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EXHIBIT 10.15
LEASE
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ROYAL EXECUTIVE PARK II,
Lessor
and
JWP INC.,
Lessee
Premises in the Royal Executive Park,
King Street, Rye Brook, New York
May 21, 1992
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TABLE OF CONTENTS
Page
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ARTICLE ONE
LEASE OF PREMISES
Section 1.01. Lease of Premises..................................................... 1
Section 1.02. Access Drive ....................................................... 2
Section 1.03. Right of First offer.................................................. 2
Section 1.04. Initial Space Option.................................................. 3
Section 1.05. Surrender Option...................................................... 6
Section 1.06. Building Roof Rights.................................................. 7
ARTICLE TWO
TERM
Section 2.01. Term ....................................................... 8
Section 2.02. Extension of Term..................................................... 8
ARTICLE THREE
CONDITION OF PREMISES
Section 3.01 Condition of Premises................................................. 11
ARTICLE FOUR
RENTAL
Section 4.01. Annual Rent ........................................................ 11
Section 4.02. Rent Escalation....................................................... 12
Section 4.03. Real Estate Taxes; Assessed Valuation................................. 16
ARTICLE FIVE
SERVICES
Section 5.01. Standard of Operations................................................ 16
Section 5.02. Electrical Service.................................................... 16
Section 5.03. Elevators .......................................................... 17
Section 5.04. Light Bulbs and Water................................................. 18
Section 5.05. Building Security..................................................... 18
Section 5.06. Janitorial Services................................................... 18
ARTICLE SIX
TENANT PARKING
Section 6.01. Tenant Parking...................................................... 18
ARTICLE SEVEN
USE AND ACCESS
Section 7.02. Use ................................................................ 19
Section 7.01. Access ............................................................. 20
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ARTICLE EIGHT
REPAIRS AND MAINTENANCE
Section 8.01. Landlord's Obligation to Repair and Maintain.......................... 20
Section 8.02. Tenant's Obligations.................................................. 20
ARTICLE NINE
FIRE AND OTHER CASUALTY
Section 9.01. Damage or Destruction................................................. 21
Section 9.02. Waiver of Subrogation Rights.......................................... 22
ARTICLE TEN
LIABILITY
Section 10.01. Indemnification of the Parties........................................ 22
ARTICLE ELEVEN
ALTERATIONS AND FIXTURES
Section 11.01. Alterations by Tenant................................................. 23
Section 11.02. Tenant's Property..................................................... 25
ARTICLE TWELVE
CONDEMNATION
Section 12.01. Total Taking ........................................................ 25
Section 12.02. Partial Taking........................................................ 25
Section 12.03. Claims of Landlord and Tenant......................................... 26
Section 12.04. Distribution of the Award............................................. 26
Section 12.05. Temporary Taking of Premises.......................................... 26
Section 12.06. Landlord's Obligation to Restore...................................... 27
ARTICLE THIRTEEN
HANDLES AND DEFAULTS
Section 13.01. Default by Tenant..................................................... 27
ARTICLE FOURTEEN
BANKRUPTCY
Section 14.01. Bankruptcy by Tenant.................................................. 30
ARTICLE FIFTEEN
COMPLIANCE WITH LAWS
Section 15.01. Tenant's Compliance with Laws......................................... 30
Section 15.02. Landlord's Compliance with Laws....................................... 32
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ARTICLE SIXTEEN
ASSIGNMENT AND SUBLETTING
Section 16.01. Assignment and Subletting by Tenant................................... 32
ARTICLE SEVENTEEN
LANDLORD'S ACCESS
Section 17.01. Landlord's Right to Use Certain Facilities............................ 38
Section 17.02. Landlord's Access to Premises......................................... 39
ARTICLE EIGHTEEN
NAME OF BUILDING; SIGNS
Section 18.01. Landlord's Right to Designate Building Name........................... 39
Section 18.02. Signs Identifying the Building........................................ 39
Section 18.03. Limitations on Other Signs............................................ 39
ARTICLE NINETEEN
QUIET ENJOYMENT
Section 19.01. Landlord's Covenant of Quiet Enjoyment................................ 40
ARTICLE TWENTY
NON-WAIVER
Section 20.0l. No Waiver Implied..................................................... 40
ARTICLE TWENTY-ONE
NOTICES
Section 21.01. Notices to Landlord or Tenant......................................... 40
ARTICLE TWENTY-TWO
PARTIAL INVALIDITY
Section 22.01. Severability Clause................................................... 41
ARTICLE TWENTY-THREE
BROKERAGE
Section 23.01. Brokerage ............................................................ 42
ARTICLE TWENTY-FOUR
LANDLORD'S REPRESENTATIONS AND
WAIVERS AND TENANT'S REPRESENTATIONS
Section 24.01. Landlord's Representations............................................ 42
Section 24.02. Waivers............................................................... 42
Section 24.03. Tenant's Representation............................................... 43
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ARTICLE TWENTY-FIVE
SUBORDINATION; NON-DISTURBANCE
Section 25.01. Landlord's Right to Mortgage; Priority................................ 43
ARTICLE TWENTY-SIX
INSURANCE
Section 26.01. Landlord's Insurance.................................................. 45
Section 26.02. Tenant's Insurance.................................................... 45
Section 26.03. Waiver of Subrogation................................................. 46
Section 26.04. Compliance with Terms................................................. 47
Section 26.05. Excess Rates ...................................................... 47
Section 26.06. Windows ............................................................ 47
Section 20.07. Fines and Penalties................................................... 47
Section 26.08. Notice of Casualty.................................................... 48
Section 26.09. Landlord's Liability.................................................. 48
Section 26.10. Construction Insurance................................................ 48
ARTICLE TWENTY-SEVEN
RULES AND REGULATIONS
Section 27.01. General; This Lease Controls in Event of Conflict..................... 49
Section 27.02. Standards Applicable to Landlord...................................... 49
Section 27.O3. Landlord's Enforcement................................................ 50
ARTICLE TWENTY-EIGHT
MISCELLANEOUS
Section 28.01. Certain Miscellaneous Provisions...................................... 50
Section 28.02. Estoppel Certificate.................................................. 50
Section 28.03. Governing Law ...................................................... 51
Section 28.04. Building Four Cafeteria............................................... 51
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LIST OF EXHIBITS
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Exhibit A. Site Plan
Exhibit B. Description of Land Comprising Executive Park
Exhibit C. Floor Plans
Exhibit D. Operating Expenses
Exhibit E. Janitorial Services
Exhibit F. Permitted Encumbrances
Exhibit G. Rules and Regulations
Exhibit H. Available Space
Exhibit I. Building Electrical System
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LEASE
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LEASE, dated as of May 21, 1992 between ROYAL EXECUTIVE PARK II, a New
York limited partnership with an office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Landlord"), and JWP INC., a Delaware corporation, with an office at
0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx, 00000 ("Tenant").
ARTICLE ONE
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LEASE OF PREMISES
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Section 1.01. Lease of Premises. (a) Landlord hereby leases to Tenant,
and Tenant hereby leases from Landlord, upon and subject to the covenants,
agreements, terms, provisions and conditions of this Lease, for the term and at
the rent hereinafter stated, the premises referred to in subsection (b) below
(subject to the expansion and surrender rights of Tenant, as hereinafter
provided) (the "Leased Premises"), situated on a plot of land (the "Land")
designated as Phase II on the Site Plan annexed hereto as Exhibit A and made a
part hereof, in the Royal Executive Park, King Street, Rye Brook, New York (such
Phase being herein referred to as the "Executive Park"). The land comprising the
Executive Park is described in Exhibit B annexed hereto and made a part hereof.
(b) The Leased Premises shall be that portion of the ground floor and
the entire second (2nd) and third (3rd) floors, comprising 72,156 rentable
square feet in the aggregate, as indicated on the floor plans annexed hereto as
Exhibit C and made a part hereof (the "Leased Premises"), in the building
designated as X-x (the "Building") on the Site Plan, and all fixtures,
equipment, improvements, installations and appurtenances which at the
commencement of or during the term of this Lease are attached to or used in
connection with such space leased by Tenant, but excluding (i) any personal
property or trade fixtures of Tenant and (ii) such space as may be excluded from
the Leased Premises pursuant to any provision of this Lease.
(c) This Lease includes the right of Tenant to use the Common Building
Facilities (as defined in subsection 1.01(d) below) in common with other tenants
in the Building and/or in the buildings designated on said Site Plan as
Buildings B-2 and B-3.
(d) The term "Common Building Facilities" shall mean all of the common
facilities in the Building designed and intended for use by all tenants in the
Building or in the portion of the Executive Park (excluding parking spaces in
Phase II designated for single tenant use which do not exceed 329 spaces)
designed and intended for use by tenants in the buildings designated as X-0, X-0
and B-3 on the aforesaid Site Plan, in common with Landlord and each other,
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including, but not limited to hallways, lobbies, receiving areas, loading docks,
elevators, stairways, telephone and electrical closets, walkways, plazas,
courts, service areas, landscaped areas and all other common and service areas
of the Building or the Executive Park intended for such use.
Section 1.02. Access Drive. The Executive Park shall include rights in
the existing paved access drive running to and from King Street as shown on the
Site Plan, provided, however, that the owner of the Adjoining Premises
(designated as Phase I on the Site Plan) and its successors and assigns, shall
have the right to use that portion of said access drive which runs from east to
west and forms the northerly boundary of Phase I (the "Access Drive") in common
with Tenant and other occupants of Phase I and Phase II for ingress and egress
of motor vehicles and pedestrians to and from King Street to the Adjoining
Premises and for the installation of underground utilities. Landlord and/or the
owner of the Adjoining Premises shall also have the right to use the Access
Drive in connection with the extension or widening thereof over and upon the
Adjoining Premises, provided that same shall not materially adversely affect
Tenant's access to the Buildings. Landlord and/or the owner of the Adjoining
Premises shall have the right to relocate the Access Drive or to substitute
therefor another access drive.
Section 1.03. Right of First Offer. (a) If at any time during the Term
or any Renewal Term (as such terms are hereinafter defined) the Landlord shall
determine in its sole and absolute discretion to offer the Building for sale
individually (as opposed to a sale of the Building together with one or more
other properties) then, provided that JWP INC. is the Tenant hereunder and
Tenant is not then in monetary default hereunder beyond any applicable grace,
notice and cure period, Landlord shall notify Tenant in writing that the
Building will be available for purchase on the terms and conditions set forth by
Landlord, prior to entering into an agreement to sell the Building with any
other individual or entity ("Landlord's Notice"). If Tenant desires to purchase
the Building from Landlord, then Tenant shall notify Landlord thereof in writing
within fifteen (15) days of receipt of Landlord's Notice, time being of the
essence. If Tenant shall timely deliver the aforesaid notice, then Landlord and
Tenant shall enter into a commercially reasonable purchase agreement (the
"Purchase Agreement") for the Building on the terms so offered within thirty
(30) days of Landlord's Notice, time being of the essence. If Tenant does not
enter into such Purchase Agreement within said thirty (30) day period, or if
Tenant shall fail to timely respond to Landlord's Notice as aforesaid, then
Tenant shall be deemed to have rejected the offer and such Building shall be
released from the restrictions contained in this Section 1.03. If Tenant rejects
the offer as described above, Landlord shall have the right to sell the Building
to any other party provided that such sale is consummated within six (6) months
after the last day for Tenant's acceptance of the offer and provided further
that the economic terms to the purchaser are not
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substantially more favorable than those offered to Tenant. For the purposes of
the preceding sentence, economic terms that are in aggregate equal to 90% or
more of the terms net forth in the offer shall be deemed not substantially more
favorable to the purchaser. If Landlord shall sell the Building to such
purchaser, then Tenant shall have no further rights under this Section 1.03.
(b) Anything in this Section to the contrary notwithstanding, Landlord
shall have the absolute right to sell the Building which is the subject of this
Section, without first being required to offer such Building to Tenant, to MCI
Telecommunications Corporation which has a right of first offer or right of
first refusal with respect to, or has an option to purchase the Building as of
the date hereof.
Section 1.04. Initial Space Option. (a) Provided that this Lease shall
be in full force and effect on the date that Landlord shall receive the Option
Notice (hereinafter defined), Tenant shall have the exclusive option,
exercisable in the manner hereinafter provided, to lease the Option Space
(hereinafter defined) on the following terms and conditions.
(b) Not later than thirty (30) days following the Term Commencement Date
(time being of the essence) , Tenant shall give Landlord written notice (the
"Option Notice") of whether it exercises its option to lease the Option Space.
If Tenant shall fail to deliver the Option Notice within such thirty (30) day
period, then Tenant shall be deemed to have waived all rights with respect to
such space (except as otherwise provided herein) and Landlord shall be free to
offer same to, and enter into a lease (a "Third Party Lease") for such space
with, any other prospective tenant upon such terms and conditions as Landlord,
in its sole and absolute discretion, deems appropriate, provided however that
the term of any such lease shall expire not later than the sixth (6th)
anniversary of the Rent Commencement Date (hereinafter defined). Promptly
following the execution of any Third Party Lease, Landlord shall notify Tenant
in writing of the expiration date thereof.
(c) If Tenant delivers the Option Notice within the aforesaid thirty
(30) day period: (i) the Option Space shall be added to and deemed a part of the
Leased Premises for all purposes as of the date of delivery of the Option Notice
to Landlord, (ii) the Annual Rentals specified in (X) Section 4.01(b)(i) hereof
shall be increased by an amount equal to $22.50 multiplied by the Option Space's
rentable square footage ("RSF"), and (y) Section 4.01(b) (ii) hereof shall be
increased by an amount equal to $24.50 multiplied by the Option Space's RSF,
(iii) "Tenant's Share shall be increased by the percentage of rentable space in
the Building constituting the Option Space, and (iv) the Option Space shall be
delivered to and accepted by Tenant in its "as is" condition (subject,
nevertheless, to Landlord's representations set forth in Section 3.01 hereof)
and, except as otherwise provided herein,
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Landlord shall not be obligated to perform any work with respect thereto.
