any of such
events Landlord may, at its option, terminate this lease and the Term and estate
hereby granted, by giving Tenant thirty (30) days notice of such termination
within 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 Rent and additional rent shall be apportioned
as of such date or sooner termination and any prepaid portion of Rent and
additional rent for any period after such date shall be refunded by Landlord to
Tenant.
(D) Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage by fire or other casualty or the repair thereof. Landlord will
not carry insurance of any kind on Tenant's property, and Landlord shall not be
obligated to repair any damage thereto or replace the same.
(E) This lease shall be considered an express agreement
governing any case of damage to or destruction of the Building or any part
thereof by fire or other casualty, and Section 227
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of the Real Property Law of the State of New York providing for such a
contingency in the absence of such express agreement, and any other law of like
import now or hereafter enacted, shall have no application in such case.
INSURANCE
25. (A) Tenant shall not do anything, or suffer or permit anything
to be done, in or about the Premises which shall (i) invalidate or be in
conflict with the provisions of any fire or other insurance policies covering
the Building or any property located therein, or (ii) result in a refusal by
fire insurance companies of good standing to insure the Building or any such
property in amounts reasonably satisfactory to Landlord, or (iii) subject
Landlord to any liability or responsibility for injury to any person or property
by reason of any activity being conducted in the Premises or (iv) cause any
increase in the fire insurance rates applicable to the Building or equipment or
other property located therein at the beginning of the Term or at any time
thereafter. Tenant, at Tenant's expense, shall comply with all rules, orders,
regulations or requirements of the New York Board of Fire Underwriters and the
New York Fire Insurance Rating Organization or any similar body.
(B) If, by reason of any act or omission on the part of Tenant,
the rate of fire insurance with extended coverage on the Building or equipment
or other property of Landlord or any other tenant or occupant of the Building
shall be higher than it otherwise would be, Tenant shall reimburse Landlord and
all such other tenants or occupants, on demand, for the part of the premiums for
fire insurance and extended coverage paid by Landlord and such other tenants or
occupants because of such act or omission on the part of Tenant.
(C) In the event that any dispute should arise between Landlord
and Tenant concerning insurance rates, a schedule or make up of insurance rates
for the Building or the Premises, as the case may be, issued by the New York
Fire Insurance Rating Organization or other similar body making rates for fire
insurance and extended coverage for the Premises concerned, shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates with extended coverage then applicable to such Premises.
(D) Tenant shall obtain and keep in full force and effect during
the Term, at its own cost and expense, (i) General Comprehensive Commercial
Liability Insurance, such insurance to afford protection in an amount of not
les's than Three Million ($3,000,000) Dollars combined single limit coverage for
injury, death and property damage arising out of any one occurrence, protecting
Landlord and Tenant as insureds against any and all claims for personal injury,
death or property damage and (ii) Fire and Extended Coverage Insurance on
Tenant's property, insuring against damage by fire, and such other risks and
hazards as are insurable under present and future standard forms of fire and
extended coverage insurance policies, to Tenant's property for the full
insurable value thereof, protecting Landlord and Tenant as insureds.
(E) Said insurance is to be written in form and substance
satisfactory to Landlord by a good and solvent insurance company of recognized
standing, admitted to do business in the
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State of New York, which shall be reasonably satisfactory to Landlord. Tenant
shall procure, maintain and place such insurance and pay all premiums and
charges therefor and upon failure to do so Landlord may, but shall not be
obligated to, procure, maintain and place such insurance or make such payments,
and in such event the Tenant agrees to pay the amount thereof, plus interest at
the maximum rate permitted by law, to Landlord on demand and said sum shall be
in each instance collectible as additional rent on the first day of the month
following the date of payment by Landlord. Tenant shall cause to be included in
all such insurance policies a provision to the effect that the same will be
non-cancelable except upon twenty (20) days written notice to Landlord. The
original insurance policies or appropriate certificates shall be deposited with
Landlord on or prior to the commencement of the Term hereof. Any renewals,
replacements or endorsements thereto shall also be deposited with Landlord to
the end that said insurance shall be in full force and effect during the Term.
(F) Each party agrees to use its best efforts to include in each
of its insurance policies (insuring the Building and Landlord's property
therein, in the case of Landlord, and insuring Tenant's property, in the case of
Tenant, against loss, damage or destruction by fire or other casualty) a waiver
of the insurer's right of subrogation against the other party, or if such waiver
should be unobtainable or unenforceable (i) an express agreement that such
policy shall not be invalidated if the insured waives or has waived before the
casualty, the right of recovery against any party responsible for a casualty
covered by the policy, or (ii) any other form of permission for the release of
the other party, or (iii) the inclusion of the other party as an additional
insured, but not a party to whom any loss shall be payable. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable without
additional charge or at all, the insured party shall so notify the other party
promptly after learning thereof. In such case, if the other party shall agree in
writing to pay the insurer's additional charge therefor, such waiver, agreement
or permission shall be included in the policy, or the other party shall be named
as an additional insured in the policy, but not a party to whom any loss shall
be payable. Each such policy which shall so name a party hereto as an additional
insured, shall contain, if obtainable, agreements by the insurer that the policy
will not be canceled without at least twenty (20) days prior notice to both
insureds and that the act or omission of one insured will not invalidate the
policy as to the other insured.
(G) As long as Landlord's fire insurance policies then in force
include the waiver of subrogation or agreement or permission to release
liability referred to in Subsection (F) or name the Tenant as an additional
insured, Landlord hereby waives (i) any obligation on the part of Tenant to make
repairs to the Premises necessitated or occasioned by fire or other casualty
that is an insured risk under such policies, and (ii) any right of recovery
against Tenant, any other permitted occupant of the Premises, and any of their
servants, employees, agents or contractors, for any loss occasioned by fire or
other casualty that is an insured risk under such policies. In the event that at
any time Landlord's fire insurance carriers shall not include such or similar
provisions in Landlord's fire insurance policies, the waivers set forth in the
foregoing sentence shall be deemed of no further force or effect.
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(H) As long as Tenant's fire insurance policies then in force
include the waiver of subrogation or agreement or permission to release
liability referred to in Subsection (F), or name the Landlord as an additional
insured, Tenant hereby waives (and agrees to cause any other permitted occupants
of the Premises to execute and deliver to Landlord written instruments waiving)
any right of recovery against Landlord, any other tenants or occupants of the
Building, and any servants, employees, agents or contractors of Landlord or of
any such other tenants or occupants, for any loss occasioned by fire or other
casualty which is an insured risk under such policies. In the event that at any
time Tenant's fire insurance carriers shall not include such or similar
provisions in Tenant's fire insurance policies, the waiver set forth in the
foregoing sentence shall, upon notice given by Tenant to Landlord, be deemed of
no further force or effect with respect to any insured risks under such policy
from and after the giving of such notice. During any period while the foregoing
waiver of right of recovery is in effect, Tenant, or any other permitted
occupant of the Premises, as the case may be, shall look solely to the proceeds
of such policies to compensate Tenant or such other permitted occupant for any
loss occasioned by fire or other casualty which is an insured risk under such
policies.
EMINENT DOMAIN
26. (A) In the event that the whole of the Demised Premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this lease and the Term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part of
the Demised Premises shall be so condemned or taken, then effective as of the
date of vesting of title, the Rent hereunder shall be abated in an amount
thereof apportioned according to the area of the Demised Premises so condemned
or taken. In the event that only a part of the Building shall be so condemned or
taken, then (i) Landlord (whether or not the Demised Premises be affected) may,
at its option, terminate this lease and the Term and estate hereby granted as of
the date of such vesting of title by notifying Tenant in writing of such
termination within sixty (60) days following the date on which Landlord shall
have received notice of vesting of title, and (ii) if such condemnation or
taking shall be of a substantial part of the Demised Premises or a substantial
part of the means of access thereto, Tenant shall have the right, by delivery of
notice in writing to Landlord within sixty (60) days following the date on which
Tenant shall have received notice of vesting of title, to terminate this lease
and the Term and estate hereby granted as of the date of vesting of title, or
(iii) if neither Landlord nor Tenant elects to terminate this lease, as
aforesaid, this lease shall be and remain unaffected by such condemnation or
taking, except that the Rent shall be abated to the extent, if any, hereinabove
provided in this Article 26. In the event that only a part of the Demised
Premises shall be so condemned or taken and this lease and the Term and estate
hereby granted are not terminated as hereinbefore provided, Landlord will, at
its expense, restore the remaining portion of the Demised Premises as nearly as
practicable to the same condition as it was in prior to such condemnation or
taking.
(B) In the event of a termination in any of the cases
hereinabove provided, this lease and the Term and estate granted shall expire as
of the date of such termination with the same
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effect as if that were the date hereinbefore set for the expiration of the Term
of this lease, and the Rent hereunder shall be apportioned as of such date.
(C) In the event of any condemnation or taking hereinabove
mentioned of all or part of the Building, Landlord shall be entitled to receive
the entire award in the condemnation proceeding, including any award made for
the value of the estate vested by this lease in Tenant, and Tenant hereby
expressly assigns to Landlord any and all right, title and interest of Tenant
now or hereafter arising in or to any such award or any part thereof, and Tenant
shall be entitled to receive no part of such award, except that the Tenant may
file a claim for any taking of nonmovable fixtures owned by Tenant and for
moving expenses incurred by Tenant. It is expressly understood and agreed that
the provisions of this Article 26 shall not be applicable to any condemnation or
taking for governmental occupancy for a limited period.
NONLIABILITY OF LANDLORD
27. (A) If Landlord or a successor in interest is an individual
(which term as used herein includes aggregates of individuals, such as joint
ventures, general or limited partnerships or associations), such individual
shall be under no personal liability with respect to any of the provisions of
this lease, and if such individual hereto is in breach or default with respect
to its obligations under this lease, Tenant shall look solely to the equity of
such individual in the land and Building of which the Demised Premises form a
part for the satisfaction of Tenant's remedies and in no event shall Tenant
attempt to secure any personal judgment against any such individual or any
partner, employee or agent of Landlord by reason of such default by Landlord.