(d) For purposes hereof, the term "Option Space" shall mean all or any
portion of the Available Space (hereinafter defined), as specified by Tenant in
its Option Notice; provided, however, that the balance of any Available Space
not designated by Tenant as option Space must be in reasonably leasable
configuration. The term "Available Space" shall mean that portion of the ground
floor of the Building comprising approximately 13,585 RSF which is crosshatched
on Exhibit H annexed hereto.
(e) Tenant shall have the further exclusive Option (the "Additional
Space Option") to lease the space demised under any Third Party Lease on the
terms and conditions hereinafter provided, by delivering written notice (an
"Additional Space Notice") to Landlord of Tenant's election to lease such space
not later than twelve (12) months prior to the expiration date of the applicable
Third Party Lease, time being of the essence. As provided above, Landlord shall
notify Tenant in writing of the expiration date of all Third Party Leases
promptly following the execution thereof and again not earlier than twenty-two
(22) months nor later than eighteen (18) months prior to such expiration date.
If Tenant shall timely deliver an Additional Space Notice, (i) the space demised
under the applicable Third Party Lease (the "Additional Space"), shall be added
to and deemed a part of the Leased Premises as of the day immediately succeeding
the expiration date of such Third Party Lease (the "Additional Space
Commencement Date"), (ii) effective as of the Additional Space Commencement
Date, the Annual Rentals shall be increased in accordance with the formulae
specified in Section 1.04(c)(ii) above (provided, however, that the rentals
therein stated shall be multiplied by the RSF of the Additional Space), (iii)
"Tenant's Share" shall be increased by the percentage of rentable space in the
Building constituting the Additional Space, (iv) the Additional Space shall be
delivered to and accepted by Tenant in its then "as is" condition, and Landlord
shall not be Obligated to perform any work with respect thereto, and (v) Tenant
shall pay to Landlord, on the Additional Space Commencement Date, an amount
equal to the aggregate savings realized by Tenant by utilizing all or any
portion of the leasehold improvements (the "Improvements") which were installed
in the Additional Space by Landlord (or by the Tenant thereof) in connection
with any Third Party Lease (the "Construction Savings"); provided, however, that
Tenant shall not be obligated to utilize any such Improvements. The Construction
Savings shall be jointly determined by Landlord and Tenant and shall be equal to
the difference between (x) the amount Tenant's build-out of the Additional Space
would reasonably cost if the Improvements were not previously installed, and (y)
the actual cost of Tenant's build-out of the Additional Space, as certified to
Landlord by Tenant's architect and general contractor. If Landlord and Tenant
shall be unable to mutually agree upon the Construction Savings within thirty
(30) days following Tenant's
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taking occupancy of the Additional Space, then such matter shall be determined
by the American Arbitration Association in accordance with the prevailing rules
and procedures of such organization. If Tenant fails to timely deliver an
Additional Space Notice to Landlord, Tenant shall be deemed to have waived all
rights with respect to such space and Landlord shall be free to offer the same
to, and enter into a lease for such space with any other prospective tenant upon
such terms and conditions as Landlord, in its sole and absolute discretion,
deems appropriate, without being required to again offer such Additional Space
to Tenant. If Landlord is unable to deliver possession of any Additional Space
on a given Additional Space Commencement Date because of the holding over or
retention of possession of any tenant, under tenant or occupants, (aa) Landlord
shall not be subject to any liability for failure to give possession on said
date, (bb) Tenant waives the right to recover any damages which may result from
the failure of Landlord to deliver possession of the Additional Space and agrees
that the provisions of this Section shall constitute an "express provision to
the contrary" within the meaning of Section 223-a of the New York Real Property
Law, (cc) all items of rental payable for the Additional Space shall be abated
and the Additional Space Commencement Date shall be postponed until five (5)
days after Landlord shall give Tenant notice that the Additional Space is vacant
and available for Tenant's occupancy, and (dd) Landlord at Landlord's expense
shall use its reasonable efforts to deliver possession of the Additional Space
to Tenant and in connection therewith, if necessary, shall institute and
diligently and in good faith prosecute holdover and any other appropriate
proceedings against the occupant of such Additional Space. Notwithstanding the
foregoing, Tenant shall have the right to withdraw its Additional Space Notice
if Landlord is unable to deliver possession of the Additional Space to Tenant
within six (6) months following the Additional Space Commencement Date by
delivering written notice to Landlord within seven (7) days following the
expiration of such six (6) month period.
(f) Promptly following Landlord's receipt of an Option Notice or
Additional Space Notice, Landlord shall notify Tenant of the RSF of the Option
Space selected by Tenant or the Additional Space, as the case may be. Such RSF
shall be reasonably determined by Landlord utilizing the standards and practices
that the Landlord currently employs at Executive Park to determine RSF. For
purposes of this Section 1.04, Landlord and Tenant hereby agree that the entire
ground floor of the Building comprises 31,860 RSF. The RSF of the Option Space
or Additional Space shall be reasonably increased in the event common corridors
shall be required for such space (based upon the relative square footage
occupied by all of the ground floor tenants utilizing such common corridors).
Within seven (7) days following landlord's notification of Tenant of the Option
Space's or Additional Space's RSF, Landlord and Tenant shall execute and deliver
to each other an agreement supplementary hereto setting forth the Option Space's
or Additional Space's RSF and the
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appropriate modifications to Sections 4.01 and 4.02 described in Sections (c)
and (e) above.
(g) If common corridors shall be required in connection with any Option
Space or Additional Space hereafter leased by Tenant (or any space surrendered
by Tenant pursuant to Section 1.05 below), then Landlord shall pay fifty (50%)
percent of the reasonable costs of (i) creating demising walls for such common
corridors, and (ii) relocating any Building systems within such demising walls,
to the extent reasonably required.
Section 1.05. Surrender Option. (a) Tenant shall have the right to
surrender all or any portion of the Leased Premises (in units of not less than
15,000 RSF of contiguous space, provided however, that Tenant shall have the
right to surrender that portion of the ground floor of the Building that is
occupied by Tenant, in accordance with the terms and conditions of this Section
1.05, notwithstanding that Tenant's ground floor premises may comprise less than
15,000 RSF), in reasonably leasable configuration and good condition, on either
the sixth (6th) anniversary (the "First Surrender Date") or eighth (8th)
anniversary (the "Second Surrender Date"), of the Rent Commencement Date
(hereinafter defined) (each, a "Surrender Date"), by delivering written notice
to Landlord (specifying the space to be surrendered and whether such space shall
be surrendered on the First or Second Surrender Date) not later then nine (9)
months preceding the applicable Surrender Date (time being of the essence). In
the event of a surrender of all of the Leased Premises, then this Lease shall
terminate as of the applicable Surrender Date as if such date were the
Expiration Date hereof. Time shall be of the essence as to Tenant's obligation
to deliver any space surrendered pursuant to this Section 1.05 by the applicable
Surrender Date in vacant, broom-clean condition (provided, however, that the
foregoing shall not require Tenant to remove any permanent leasehold
improvements that it may have installed in the surrendered space in compliance
with the terms hereof).
(b) If Tenant shall surrender less than the entire Leased Premises
pursuant to this Section 1.05, then provided that Tenant shall have timely
vacated the surrendered space in the condition required hereby and is not
otherwise in monetary default hereunder beyond any applicable grace, notice and
cure period, effective as of the applicable Surrender Date: (i) the surrendered
space shall be deemed deleted from the Leased Promises for all purposes, and
(ii) "Tenant's Share" shall be decreased the percentage of rentable space in the
Building constituting the surrendered space. Additionally, if Tenant shall
surrender a portion of the Leased Premises on the First Surrender Date, then
effective. as of such First Surrender Date, the Annual Rentals specified in
Section 4.01 (b) (ii) hereof shall be decreased by an amount equal to $24.50
multiplied by the RSF of the surrendered space. If Tenant shall surrender a
portion of the Leased Premises on the Second Surrender Date, then effective as
of such Second Surrender Date the Annual
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Rental specified in Section 4.01 (b) (ii) hereof shall be further reduced by
an amount equal to $24.50 multiplied by the RSF of the space surrendered on the
Second Surrender Date.
(c) The RSF of any space surrendered by Tenant in accordance with this
Section 1.05 shall be reasonably determined by Landlord utilizing the standards
and practices that Landlord currently employs at Executive Park to determine RSF
and shall be deemed to include any additional square footage which was allocated
to the surrendered space by reason of common corridors. For purposes of this
Section 1.05 only, the entire Building shall be deemed to comprise 94,016 RSF.
Within seven (7) days following Landlord's notification of Tenant of any
surrendered space's RSF, Landlord and Tenant shall execute and deliver to each
other an agreement supplementary hereto setting forth the surrendered space's
RSF and the appropriate modifications to Sections 4.01 and 4.02 described in
Section (b) above. Except as expressly provided in this section 1.05, Tenant
shall have no other right to surrender any portion of the Leased Premises to
Landlord.
Section 1.06. Building Roof Rights. Throughout the Term and any Renewal
Terms, Tenant shall have the right to install and maintain on the Building's
roof supplemental HVAC equipment (not to exceed the Building's electrical
capacity which is described on Exhibit "I" annexed hereto) and, subject to the
prior rights of MCI Telecommunications Corporation and New York Telephone
Company (details of which rights Tenant acknowledges having received),
telecommunications equipment. The installations shall not materially adversely
affect the appearance of the Building, nor shall they interfere in any way with
other tenants of Executive Park or their telecommunications installations.
Tenant shall install a catwalk to access any roof installations made by Tenant
pursuant hereto at its sole cost and expense. All roof installations shall be
subject to Landlord's prior approval, which shall not be unreasonably withheld
or delayed. All taxes (if any) and reasonable costs, including without
limitation, engineering, roof reinforcement (if required) and Landlord's review
of plans, specifications and construction, shall be at Tenant's sole cost and
expense. Tenant shall indemnify and hold Landlord harmless from and against any
and all loss, cost, liability and expense( including without limitation,
reasonable attorneys' fees and disbursements) arising from or relating to
Tenant's use of the Building's roof and/or its installations located thereon.
Additionally, Tenant shall pay any costs which are incurred by Landlord to
repair any damage to the roof that is caused by Tenant or its contractors,
employees, agents, licensees or invitees within fifteen (15) days of Tenant
receipt of an invoice therefore.
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ARTICLE TWO
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TERM
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Section 2.01. Term. The term of this Lease (the "Term") shall commence
on the date hereof (the "Term Commencement Date") and shall terminate, subject
to Section 2.02, on the last day of the calendar month in which the day
immediately preceding the tenth (10th) anniversary of the Term Commencement Date
occurs (the "Expiration Date") or on such earlier date on which the term may
expire or be terminated pursuant to the provisions of this Lease or pursuant to
law.
Section 2.02. Extension of Term.
(a) Tenant shall have the option (the "Renewal Option") to extend the
Term for three (3) successive periods of five (5) years each (individually, a
"Renewal Term" and collectively, the "Renewal Terms"), the first of which shall
commence on the date immediately succeeding the Expiration Date and on the fifth
(5th) anniversary of the Expiration Date; provided, however, Tenant shall not
have the right to exercise a Renewal option (at Landlord's sole option) if this
Lease shall have been previously terminated or if Tenant shall be in default
beyond any applicable grace, notice and cure period in its monetary obligations
hereunder on the Exercise Date (hereinafter defined) or on the Expiration Date
or the last day of the existing Renewal Term, as the case may be. Each such
Renewal Option may be exercised with respect to the entire Leased Premises only,
and shall be exercisable by Tenant delivering written notice (the "Renewal
Notice") to Landlord of Tenant's election to exercise each Renewal Option at
least twelve (12) months prior to the Expiration Date and thereafter, for each
successive Renewal Term at least twelve (12) months prior to the expiration of
the existing Renewal Term (each such date being referred to herein as the
"Exercise Date"). Time shall be of the essence as to Tenant's obligation to
deliver a Renewal Notice by the applicable Exercise Date.
(b) If Tenant exercises a Renewal Option, each Renewal Term shall be
upon the same terms, covenants and conditions as those contained in this Lease,
except that (i) there shall be one (1) less Renewal option remaining to be
exercised, (ii) the Annual Rental (to be payable pursuant to Section 4.01
hereof) for each Renewal Term shall be deemed to mean the Annual Rental
determined pursuant to Section 2.02 (c) below, and (iii) the term "Base Year"
(as such term is utilized in Section 4.02 hereof) shall mean, in respect of a
given Renewal Term, the twelve (12) month period immediately following the
commencement date of such Renewal Term.
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(c) The Annual Rental for each Renewal Term shall be as follows:
(i) The Annual Rental for the Leased Premises, for each year of such
Renewal Term, shall be equal to the annual fair market rental value of the
Leased Premises for a term equal to the applicable Renewal Term (the "Fair
Market Rent") as of the commencement date of such Renewal Term. The Fair Market
Rent shall equal the rental value determined as if the Leased Premises were
available in the then current rental market for comparable, proximately located
buildings in Westchester County and assuming that Landlord has had a reasonable
time to locate a tenant who rents with the knowledge of the uses to which the
Leased Premises can be adapted, and that neither Landlord nor the prospective
tenant is under any compulsion to rent. In determining the Fair Market Rent,
tenant rent abatements and fifty (50%) percent of the cost of any additional
workletter expenditures Landlord would be required to make to prepare the Leased
Premises for a new tenant (taking into account any reductions in such
expenditures which would reasonably accrue to Landlord's benefit by reason of
being able to utilize the leasehold improvements installed in the Leased
Premises at such time) shall be taken into consideration if prevailing market
conditions would require the Landlord to grant such a rent abatement and/or
workletter to a new tenant. The fact that Landlord would be required to pay a
brokerage commission in connection with a new lease shall not be taken into
consideration to reduce the Fair Market Rent. Additionally, the fact that Tenant
shall receive a now "Base Year" for purposes of determining escalations pursuant
to Section 4.02 hereof (viz., the twelve (12) month period immediately
following the commencement date of the applicable Renewal Term) shall be taken
into consideration.