(B) The word "Landlord" as used herein means only the owner of
the landlord's interest for the time being in the land and Building (or the
owners of a lease of the Building or of the land and Building) of which the
Premises form a part, and in the event of any sale of the Building and land of
which the Demised Premises form a part, Landlord shall be and hereby is entirely
freed and relieved of all covenants and obligations of Landlord hereunder and,
it shall be deemed and construed without further agreement between the parties
or between the parties and the purchaser of the Premises, that such purchaser
has assumed and agreed to carry out any and all covenants and obligations of
Landlord hereunder.
DEFAULT
28. (A) Upon the occurrence, at any time prior to or during the
Demised Term, of any one or more of the following events (referred to as "Events
of Default"):
(i) If Tenant shall default in the payment when due of any
installment of Rent or in the payment when due of any additional rent, and such
default shall continue for a period of seven (7) days after notice by Landlord
to Tenant of such default; or
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(ii) If Tenant shall default in the observance or performance of
any term, covenant or condition of this lease on Tenant's part to be observed or
performed (other than the covenants for the payment of Rent and additional rent)
and Tenant shall fail to remedy such default within ten (10) days after notice
by Landlord to Tenant of such default, or if such default is of such a nature
that it cannot be completely remedied within said period of ten (10) days and
Tenant shall not commence within said period of ten (10) days, or shall not
thereafter diligently prosecute to completion, all steps necessary to remedy
such default; or
(iii) If Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or become insolvent, or shall
file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future federal bankruptcy code or any other present or future
applicable federal, state or other statute or law, or shall make an assignment
for the benefit of creditors or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all or any
part of Tenant's property; or
(iv) If, within sixty (60) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or otherwise,
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
code or any other present or future applicable federal, state or other statute
or law, such proceedings shall not have been dismissed, or if, within sixty (60)
days after the appointment or any trustee, receiver or liquidator of Tenant, or
of all or any part of Tenant's property, such appointment shall not have been
vacated or otherwise discharged, or if any execution or attachment shall be
issued against Tenant or any of Tenant's property pursuant to which the Demised
Premises shall be taken or occupied or attempted to be taken or occupied; or
(v) If Tenant shall default in the observance or performance of
any term, covenant or condition on Tenant's part to be observed or performed
under any other lease with Landlord of space in the Building and such default
shall continue beyond any grace period set forth in such other lease for the
remedying of such default; or
(vi) If the Demised Premises shall become vacant, deserted or
abandoned for a period of ten (10) consecutive days and Tenant fails to continue
to (i) make all payments of Rent and additional rent due hereunder, and (ii)
operate the lighting and heating, ventilating and air conditioning systems in
the Demised Premises during Working Hours; or
(vii) If Tenant's interest in this lease shall devolve upon or
pass to any person, whether by operation of law or otherwise, except as
expressly permitted under Article 20;
then, upon the occurrence, at anytime prior to or during the
Demised Term, of any one or more of such Events of Default, Landlord, at any
time thereafter, at Landlord's option, may give to Tenant a five (5) days'
notice of termination of this lease and, in the event such notice is given, this
lease and the Term shall come to an end and expire (whether or not said term
shall have
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commenced) upon the expiration of said five (5) days with the same effect as if
the date of expiration of said five (5) days were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 30.
(B) If, at any time (i) Tenant shall be comprised of two (2) or
more persons, or (ii) Tenant's obligations under this lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
lease shall have been assigned, the word "Tenant", as used in subsection (iii)
and (iv) of Section 28 (A), shall be deemed to mean any one or more of the
persons primarily or secondarily liable for Tenant's obligations under this
lease. Any monies received by Landlord from or on behalf of Tenant during the
pendency of any proceeding of the types referred to in said subsections (iii)
and (iv) shall be deemed paid as compensation for the use and occupation of the
Demised Premises and the acceptance of such compensation by Landlord shall not
be deemed an acceptance of Rent or a waiver on the part of Landlord of any
rights under Section 28(A).
TERMINATION ON DEFAULT
29. (A) If Tenant shall default in the payment when due of any
installment of rent or in the payment when due of any additional rent and such
default shall continue for a period of five (5) days after notice by Landlord to
Tenant of such default, or if this lease and the Demised Term shall expire and
come to an end as provided in Article 28:
(i) Landlord and its agents and servants may immediately, or at
any time after such default or after the date upon which this lease and the
Demised Term shall expire and come to an end, re-enter the Demised Premises or
any part thereof, without notice, either by summary proceedings or by any other
applicable action or proceeding, or by force or other means provided such force
or other means are lawful (without being liable to indictment, prosecution or
damages therefor), and may repossess the Demised Premises and dispossess Tenant
and any other persons from the Demised Premises and remove any and all of their
property and effects from the Demised Premises; and
(ii) Landlord, at Landlord's option, may relet the whole or any
part or parts of the Demised Premises from time to time, either in the name of
Landlord or otherwise, to such tenant or tenants, for such term or terms ending
before, on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, may determine. Landlord shall have no
obligation to relet the Demised Premises or any part thereof and shall in no
event be liable for refusal or failure to relet the Demised Premises or any part
thereof, or, in the event of any such reletting, for refusal or failure to
collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this lease or otherwise
to affect any such liability; Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Demised Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this lease or otherwise affecting any such liability.
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(B) Tenant, on its own behalf and on behalf of all persons claiming
through or under Tenant, including all creditors, does hereby waive any and all
rights which Tenant and all such persons might otherwise have under any present
or future law to redeem the Demised Premises, or to re-enter or repossess the
Demised Premises, or to restore the operation of this lease, after (i) Tenant
shall have been dispossessed by a judgment or by warrant of any court or judge,
or (ii) any re-entry by Landlord, or (iii) any expiration or termination of this
lease and the Demised Term, whether such dispossess, re-entry, expiration or
termination shall be by operation of law or pursuant to the provisions of this
lease. In the event of a breach or threatened breach by Tenant or any persons
claiming through or under Tenant, of any term, covenant or condition of this
lease on Tenant's part to be observed or performed, Landlord shall have the
right to enjoin such breach and the right to invoke any other remedy allowed by
law or in equity as if re-entry, summary proceeding and other special remedies
were not provided in this lease for such breach. The rights to invoke the
remedies hereinbefore set forth are cumulative and shall not preclude Landlord
from invoking any other remedy allowed at law or in equity.
DAMAGES
30. (A) If this lease and the Demised Term shall expire and come to
an end as provided in Article 28 or by or under any summary proceeding or any
other action or proceeding, or if Landlord shall re-enter the Demised Premises
as provided in Article 29 or by or under any summary proceedings or any other
action or proceeding, then, in any of said events:
(i) Tenant shall pay to Landlord all Rent, additional rent and
other charges payable under this lease by Tenant to Landlord to the date upon
which this lease and the Demised Term shall have expired and come to an end or
to the date of re-entry upon the Demised Premises by Landlord, as the case may
be; and
(ii) Tenant shall also be liable for and shall pay to Landlord,
as damages, any deficiency (referred to as "Deficiency") between the Rent and
additional rent reserved in this lease for the period which otherwise would have
constituted the unexpired portion of the Demised Term and the net amount, if
any, of rents collected under any reletting effected pursuant to the provisions
of Section 29(A) for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's expenses in connection with
the termination of this lease or Landlord's reentry upon the Demised Premises
and with such reletting including, but not limited to, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees, alteration costs and
other expenses of preparing the Demised Premises for such reletting). Any such
Deficiency shall be paid in monthly installments by Tenant on the days specified
in this lease for payment of installments of Rent. Landlord shall be entitled to
recover from Tenant each monthly Deficiency as the same shall arise, and no suit
to collect the amount of the Deficiency for any month shall prejudice Landlord's
rights to collect the Deficiency for any subsequent month by a similar
proceeding; and
(iii) At any time after the Demised Term shall have expired and
come to an end or Landlord shall have re-entered upon the Demised Premises, as
the case may be, whether or not
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Landlord shall have collected any monthly Deficiencies as aforesaid, Landlord
shall be entitled to recover from Tenant, and Tenant shall pay to Landlord, on
demand, as and for liquidated and agreed final damages, a sum equal to the
amount by which the Rent and additional rent reserved in this lease for the
period which otherwise would have constituted the unexpired portion of the
Demised Term exceeds the then fair and reasonable rental value of the Demised
Premises for the same period, both discounted to present worth at the rate of
four (40) per cent per annum. If, before presentation of proof of such
liquidated damages to any court, commission, or tribunal, the Demised Premises,
or any part thereof, shall have been relet by Landlord for the period which
otherwise would have constituted the unexpired portion of the Demised Term, or
any part thereof, the amount of Rent reserved upon such reletting shall be
deemed, prima facie, to be the fair and reasonable rental value for the part or
the whole of the Demised Premises so relet during the term of the reletting.
(B) If the Demised Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved under
any such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Article 30. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the rent reserved in this lease. Solely for the purposes
of this Article, the term "Rent" as used in Section 30(A) shall mean the rent in
effect immediately prior to the date upon which this lease and the Demised Term
shall have expired and come to an end, or the date of re-entry upon the Demised
Premises by Landlord, as the case may be, plus any additional rent payable
pursuant to the provisions of Article 11 for the Escalation Year (as defined in
Article 11) immediately preceding such event. Nothing contained in Articles 28
and 29 of this lease shall be deemed to limit or preclude the recovery by
Landlord from Tenant of the maximum amount allowed to be obtained as damages by
any statute or rule of law, or of any sums or damages to which Landlord may be
entitled in addition to the damages set forth in Section 30(A).