(ii) For purposes of determining the Fair Market Rent, the following
procedures shall apply:
(aa) Landlord shall give Tenant written notice (the "Rent
Notice"), within six (6) months after the Exercise Date, which Rent Notice shall
set forth Landlord's determination of the Fair Market Rent ("Landlord's
Determination").
(bb) Tenant shall give Landlord written notice ("Tenant's
Notice" within thirty (30) days after Tenant's receipt of the Rent Notice, of
whether Tenant accepts or disputes Landlord's Determination. If Tenant in
Tenant's Notice accepts Landlord's Determination, or if Tenant fails or refuses
to give Tenant's Notice as aforesaid, then the Fair Market Rent for the
applicable Renewal Term shall be Landlord's Determination. If Tenant in Tenant's
Notice disputes Landlord's Determination, then Tenant shall deliver to Landlord,
within said thirty (30) days, Tenant's determination of the Fair Market Rent
("Tenant's Determination"), as determined by an independent real estate
appraiser ("Tenant's Appraiser"), together with a copy of the appraisal prepared
by Tenant's Appraiser.
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(cc) Landlord shall give Tenant written notice ("Landlord's
Notice"), within thirty (30) days after Landlord's receipt of Tenant's
Determination, of whether Landlord accepts or disputes Tenant's Determination.
If Landlord in Landlord's Notice accepts Tenant's Determination, then the Fair
Market Rent shall be deemed to be equal to Tenant's determination. If Landlord
in Landlord's Notice disputes Tenant's Determination, Landlord, within such
thirty (30) days, shall appoint an independent real estate appraiser
("Landlord's Appraiser") and so notify Tenant. Landlord's Appraiser and Tenant's
Appraiser shall then have twenty (20) days after such notice is received by
Tenant, to agree upon the Fair Market Rent. If, within said twenty (20) days
Landlord's Appraiser and Tenant's Appraiser shall mutually agree upon the
determination (the "Mutual Determination") of the Fair Market Rent, their
determination shall be final and binding upon the parties. If Landlord's
Appraiser and Tenant's Appraiser shall be unable to reach a Mutual Determination
within said twenty (20) days, at the request of Landlord or Tenant, both of the
Appraisers shall jointly select a third independent real estate appraiser (the
"Third Appraiser") whose fee shall be borne equally by Landlord and Tenant. In
the event that Landlord's Appraiser and Tenant's Appraiser shall be unable to
agree jointly on the designation of the Third Appraiser within five (5) business
days after they are requested to do so by either party, then the parties agree
to allow the American Arbitration Association to make such designation.
(dd) The Third Appraiser shall conduct such meetings and
investigations as he may deem appropriate and shall, within fifteen (15) days
after the data of designation of the Third Appraiser, determine the Fair Market
Rent. Additionally, Landlord and Tenant shall have the right to present written
evidence to the Third Appraiser in support of their respective determinations of
the Fair Market Rent. The Third Appraiser's determination of Fair Market Rent
shall be conclusive and binding upon Landlord and Tenant, Each party shall pay
its own counsel fees and expenses, if any in connection with any appraisal under
this section including the expenses and fees of any Appraiser selected by it in
accordance with the provisions of this Section. Any appraiser appointed pursuant
to this Section 2.02 shall by an independent real estate broker or appraiser
with at least ten (10) years' experience in the leasing and valuation of
Westchester County properties which are similar in character to the Building.
The Appraisers shall not have the power to add to, modify or change any of the
provisions of this Lease.
(ee) It is expressly understood that any determination of Fair
Market Rent pursuant to this Section shall. be based on the criteria stated in
Section 2.02(c) hereof.
(d) If the final determination of the Fair Market Rent shall not be made
on or before the first day of the Renewal Term in accordance with the provisions
of this Section 2.02, pending such
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final determination Tenant shall continue to pay, as the Annual Rental for such
Renewal Term, an amount equal to Landlord's Determination, and shall continue to
pay rent escalations as provided in Section 4.02 hereof. If based upon the final
determination hereunder of the Fair Market Rent, the payments made by Tenant on
account of the Annual Rental for such portion of the Renewal Term were (i) less
than the Annual Rental payable for the Renewal Term, Tenant shall pay to
Landlord the amount of such deficiency within fifteen (15) days after demand
therefor, or (ii) greater than the Annual Rental payable for the Renewal Term,
Landlord, at its option, shall either refund to Tenant or credit towards the
next monthly payment of Annual Rental, the amount of such excess, provided,
however, that if such credit shall exceed the next monthly payment of Annual
Rental, then Landlord shall pay to Tenant an amount equal to any remaining
credit not later than the first day of the next succeeding month.
(e) Within seven (7) days after it determination has been made of the
Annual Rental for a given Renewal Term, the parties shall execute and deliver to
each other an instrument supplementary hereto setting forth such Annual Rental.
ARTICLE THREE
-------------
CONDITION OF PREMISES
---------------------
Section 3.01 Condition of Premises. Tenant has examined the Building
(including the Leased Premises), is familiar with the physical condition thereof
and is leasing the Leased Premises in its "as is" condition. Except as otherwise
provided herein, Landlord has not made and does not make any representations or
warranties as to the physical condition, expenses, operation and maintenance, or
any other Latter or thing affecting or related to the Building or the Leased
Premises therein located. Notwithstanding the foregoing, Landlord represents and
warrants that the Leased Premises are for from structural defects and that the
Building complies with all current laws, regulations and building codes
applicable thereto prior to the making of tenant installations therein. Landlord
shall have no obligation to perform any work in the Leased Premises in order to
prepare same for Tenant's occupancy, all of which work shall be installed by
Tenant or its contractors, at Tenant's sole cost and expense, in accordance with
the provisions hereof.
ARTICLE FOUR
------------
RENTAL
------
Section 4.01. Annual Rent. (a) For purposes of this Section, the term
"Rent Commencement Date" shall mean the day occurring ninety (90) days after the
Term Commencement Date.
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(b) Tenant shall pay to Landlord as rent, at the office of Landlord at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or elsewhere as directed from
time to time by Landlord's written notice to Tenant, a base rental per annum
(the "Annual Rental") as follows:
(i) an amount of One Million Six Hundred Twenty-Three Thousand Five
Hundred Ten dollars ($1,623,510.00) per annum, payable in equal monthly
installments of one Hundred Thirty-Five Thousand Two Hundred Ninety-Two and
50/100 dollars ($135,292.50), for the period commencing on the Rent Commencement
Date to and including the day preceding the fifth (5th) anniversary of the Term
Commencement Date;
(ii) an amount of One Million Seven Hundred Sixty-Seven Thousand
Eight Hundred Twenty-Two dollars ($1,767,822.00) per annum, payable in equal
monthly installments of One Hundred Forty Seven Thousand Three Hundred Eighteen
and 50/100 dollars ($147,318.50) for the period commencing on the fifth (5th)
anniversary of the Term Commencement Date to and including the Expiration Date;
and
(iii) an amount determined in accordance with Section 2.02 for the
Renewal Terms, if any.
(c) The Annual Rental shall be payable in equal monthly installments, in
advance, on the first day of each and every month (unless otherwise provided in
this Section 4.01(c)) of the Term of this Lease. A prorated monthly installment
shall be paid if the Rent Commencement Date is other than the first day of a
month or if the term of this Lease, terminates on a day other than the last day
of a month. Simultaneously with the execution hereof, Tenant has delivered to
Landlord a check in the amount of $135,292.50, which payment (subject to
collection) represents the monthly Annual Rental for the first full month
following Rent Commencement Date. If the Annual Rental is payable for a period
of less than a year, the Annual Rental shall be prorated to cover the shorter
period.
Section 4.02. Rent Escalation. (a) For purposes of this Section, the
following definitions shall apply:
(i) The term "Operating Year" shall mean: (1) the period of twelve
(12) months commencing January 1, 1993 and (2) each successive period of twelve
(12) months, and (3) the period of twelve (12) months or less commencing with
January 1st immediately preceding the Expiration Date and ending on the
Expiration Date. If the term of this Lease terminates or expires on a date other
than December 31st, the additional rent, including the base for computing such
rent, for the pertinent escalation year shall be prorated based upon the number
of days in such Operating Year occurring before the termination or expiration of
the term of this Lease, as applicable.
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(ii) The term "Base Year" shall mean, with regard to operating
Expenses and Taxes, the twelve (12) month period commencing on May 1, 1992.
(iii) The term "Landlord's Expenses" shall mean the sum of (A)
"Operating Expenses" as defined in Exhibit D annexed hereto plus (B) "Taxes" as
hereinafter defined.
(iv) Landlord's "Expense Statement" shall mean a reasonably detailed
statement of Landlord's Expenses certified as true and correct by Landlord.
(v) The term "Tax Premises" shall mean the Land designated as Phase
II on the Site Plan, excluding the Access Drive, together with the improvements
thereon, including without limitation Xxxxxxxxx X-0, X-0 and B-3.
(vi) The term "Taxes" shall mean 34.82% of all real estate taxes and
assessments (but not interest and/or penalties for late payment) levied and
assessed against the Tax Premises and to the extent allocated to the Executive
Park, the Access Drive and the Drainage Basin, but such term shall not include
any income, franchise, transfer, inheritance, capital stock or any other tax
unless a tax upon rent or some other tax shall be substituted in whole or in
part for the present general real estate taxes, in which event such tax shall
constitute a Tax but only to the extent to which such tax shall be substituted
for said real estate taxes.
(vii) The term "Drainage Basin" shall mean the drainage retention
basin indicated by hatching on the Site Plan.
(viii) Any assessments imposed by public authorities for
improvements included in Taxes which may be paid in installments shall be deemed
payable in the maximum number of installments permitted by law and only such
installment(s) as are payable within any real estate fiscal tax year shall be
included in Taxes for such tax year for the purposes of this Lease.
If any assessment for improvements includable in Taxes is not
payable in installments, the estimated useful life (in years) of the improvement
for which the assessment is levied shall be determined in accordance with
(i) Internal Revenue Code guidelines or (ii) generally accepted accounting
principles whichever results in the longer useful life, and Tenant shall pay as
its share of that portion of the assessment reasonably allocable to the Leased
Premises at pro-rata amount determined by (a) dividing (1) the amount of such
assessment by (2) the number of years of such useful life and (b) multiplying
the quotient by the lesser of (1) the number of years remaining in the term of
the Lease (including the number of years of any renewal option exercised by
Tenant) or (2) the number of years of such useful life.
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(ix) The "Term Tenant's Share" shall mean 76.749% with regard to the
Building, which percentage shall be increased or decreased proportionately, as
the case may be, if Tenant shall exercise any of the expansion options contained
herein or surrender a portion of the Leased Premises pursuant to Section 1.05
hereof.
(x) The term "Fiscal Period" shall mean May 1, 1993 through April
30, 1994 and each successive twelve (12) month period thereafter, any portion of
which shall fall within an Operating Year.
(b) Tenant shall pay as additional rent far each Operating Year,
Tenant's Share of the excess, if any, of the Landlord's Expense for said
Operating Year over Landlord's Expenses for the Base Year. In the event that the
Executive Park is 90% or more fully occupied, Landlord's Expenses shall be
actual costs of operation. In the event of lower occupancy, Operating Expenses
shall be determined by adjustment to the level that they would have been at 90%
occupancy, provided that only those components of Operating Expenses that are
affected by variations in the Building's occupancy shall be so adjusted. In the
event of any such adjustment, Landlord's Expense Statement shall set forth in
reasonable detail how such Operating Expenses were so adjusted. Such additional
rental shall be payable by Tenant to Landlord as follows:
(i) The additional rent in respect of Landlord's Expenses for the
first Operating Year shall be payable on the first day of each month commencing
May 1, 1993 and ending April 30, 1994 in a monthly installment equal to 1/12th
of the additional rent hereunder for Landlord's Expenses reasonably estimated by
Landlord to be payable by Tenant to Landlord for the first Operating Year. If
the actual amount of additional rent paid by Tenant for the first Operating Year
is ultimately determined to be less than or in excess of the actual amount
therefor due from Tenant hereunder, then within thirty (30) days after the date
on which Landlord delivers its Expense Statement for the respective Operating
Year Tenant shall pay to Landlord the amount of such shortfall, if any, or
Landlord shall credit such excess, if any, to the next monthly payment of Annual
Rental and/or additional rent required to be paid by Tenant under this Lease,
provided, however, that if such credit shall exceed the next monthly installment
of rentals due hereunder, then Landlord shall pay to Tenant any remaining credit
not later than the first day of the next succeeding month.
(ii) Commencing with the second Operating Year, the additional rent
for Landlord's Expenses shall be payable on the first day of each month during
each Fiscal Period in an amount equal to 1/12th of the additional rent hereunder
for Landlord's Expenses estimated by Landlord to be payable by Tenant to
Landlord for the current Operating Year. Such estimated payments shall be
reconciled to actual payments in the same manner as set forth in Section
4.02(b)(i).
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(iii) Landlord shall deliver its Expense Statement to Tenant within
ninety (90) days after the end of each Operating Year provided, however,
Landlord shall not lose its right to collect the additional rent for Landlord's
Expenses for the respective Operating Year if Landlord fails to submit an
Expense Statement within the time specified herein. The payment of any
additional rental by Tenant shall not preclude it from questioning the
correctness of any Expense Statement. If Tenant shall question the correctness
of any Expense Statement, then, if Landlord shall be unable to satisfy Tenant of
the correctness of such Expense Statement within a reasonable period thereafter,
Landlord will make available to Tenant and its advisors (upon reasonable notice
during normal business hours) all relevant books and records pertaining to
Landlord's Expenses. In the event Tenant objects to the Expense Statement,
Tenant shall give Landlord a specific statement of its objections within ninety
(90) days from the date Landlord makes such books and records available to
Tenant. If Tenant does not object to an Expense Statement within said ninety
(90) day period (provided Landlord shall have timely made its books and records
available to Tenant as aforesaid), Tenant may not thereafter object to said
Expense Statement.
In the event Tenant shall dispute Landlord's Expense Statement and the
parties cannot resolve their differences through negotiations within thirty (30)
days thereafter, Tenant shall have the right to audit, at its sole cost and
expense, all relevant books and records pertaining to Landlord's Expenses. If
such audit accurately discloses that Landlord's Expenses in the aggregate, as
set forth in the disputed Expense Statement, are 12.5 percent or more greater
than Landlord's Expenses in the aggregate, as set forth in the audit, then
Landlord (in addition to crediting and/or refunding such excess amount to
Tenant, as aforesaid) shall pay Tenant interest on the excess amount which
theretofore has been paid by Tenant in an amount equal to one (1%) percent per
annum over the Chase Prime.
(c) Notwithstanding anything in this Section 4.02 to the contrary, it is
understood and agreed that if Landlord shall receive a refund of any portion of
Taxes in respect of which Tenant shall have paid additional rental under this
Section, then and under such circumstances Tenant shall be entitled to it credit
against future payments of additional rental under this Section in an amount
equal to a pro rate share of such refund, after first deducting from such total
refund all fees, costs and expenses incurred by Landlord in collecting same.
(d) If, upon the expiration of the term of the Lease, any credit to
which Tenant might be entitled pursuant to this Section shall not then have been
used as a credit, then, subsequent to Tenant properly vacating the Leased
Premises and provided that Tenant is not in default hereunder, Tenant shall be
entitled to a payment equal to the amount of any such remaining credit, Tenant's
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obligation hereunder to pay additional rent for any Operating Year shall survive
the expiration or termination of the term of this Lease. In the event that the
additional rent to be paid by Tenant under this Section for the final Operating
Year has not been determined upon the last day of the Lease term, Tenant
covenants to pay to Landlord the additional rent required to be paid pursuant to
this Section for the final Operating Year upon a determination being made by
Landlord of the actual amount of additional rent required to be paid by Tenant
pursuant to this Section, subject to the dispute resolution procedure set forth
in Section 4.02(b) above. Notwithstanding the foregoing, Tenant's obligation to
pay additional rent shall not extend to that period of the operating Year after
termination of this Lease.
Section 4.03. Real Estate Taxes; Assessed Valuation.
(a) Landlord shall pay real estate taxes when due and payable and prior
to the time that any penalty or interest may be charged in respect of the
nonpayment thereof and shall obtain a receipted tax xxxx therefor.
(b) Landlord may, within the respective times and in the manner
prescribed by law for such purposes, petition for reduction of the assessed
valuation of the Building and the Land, claim a refund of real estate taxes or
otherwise challenge the validity or applicability of any real estate tax,
assessment or similar or related laws (a "Tax Protest"), provided that all
costs and expenses of such tax protests, including legal and appraisal fees,
shall be chargeable to Tenant as Landlord's Expenses on the basis of its
Tenant's Share.
ARTICLE FIVE
------------
SERVICES
--------
Section 5.01. Standard of Operations. (a) Landlord shall at all times
operate and maintain the Building in accordance with a standard at least as high
as that customarily followed in the operation and maintenance of first class
office buildings in Westchester County and, without limiting the foregoing,
shall provide the specific facilities, utilities and services set forth in this
Article.
Section 5.02. Electrical Service. Landlord shall provide an electrical
distribution system and electrical service for the Building at the level of five
(5) xxxxx per square foot demand, provided, however, that Tenant shall be
responsible for distributing electrical service within the Leased Premises at
its sole cost and expense. Landlord shall cause to be furnished and shall pay
for electricity used in connection with the Common Building Facilities
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(including the Building's cooling tower (during Building Hours (hereinafter
defined)), but excluding electricity used in connection with the hallways and
lobby areas located an the second (2nd) and third (3rd) floors of the Building)
as an item included in Operating Expenses; provided, however, that Tenant shall
bear the expense of all other electric power used in the Leased Promises (other
than the Building's cooling tower during Building Hours), inclusive of electric
power used in connection with all heating, ventilating and air conditioning
("HVAC") equipment servicing the Leased Premises. In furtherance thereof, Tenant
shall pay its proportionate share of Landlord's actual cost of providing
electricity for the 40 ton "core" HVAC unit servicing the ground floor of the
Building, based upon the RSF occupied by Tenant on such ground floor (as such
RSF may be increased or decreased from time to time in accordance with the terms
hereof). If Landlord shall furnish cooling tower services at the request of
Tenant during periods other than Building Hours, Tenant shall pay Landlord, as
additional tent, an amount equal to $25.00 per hour, as the same may be
reasonably increased from time to time by a percentage which shall not exceed
the percentage increase in Operating Expenses for a given Operating Year over
Operating Expenses for the Base Year (or as of the most recent increase in
overtime cooling tower charges, as the case may be). Landlord shall not be
required to furnish overtime cooling tower services unless Landlord has received
advance notice from Tenant requesting same prior to 11:00 a.m. of the day upon
which such service is requested or by 11:00 a.m. of the last preceding business
day if such overtime use is to occur on a day other than a business day. The
electric power for Tenant's use and Landlord's use shall be supplied and
measured by the electric company via one or more meters for the Landlord's
account. The portion of such power for which Tenant is required to pay pursuant
hereto shall be measured by one or more submeters and billed by Landlord to
Tenant, provided, however, Tenant shall not be required to pay Landlord more per
unit electricity supplied than Landlord is actually required to pay the electric
company per unit (net of any rebates received by Landlord from the electric
company in respect thereof) for the supply of said electricity to Tenant. The
actual cost of administration of such billing system shall be an Operating
Expenses, and the cost of electric Power for Tenant's use shall be at Tenant's
expense and shall be separately indicated an the xxxx to be delivered by
Landlord pursuant to the preceding sentence, which Tenant shall pay as
additional rent hereunder with seven (7) days after receipt of such xxxx. The
main meters and all necessary submeters for the Leased Promises shall be
installed by Landlord, at Tenant's cost and expense.
Section 5.03. Elevators. Landlord shall provide passenger elevators
serving the Building. The passenger elevators shall be available during all
working hours (8:00 a.m. to 6:00 p.m.) of all working days (excluding national
holidays) ("Building Hours") and, at all other times, there shall be at least
one passenger elevator available to serve the Building.
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Section 5.04. Light Bulbs and Water. Landlord shall furnish and/or
install at its expense (a) all initial and replacement light bulbs, fluorescent
tubes and ballasts in the Common Building Facilities; and (b) water, including
heated water, to serve the Leased Premises as required for lavatory and drinking
purposes. Tenant shall provide, at its expense, all initial and replacement
light bulbs, fluorescent tubes and ballasts for the Leased Premises. Water for
special purposes such as cafeterias within the Leased Premises shall be
separately metered to Tenant through meters installed by Landlord at Tenant's
expense.
Section 5.05. Building Security. (a) Landlord does not contemplate
retaining security guards to be stationed in the Building. If Tenant requests
Landlord to supply special security services, these services will be billed to
Tenant directly and will not be included in operating Expenses.
(b) Tenant, at its expense and with the prior written approval of
Landlord (not to be unreasonably withheld or delayed), may design and install
such safety and security systems or devices, including without limitation, smoke
detectors, electronic security devices and auxiliary emergency electric power
supplies, as Tenant may deem appropriate. Landlord shall provide the plumbing
infrastructure for a standard wet pipe sprinkler system at its sole cost and
expense. Tenant shall be responsible for required branch piping and placement
of sprinkler heads in accordance with Applicable Laws (hereinafter defined).
Section 5.06. Janitorial Services. (a) Landlord shall keep the Common
Building Facilities cleaned and maintained in a first-class manner. Landlord
shall provide, at its expense, the cleaning and janitorial services (the
"Janitorial Services") and window cleaning services set forth in Exhibit E
hereto.
ARTICLE SIX
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TENANT PARKING
--------------
Section 6.01. Tenant Parking. (a) Subject to the provisions of Section
6,01(c) Landlord shall provide Tenant with access to not less than 3.3
non-designated parking spaces for each one thousand (1,000) RSF of Leased
Premises to be used in common with other tenants of Executive Park on a first
come, first served basis (except for 329 designated spaces at Executive Park
which may be utilized solely by MCI Telecommunications Corporation).
Notwithstanding the foregoing, Landlord shall provide Tenant with forty-five
(45) designated parking spaces (two (2) of which shall be handicapped passenger
vehicle spaces and one (1) of which a handicapped van space) for Tenant's
exclusive use, which spaces shall be considered a portion of the 3.3 spaces per
1,000 RSF provided to Tenant hereun-
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der. The parking spaces shall be available for use twenty-four (24) hours a day,
every day of the year, and shall be illuminated after dark. Landlord shall keep
and maintain the parking spaces in a clean, safe and first-class condition.
(b) If Tenant, its permitted assignees or subtenants and/or their
respective employees, licensees and guests at any time during the Term are not
able to use the parking spaces because of unauthorized use thereof, Landlord
shall take reasonable steps including, if appropriate, the posting of signs, the
distribution of parking stickers and the towing away of unauthorized vehicles,
to end further unauthorized use.
(c) Tenant understands and agrees that the parking spaces provided by
Landlord shall be utilized solely for the parking of passenger vehicles,
exclusive of trucks, vans and service vehicles and that no maintenance or
service of vehicles shall be permitted.
(d) No fence or other barrier shall be erected at the parking spaces
designated for Tenant.
(e) Tenant agrees to minimize the traffic impact of the occupancy of
Building by utilizing its reasonable efforts to encourage car pooling, use of
public transportation, and staggered working hours for its employees.
ARTICLE SEVEN
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USE AND ACCESS
--------------
Section 7.01. Use. (a) Tenant, its Affiliates (as defined in Section
16.01) and permitted assignees and subtenants shall have the right to use the
Leased Premises (excluding Tenant's Parking Spaces) for general and executive
office purposes are for all activities normally incidental thereto and for no
other purpose. In no event shall the Leased Promises be used by a tenant or
occupant which is of the following character telecommunications common carrier
(provided, however, that Tenant may engage a telecommunications common carrier
to provide services to Tenant), banks, automated tellers and banking services,
newsstands, tobacconists, markets, grocery stores, bars, saloons, cocktail
lounges, pawn shops, employment agencies, union hiring halls or uses of like
character of the foregoing.
(b) Tenant shall not use the Leased Premises for purposes prohibited or
not provided for under this Lease except upon Landlord's prior written consent.
Tenant shall not use the Leased Premises in any manner which would be
incompatible with a first class office park and/or which would have the effect
of materially
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lowering the rental and/or capital value of the Leased Promises and/or the
Executive Park.
Section 7.02. Access. Tenant, its Affiliates and permitted subtenants
and their respective employees, licensees and guests, shall have access to the
Leased Premises at all times, twenty-four (24) hours per days every day of the
year.
ARTICLE EIGHT
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REPAIRS AND MAINTENANCE
-----------------------
Section 8.01. Landlord's Obligation to Repair and Maintain. Landlord
shall (except as otherwise provided in Section 8.02 herein) keep and maintain in
good repair and working order and perform necessary maintenance upon the
Building and the Common Building Facilities and all parts thereof (exclusive of
the Leased Premises), including, but not limited to, the roof, parking areas,
elevators, lighting, HVAC (other than supplemental HVAC units which hereafter
may be installed by Tenant), plumbing, floors, corridors, windows, window
frames, common area lobbies and equipment within and serving the Building
(exclusive of the Leased Premises). Landlord shall keep and maintain in good
repair and working order the HVAC system currently serving the Leased Premises
(other than supplemental units, as aforesaid) and existing plumbing therein
unless damaged by reason of Tenant's negligence or willful misconduct.
Notwithstanding the foregoing, Landlord shall not be obligated to make and
repair or perform any maintenance which Tenant is obligated to make or perform
pursuant to Section 8.02 of this Lease. If Landlord shall default in its
obligations under this Section 8.01 for a period of thirty (30) days after it
shall have received written notice from Tenant specifying the nature of such
default (plus such additional time as may be reasonably required to cure a
default which despite diligent and continuous effort, cannot by its very nature
be cared within such thirty (30) day period), then Tenant upon giving a second
three (3) day written notice to Landlord stating that such default remains
uncured, may make reasonable and necessary repairs to the building in order to
remedy such default at Landlord's cost and expense,
Section 8.02. Tenant's Obligations. Tenant shall maintain all of
Tenant's property within the Leased Premises and shall repair any and all
damage to the Building and/or the Leased Premises caused by it, its agents or
employees, except damage by fire or other insured casualty or which may be due
to the negligence of Landlord, its agents or employees. Except as otherwise
provided in Article Eleven or in any other provision of this Lease, upon
termination of this Lease, Tenant shall surrender and deliver up the Leased
Premises in the same condition in which they existed on the Term Commencement
Date, except for ordinary wear and tear, repairs
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and maintenance assumed by Landlord, Permitted Alterations (as hereinafter
defined), damage arising from fire or other insured casualty and damage caused
by others for whom Tenant is not responsible.