SUMS DUE LANDLORD
31. If Tenant shall default in the performance of any covenants on
Tenant's part to be performed under this lease, Landlord may immediately, or at
anytime thereafter, without notice, and without thereby waiving such default,
perform the same for the account of Tenant and at the expense of Tenant. If
Landlord at any time is compelled to pay or elects to pay any sum of money, or
do any act which will require the payment of any sum of money by reason of the
failure of Tenant to comply with any provision hereof, or, if Landlord is
compelled to or elects to incur any expense, including reasonable attorneys'
fees, instituting, prosecuting and/or defending any action or proceeding
instituted by reason of any default of Tenant hereunder, the sum or sums so paid
by Landlord, with all interest, costs and damages, shall be deemed to be
additional rent hereunder and shall be due from Tenant to Landlord on the first
day of the month following the incurring of such respective expenses or, at
Landlord's option, on the first day of any subsequent month. Any sum of money
(other than rent) accruing from Tenant to Landlord pursuant to any provisions of
this lease, including, but not limited to, the provisions of Schedule C, whether
prior to or after the Rent Commencement Date, may, at Landlord's option, be
deemed additional rent, and Landlord shall have the same remedies for Tenant's
failure to pay any item of additional rent when due as for Tenant's failure to
pay any
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installment of Rent when due. Tenant's obligations under this Article shall
survive the expiration or sooner termination of the Demised Term. In any case in
which the Rent or additional rent is not paid within five (5) days of the day
when same is due, Tenant shall pay a late charge equal to 8-1/2 cents for each
dollar so due, and in addition thereto, the sum of $100.00 for the purpose of
defraying expenses incident to the handling of such delinquent account. This
late payment charge is intended to compensate Landlord for its additional
administrative costs resulting from Tenant's failure to pay in a timely manner
and has been agreed upon by Landlord and Tenant as a reasonable estimate of the
additional administrative costs that will be incurred by Landlord as a result of
Tenant's failure as the actual cost in each instance is extremely difficult, if
not impossible, to determine. This late payment charge will constitute
liquidated damages and will be paid to Landlord together with such unpaid
amounts. The payment of this late payment charge will not constitute a waiver by
Landlord of any default by Tenant under this lease.
NO WAIVER
32. No act or thing done by Landlord or Landlord's agents during the
term hereby demised shall be deemed an acceptance of a surrender of said Demised
Premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the Demised Premises prior to the
termination of this lease. The delivery of keys to any employee of Landlord or
of Landlord's agents shall not operate as a termination of this lease or a
surrender of the Demised Premises. In the event Tenant shall at any time desire
to have Landlord underlet the Demised Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purposes without
releasing Tenant from any of the obligations under this lease, and Tenant hereby
relieves Landlord of any liability for loss of or damage to any of Tenant's
effects in connection with such underletting. The failure of Landlord to seek
redress for violation of, or to insist upon the strict performance of, any
covenants or conditions of this lease, or any of the Rules and Regulations
annexed hereto and made a part hereof or hereafter adopted by Landlord, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Landlord of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a wavier of such breach. The failure of Landlord to
enforce any of the Rules and Regulations annexed hereto and made a part hereof,
or hereafter adopted, against Tenant and/or any other tenant in the Building
shall not be deemed a waiver of any such Rules and Regulations. No provision of
this lease shall be deemed to have been waived by Landlord, unless such waiver
be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of
a lesser amount then the monthly Rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated Rent nor shall any endorsement
or statement on any check or any letter accompanying any check or payment of
Rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy in this lease provided.
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WAIVER OF TRIAL BY JURY
33. To the extent such waiver is permitted by law, Landlord and
Tenant hereby waive trial by jury in any action, proceeding or counterclaim
brought by Landlord or Tenant against the other on any matter whatsoever arising
out of or in any way connected with this lease, the relationship of landlord and
tenant, the use or occupancy of the Demised Premises by Tenant or any person
claiming through or under Tenant, any claim of injury or damage, and any
emergency or other statutory remedy. The provisions of the foregoing sentence
shall survive the expiration or any sooner termination of the Demised Term. If
Landlord commences any. summary proceeding for nonpayment, Tenant agrees not to
interpose any noncompulsory counterclaim of whatever nature or description in
any such proceeding or to consolidate such proceeding with any other proceeding.
Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord's obtaining
possession of the Demised Premises, by reason of the violation by Tenant of any
of the covenants and conditions of this lease or otherwise.
NOTICES
34. Except as otherwise expressly provided in this lease, any bills,
statements, notices, demands, requests or other communications (other than
bills, statements or notices given in the regular course of business) given or
required to be given under this lease shall be effective only if rendered or
given in writing, sent by registered or certified mail (return receipt
requested), addressed (A) to Tenant, to the attention of Tenant's Chief
Financial Officer, (i) at Tenant's address set forth in this lease if mailed
prior to Tenant's taking possession of the Demised Premises, or (ii) at the
Building if mailed subsequent to Tenant's taking possession of the Demised
Premises, or (iii) at any place where Tenant or any agent or employee of Tenant
may be found if mailed subsequent to Tenant's vacating, deserting, abandoning or
surrendering the Demised Premises, or (B) to Landlord, to the attention of the
"Vice President and Legal Counsel - Real Estate", at Landlord's address set
forth in this lease, or (C) addressed to such other address as either Landlord
or Tenant may designate as its new address for such purpose by notice given to
the other in accordance with the provisions of this Article. Any such bills,
statements, notices, demands, requests or other communications shall be deemed
to have been rendered or given on the date when it shall have been mailed as
provided in this Article.
INABILITY TO PERFORM
35. (A) If, by reason of strikes or other labor disputes, fire or
other casualty (or reasonable delays in adjustment of insurance), accidents,
orders or regulations of any Federal, State, County or Municipal authority, or
any other cause beyond Landlord's reasonable control, whether or not such other
cause shall be similar in nature to those hereinbefore enumerated, Landlord is
unable to furnish or is delayed in furnishing any utility or service required to
be furnished by Landlord under the provisions of this lease or any collateral
instrument or is unable to perform or make or is delayed in performing or making
any installations, decorations, repairs, alterations, additions or improvements,
whether or not required to be performed or made under this lease, or
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under any collateral instrument, or is unable to fulfill or is delayed in
fulfilling any of Landlord's other obligations under this lease, or any
collateral instrument, no such inability or delay shall constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
lease, or impose any liability upon Landlord or its agents, by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise.
INTERRUPTION OF SERVICE
(B) Landlord reserves the right to stop the services of the air
conditioning, elevator, escalator, plumbing, electrical or other mechanical
systems or facilities in the Building when necessary by reason of accident or
emergency, or for repairs, alterations or replacements, which, in the judgment
of Landlord are desirable or necessary, until such repairs, alterations or
replacements shall have been completed. Landlord shall use commercially
reasonable efforts to minimize any interference with Tenant's business
operations caused by such interruption. If the Tenant is in default in the
payment of the rent or additional rent, or in the performance of any other
provisions of this lease, and such default continues for ten (10) days after
notice by Landlord to Tenant, then Landlord reserves the right to discontinue
any or all of the services to the Demised Premises during the continuance of
such default. The exercise of such rights by Landlord shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this lease, or impose any liability upon Landlord or its agents by reason
of inconvenience or annoyance to Tenant, or injury to or interruption of
Tenant's business or otherwise.
CONDITIONS F LANDLORD'S LIABILITY
(C) (i) In addition to the requirements for constructive
eviction imposed by law, Tenant shall not be entitled to claim a constructive
eviction from the Demised Premises unless Tenant shall have first notified
Landlord of the condition or conditions giving rise thereto, and if the
complaints be justified, unless Landlord shall have failed to remedy such
conditions within a reasonable time after receipt of such notice.
(ii) If Landlord shall be unable to give possession of the
Demised Premises on any date specified for the commencement of the term by
reason of the fact that the Premises have not been sufficiently completed to
make the Premises ready for occupancy, or for any other reason, Landlord shall
not be subject to any liability for the failure to give possession on said date,
nor shall such failure in any way affect the validity of this lease or the
obligations of Tenant hereunder.
TENANT'S TAKING POSSESSION
(D) (i) Tenant, by entering into occupancy of the Premises,
shall be conclusively deemed to have agreed that Landlord, up to the time of
such occupancy has performed all of its obligations hereunder and that the
Premises were in satisfactory condition as of the date of
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such occupancy, unless within ten (10) days after the such date Tenant shall
have given written notice to Landlord specifying the respects in which the same
were not in such condition.
(ii) If Tenant shall use or occupy all or any part of the
Demised Premises for the conduct of business prior to the Rent Commencement
Date, such use or occupancy shall be deemed to be under all of the terms,
covenants and conditions of this lease, including the covenant to pay rent for
the period from the commencement of said use or occupancy to the Rent
Commencement Date.
SUBSTITUTED PREMISES
36. If the Demised Premises consists of 2,500 square feet or less,
Landlord shall have the right at any time, upon giving Tenant not less than
sixty (60) days' notice in writing, to provide and furnish Tenant with space
elsewhere in the Building of approximately the same size as the Premises and to
place Tenant in such space. The size of any substituted premises shall not
differ from the size of the Premises by more than ten (10%) percent. If the
total square footage of the new space should exceed the total of the original
Premises, Tenant's Rent and Tenant's percentage of the Building share shall be
increased proportionately. If, however, such total square footage shall be less,
Tenant's Rent and Tenant's percentage of the Building shall be decreased
proportionately. In the event of any such relocation of Tenant, Landlord shall
pay the reasonable cost of Tenant's moving which are actually incurred,
provided, however, Tenant shall not be entitled to any compensation for damages
for any interference with or interruption of its business during or resulting
from such relocation. If Tenant shall notify Landlord within ten (10) days of
receipt of notice from Landlord as required above that Tenant does not want to
relocate to the new space, Landlord may, at its option, cancel this lease by
sending written notice thereof to Tenant, and upon the date specified in
Landlord's notice the term of this Lease shall expire as fully and completely as
if such date were the date set forth above for the termination of this lease and
there shall be no liability between the parties except such liability accruing
up to the date of termination of this lease. If Landlord moves Tenant to such
new space, this lease and each and all of its terms, covenants and conditions
shall remain in full force and effect and be deemed applicable to such new
space, and such new space shall thereafter be deemed to be the "Premises".
ENTIRE AGREEMENT
37. This lease (including the Schedules and Exhibits annexed hereto)
contains the entire agreement between the parties and all prior negotiations and
agreements are merged herein. Tenant hereby acknowledges that neither Landlord
nor Landlord's agent or representative has made any representations or
statements, or promises, upon which Tenant has relied, regarding any matter or
thing relating to the Building, the land allocated to it (including the parking
area) or the Demised Premises, or any other matter whatsoever, except as is
expressly set forth in this lease, including, but without limiting the
generality of the foregoing, any statement, representation or promise as to the
fitness of the Demised Premises for any particular use, the services to be
rendered to the Demised Premises, or the prospective amount of any item of
additional rent. No oral or written statement,
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representation or promise whatsoever with respect to the foregoing or any other
matter made by Landlord, its agents or any broker, whether contained in an
affidavit, information circular, or otherwise, shall be binding upon the
Landlord unless expressly set forth in this lease. No rights, easements or
licenses are or shall be acquired by Tenant by implication or otherwise unless
expressly set forth in this lease. This lease may not be changed, modified or
discharged, in whole or in part, orally, and no executory agreement shall be
effective to change, modify or discharge, in whole or in part, this lease or any
obligations under this lease, unless such agreement is set forth in a written
instrument executed by the party against whom enforcement of the change,
modification or discharge is sought. All references in this lease to the consent
or approval of Landlord shall be deemed to mean the written consent of Landlord,
or the written approval of Landlord, as the case may be, and no consent or
approval of Landlord shall be effective for any purpose unless such consent or
approval is set forth in a written instrument executed by Landlord.
Tenant shall not record this lease (nor a memorandum thereof). In
the event that Tenant violates this prohibition against recording, Landlord, at
its option, may terminate this lease or may declare Tenant in default under this
lease and pursue any or all of Landlord's remedies provided in this lease.
DEFINITIONS
38. The words "re-enter", "re-entry", and "re-entered" as used in
this lease are not restricted to their technical legal meanings. The term
"business days" as used in this lease shall exclude Saturdays (except such
portion thereof as is covered by specific hours in Article 6 hereof), Sundays
and all days observed by the State or Federal Government as legal holidays. The
terms "person" and "persons" as used in this lease shall be deemed to include
natural persons, firms, corporations, partnerships, associations and any other
private or public entities, whether any of the foregoing are acting on their
behalf or in a representative capacity. The various terms which are defined in
other Articles of this lease or are defined in Schedules or Exhibits annexed
hereto, shall have the meanings specified in such other Articles, Exhibits and
Schedules for all purposes of this lease and all agreements supplemental
thereto, unless the context clearly indicates the contrary.
PARTNERSHIP TENANT
39. If Tenant is a partnership (or is comprised of two (2) or more
persons, individually or as co-partners of a partnership) or if Tenant's
interest in this lease shall be assigned to a partnership (or to two (2) or more
persons, individually or as copartners of a partnership) pursuant to Article 20
(any such partnership and such persons are referred to in this Section as
"Partnership Tenant"), the following provisions of this Section shall apply to
such Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, and (b) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any modifications of this lease which may hereafter be made, and by
any notices, demands, requests or other communications which may hereafter be
given, by Partnership Tenant or by any of the parties comprising Partnership
Tenant, and (c) any bills, statements, notices, demands,
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requests and other communications given or rendered to Partnership Tenant or to
any of the parties comprising Partnership Tenant shall be deemed given or
rendered to Partnership Tenant and to all such parties and shall be binding upon
Partnership Tenant and all such parties, and (d) if Partnership Tenant shall
admit new partners, all of such new partners shall, by their admission to
Partnership Tenant, be deemed to have assumed performance of all of the terms,
covenants and conditions of this lease on Tenant's part to be observed and
performed, and (e) Partnership Tenant shall give prompt notice to Landlord of
the admission of any such new partners, and upon demand of Landlord, shall cause
each such new partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new partner shall assume performance
of all of the terms, covenants and conditions of this lease on Tenant's part to
be observed and performed (but neither Landlord's failure to request any such
agreement nor the failure of any such new partner to execute or deliver any such
agreement to Landlord shall vitiate the provisions of subdivision (d) of this
Section).
SUCCESSORS, ASSIGNS, ETC.
40. The terms, covenants, conditions and agreements contained in
this lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and,
except as otherwise provided in this lease, their respective assigns.
BROKER
41. Landlord and Tenant each represents to the other that this lease
was brought about by Xxxxxx & Xxxxxxx, Inc. as broker and all negotiations with
respect to this lease were conducted exclusively with said broker. The parties
agree that if any claim is made for commissions by any other broker through or
on account of any acts of a party, such party will hold the other party free and
harmless from any and all liabilities and expenses in connection therewith,
including such other party's reasonable attorney's fees.
CAPTIONS
42. The captions in this lease are included only as a matter of
convenience and for reference, and in no way define, limit or describe the scope
of this lease nor the intent of any provisions thereof.
NOTICE OF ACCIDENTS
43. Tenant shall give notice to Landlord, promptly after Tenant
learns thereof, of (i) any accident in or about the Premises, (ii) all fires and
other casualties within the Premises, (iii) all damages to or defects in the
Premises, including the fixtures, equipment and appurtenances thereof for the
repair of which Landlord might be responsible, and (iv) all damage to or defects
in any parts
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or appurtenances of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator and other systems located in or passing through the
Premises or any part thereof.
TENANT'S AUTHORITY TO ENTER LEASE
44. In the event that the Tenant hereunder is a corporation, Tenant
represents that the officer or officers executing this lease have the requisite
authority to do so. Tenant agrees to give Landlord written notice of any
proposed change in the ownership of the majority of the outstanding capital
stock of Tenant or any change in the ownership of the majority of the assets of
Tenant. Failure of Tenant to give the notice provided for in the preceding
sentence shall be deemed a non-curable default by Tenant pursuant to this lease
(that is, a default which has already extended beyond the applicable grace
period, if any, following notice from Landlord), giving Landlord the right, at
its option, to cancel and terminate this lease or to exercise any and all other
remedies available to Landlord hereunder or as shall exist at law or in equity.
LETTER OF CREDIT
45. (A) Upon execution of this lease, Tenant shall deliver to
Landlord either a cash security deposit (the "Security Deposit") or an
unconditional, irrevocable, stand-by letter of credit (the "Letter of Credit")
in the amount of Two Hundred and One Thousand Five Hundred and Ninety-Six and
40/100 ($201,596.40) Dollars, to serve as security for the full and faithful
performance and observance by Tenant of all of the terms, conditions, covenants
and agreements of this lease. If Tenant delivers to Landlord the Security
Deposit, then such amount shall be held and applied in accordance with the
provisions of Article 45(I), below. If Tenant delivers to Landlord the Letter of
Credit, then same must conform to the requirements of Article 45(C), below, and
the rights and obligations of the parties with respect to the Letter of Credit
shall be governed by the provisions of Articles 45(B), (D) and (E), below.
Provided that no default, beyond any notice and grace period provided herein for
the cure thereof, has occurred under this lease on the part of Tenant, Tenant
shall have the right to reduce the amount of the Security Deposit or the Letter
of Credit (as applicable) to (i) One Hundred and Thirty-Four Thousand and Three
Hundred and Ninety-Seven and 60/100 ($134,397.60) Dollars at the end of the
third Lease Year; and (ii) Sixty-Seven Thousand One Hundred and Ninety-Eight and
80/100 ($67,198.80) Dollars at the end of the fourth Lease Year. In the event
Tenant delivers to Landlord the Security Deposit, Tenant may at any time during
the Term deliver to Landlord a Letter of Credit, in an amount equal to the sum
then being held by Landlord as the Security Deposit. In such event Landlord
shall return to Tenant said Security Deposit, together with the interest earned
thereon, provided such Letter of Credit conforms to all of the requirements of
Article 45(C) below.
(B) In the event Tenant defaults in payment of Rent, Additional
Rent, or other sums due from Tenant to Landlord under this lease, or in
performance or observance of any other term, covenant, condition or agreement of
this lease, after the expiration of applicable notice periods provided herein
for the cure thereof, Landlord may notify the "Issuing Bank" (hereinafter
defined) and thereupon draw on the letter of credit, in whole or part, from time
to time, at Landlord's election,
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and use, apply or retain the whole or any part of such proceeds to the extent
required for the payment of any sums as to which Tenant is in default
(including, without limitation, any damages or deficiency accrued before or
after summary proceedings or other re-entry by Landlord) or for coverage or
reimbursement of any sums which Landlord may expend or may be required to expend
by reason of such default by Tenant. In the event Landlord so uses, applies or
retains all or any portion of such monies represented by the letter of credit,
Tenant shall forthwith restore the amount so used, applied or retained, upon
delivery of written notice by Landlord detailing such use, application or
retention, through delivery of cash or a certified or bank check payable to
Landlord. In the event Landlord shall not apply all of the proceeds of such
letter of credit to cover Tenant's default as permitted hereunder, Landlord
shall hold the unapplied portion of such proceeds (and the restoration amount
required pursuant to the preceding sentence) as a security deposit under this
lease, and thereafter apply such funds as permitted under this subparagraph (B).
In the event that Tenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this lease, the letter of credit
or security deposit then being held by Landlord, whichever may be the case,
shall be returned to Tenant after the Expiration Date and after delivery by
Tenant of entire possession of the Demised Premises to Landlord in strict
accordance with the terms of this lease.