ARTICLE NINE
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FIRE AND OTHER CAUSALITY
------------------------
Section 9.01. Damage or Destruction. (a) If the Leased Premises or any
part thereof should be destroyed or damaged by fire or other insured casualty
("insured casualty" meaning fire or other casualty Landlord is required to
insure against pursuant to Article Twenty-Six of this Lease) during the term of
this Lease and such damage or destruction was not caused by the negligence or
willful misconduct of Tenant, its agents or employees, then (unless the Lease is
terminated by Landlord or Tenant as hereinafter provided) Landlord shall
promptly proceed to reconstruct, restore and repair the Leased Premises, as the
case may be, to a condition substantially equivalent to their former
construction.
Commencing with the date of such damage, provided such damage was not
caused by the negligence or willful misconduct of Tenant, its agents or
employees, the rent provided for herein shall xxxxx pro rata to the extent that,
and for so long as, any portion of the Leased Premises is not reasonably usable
with reasonable ingress and egress and its proportionate number of required
parking spaces, and is not actually used, by Tenant in the ordinary conduct of
its business.
(b) It is agreed that if the Building is totally destroyed by any cause
or is so substantially destroyed that reconstruction would require more than
nine (9) months (or six (6) months if the casualty shall occur during the last
year of the Term), either Landlord or Tenant may elect to terminate this Lease
by giving the other party written notice of such election within thirty (30)
days after the giving of notice from Landlord hereinafter provided for. Such
termination shall be effective as of the date of such election.
(c) In the event of any casualty, Landlord shall, within twenty (20)
days thereafter, give Tenant written notice of the estimated time required to
repair the same. If Landlord and Tenant shall disagree as to the probable
reconstruction period, the matter shall be determined by an independent
architect reasonably acceptable to both parties, and the thirty (30) day period
for giving of a notice of termination shall commence upon the determination of
such architect that more than nine (9) months (or six (6) months, as the case
may be) is required to reconstruct the Building.
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(d) In the event of a casualty, if the reconstruction of the Building
can be completed within nine (9) months (or six (6) months, as the case may be),
Landlord shall commence to restore the Building within ninety (90) days after
the date of the destruction, and complete the reconstruction within nine (9)
months, as extended by Excusable Delays, but in no event later than fifteen (15)
months after the date of commencement of the work. If Landlord fails to commence
the reconstruction work within said ninety (90) day period or complete the
reconstruction work within said nine (9) month or six (6) month period, as the
case may be, as extended as aforesaid, Tenant shall have the option to terminate
this Lease an written notice to Landlord. Nothing contained in this Section 9.01
shall be deemed to extend the term of this Lease.
Section 9.02. Waiver of Subrogation Rights. The parties hereto hereby
waive any and all rights of recovery, claim, action or cause of action, against
each other, their respective agents, officers and employees, for any loss or
damage in connection with a loss covered by any insurance policies which the
releasor carries with respect to the Leased Premises, the Building, or any
interest or property therein or thereon, whether real, personal or mixed
(whether or not such insurance is required to be carried under this Lease), but
only to the extent that such loss is collectible under such insurance policies,
regardless of the cause or origin of the loss or damage, including negligence of
the parties hereto, their respective agents and employees. Each party agrees to
provide the other with reasonable evidence of its insurance carriers consent to
such waiver of subrogation. If at any time in the future the waiver of
subrogation results in increased insurance premiums for either party, the other
party shall reimburse the party incurring the higher premium for the amount of
the increased cost attributable to the waiver of subrogation.
ARTICLE TEN
-----------
LIABILITY
---------
Section 10.01. Indemnification of the Parties. Subject to the provisions
of section 9.02, Landlord and Tenant each agree to indemnify and save the other
harmless from any and all claims with respect to bodily injury or property
damage, arising from any breach or default on the part of the indemnifying party
in the performance of any covenant or agreement on its part to be performed
pursuant to the terms of this Lease or arising from its negligence or the
negligence at any of its agents or employees, including all costs, counsel fees,
expenses and liabilities incurred in or about any such claim; and if any action
or proceeding is brought against either Landlord or Tenant by reason of any such
claim, the indemnifying party upon notice from the party to be indemnified
covenants to resist or defend such action on proceeding
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at its expense and the indemnified party shall cooperate in such defense.
ARTICLE ELEVEN
--------------
ALTERATIONS AND FIXTURES
------------------------
Section 11.01. Alterations by Tenant. (a) Tenant may make such Permitted
Alterations (as hereinafter defined) to the Leased Premises as it shall from
time to time elect to make. Tenant shall notify Landlord in writing prior to
making any Permitted Alterations but Landlord's approval thereof shall not be
required if such Permitted Alterations are non-structural in nature, have an
aggregate cost that is less than $33,000 and are not visible from the Common
Building Facilities or exterior of the Leased Premises.
The following shall be deemed to be Permitted Alterations:
(i) Erection, demolition or alteration of non-load bearing
partitions and hung ceilings, including lighting fixtures.
(ii) Painting, decorating and installation of wall and floor
coverings.
Except for Permitted Alterations, Tenant shall make no
alterations, installations, additions or improvements in or to the Leased
Premises or any alteration to the mechanical systems of the Building or Leased
Premises, including, but not limited to the plumbing and air-conditioning
systems of the Building or any part thereof or to other Building apparatus of
other or like nature without Landlords prior written consent (any such
alteration, installation, addition or improvement as to which Landlord's
approval is required being hereinafter referred to as a "Tenant's Change").
Tenant's relocation of movable modular office partitions shall not be considered
an alteration. Landlord agrees that Landlord will not unreasonably withhold or
delay Landlord's consent to Tenant's Changes (including Tenant's initial
build-out) provided that such Tenant's Changes:
(i) do not materially adversely affect the structural elements of
the Building;
(ii) do not materially adversely affect the plumbing, electrical and
HVAC systems of the Building; and
(iii) do not materially adversely affect the outside appearance of
the Building.
(iv) do not materially adversely affect the rental or capital value
of the Building and/or Executive Park.
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Landlord may condition Landlord's approval with respect to any Tenant's
Changes on Tenant's agreement to remove such Tenant's change and restore the
portion of the Leased Premises affected thereby to the condition existing as of
the Term Commencement Date. Nothing contained herein shall require Tenant to
remove any alteration, installation, addition or improvement to the Leased
Premises made in connection with finishing the space for Tenant's initial
occupancy (including HVAC installations).
(b) Insurance requirements relating to Tenant alterations and
installations are as set forth in Article Twenty-Seven.
(c) All alterations or additions made by Tenant in the Leased Premises
shall be constructed and completed in a good and xxxxxxx-like manner at Tenant's
expense by contractors approved by Landlord, such approval not to be
unreasonably withheld or delayed. Landlord hereby approves JWP Affiliates
(hereinafter defined) to perform any Permitted Alterations and Tenant Changes.
Tenant shall obtain all accessory governmental permits licenses and approvals
and shall comply with all Applicable Laws. Landlord shall, at Tenant's cost and
expense, cooperate with Tenant in connection with Tenant's procurement of such
permits, licenses and approvals and, to the extent legally required, promptly
execute (in Landlord's name) any and all governmental applications in connection
with Tenant's work, provided that in no event shall Landlord be obligated to
make any expenditures by reason of the foregoing. Tenant shall pay to Landlord,
as additional rent for services to be performed by Landlord in connection with
Permitted Alterations and Tenant's Changes (other than Tenant's initial
build-out), Landlord's reasonable charges therefor not to exceed ton (10%)
percent of the total cost of Tenant's Changes.
(d) As soon as practicable following the date hereof, Tenant shall
deliver the complete set of architectural and engineering plans and
specifications covering its initial build-out for Landlord's approval, which
shall not be unreasonably withheld or delayed, Landlord, within five (5)
business days after receipt of such plans and specifications (or reasonable
portions thereof), either shall approve the same or notify Tenant of Landlord's
specific objections thereto, in writing. If Landlord shall fail to respond to
the submission of Tenant's plans and specifications within such five (5)
business day period, then Landlord shall be deemed to have consented thereto.
The quality of Tenant's initial build-out and any further Permitted Alterations
or Tenant's Changes shall be consistent with tenant installations typically
found in first class office parks. Landlord shall have the right to conduct
reasonable inspections (during Building Hours) of any construction undertaken by
or on behalf of Tenant to ensure reasonably satisfactory quality. Tenant shall
deliver to Landlord a complete set of "as-built" plans and specifications
promptly following completion of Tenant's initial build-out and any further
Tenant's Changes.
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Section 11.O2. Tenant's Property. (a) Tenant, at its expense, may, at
any time and from time to time, install in and remove from the Leased Premises
its trade fixtures, equipment, partitions, walls and wall systems, furniture and
furnishings, provided such installation or removal is accomplished without
material damage to the Leased Premises or the Building and Tenant promptly
repairs any such damage.
(b) Subject to the provisions of Section 11.01(a) hereof, upon the
expiration of this Lease, Tenant shall remove all of Tenant's property not
permanently affixed to the Building. If Tenant fails to remove any personal
property of Tenant that Tenant may remove upon the termination of this Lease,
any such property not so removed shall, at Landlord's election, become the
property of Landlord or be removed by Landlord at Tenant's expenses.
ARTICLE TWELVE
--------------
CONDEMNATION
------------
Section 12.01. Total Taking. If all or substantially all of the Leased
Premises shall be taken by condemnation or in any other manner for any public or
quasi-public use or purpose (other than for temporary use or occupancy), the
term of this Lease shall terminate as of the date of vesting of title (the "Date
of the Taking"), and, subject to a pro-ration and apportionment of Annual
Rental, additional rental and other sums due hereunder as of the Date of the
Taking, no further rent shall be due hereunder.
Section 12.02. Partial Taking. If a part of the Leased Premises, shall
be so taken, then Landlord shall give Tenant prompt written notice thereof and
the part so taken shall no longer constitute part of the Leased Premises, but
this Lease shall continue in force and effect as to the part not so taken;
provided, however, that Tenant may elect to terminate this Lease (a) if a
partial taking is more than ten percent (10%) of the Leased Premises, and if, in
the good faith judgment of Tenant, the remaining portion of the Leased Premises
cannot be economically and practicably used by Tenant for the conduct of its
business as conducted immediately prior to the taking, or (b) if a partial
taking has a material adverse effect upon the means of access to the Leased
Premises, the entrances or lobbies of the Buildings or the number of parking
spaces reasonably available to Tenant, unless Landlord shall have provided
reasonable substitutes therefore. Tenant shall give notice of any election to
terminate to Landlord not later than sixty (60) days after notice of such taking
is given by Landlord to Tenant, which notice shall describe in reasonable detail
the premises subject to said condemnation. Upon the date specified in Tenant's
notice (which shall not be more than one hundred eighty (180) days after that
notice), the term of this Lease shall terminate and, subject to a proration
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and apportionment of Annual Rental, additional rental and other sums due
hereunder as of the Date of Taking and such termination date, as applicable no
further rent shall be due hereunder. Upon a partial taking and the term of this
Lease continuing in force as to any part of the Leased Premises, the Annual
Rental or any additional rental shall be reduced proportionately based upon the
part or parts of the Leased Premises so taken and not replaced.
Section 12.03. Claims of Landlord and Tenant. Landlord shall be entitled
to receive the entire award in any proceeding with respect to any taking (other
than for temporary use and occupancy) provided for in this Article without
deduction therefrom for any estate vested in Tenant by this Lease and Tenant
shall receive no part of such award, except as hereinafter expressly provided.
Tenant shall have the right to make a separate claim with the condemning
authority for (a) any moving expenses incurred by Tenant as a result of such
condemnation; (b) the value of any of Tenant's property taken (including any
leasehold improvements made by Tenant); and (c) any other separate claims which
Tenant may hereafter be permitted to make, provided, however, that such separate
claim shall not reduce or adversely affect the amount of Landlord's award. If
Tenant shall not be permitted to make a separate claim in such proceeding,
Landlord shall prosecute all claims in such proceeding on behalf of both
Landlord and Tenant in which event Tenant may, if it so elects and at its
expense, join with Landlord in such proceeding, retain co-counsel, attend
hearings, present arguments and generally participate in the conduct of the
proceeding; provided, however, that if Landlord incurs an additional expense
because of Tenant's exercising its rights under this sentence, Tenant will bear
such additional expense.
Section 12.04. Distribution of the Award. The aggregate amount of all
awards received in any proceeding relating to any taking (other than awards to
Tenant pursuant to Section 12.03 or for temporary use or occupancy) is
hereinafter called the "Award". Regardless of the apportionment of the Award in
such proceeding, and regardless of any termination of this Lease, the Award
shall be held in trust by Landlord or any mortgagee, as their interests may
appear, and distributed in the following order of priority:
(a) If Landlord shall be obligated to repair, alter and restore the
remaining part of the Building or Leased Premises pursuant to Section 12.06, the
amount actually expended by Landlord for such repair, alteration and restoration
shall be paid to Landlord out of the Award.
(b) The balance of the Award shall then be paid to Landlord.
Section 12.05. Temporary Taking of Premises. If all or any part of the
Leased Premises shall be temporarily taken by condemnation or otherwise for any
public or quasi-public use or purpose (unless Tenant shall have elected to
terminate the term of this Lease in
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accordance with the option provided in the last sentence of this Section), this
Lease shall nevertheless remain in full force and effect. Tenant shall continue
to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking; provided, however, that Tenant
shall not be liable for the payment of Annual Rental, additional rental or other
sums for the part of the Leased Promises so temporarily taken. The award for the
temporary taking shall be payable to Landlord, except to the extent such award
is intended to cover the value of Tenant's property taken or the moving costs
incurred by Tenant as a result of such condemnation. In the event of a temporary
taking which meets the requirements of Section 12.02 for a period in excess of
six months and involves a taking of more than twenty-five percent (25%) of the
Leased Promises, Tenant may terminate the term of this Lease upon notice to
Landlord given within thirty (30) days after written notice to Tenant of such
temporary taking, and this Lease shall terminate as of the date of such taking.
Section 12.06. Landlord's Obligation to Restore.
(a) In the event of a taking which taking does not result in the
termination of the Lease, Landlord shall, at its expense and regardless of
whether any Award or Awards shall be sufficient for the purpose, proceed with
due diligence to repair, after and restore the remaining part of the Leased
Premises substantially to its former condition to the extent feasible. Upon the
expiration of any temporary taking which did not result in a termination of this
Lease, Landlord shall restore the Leased Premises to their former condition as
aforesaid and any Award relating to the cost of such restoration shall be paid
over to Landlord and used for such purpose.
(b) During any period of restoration of the Leased Premises pursuant to
subsection (a) above, the rent provided for herein shall xxxxx pro rata to the
extent that, and for so long as, any portion of the Lease Premises is not
reasonably usable, and is not actually, used by Tenant in the ordinary conduct
of its business.
ARTICLE THIRTEEN
----------------
REMEDIES AND DEFAULTS
---------------------
Section 13.02. Default by Tenant. (a) The term of this Lease in subject
to the limitation that (i) whenever Tenant fails to pay any monthly installment
of the Annual Rental or any additional rental or other sum due Landlord from
Tenant hereunder and such default continues for a period of ton (10) days after
written notice by Landlord, or (ii) whenever Tenant fails to perform or observe
any other covenant, term, provision or condition of this Lease and such default
continues for a period of thirty (30) days after written notice by Landlord
(plus such additional time as may be reasonably
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required to cure a default which, despite diligent and continuous effort, cannot
by its very nature be cured within said thirty (30) days) then, in any of such
cases Landlord may give Tenant a notice of intention to terminate this Lease
fifteen (15) days after such notice and the term and estate hereby granted,
whether or not the term shall theretofore have commenced, shall expire and
terminate on that fifteenth day with the same effect as if the date of
termination were the Expiration Date, but Tenant shall remain liable for damages
as provided herein.
(b) If the notice provided in subparagraph (a) above shall have been
given and the term shall expire as aforesaid, then Landlord or Landlord's agents
and employees may immediately or at any time thereafter re-enter the Leased
Premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law, or otherwise (other than by force),
without being liable to indictment, prosecution or damages therefor, and may
repossess the same, and may remove any persons therefrom, to the end that
Landlord may have, hold and enjoy the Leased Premises again as and of its first
estate and interest therein. In the event of any termination of the term of this
Lease under the provisions of Article Thirteen or in the event of the
termination of the term of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord
the rent and any other charge payable by Tenant to Landlord up to the time of
such termination or re-entry, as the case may be, and shall also pay to Landlord
damages as provided in subparagraph (c) below.
(c) Despite any termination of Tenant's rights of possession, Tenant
shall remain liable for the Annual Rental and any additional rental due and to
become due hereunder, and the same shall be paid by Tenant to Landlord on the
regular days stipulated herein for payment of rent; provided that Landlord shall
have the right to alter, change or remodel the improvements within the Building
and to lease or let the Leased Premises, or portions thereof, for such periods
of time and at such rent and for such use and upon such covenants and conditions
as Landlord may elect, applying the net rent or avails of such letting first to
the payment of Landlord's reasonable expenses in dispossessing Tenant and such
costs or expenses as may be necessary in order to enable Landlord to relet the
same; provided further, however, that Tenant shall be entitled to a credit in
the net amount of the rental or additional rental or additional rental by
Landlord as a result of reletting (after deducting all reasonable costs incurred
by Landlord in finding a new tenant, including brokerage fees, agent's
commissions, redecorating costs, attorneys' fees and any other reasonable costs
and expenses incident thereto). Tenant shall remain obligated to pay the amount
of any deficiency in the Annual Rental and additional rental obtained on such
reletting, but if the annual rental or any additional rental obtained upon such
reletting is greater than that provided for
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herein plus Landlord's costs, Landlord shall be entitled to receive such excess.
Landlord shall have the right to collect from Tenant amounts equal to said
deficiencies provided for above by suits or proceedings brought from time to
time an one or more occasions without Landlord being obligated to wait until the
expiration of the term of this Lease.
(d) Whether or not Landlord shall have collected any amounts pursuant to
(c) above, Landlord shall be entitled to recover from Tenant, and Tenant shall
pay to Landlord, on demand, in lieu of any further monthly payments as and for
liquidated and agreed final damages, a sum equal to the amount by which the
rental for the period which otherwise would have constituted the unexpired
portion of the Term exceeds the then fair and reasonable rental value of the
Leased Premises for the same period, both discounted to present worth at an
interest rate per annum equal to the Treasury Xxxx Rate (hereinafter defined)
less the aggregate amount theretofore collected by Landlord pursuant to the
provisions of (c) above for the same period; if, before presentation of proof of
such liquidated damages to any court, commission or tribunal, the Leased
Premises, or any part thereof, shall have been relet by Landlord for the period
which otherwise would have constituted the unexpired portion of the 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 Leased Premises so relet during the term of the reletting. For
purposes of the foregoing, the "Treasury Xxxx Rate" shall mean the annual rate
of interest then payable on U.S. Treasury Bills having a maturity date
corresponding as closely as practicable to the Expiration Date.
(e) If Tenant shall default in the performance of any of Tenant's
obligations hereunder, then Landlord, without being obligated to and without
thereby waiving such default, shall have the following remedies:
Thirty (30) days after notice to Tenant and Tenant's subsequent failure
to perform or, in the case of any obligation which cannot be performed in thirty
(30) days, to commence to perform within said thirty (30) day period and to
continue thereafter, with due diligence, to complete such performance, Landlord
may perform such obligation, or, in the case of payment due others, make such
payment, as Tenant's agent. The full amount of the cost and expense so incurred
by Landlord or the payment so made, together with the amount of attorneys' fees
in instituting, prosecuting or defending any action or proceeding by reason of
any default of Tenant hereunder shall be paid by Tenant to Landlord with
interest as provided in Section 13.01(a) of this Lease within ten (10) days
after written demand therefor.
(f) If any amount due under this Lease is not paid by Tenant to Landlord
when due to Landlord pursuant to the terms of this Lease,
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Tenant shall pay Landlord interest upon such amount at the rate of three percent
(3%) per annum over the prime rate of interest from time to time announced by
the Chase Manhattan Bank, N.A. at its principal office in New York City (the
"Chase Prime"), or the highest rate of interest permitted by law, whichever is
less, for the period from the due date of such payment to the date of payment in
full.
(g) The special remedies to which Landlord may resort under this Section
13.01 are cumulative and are not intended to be inclusive of any other remedies
or means of redress to which Landlord may lawfully be entitled at any time, and
Landlord may invoke any remedy allowed at law or in equity as if specified
remedies were not provided for herein.
ARTICLE FOURTEEN
----------------
BANKRUPTCY
----------
Section 14.01. Bankruptcy by Tenant. If at any time during the term of
this Lease a petition in bankruptcy or insolvency or for reorganization or for
the appointment of a receiver or trustee of all or substantially all of Tenant's
assets is filed against Tenant in any court pursuant to any statute either of
the United states or of any state and Tenant fails to secure a discharge thereof
within one hundred twenty (120) days, or if Tenant voluntarily files a petition
in bankruptcy or makes an assignment for the benefit of creditors or petitions
for or enters into an arrangement with creditors, the term of this Lease, at the
option of Landlord, exercised within thirty (30) days after notice of the
happening of any one or more of such events, shall terminate on such a date as
Landlord shall specify by notice to Tenant, with the same effect as if the date
of termination were the Expiration Date of this Lease, but Tenant shall remain
liable for rent and/or damages and attorneys' fees as provided in Article
Thirteen. However, if a petition for reorganization or for an arrangement is
filed by or against Tenant, Landlord may not terminate the term of this Lease so
long as Tenant is not in default hereunder and, provided this Lease is assumed
or affirmed in such reorganization or arrangement proceeding and all defaults
cured within the time periods provided by law.
ARTICLE FIFTEEN
---------------
COMPLIANCE WITH LAWS
--------------------
Section 15.01. Tenant's Compliance with Laws. Tenant, at its expense,
shall comply with any valid and applicable laws, rules, orders, ordinances,
regulations and other requirements, present or
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future (collectively, "Applicable Laws"), affecting its occupancy of the Leased
Premises and/or the Building that are promulgated by any governmental authority
or agency having jurisdiction over the Leased Premises and/or the Building and
with any reasonable requirements of the insurance companies insuring Landlord
against damage, loss or liability for accidents in or connected with the
Building to the extent that the same shall affect or be applicable to: (i)
Tenant's manner of use of the Leased Premises (as opposed to its mere use
thereof as general and executive offices), (ii) alterations or improvements made
by Tenant, or (iii) a breach by Tenant of its obligations under this Lease
Tenant shall not at any time use or occupy the Leased Premises so as to violate
the certificate of occupancy for the Building. Nothing herein contained,
however, shall be deemed to impose any obligation upon Tenant to make any
structural alterations, installations or repairs unless necessitated by reason
of (A) a particular manner of use by Tenant of - the Leased Premises, (B)
alterations or improvements made by Tenant, or (C) a breach by Tenant of its
obligations under this Lease. If by reason of a future change in Applicable
Laws, structural alterations or installations are required with respect to
buildings or premises used for the same or similar purposes and/or in the same
or similar manner as the Building or Leased Premises, as contrasted with
structural alterations or installations required as a result of a change in use
or manner of use of the Building or Leased Premises by Tenant, then, if the cost
of such structural alterations or installations exceeds $500,000.00 Landlord may
terminate this Lease upon thirty (30) days prior written notice to Tenant. If
the cost of such structural alterations or installations is $500,000.00 or less,
Landlord shall make such alterations or installations at its expense, within the
time period allowed by Applicable Laws for compliance If Landlord elects to
terminate this Lease as aforesaid, Tenant shall have the right to cancel
Landlord's election to terminate by notifying Landlord within sixty (60) days
after receipt of Landlord's notice that Tenant agrees to pay on a monthly basis
a pro rata share of the amortized value of such structural alterations or
installations ever the remaining life of the alterations or installations, plus
interest, per annum, from the date Landlord paid for such alterations or
installations at the Chase Prime as of Landlord's payment date (the "Applicable
Chase Prime"), calculated as follows: divide the cost of the alterations or
installations by useful life and multiply the quotient (the "Quotient") by the
lesser of (x) the number of years remaining in the original term of the Lease
(the "Remaining Original Term") or (y) the number of years of the useful life
(the "Useful Life") of such alterations or installations (such product is
hereinafter referred to as the "Adjusted Cost"). Thereafter, ascertain the
amount necessary to amortize the Adjusted Cost at the Applicable Chase Prime,
per annum, in equal monthly installments (each a "Monthly Payment") over the
Remaining Original Term. Tenant shall pay as additional rent its pro rata share
of the Monthly Payment on the same day of the month the fixed rental payment is
due under this Lease until the Adjusted Cost is paid in full.
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The estimated life (in years) of the alterations or installations shall
be determined in accordance with Internal Revenue Code guide lines or generally
accepted accounting principles, whichever results in the longer estimated life.
If Tenant elects to cancel the termination of the Lease as aforesaid,
Landlord shall make such alterations or installations within the time period
allowed by the Applicable Laws for compliance.
Section 15.02. Landlord's Compliance with Laws. Landlord shall be
responsible for complying with all Applicable Laws affecting the design,
construction and operation of the Building (excluding the Leased Premises) or
relating to the performance by Landlord of any duties or obligations to be
performed by it hereunder. Landlord may, at its expense (and, if necessary, in
the name of but without expense to, Tenant) contest, by appropriate proceedings
diligently prosecuted, the validity, or applicability to the Leased Promises,
any matter it may be required to comply with provided the deferral of compliance
dose not subject Tenant to criminal prosecution or deprive Tenant of the
possession, use or the then current manner of use of the Leased Promises and
Landlord agrees to indemnify Tenant against any loss or expense Tenant may incur
as a result of such deferral of compliance.
ARTICLE XVI
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ASSIGNMENT AND SUBLETTING
-------------------------
Section 16.01. Assignment and Subletting by Tenant.
(a) Except as expressly permitted herein, Tenant, without the prior
written consent of Landlord in each instance, shall not (a) assign its rights or
delegate its duties under this Lease (whether by operation of law, transfers of
interests in Tenant or otherwise), or mortgage or encumber its interest in this
Lease, in whole or in part, (b) sublet, or permit the subletting of, the Leased
Premises or any part thereof, or (c) permit the Leased Premises or any part
thereof to be occupied, or used for desk space, mailing privileges or otherwise,
by any person other than Tenant.