(C) The unconditional, irrevocable, standby letter of credit to
be delivered by Tenant pursuant to this Article shall be in form and content
satisfactory to Landlord and shall conform to each the following requirements:
(i) such letter of credit may only be issued by a member of the
New York Clearing House Association (or a commercial bank or trust company
satisfactory to Landlord having a net worth of at least $750,000,000.00) which
has banking offices in New York City or Nassau County at which the letter of
credit may be drawn upon (the "Issuing Bank");
(ii) such letter of credit shall indicate the address of the
Issuing Bank in New York City or Nassau County where it can be drawn upon;
(iii) such letter of credit shall name Landlord as beneficiary
under the letter of credit with its address c/o Reckson Associates Realty Corp.,
000 Xxxxxxxxxxx Xxxx, XX 0000, Xxxxxxxx, Xxx Xxxx 00000, Attention: Corporate
Controller.
(iv) such letter of credit must be payable to Landlord or an
authorized representative of Landlord upon presentation of only the letter of
credit and a sight draft, and shall not contain as a condition to a draw the
requirement of Landlord's certification or other statement as to the existence
of Tenant's default;
(v) such letter of credit shall be deemed to be automatically
renewed, without amendment, for consecutive one year periods through a date
which is not earlier than sixty (60) days after the Expiration Date of this
lease, or any renewal or extension thereof, unless written notice of nonrenewal
has been given by the Issuing Bank to Landlord (sent to Landlord via certified
mail, return receipt requested, attention: Corporate Controller, at the address
set forth in subparagraph (iii)
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above) at least sixty (60) days prior to the expiration of the current term of
the letter of credit. Upon the Issuing Bank's giving of such notice, Tenant must
replace said letter of credit with a new letter of credit satisfying the
requirements of this Article at least thirty (30) days prior to the termination
of the existing letter of credit. Failure by Tenant to replace the existing
letter of credit as required herein shall constitute a default under this lease
and there shall be no notice or opportunity to cure said default. Thereupon,
Landlord shall be permitted to draw upon the existing letter of credit up to the
full amount thereof;
(vi) such letter of credit shall be transferable multiple times
by Landlord without the consent of Tenant; and
(vii) such letter of credit shall be subject to the
International Standby Practices 1998, International Chamber of Commerce
Publication No. 590.
Tenant acknowledges and agrees that Landlord shall have no
responsibility or liability on account of any error by the Issuing Bank.
(D) In the event of a sale or lease of all or a portion of the
Building by Landlord, Landlord shall have the right to transfer its rights under
the letter of credit (or security deposit, as applicable) to the vendee or
lessee and Landlord shall thereupon be released by Tenant from all liability in
connection with such letter of credit (or security deposit, as applicable);
Tenant agrees to look solely to the new landlord with respect to the return of,
or any dispute arising in connection with, such letter of credit (or security
deposit); and the provisions hereof shall apply to every transfer or assignment
made of such rights to a new landlord. Tenant shall pay upon Landlord's demand,
as Additional Rent, all costs and fees charged in connection with the letter of
credit that arise due to (i) Landlord's transfer of its rights under the letter
of credit in connection with the sale or lease of all or a portion of the
Building, or (ii) the addition, deletion or modification of any beneficiary
under the letter of credit.
(E) Tenant shall not assign or encumber or attempt to assign or
encumber the letter of credit (or security deposit). Any such assignment,
encumbrance, attempted assignment or attempted encumbrance by Tenant shall be
deemed void and of no force or effect, nor shall same be binding upon Landlord
or its successors or assigns.
(F) Tenant shall cooperate, at its expense, with Landlord to
promptly execute and deliver to Landlord any and all modifications, amendments,
and replacements of the letter of credit, as Landlord may reasonably request to
carry out the intent, terms and conditions of this Article.
(G) In the event that Tenant fails to deliver the letter of
credit simultaneously with the execution of this lease by Tenant as required
above, such failure shall be deemed a tenant delay in which event the Rent
Commencement Date shall be accelerated by the number of days of such tenant
delay (from the date that Tenant executes this lease to that date that Tenant
delivers the letter of credit to Landlord as required above), however, Landlord
shall not be obligated to deliver the
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Demised Premises to Tenant and Tenant shall not have the right to occupy the
Demised Premises until Landlord's Initial Construction is "substantially
completed".
(H) The acceptance of the letter of credit (or security deposit,
as applicable) or the exercise of any remedies under this Article by Landlord
shall not be a limitation on Landlord's damages, remedies or other rights under
this lease, or construed as a payment of liquidated damages or an advance
payment of Rent or any Additional Rent.
(I) If Tenant delivers to Landlord the Security Deposit, same
shall be held by Landlord as security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this lease,
which Security Deposit Landlord shall deposit into an interest bearing account.
Tenant hereby agrees that, in the event Tenant defaults in respect of any of the
terms, provisions and conditions of this lease, including, without limitation,
the payment of Rent and/or additional rent, Landlord may use, apply or retain
the whole or any part of the Security Deposit, including all interest earned
thereon, to the extent required for the payment of any Rent and additional rent
or any other sum of which Tenant is in default or for any sum which Landlord may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, covenants and conditions of this lease, including, without
limitation, any damages or deficiency in the re-letting of the Demised Premises,
whether such damages or deficiency accrued before or after summary proceedings
or other re-entry by Landlord. If any portion of the Security Deposit is used,
Tenant shall, within five (5) days after written demand therefor, deposit cash
with Landlord in an amount sufficient to restore the Security Deposit to its
original amount. In the event that Tenant shall fully and faithfully comply with
all of the terms, provisions, covenants and conditions of this lease, the
Security Deposit, together with any interest earned thereon (less a one (1%)
percent administrative fee payable to Landlord) shall be returned to Tenant
after the Expiration Date and after delivery by Tenant of entire possession of
the Demised Premises to Landlord in strict accordance with the terms of this
lease. In the event of a sale of the Real Property or the Building, or the
leasing of the Building, Landlord shall have the right to transfer the Security
Deposit to the vendee or lessee and Landlord shall thereupon be released by
Tenant from all liability for the return of such Security Deposit; and Tenant
agrees to look solely to the new owner or lessee for the return of said Security
Deposit. Tenant hereby agrees that the provisions of this Article 45(I) shall
apply to every transfer or assignment made of the Security Deposit by Landlord
to any new owner or lessee. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the Security Deposit and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
RENEWAL OPTION
46. The Tenant shall have the right to be exercised as hereinafter
provided, to extend the term of this lease for one period of five (5) years (the
"Renewal Term") upon the following terms and conditions:
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(A) That at the time of the exercise of such right and at the
commencement of the Renewal Term, Tenant shall not be in default beyond
applicable notice and cure periods provided herein for the cure thereof in the
performance of any of the terms, covenants or conditions which Tenant is
required to perform under this lease.
(B) That Tenant shall notify Landlord in writing that Tenant
intends to exercise this option at least twelve (12) months prior to the
termination of the initial term set forth in Article 2 of this lease.
(C) That the Renewal Term shall be upon the same terms,
covenants and conditions as in this lease provided, except that (a) there shall
be no further option to extend this lease beyond the one (1) Renewal Term
referred to above; (b) the Premises shall be delivered in its then "as is"
condition; and (c) the Rent to be paid by Tenant during the Renewal Term shall
be as follows:
During the first year of the Renewal Term, the Rent shall be the
then fair market annual minimum rent being received by Landlord for comparable
space in the Building, but in no event less than $167,071.20. Said sum shall be
payable in equal monthly installments.
During each of the second through fifth years of the Renewal Term,
the Rent shall be increased by four (4%) percent per annum over the Rent payable
for the prior year. Said sums shall be payable in equal monthly installments.
"Fair market annual minimum rent" shall mean the rate Landlord
generally receives or that is received for comparable space in the Building.
Fair market annual minimum rent shall not mean "net effective rent to Landlord".
In determining fair market annual minimum rent, no adjustment shall be made in
consideration of and Tenant shall not be entitled to a credit for Tenant
improvements, brokerage commissions, rent concessions and other concessions
which Landlord may typically offer to other tenants. In the event Tenant
disputes Landlord's determination of fair market annual minimum rent, Tenant, by
written demand served upon Landlord within five (5) days after Landlord notifies
Tenant of Landlord's determination of fair market annual minimum rent, may
commence arbitration strictly in accordance with the terms and conditions of
this Article 46(C). If Tenant shall fail to demand arbitration as set forth
above within said five (5) day period, Tenant shall be deemed to have accepted
Landlord's determination of fair market annual minimum rent. The sole issue to
be determined by such arbitration shall be the fair market annual minimum rent
in accordance with this Subparagraph. Such written demand shall contain the name
and address of the arbitrator appointed by the demandant. Within ten (10) days
after its receipt of the written demand, the other party will give the demandant
written notice of the name and address of its arbitrator. Within ten (10) days
after the date of the appointment of the second arbitrator, the two (2)
arbitrators will meet. If the two (2) arbitrators are unable to agree on the
fair market annual minimum rent as provided herein within ten (10) days after
their first meeting, they will select a third arbitrator. The third arbitrator
will be designated as chairman and will immediately give Landlord and Tenant
written notice of its appointment. The three (3) arbitrators will meet within
ten (10) days after the
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appointment of the third arbitrator. If they are unable to agree on the fair
market annual minimum rent within ten (10) days after their first meeting, the
third arbitrator will select a time, date and place for a hearing and will give
Landlord and Tenant thirty (30) days prior written notice of it. The date for
the hearing will not be more than sixty (60) days after the date of appointment
of the third arbitrator. The arbitrators must be licensed real estate appraisers
with at least five (5) years experience in the Nassau/Suffolk real estate
market. No arbitrator may be an active real estate broker. The arbitration will
be governed by the laws of the State of New York and, when not in conflict with
such law, by the general procedures in the commercial arbitration rules of the
American Arbitration Association. The arbitrators will not have the power to add
to, modify, detract from or alter in any way the provisions of this lease or any
amendments or supplements to this lease. The arbitrators will not have any power
to decide or consider anything other than the specific issue of the fair market
annual minimum rent in accordance with the terms of this lease. The written
decision of at least two (2) arbitrators will be conclusive and binding upon
Landlord and Tenant. No arbitrator is authorized to make an award for damages of
any kind including, without limitation, an award for punitive, exemplary,
consequential or incidental damages. Landlord and Tenant will pay for the
services of its appointees, attorneys and witnesses plus one-half of all other
proper costs relating to the arbitration. The decision of the arbitrators will
be final and non-appealable and may be enforced according to the laws of the
State of New York. Notwithstanding anything to the contrary contained herein, in
the event Tenant disputes Landlord's determination of the fair market annual
minimum rent, Tenant shall nevertheless continue to pay rent at the same rate
then being paid under this lease. In the event the rent as determined hereunder
is at variance with the rent being paid by Tenant, Tenant shall either pay the
difference in a lump sum or receive a credit as the case may be.