(b) The consent by Landlord to any assignment, subletting, occupancy or
use shall not relieve Tenant from its obligation to obtain the express prior
written consent of Landlord to any further assignment, subletting, occupancy or
use. Tenant shall pay to Landlord all reasonable costs, including reasonable
attorneys' fees and disbursements, incurred by Landlord in connection with any
proposed assignment of Tenant's interest in this Lease or any proposed
subletting of the Leased Premises or any part thereof. Neither any assignment of
Tenant's interest in this Lease nor any subletting, occupancy or use of the
Leased Premises or any part thereof by any person other than Tenant or its
Affiliates, nor any collection of
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rental by Landlord from any person other than Tenant as provided in this
Section, nor any application of any such rental by Landlord, shall relieve or
release Tenant of its obligations under this Lease on Tenant's part to be
observed and performed, and, subsequent to any assignment, Tenant's liability
hereunder shall continue notwithstanding any subsequent modification or
amendment hereof or the release of any subsequent tenant hereunder from any
liability, to all of which Tenant hereby consents in advances. Tenant shall
strictly enforce the terms and conditions of any assignment or sublease to which
Landlord shall have consented, and shall assign to Landlord any and all rights
it may have against such subtenant or assignee, as the case may be, should
Landlord so request, including the right to commence legal proceedings in
Tenant's name.
(c) If Landlord shall recover or come into possession of the Leased
Premises before the Expiration Date, Landlord shall have the right, at its
option, to take over any and all subleases or sublettings of the Leased Premises
or any part thereof made by Tenant and to succeed to all the rights of paid
subleases subletting or such of them as it may elect to take over. Tenant hereby
expressly assigns and transfers to Landlord such of the subleases and
sublettings as Landlord may elect to take over at the time of such recovery of
possession, such assignment and transfer not to be effective until the
termination of this Lease or re-entry by Landlord hereunder (or if Landlord
shall otherwise succeed to Tenant's estate in the Leased Premises), at which
time Tenant shall, upon request of Landlord, execute, acknowledge and deliver to
Landlord such further assignments and transfers as may be necessary to vest in
Landlord the then existing subleases and sublettings. Every subletting hereunder
is subject to the condition and by its acceptance of and entry into a sublease,
each subtenant thereunder shall be deemed conclusively to have thereby agreed
from and after the termination of this Lease or re-entry by Landlord hereunder
(or if Landlord shall otherwise succeed to Tenant's estate in the Leased
Premises), that such subtenant shall waive any right to surrender possession or
to terminate the sublease and, at Landlord's election, such subtenant shall be
bound to Landlord for the balance of the term of such sublease and shall attorn
to and recognize Landlord, as its landlord, under all of the then executory
terms of such subleases Each subtenant or licensee of Tenant shall be deemed
automatically upon and as a condition of occupying or using the Leased Premises
or any part thereof, to have given a waiver of subrogation of the type described
in and to the extent and upon the conditions set forth in Article XXVI hereof.
(d) If Tenant is a corporation, Tenant may, without Landlord's consent,
assign its interest in this Lease (i) to any corporation which is a successor to
Tenant either by merger or consolidation, (ii) to a purchaser of all or
substantially all of Tenant's assets (provided such purchaser shall have also
assumed substantially all of Tenant's liabilities). or (iii) to a corporation or
other entity which shall (1) control, (2) be under the control of or (3) be
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under common control with, Tenant (the term "control" as used herein shall be
deemed to mean ownership of more than fifty (50%) percent of the outstanding
voting stock of a corporation, or other majority equity and control interest, if
not a corporation). Tenant may also sublease to, or permit the use of all or any
portion of the Leased Premises by an entity described in clause (iii) (any such
entity is referred to herein as an "Affiliate") without Landlord's consent. As
conditions to any such assignment or subletting, (a) Tenant shall not be in
default in the performance of any of its obligations under this Lease, (b) prior
to such subletting Tenant shall furnish Landlord with the name of any such
related corporation, together with a certification of Tenant and such other
proof as Landlord may reasonably request that such assignee or sublessee is a
related corporation of Tenant, (c) in the reasonable judgment of Landlord the
proposed subtenant shall be of at character in keeping with the standards of
Landlord for the Building (d) such subtenant or assignee shall not be a
"telecommunications common carrier". In the event of any assignment or
subletting described above, (a) any such assignee, subtenant or occupant shall
continue to use the Leased Premises for the conduct of the purposes permitted
hereby, (b) the principal purpose of such assignment or sublease shall not be
the acquisition of Tenant's interest in this Lease (except if such assignment or
sublease is made pursuant to clause (iii) and is made for a valid intracorporate
business purpose and is not made to circumvent the provisions of this Article),
and (c) any such assignee shall have a net worth and annual income and cash
flow, determined in accordance with generally accepted accounting principles,
consistently applied, after giving effect to such assignment, equal to or
greater than Tenant's net worth and annual income and cash flow, as so
determined, on the date of such assignments. Tenant shall, within ton (10)
business days after execution thereof, deliver to Landlord a duplicate original
instrument of assignment (or sublease) in form and substance reasonably
satisfactory to Landlord, duly executed by Tenant (and the subtenant), and (b)
an instrument in form and substance reasonably satisfactory to Landlord, duly
executed by the assignee, in which such assignee shall assume observance and
performance of, and agree to be personally bound by, all of the terms, covenants
and conditions of this Lease on Tenant's part to be observed and performed;
provided, however, that in no event shall such assignment relieve or release
Tenant from any of its obligations hereunder. Except as set forth above, either
a transfer of a controlling interest in the shares of Tenant (if Tenant is a
corporation or trust) or a transfer of a majority of the total interest in
Tenant (if Tenant is a partnership) at any one time or over a period of time
through a series of transfers, shall be deemed an assignment of this Lease and
shall be subject to all of the provisions of this Article, including, without
limitation, the requirement that Tenant obtain Landlord's prior consent thereto.
The transfer of shares of Tenant (if Tenant is a corporation or trust) , for
purposes of this Article, shall not include any sale of shares effected through
the "over-the-counter market" or through any recognized stock exchange.
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(e) Except as to sublettings or assignments made pursuant to Section (d)
above, prior to any proposed subletting or assignment, Tenant shall submit a
statement to Landlord (an "Assignment/Sublease Statement") containing the
following information: (a) the name and address of the proposed subtenant or
assignee, (b) a description of the portion of the Leased Premises to be sublet,
(c) the terms and conditions of the proposed subletting including the rent
payable or the proposed assignment, including the consideration payable
therefor, (d) the nature and character of the business of the proposed subtenant
or assignee including financial statements supporting the creditworthiness of
the proposed subtenant or assignee, and (A) any other information that Landlord
may reasonably request. A complete copy of the proposed assignment or sublease
to be executed by Tenant and the assignee or subtenant shall accompany Tenant's
Assignment/Sublease Statement.
(f) Landlord may, by notice to Tenant ("Landlord's Notice"), given
within fifteen (15) days after its receipt of an Assignment/Sublease Statement
wherein Tenant shall propose to sublet all or any portion of the Leased
Premises, require Tenant to sublease the proposed sublease space to Landlord or
its nominee on the terms set forth in Section (g) below. If Tenant shall propose
to assign this Lease or sublease substantially all of the Leased Premises for
substantially the then balance of the term of this Lease, Landlord also may, by
Landlord's Notice, terminate this Lease as of the date which is two (2) months
following Landlord's receipt of the Assignment/Sublease Statement as though such
date was the Expiration Date set forth in this Lease. If Landlord falls to so
exercise either of such options, it shall not unreasonably withhold or delay its
consent to the proposed assignment or sublease by Tenant, as provided below, but
such consent shall be deemed of no effect if such assignment or sublease is not
consummated by Tenant and the assignee or subtenant, as the case may be,
executing and delivering the assignment or sublease which accompanied Tenant's
Assignment/Sublease Statement within one hundred twenty (120) days after such
consent is given. The portion of the Leased Premises to which any proposed
subletting is to be applicable is hereinafter referred to as the "Space".
(g) If Landlord requires Tenant to execute it sublease ("Sublease")
pursuant to Section (f), then the Sublease shall be upon the same terms as this
Lease, except for such terms thereof as are inapplicable and except that: (1)
the term of the Sublease shall be the term specified in Tenant's
Assignment/Sublease Statement; (2) the fixed annual rent for the Sublease shall
be the lesser of (a) the product of the rate per RSF (net of any credits Tenant
may be receiving In respect thereof pursuant to this Lease or otherwise) Tenant
in then paying Landlord hereunder and the RSF contained in the Space and (b) the
fixed annual rent set forth in Tenant's Assignment/ Sublease Statement; (3)
"Tenant's Share" shall be determined by multiplying Tenant's Share under this
Lease by is fraction, the numerator of which is the RSF contained in the Space
(including
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any common corridor allowances attributable to the Space), and the denominator
of which is 94,016; (4) for purposes of determining additional rent under the
Sublease, the "Base Year" shall be the later of (i) the Base Year under this
Lease, or (ii) the Base Year as set forth in the assignment or sublease which
accompanies the Tenant's Assignment/Sublease Statement; (5) the subtenant under
the Sublease shall have the unrestricted right to assign the Sublease or any
interest therein, to further sublet all or any part of the Space and/or to make
any alterations, decorations, additions or improvements in and to the Space (all
or any part of which may be removed, at Landlord's option, at any time, provided
Landlord repairs all damage caused by such removal); (6) Tenant, as sublandlord
under the Sublease, shall, at its expense (if and only if, Tenant, as
sublandlord under its proposed Sublease, was required to perform the following
work): (a) erect all partitions required to separate the Space from the
remainder of the Leased Premises and (b) to the extent necessitated by the
Sublease, install all doors required for independent access from the Space to
the elevators, lavatories and staircases on the applicable floor and install all
equipment and facilities required to comply with all Applicable Laws and to
enable Landlord to maintain and service the Space and permit the Space to be
used as an independent unit; (7) the Sublease shall provide that the termination
of all or any portion of this Lease by merger is not thereby intended, and (8)
at the expiration of the Sublease, the Space shall, subject to subdivision (5),
be returned to Tenant as then existing.
(h) If Landlord fails to execute its options set forth in Section (f)
above, then, within such fifteen (15) day period, Landlord shall not
unreasonably withhold its consent to an assignment of this Lease in its entirety
or to any subletting of the Leased Premises, provided that:
(i) the Leased Promises and this Lease shall not, without Landlord's
prior consent, have been published or otherwise publicly advertised for
subletting at a rental rate less than the prevailing rental rate at which
Landlord is then offering to lease space in the Building;
(ii) no Event of Default shall have occurred and be continuing;
(iii) the proposed subtenant or assignee shall have a financial
standing, be of a character, be engaged in a business, and propose to use the
Leased Premises in a manner in keeping with Landlord's then current standards in
such respects of tenancies in the Building;
(iv) the proposed subtenant or assignee shall not be an occupant of
the Executive Park, if Landlord fiats or within nine (9) months thereafter
expects to have suitable space available in the executive Park and the proposed
subtenant or assignee shall not be
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a person or entity with whom Landlord in then negotiating or discussing to lease
space in the Building;
(v) the character of the business to be conducted or the proposed
use of the Leased Premises by the proposed subtenant or assignee shall not (a)
be likely to Lease substantially Landlord's operating expenses beyond those
which would be incurred for use by Tenant or for use in accordance with the
standards of use of other tenancies in the Building; (b) substantially increase
the burden on existing cleaning services over the burden prior to such proposed
subletting or assignment; (c) violate any provision or restrictions herein
relating to the use or occupancy of the Leased Premises or (d) involve the
presence in the Leased Premises, as occupant or user, of a governmental agency;
(vi) the sublease shall be expressly subject to all of the terms,
covenants, conditions and obligations on Tenant's part to be observed and
performed under this Lease and the further condition and restriction that this
Lease shall not be assigned, encumbered or otherwise transferred in whole or in
part, or any part thereof suffered or permitted to be used or occupied by
others, without the prior written consent of Landlord in each instance;
(vii) the subtenant or assignee, as the case may be, shall agree to
assume all of the obligations of Tenant under this Lease for the balance of the
term, with regard to an assignment, or for the term of the subletting, with
regard to a sublease;
(viii) Tenant shall reimburse Landlord on demand for all reasonable
out of pocket costs that may be incurred by Landlord in connection with said
sublease, including, without limitation, reasonable attorneys' fees and
disbursements;
(ix) the proposed subtenant or assigns shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be subject
to the service of process in, and the jurisdiction of the courts of, the State
of New York;
(x) the proposed subtenant or assignee shall not be a
"telecommunications common carrier"; and
(xi) the proposed subtenant or assignee shall not contemplate using
the Leased Promises in any manner which would be incompatible with a first class
office park and/or which would have the effect of materially lowering the rental
and/or capital value of the Leased Premises and/or the Executive Park.
(i) If Landlord shall fail to exercise its options set forth in Section
(f) above and shall object to any proposed assignment or subletting, then
Landlord shall provide Tenant with its reason(s) for so objecting within such
fifteen (15) day period following Landlord's receipt of Tenant's
Assignment/Sublease Statement.
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(j) Tenant shall pay to Landlord, as additional rent, as and when
payable to Tenant one hundred (100%) percent of the following: (i) with respect
to any sublease, all of any rent or other consideration paid to Tenant by any
subtenant in excess of the pro rata portion of the then Annual Rent and
additional rent payable for such space, and, (ii) with respect to an
assignment, all consideration payable to Tenant, directly or indirectly, by any
assignee, plus any other amount received IV Tenant from or in connection with
such-subletting or assignment of this Lease, including, in either case, but not
limited to, sums paid for the sale, rental or contribution of Tenant's fixtures,
leasehold improvements, equipment, furniture or other personal property
("Tenant's Property") less, in the event of a sale (or contribution) of Tenant's
Property, the then unamortized or undepreciated cost thereof determined on the
basis of a ten (10) year useful life (as certified to Landlord by Tenant's
independent certified accountants) ("Sublease Profit" or "Assignment Proceeds",
as the case may be). Tenant shall be entitled to deduct from the total amount of
Sublease Profit or Assignment Proceeds, as the case may be, payable
to it, the reasonable out-of-pocket expenses incurred by Tenant in making such
sublease or assignment such as reasonable brokers' fees, reasonable attorneys'
fees, and advertising fees paid to unrelated third parties, non-decorative
improvement or alteration costs to prepare the space for such sublease or
assignment and, in connection with any assignment, payments required to be made
by Tenant in connection with the assignment of this Lease pursuant to Article
31-B of the Tax Law of the State of New York or any real property transfer tax
of the United States or The State of New York (other than any income tax) and
the costs of obtaining any accountant's certification, as required above. If the
consideration payable to Tenant for any assignment shall be payable in
installments, then the expenses specified herein shall be amortized over the
period during which such installments shall be payable.