Time shall be of the essence with respect to all of Tenant's
obligations under this Article 46.
This Renewal Option is personal to Xxxxxxxxxx.xxx, Inc. and is
non-transferable by operation of law or otherwise, except to a Tenant Affiliate.
RIGHT OF OFFER
47. (a) In the event that any space adjoining and contiguous to the
Demised Premises, located on the first (1st) or second (2nd) floor of the
Building (the "Offer Space"), becomes available and vacant, during the term of
this lease, then before offering for lease to a third party, and so long as
Tenant is not in default, beyond any notice and grace period provided herein for
the cure thereof, under this lease, Landlord shall notify Tenant ("Landlord's
Notice") of the market rent and market rental increases ("Market Rent") upon
which it would be willing to lease the Offer Space to a bone fide third party;
provided that Landlord shall not be liable to Tenant for any costs, expenses,
damages or liabilities which are or may be incurred by Tenant by reason of
Landlord's unintentional failure to so notify Tenant. This Right of First Offer
shall not apply during the last two (2) years of the initial term of this Lease
or during the last two (2) years of any Renewal Term unless Tenant shall have
previously exercised the next available renewal option. Tenant shall, within
seven (7) days after receipt of Landlord's Notice, notify Landlord in writing
("Tenant's Notice") of its intention to
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exercise Tenant's right to lease the entire Offer Space at the Market Rent
(which Tenant's Notice shall be effective only if sent by Tenant to Landlord,
via certified mail, return receipt requested; to the attention of the "Vice
President and Legal Counsel - Real Estate", at Landlord's address set forth in
this Lease). If Tenant does not give such Tenant's Notice within such seven (7)
day period as required above, then this Right of First Offer will lapse and be
of no further force and effect and Landlord shall have the right to lease the
Offer Space (in whole or in separate portions) to a third party (or parties) on
the same or any other terms and conditions, whether or not such terms and
conditions are more or less favorable than those offered to Tenant, and Landlord
shall not be required to re-offer such space (or any portion thereof) to Tenant,
even in the event that Landlord divides the Offer Space and leases each portion
separately.
Tenant's exercise of this Right of First Offer by the giving of
Tenant's Notice to Landlord shall be self-operative and no additional document
of confirmation of Tenant's exercise of this Right of First Offer shall be
necessary. Notwithstanding the foregoing, at Landlord's option, Landlord and
Tenant shall execute a lease modification agreement (the "Offer Agreement"), to
confirm Tenant's exercise of this Right of First Offer. In the event that Tenant
properly and timely exercises its Right of First Offer as provided above, Tenant
shall lease the Offer Space from Landlord in accordance herewith, which lease by
Tenant of the Offer space shall be upon all the same terms as this lease, except
(i) that, in the event there is less than five (5) years remaining in the term
of this Lease, or any Renewal Term thereof, the term of this Lease with respect
to the Offer Space shall commence upon Tenant's delivery of Tenant's Notice to
Landlord (the "Offer Space Commencement Date") and shall expire on the day
immediately preceding the day which is five (5) years after the Offer Space
Commencement Date (in such event, the term of this Lease, with respect to the
Premises, shall be extended to and including the day immediately preceding the
day which is five (5) years after the Offer Space Commencement Date, it being
the express intention of the parties that the term of this Lease with respect to
the Premises and the term of this Lease with respect to the Offer Space shall be
coterminous), (ii) for the Market Rent terms, (iii) for other matters dependent
upon the size of the Offer Space, such as Tenant's Proportionate Share, (iv)
that Tenant is accepting the Offer Space in its "as is" condition and Landlord
shall not be required to perform any work in or to the Offer Space or incur any
expense in order to prepare such space for Tenant's occupancy and (v) for such
other terms and conditions as may be mutually agreed to by Landlord and Tenant.
In the event this Lease, with respect to the Premises, is extended as set forth
in the foregoing subparagraph (i), the Rent for the Premises, from the date
Tenant timely delivers Tenant's Notice to Landlord through and including the
date originally set forth for the expiration of the Lease, or the Renewal Term,
as the case may be, shall be as set forth in Article 3 herein. Thereafter,
Tenant shall pay Rent for the Premises at the greater of (y) the annual rental
rate per square foot then being paid by Tenant with respect to the Offer Space,
and (z) the amount which is four (4%) percent greater than Rent paid by Tenant
for the third month prior to the date originally set forth for the expiration of
the Lease, or the Renewal Term, as the case may be, multiplied by twelve (12).
Thereafter, the Rent shall be increased by four (4%) percent per annum over the
Rent payable for the prior year. Said sums shall be payable in equal monthly
installments. Time shall be of the essence with respect to all of Tenant's
obligations under this Article 47.
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(b) This Right of First Offer is personal to Xxxxxxxxxx.xxx,
Inc., is non-transferable by operation of law or otherwise, except to a Tenant
Affiliate, and is subject to then existing rights, if any, granted to other
tenants at the Building.
EXPANSION/RELOCATION OPTION
48. (A) Provided Tenant has complied with all of the terms,
covenants and conditions of this lease and is not then in default, beyond any
notice and grace period provided herein for the cure thereof, of its obligations
hereunder, Tenant shall have the option of requiring Landlord to use
commercially reasonable efforts to accommodate Tenant's need to occupy a total
of approximately 13,500 rentable square feet of contiguous space commencing on
or about the first day of the fourth (4th) Lease Year. Notwithstanding anything
contained to the contrary herein, Landlord's obligation to use commercially
reasonable efforts to accommodate Tenant's expansion shall not require Landlord
to provide space that Landlord is, at the time Tenant exercises this option, in
active negotiation with a third party for the lease thereof. Tenant shall
exercise this option, if at all, through delivery of written notice to Landlord
made no later than the date which is six (6) months prior to the expiration of
the third (3rd) Lease Year.
(B) If Tenant exercises this option and Landlord is able to make
available for lease by Tenant approximately 13,500 rentable square feet of
additional space located adjacent to the existing Premises, then Tenant shall
lease from Landlord such additional, adjacent space (the "Adjacent Space")
effective on or about the commencement of the Fourth (4th) Lease Year (the
"Adjacent Space Commencement Date"). The leasing by Tenant of such Adjacent
Space shall be under all of the same terms, covenants and conditions in this
lease contained, except that (i) the definition of the term "Premises" shall be
expanded to include such Adjacent Space; (ii) the Rent attributable to the
Adjacent Space shall be set at the then current fair market value for such
space, as determined in accordance with the procedures set forth in Article
46(C); (iii) adjustments will be made to all other lease terms which are
dependent upon the size of the Premises (e.g., "Tenant's Proportionate Share");
(iv) Tenant shall have no further Expansion/Relocation Option under this lease
and (v) the Term of the lease with respect to both the Premises and the Adjacent
Space shall be extended to the date immediately preceding the date which is five
(5) years after the Adjacent Space Commencement Date. The Rent attributable to
the Premises from the date immediately following the date originally set forth
herein for the expiration of the Term to and including the expiration of the
term, as extended pursuant to this Article 48(B), shall be the greater of (i)
the fair market value for the Premises, as determined in accordance with
procedures set forth in Article 46(C), and (ii) $167,071.20. Thereafter, the
Rent attributable to the Premises shall be increased by four (4%) percent per
annum over the Rent attributable to the Premises payable for the prior year. At
the time of such expansion, Landlord and Tenant shall enter into an amendment of
this lease which reflects the aforementioned changes and modifications and any
other changes or modifications mutually acceptable to Landlord and Tenant.
(C) If Tenant exercises this option but Landlord is unable to
accommodate Tenant's need for additional space by making available additional
space located adjacent to the
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Demised Premises, then Landlord shall use commercially reasonable efforts to
relocate Tenant into another premises in the Building or in the another building
owned by Landlord or its affiliate in Nassau or Suffolk counties; which
relocation space shall contain approximately 13,500 rentable square feet of
contiguous space ("Relocation Space"). In the event Tenant is to lease such
Relocation Space from Landlord, then, effective on or about the commencement of
the fourth (4th) Lease Year hereunder, Landlord and Tenant shall enter into a
new lease for the Relocation Space. Effective as of the rent commencement date
under such new lease, Tenant shall surrender this lease and the Premises to
Landlord (in the condition required under Article 16 hereof) and this lease
shall terminate without further liability or obligation of the parties (except
for liabilities or obligations previously accrued but unsatisfied). The new
lease for the Relocation Space shall contain substantially of the terms,
covenants and conditions in this lease contained, except that (i) the definition
of the term "Premises" shall refer to the Relocation Space only; (ii) the Rent
for the Relocation Space shall be set at the then current fair market value for
such space, as determined in accordance with the procedures set forth in Article
46(C) plus one half of the costs of Landlord's Initial Construction which remain
unamortized at the end of the third Lease Year (which shall be amortized into
the Rent for the Relocation Space); (iii) adjustments will be made to all other
lease terms which are dependent upon the size of the Demised Premises (e.g.,
"Tenant's Proportionate Share"); (iv) Tenant shall have no Expansion/ Relocation
Option under the new lease; and (v) the Term of the new lease shall be for a
term of five (5) years (unless otherwise mutually agreed to by the parties).
(D) In the event Landlord is unable, after use of commercially
reasonable efforts, to make available Adjacent Space or Relocation Space, then
this lease shall continue unaffected in accordance with its terms.
(E) The provisions of this Article 48 shall be applicable only
where Xxxxxxxxxx.xxx, Inc. or a Tenant Affiliate remains the Tenant and occupant
of the entire Premises at the time of the expansion or relocation, as the case
may be.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
Witness for Landlord: RECKSON OPERATING PARTNERSHIP, L.P.
BY: Reckson Associates Realty Corp its
general partner
____________________________ By:_________________________________
Print Name:
Print Title:
Witness for Tenant: XXXXXXXXXX.XXX, INC.
____________________________ By:_________________________________
Print Name:
Print Title:
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XXXXX XX XXX XXXX )
) ss.
COUNTY OF NASSAU )
On the 21st day of July, 2000, before me, the undersigned, a Notary
Public in and for said State, personally appeared _____________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
---------------------------
Notary Public
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SCHEDULE "A"
LANDLORD'S INITIAL CONSTRUCTION
l. Initial Office Finishing Schedule
At the Tenant's option, Landlord will design or follow Tenant's plans in
preparing Tenant's office area at Landlord's cost (subject to Article 5 above)
to the following specifications:
Erect the necessary dividing walls constructed of metal stud, 5/8" Fire X gypsum
board, with xxxxx of 3" fiberglass for sound attenuation in demising walls.
Finish exterior walls with 1/2" sheetrock. Erect per approved plan dry-wall
partitioning of 2-1/2" metal studs with 5/8" gypsum board on each side to
underside of hung ceiling.
Spackle and tape walls three coats to a smooth and true finish. Paint walls two
coats flat latex and doors and trim coats matching enamel.
Install in executive offices, main conference room and reception area, over
padding, executive grade, 30 ounce cut pile carpet. Balance of space carpeted
with building standard 28 ounce loop pile carpet (glued down). Building standard
vinyl reinforced tile may be installed in place of carpet.
Install a 2' x 4' acoustical tile ceiling with a Travertine finish.
Provide interior building standard hollow core doors on Tenant's plan.
2. Lavatory Area - Public Spaces
a) Separate male and female toilet facilities.
3. Landscaping
The building will be extensively landscaped with trees, plantings and other
materials. An underground sprinkler system will be provided with a time clock to
maintain proper watering.
4. Electrical Specifications
All electrical work shall be installed in accordance with the National
Electrical Code, and the local building code. A "Certificate of Compliance"
shall be obtained from the New York Board of Fire Underwriters at the completion
of the project.
Lighting throughout the entire finished office area shall be obtained by the use
of recessed light 2' by 4' fluorescent fixtures with prismatic lenses, not to
exceed one (1) fixture for each eighty (80) square feet of usable space. Local
wall switches shall be provided for control of lighting. Toilet, corridor, lobby
and other similar areas shall be lit to 50 foot candles.
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Exit light lighting for all paths of egress shall be provided in accordance with
local building department regulations, if required.
All branch circuit wiring shall be above hung ceiling or within dry-wall
construction in finished areas and shall be type BX. All exposed conduits in
non-finished areas shall be thin-walled "EMT".
Wall-mounted duplex convenience outlets shall be provided on the basis of one
duplex outlet for each 120 square feet of rented area. This formula shall be
used to establish the quantity of outlets. However, the exact location of each
outlet shall be coordinated with the Tenant's furniture layout. All duplex
outlets are to be considered as normal convenience outlets and shall be wired up
with an average of 5 to 8 outlets on one 20 ampere, 120 volt circuit. Panel
capacity shall be adequate to handle all tenant lighting and equipment load,
providing such equipment load does not exceed 2 xxxxx per square foot of
rentable area.
No credit given for installation less than standard installation.
5. Heating, Ventilation and Air Conditioning Specifications
General
The intent of this specification is to define a design concept for the subject
area.
Design Criteria
Central air conditioning with modular systems with individual zone control shall
be capable of the following performance when the criteria noted are not
exceeded:
A) Between September 1 and June 1, the "heating system" shall be operative and
maintain a minimum of 70 degrees FDB when the outdoor temperature is 0 degrees
FDB and the prevailing wind velocity does not exceed 15 mph.
B) Between April 15 and October 14, the "cooling system" shall be operative and
maintain a maximum of 78 degrees FDB and 55% relative humidity when the outdoor
temperature is 95 degrees FDB and 75 degrees FDB with the prevailing wind
velocity not exceeding 13 mph.
C) During the overlapping seasons (April 15 - June 1 and September 1 - October
15) both systems shall be operative (cooling and heating).
D) Zoning temperature and balancing controls shall be operated solely by the
Landlord to assure the conditions above.
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E) Maintenance of the foregoing temperature conditions is conditioned
upon the following criteria, which shall not be exceeded by the
Tenant in any room, or area, within the demised premises:
a) Population Density 1 person per 150 square feet
b) Lighting and Electrical Load Density 4 xxxxx per square foot
c) Exhaust and Ventilation Load 5 cfm per person
6. Ventilation
Bathrooms and similar areas to be ventilated per code using rooftop fans.
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SCHEDULE "B"
LANDLORD'S CLEANING SERVICES AND MAINTENANCE OF PREMISES
(to be performed on all business days except those which are union holidays for
the employees performing cleaning services and maintenance in the Building and
grounds or those days on which the Building is closed)
I. CLEANING SERVICES - PUBLIC SPACES:
A. Floor of entrance lobby and public corridors will be vacuumed or
swept and washed nightly and waxed as necessary.
B. Entranceway glass and metal work will be washed and rubbed down
daily.
C. Wall surfaces and elevator cabs will be kept in polished condition
D. Lighting fixtures will be cleaned and polished annually.
E. Elevators and restrooms will be washed and disinfected once a day.
The floors will be mopped as many times as required. All brightwork and mirrors
will be kept in polished condition. Dispensers will be continuously checked and
receptacles continuously emptied.
F. Exterior surfaces and all windows of the building will be cleaned
quarterly.
II. CLEANING SERVICES - TENANT SPACES:
A. Floors will be swept and spot cleaned nightly. Carpets will be swept
daily with carpet sweeper and vacuumed weekly.
B. Office equipment, telephones, etc. will be dusted nightly.
C. Normal office waste in receptacles and ashtrays will be emptied
nightly.
D. Interior surface of windows and xxxxx will be washed and blinds
dusted quarterly.
E. There shall be regularly scheduled visits by a qualified exterminator.
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III. EXTERIOR SERVICES:
A. Parking fields will be regularly swept, cleared of snow in excess of
two inches, and generally maintained so as to be well drained, properly surfaced
and striped.
B. All landscaping, gardening, exterior lighting and irrigation systems
will have regular care and servicing.
IV. EQUIPMENT SERVICE:
A. All air-conditioning and heating equipment and elevators will be
regularly serviced and maintained.
B. Plumbing and electrical facilities, doors, hinges and locks will be
repaired as necessary.
C. All appurtenances, such as rails, stairs, etc. will be maintained in
a safe condition.
D. Light bulbs and ballasts located within the Demised Premises will be
replaced as needed at Tenant's expense.
V. EXTRA CLEANING SERVICES
Tenant shall pay to Landlord, on demand, Landlord's charges for (a) cleaning
work in the Premises required because of (i) misuse or neglect on the part of
Tenant or its employees or visitors, (ii) use of portions of the Premises for
preparation, serving or consumption of food or beverages, or other special
purposes requiring greater or more difficult cleaning work than office areas;
(iii) unusual quantity of interior glass surfaces; (iv) non-building standard
materials or finishes installed by Tenant or at its request; (v) increases in
frequency or scope in any item set forth in Schedule "B" as shall have been
requested by Tenant; and (b) removal from the Premises and Building of (i) so
much of any refuse and rubbish of Tenant as shall exceed that normally
accumulated in the routine of ordinary business office activity and (ii) all of
the refuse and rubbish of any eating facility requiring special handling (wet
garbage).
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SCHEDULE "C"
1. Landlord shall provide at the rates hereinafter set forth and
Tenant shall purchase from Landlord "energy service" for Tenant's requirements.
There shall be the following categories of energy service:
A) NORMAL SERVICE: NORMAL SERVICE is energy consumed during WORKING
HOURS as defined in Article 6 whose power demands do not exceed 4 xxxxx per
square foot of the Demised Premises during WORKING HOURS ("TENANT'S ALLOWABLE
USE"). Of this amount, two xxxxx are allocated to Landlord supplied lighting and
two xxxxx are allocated for Tenant's usual office equipment. The charge to
change WORKING HOURS is $100.00 per zone.
B) EXCESS SERVICE: EXCESS SERVICE is energy demanded, regardless of
hours, in excess of TENANT'S ALLOWABLE USE.
C) OVERTIME SERVICE: OVERTIME SERVICE is energy consumed at all
other hours than WORKING HOURS ("OVERTIME HOURS"). For the purpose of OVERTIME
SERVICE, the Demised Premises may be separated into zones of use. The minimum
practical size of these zones is 2500 square feet. Zones less than 2500 square
feet will be billed at the rate applicable to 2500 square feet.
2. Charges for NORMAL SERVICE: The charge for NORMAL SERVICE is
payable at the rate of $2.35 per annum per square foot of the Demised Premises
and is subject to escalation as hereinafter provided. The charge for NORMAL
SERVICE is included in the monthly rent set forth in Article 3. Any escalation
shall be payable as additional rent.
3. Charges for OVERTIME SERVICE: Subject to escalation as
hereinafter provided, the Landlord's monthly charge for Tenant's OVERTIME
SERVICE, payable in addition to any additional charges for NORMAL SERVICE and
EXCESS SERVICE if applicable, shall be derived as follows:
A) OVERTIME SERVICE: An amount equal to the number of OVERTIME HOURS
in the month, multiplied by the square feet of the zones in use, multiplied by
$.____.
B) OVERTIME charges shall be increased by the same percentage the
EXCESS SERVICE (if applicable) exceeds TENANT'S ALLOWABLE USE for NORMAL
SERVICE.
C) TWENTY-FOUR HOUR SERVICE: All of the electric outlets in the
Premises shall be operative twenty-four hours per day, seven days per week at no
additional charge to Tenant provided such use does not exceed TENANT'S ALLOWABLE
USE. Any such use which exceeds TENANT'S ALLOWABLE USE shall be deemed EXCESS
SERVICE.
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These amounts shall be billed at least once every three months
and shall be payable during the month in which billed as additional rent.
4. Charges for EXCESS SERVICE: The Landlord's monthly charges for
Tenant's EXCESS SERVICE payable in addition to any charges for NORMAL SERVICE,
OVERTIME SERVICE, and TWENTY-FOUR HOUR SERVICE, if applicable, shall be an
amount derived as follows: The excess above TENANT'S ALLOWABLE USE shall be
charged to Tenant at the rate of $___ per square foot per year, for each excess
watt (or part thereof, computed and adjusted to the nearest 100th).
5. Escalation of Charges for NORMAL SERVICE, EXCESS SERVICE,
OVERTIME SERVICE and TWENTY-FOUR HOUR SERVICE: The rates referred to in this
Schedule "C" are based upon the average of the current monthly rates promulgated
by the utility company during the twelve (12) month period immediately prior to
the date hereof. All of the rates, fuel and adjustment costs, state and local
government taxes, and all other component parts of the utility company charges
referred to in this Schedule "C" are subject to increase to reflect increases in
rate or classification or other component parts of the xxxx employed by the
utility company providing services to the Building. Landlord shall have the
right to xxxx Tenant and Tenant agrees to pay such increase in utility company
charges monthly, as additional rent. Landlord shall give due notice to Tenant of
any such increase in charge. Tenant shall not be or become entitled to a
reduction in rent, additional rent or to other reimbursement in the event it
uses less energy than is contemplated by this Schedule "C".
6. Landlord's energy management system will be conclusive evidence
of the computation of NORMAL SERVICE, EXCESS SERVICE, OVERTIME SERVICE and
TWENTY-FOUR HOUR SERVICE. However, Landlord hereby reserves to itself the right,
from time to time, at Landlord's expense, to use a reputable electric
engineering company (the "Engineer") to make a survey of Tenant's energy usage
requirements to determine whether the TENANT'S ALLOWABLE USE limitation has been
exceeded and, if so, to what extent. If these surveys indicate at the time that
the cost to Landlord by reason thereof, computed on an annual basis at rates
which would be charged by a public utility company servicing the Building for
such purposes, is in excess of the initial cost similarly computed, then the
additional rent provided for in this Schedule shall be increased as provided for
herein, commencing with the first day of the month immediately following the
computation of such survey and the submission of a copy thereof to Tenant.
7. Landlord shall have full and unrestricted access to all
air-conditioning and heating equipment, and to all other utility installations
servicing the Building and the Demised Premises. Landlord reserves the right
temporarily to interrupt, curtail, stop or suspend air-conditioning and heating
service, and all other utilities, or other services, because of Landlord's
inability to obtain, or difficulty or delay in obtaining, labor or materials
necessary therefor, or in order to comply with governmental restrictions in
connection therewith, or for any other cause beyond Landlord's reasonable
control. No diminution or abatement of Rent, additional rent, or other
compensation shall be granted to Tenant, nor shall this Lease or any of the
obligations of Tenant hereunder be affected or reduced by reason of such
interruptions, stoppages or curtailments, the causes of which are
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hereinabove enumerated, nor shall the same give rise to a claim in Tenant's
favor that such failure constitutes actual or constructive, total or partial,
eviction from the Demised Premises, unless such interruptions, stoppages or
curtailments have been due to the arbitrary, willful or negligent act, or
failure to act, of Landlord or its agents.
8. Telephone and data transmission service (collectively,
"telephone/data service") shall be the responsibility of Tenant. Tenant shall
make all arrangements for telephone/data service directly with a
telecommunications company supplying said service, including the deposit
requirement for the furnishing of service. Landlord shall not be responsible for
any delays occasioned by the failure of said company to furnish such service. In
the event Landlord has designated a company as the prime telephone/data service
provider for the Building, Tenant may use a different telephone/data service
provider of its choice provided (A) such other provider shall be reasonably
acceptable to Landlord, (B) the installation work of such provider shall be
performed in accordance with the provisions of Article 14 (B) of this lease
relating to Permitted Alterations, and (C) such provider shall install the
equipment required to provide such service to Tenant inside the Demised Premises
and not in the common areas of the Building (except that the wiring and cabling
to such equipment may be run through such common areas in the manner and
location reasonably required by Landlord).
9. At Landlord's option, it shall furnish and install all lighting
tubes, bulbs and ballasts used in the Premises and Tenant shall pay Landlord's
reasonable charges therefor, on demand, as additional rent.
10. Landlord reserves the right to install an energy management
system or from time to time to make modifications and/or upgrades to the
existing energy management system in the Building and the Demised Premises in
order to measure Tenant's consumption of electric current and HVAC service in
the Premises. The energy management system, whether presently existing or
hereinafter installed, may cut off or curtail overhead lighting and HVAC service
within the Demised Premises at the end of WORKING HOURS but such electric
current and HVAC service may be restored, at Tenant's election, by a means which
shall record Tenant's use of electric current and HVAC service after WORKING
HOURS. The hours of usage recorded by such energy management system shall be
conclusive evidence of Tenant's occupancy of the Premises after WORKING HOURS
and shall be used to determine the amount Tenant shall pay for OVERTIME SERVICE
pursuant to Section 3(A) of this schedule.
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SCHEDULE "D"
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress to and egress from
the Demised Premises and for delivery of merchandise and equipment in a prompt
and efficient manner using elevators and passageways designated for such
delivery by Landlord. There shall not be used in any space, or in the public
hall of the building, either by any Tenant or by jobbers or others in the
delivery or receipt of merchandise, any hand trucks, except those equipped with
rubber tires and sideguards.
2. The water and wash closets and plumbing fixtures shall not be
used for any purposes other than those for which they were designed or
constructed and no sweepings, rubbish, rags, acids or other substances shall be
deposited therein, and the expense of any breakage, stoppage, or damage
resulting from the violation of this rule shall be borne by the Tenant who, or
whose clerks, agents, employees or visitors, shall have caused it.
3. No Tenant shall sweep or throw or permit to be swept or thrown
from the Premises any dirt or other substances into any of the corridors or
halls, elevators, or out of the doors or windows or stairways of the building,
and the Tenant shall not use, keep or permit to be used or kept any coffee
machine, vending machine, burner, microwave oven, refrigerator or oven, food or
noxious gas or substance in the Demised Premises, or permit or suffer the
Demised Premises to be occupied or used in a manner offensive or objectionable
to Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having business
therein, nor shall any animals or birds be kept in or about the Building.
Smoking or carrying lighted cigars or cigarettes in the elevators of the
Building is prohibited.
4. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of the Landlord.
5. No sign, advertisement, notice or other lettering and/or window
treatment shall be exhibited, inscribed, painted or affixed by any Tenant on any
part of the outside of the Demised Premises or the Building or on the inside of
the Demised Premises if the same is visible from the outside of the Demised
Premises without the prior written consent of the Landlord. In the event of the
violation of the foregoing by any Tenant, Landlord may remove same without any
liability, and may charge the expense incurred by such removal to Tenant or
Tenants violating this rule. Interior signs on doors and directory tables shall
be inscribed, painted or affixed for each Tenant by Landlord at the expense of
such Tenant, and shall be of a size, color and style acceptable to Landlord.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the Demised Premises or the Building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. No tenant shall lay
linoleum or other similar floor covering so that the same shall come in direct
contact with the floor of the Demised Premises and, if linoleum or other similar
floor covering is desired to
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be used, an interlining of builder's deadening felt shall be first affixed to
the floor, by a paste or other water soluble material, the use of cement or
other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any Tenant, nor shall any changes be made in existing
locks or in the mechanisms thereof. Each Tenant must, upon the termination of
his tenancy, restore to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such Tenant, and in the event of
the loss of any keys, so furnished, such Tenant shall pay to Landlord the cost
thereof.
8. Freight, furniture, business equipment, merchandise and bulky
matter of any description shall be delivered to and removed from the Premises
only through the service entrances and corridors, and only during hours and in a
manner approved by Landlord. Landlord reserves the right to inspect all freight
to be brought into the Building and to exclude from the Building all freight
which violates any of these Rules and Regulations or the lease of which these
Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited
and each Tenant shall cooperate to prevent the same.
10. Landlord reserves the right to exclude from the building between
the hours of 6:00 P.M. and 8:00 A.M. and at all hours on Sundays and legal
holidays, all persons who do not present a pass to the building signed by
Landlord. Landlord will furnish passes to persons for whom any Tenant requires
same in writing. Each Tenant shall be responsible for all persons for whom he
requires such a pass and shall be liable to Landlord for all acts of such
persons.
11. Landlord shall have the right to prohibit any advertising by any
Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as an office building, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on
the Premises, any inflammable, combustible, hazardous or explosive fluid,
material, chemical or substance, or cause or permit any odors of cooking or
other processes, or any unusual or other objectionable odors, to permeate in or
emanate from the Premises.
13. Tenant agrees to use the entry doors to its premises only for
ingress and egress purposes and to keep such doors closed at all other times.
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