ARTICLE SEVENTEEN
-----------------
LANDLORD'S ACCESS
-----------------
Section 17.01. Landlord's Right to Use Certain Facilities. Tenant shall
permit Landlord to install, use and maintain additional utility and other pipes,
ducts, lines, flues and conduits in and through the Leased Premises and serving
other portions of the Building and/or the Leased Premises, provided that such
installations are concealed within the permanent walls, floors, columns and
ceilings of the Leased Premises and in the shafts provided in the Leased
Premises for such installations, do not damage the appearance, reduce the floor
area of the Leased Premises or affect Tenant's layout, and provided further,
that the installation work is performed without substantial interference with
Tenant's use of the Leased Premises. Any damage to the Leased Premises resulting
from
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Landlord's exercise of the foregoing rights shall be repaired by Landlord at
Landlord's expense.
Section 17.02. Landlord's Access to premises. Landlord, and Landlord's
employees, agents and contractors, shall have the right to enter and pass
through the Leased Premises or any part or parts thereof (a) during non-business
hours and during business hours upon reasonable prior notice to Tenant: (i) to
examine the Leased Premises and to show them to underlying or ground lessees or
mortgagees and to prospective purchasers, mortgagees, lessees (during the last
year of the term of this Lease) or insurers, and (ii) for cleaning and
maintenance and making such repairs or changes in or to the Leased Premises or
in or to the Building or the Common Building Facilities as may be provided for
or permitted by this Lease or as may be mutually agreed upon by the parties or
as Landlord may be required to make by laws and requirements of public
authorities; provided, however, that the foregoing shall be done upon prior
notice to Tenant, in a manner so as to reduce interference with Tenant's
business operations and, if requested by Tenant, accompanied by a designated
representative of Tenant; (b) after business hours to perform janitorial
services; and (c) in emergencies. Tenant may designate one or more areas in the
Masai Premises as secure areas, and Landlord shall have no access thereto
without being accompanied by a designated representative of Tenant or, in the
case of emergencies, by members of the Fire or Police Department.
ARTICLE EIGHTEEN
----------------
NAME OF BUILDING; SIGNS
-----------------------
Section 18.01. Landlord's Right to Designate Building Name. Landlord
shall have the right to designate, and thereafter change, the name of Building
B-1 (a/k/a Building # 6, provided, however, that for so long as JWP Inc. is the
Tenant hereunder, Landlord shall not name the Building for any other company or
entity (other than Landlord, provided all buildings at Executive Park also shall
be named for Landlord).
Section 18.02. Signs Identifying the Building. Landlord shall provide
and maintain a directory at the entrance of the Executive Park and allow Tenant,
at no charge, to list the name of Tenant or Affiliate and any subtenant or
assignee of Tenant on such directory. The size and prominence of the aforesaid
listings of Tenant or Affiliate on said directory shall be commensurate with the
amount of space occupied by Tenant in the Executive Park in relation to other
tenants listed.
Section 18.03. Limitations on Other Signs. Tenant shall neither install
any signs and/or graphics and shall not permit the Building to be identified by
the name of another company, or permit any
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other company to erect any signs and/or graphic outside or in the Common
Building Facilities of the Building, without first obtaining Landlord's written
consent, which consent shall not be unreasonably withheld or delayed provided
such signs and/or graphics (i) shall not adversely affect on the character or
dignity of the Building, and (ii) conform with the design, style, colors and
materials which are utilized by Landlord throughout the Executive Park.
ARTICLE NINETEEN
----------------
QUIET ENJOYMENT
---------------
Section 19.01. Landlord's Covenant of Quiet Enjoyment. Landlord
covenants and agrees, provided Tenant performs the terms, conditions and
covenants of this Lease, to take all necessary steps to secure and to maintain
for the benefit of Tenant this quiet and peaceful possession of the Leased
Premises and the Common Building Facilities, for the term of this Lease, without
hindrance, claim or molestation by Landlord or any other person.
ARTICLE TWENTY
--------------
NON-WAIVER
----------
Section 20.01. No Waiver Implied. Failure by either party to complain of
any action, nonaction or default of the other party shall not constitute a
waiver of any aggrieved party's rights hereunder. Waiver by either party of any
right for any default of the other party shall not constitute a waiver of any
right for either a subsequent default of the same obligation or for any other
default, past, present or future.
ARTICLE TWENTY-ONE
------------------
NOTICES
-------
Section 21.01. Notices to Landlord or Tenant. Any notice or
communication to Landlord or Tenant which is required or permitted to be given
under this Lease shall be effectively given only if in writing and mailed by
United States Certified Mail, postage prepaid, return receipt requested,
addressed as follows:
If to Tenant, as follows:
Prior to the Term Commencement Date:
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JWP INC
0000 Xxxxxxxxxxx Xxxxxx
Purchase, Now York 10577
Attn: Xx. Xxxxxx X. Xxxxx
After the Rent Commencement Date:
JWP INC.
Royal Executive Park
King Street
Rye Brook, Now York 10573
Attn: Xx. Xxxxxx X. Xxxxx
If to Landlord, addressed as follows:
Prior to and after the Term Commencement Date:
Royal Executive Park
C/o D&D. Management Corporation
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, President
With a copy to:
London & Leeds Development Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
- and -
Xxxxxx X. Xxxxxxxx, Esq.
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Either party shall have the right to change the address to which notices shall
thereafter be sent by giving notice to the other party as aforesaid.
ARTICLE TWENTY-TWO
------------------
PARTIAL INVALIDITY
------------------
Section 22.01. Severability Clause. If any term, covenant, condition or
provision of this Lease, or the application thereof to any person or
circumstance, shall ever be hold to be invalid or unenforceable, then in each
such event the remainder of this Lease or the application of such term,
covenant, condition or provision to any other person of any other circumstance
(other than those as to which it shall be invalid or unenforceable) shall not be
thereby
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affected, and each term, covenant condition, and provision hereof shall remain
valid and enforceable to the fullest extent permitted by law.
ARTICLE TWENTY-THREE
--------------------
BROKERAGE
---------
Section 23.01. Brokerage. Landlord and Tenant mutually represent to each
other that the only brokers with whom they have dealt with respect to this Lease
are The Xxxx Companies, Ltd. and Austin Corporate Properties, and Landlord
agrees to pay all commissions that may be owing to such brokers. Landlord agrees
to indemnify Tenant and hold it harmless against any claims for commissions that
may be asserted in connection with this Lease based upon acts of Landlord, and
Tenant agrees to indemnify Landlord and hold it harmless against any claims for
commissions that way be asserted in connection with this Lease based upon acts
of Tenant, provided, however, in no event shall Tenant be liable to Landlord or
otherwise for payment of commissions that may be owing to the brokers named
above.
ARTICLE TWENTY-FOUR
-------------------
LANDLORD'S REPRESENTATIONS AND
------------------------------
WAIVERS AMP TENANT'S REPRESENTATIONS
------------------------------------
Section 24.01. Landlord's Representations. Landlord represents and
warrants to Tenant that (i) Landlord has the-right and lawful authority to enter
into this Lease for the term hereof, (ii) the execution, delivery and
performance of this Lease by Landlord do not and will not contravene the
provisions of Landlord's partnership agreement or any law, governmental rule,
regulation or order as in effect on the date hereof and applicable to Landlord,
or result in a violation of or constitute a default under, any indenture,
contract, agreement, or other instrument to which it is a party, (iii) Landlord
is the owner of the Leased Premises in fee simple, (iv) the Land is presently
zoned to permit use of the Leased Premises as "offices" (v) title to the Leased
Premises is free and clear of any liens and encumbrances except those (the
"Permitted Encumbrances") described in Exhibit F annexed hereto and made a part
hereof, and (vi) the elevators, HVAC, electrical, plumbing and mechanical
systems in the Building are in good working order and the roof is free from
leaks.
Section 24.02. Waivers. Notwithstanding any provision contained in this
Lease to the contrary, Landlord hereby expressly waives any
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Landlord's lien it now has or may hereafter obtain and any and all rights
granted by or under any present or future laws to levy or distrain for rent, in
arrears, in advance, or both, upon any or all towers, antennas, machinery,
equipment, fixtures, furniture and other personal property or fixtures of Tenant
or any assignee or subtenant of Tenant in the Leased Premises.
Tenant, for Tenant, and on behalf of any and all persons claiming
through or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Leased Premises or to have
a continuance of this Lease for the term hereby demised after being dispossessed
or ejected therefrom by process of law or under the terms of this Lease or after
the termination of this Lease as herein provided.
Section 24.03. Tenant's Representations. Tenant represents and warrants
to Landlord that (i) Tenant has the right and lawful authority to enter into
this Lease for the term, hereof, (ii) the execution, delivery and performance of
this Lease by Tenant do not and will not contravene the provisions of Tenant's
articles of incorporation or any law, governmental rule, regulation or order as
in effect on the date hereof and applicable to Tenant or result in a violation
of, or constitute a default under any indenture, contract, agreement, or other
instrument to which it is a party.
ARTICLE TWENTY-FIVE
-------------------
SUBORDINATION; NON-DISTURBANCE
------------------------------
Section 25.01. Landlord's Right to Mortgage; Priority. Landlord shall
have the right at any time or from time to time to place one or more mortgages
on all or any part of the Land or Building (all such mortgages and any
increases, renewals, modifications, consolidations, replacements and extensions
thereof being collectively called "Mortgages") or to enter into a ground lease
affecting the Land or Building, provided that any such Mortgages or ground
leases shall be subject and subordinate to this Lease and the rights of Tenant
hereunder. Notwithstanding the foregoing, it a mortgagee or ground lessor shall
execute and deliver to Tenant an agreement to the effect that, if there shall be
a foreclosure of its Mortgage or termination of a ground lease affecting the
Land or Building, such mortgagee or lessor will not make Tenant a party
defendant to such foreclosure, evict Tenant, disturb Tenant's leasehold estate
or rights hereunder provided no default has occurred hereunder beyond any
applicable grace, notice and cure period (any such agreement, or any agreement
of similar import, from a mortgagee or ground lessor being hereinafter called a
"Non-Disturbance Agreement"), then this Lease shall be subject and subordinate
to such mortgage or ground lease. This clause shall be self-operative and no
fur-
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the instrument of subordination shall be required to make the interest of any
mortgagee or ground lessor superior to the interest of Tenant hereunder;
however, Tenant shall execute and deliver promptly any certificate or agreement
that Landlord may reasonably request in confirmation of such subordination. If,
in connection with the financing of the Land or Building, any lending
institution or Landlord shall request reasonable modifications of the Lease that
do not increase the monetary obligations of Tenant under this Lease or
materially and adversely affect the rights of Tenant or its non-monetary
obligations under this Lease, Tenant shall make such modifications. Any
Non-Disturbance Agreement may be made on the condition that neither the
mortgagee or ground lessor, nor anyone claiming by, through or under such
mortgagee or ground lessor, including a purchaser at a foreclosure sale, shall
be:
(a) liable for any act or omission of any prior Landlord (including,
without limitation, the then defaulting Landlord), or
(b) subject to any defense or offsets (except as expressly set forth
in this Lease) which Tenant may have against any prior Landlord (including,
without limitation, the then defaulting Landlord), or
(c) bound by any payment of Annual Rental or additional rent which
Tenant might have paid for more than the current month to any prior Landlord
(including, without limitation, the then defaulting Landlord), or
(d) bound by any obligation to make any payment to Tenant which was
required to be made prior to the time such mortgagee succeeded to any prior
Landlord's interest, or
(e) bound by any obligation to perform any work or to make
improvements to the Leased Premises.
If required by the mortgagee or ground lessor, Tenant promptly shall
join in any Non-Disturbance Agreement to indicate its concurrence with the
provisions thereof and its agreement, in the event of a foreclosure of such
Mortgage or termination of such ground lease to attorn to such mortgagee, ground
lessor or any purchaser at a foreclosure sale, as Tenant's Landlord hereunder.
Tenant shall promptly accept, execute and deliver any Non-Disturbance Agreement
proposed by any such mortgagee or ground lessor which conforms with the
provisions of this Section. Any such Non-Disturbance Agreement may also contain
other terms and conditions as may otherwise be reasonably required by such
mortgagee or ground lessor which do not materially increase Tenant's monetary
obligations or materially and adversely affect the rights or obligations of
Tenant under this Lease.
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ARTICLE TWENTY-SIX
------------------
INSURANCE
---------
Section 26.01. Landlord's Insurance. (a) Landlord shall maintain at all
times during the term of this Lease:
(i) standard all-risk fire and casualty insurance, covering the
Building in amounts at least equal to eighty percent (80%) of the replacement
cost of the Building at the time in question, but in no event less than such
coverage as is required to avoid co-insurance provisions;
(ii) comprehensive public liability insurance against all claims
of personal injury, death and property damage occurring in the Common Building
Facilities in the Executive Park, with minimum limits of $5,000,000 for injury
to or death of one or more persons in any one occurrence and $1,000,000 for
damage to or destruction of property in any one occurrence; and
(iii) workers compensation insurance in statutory limits and
employer's liability insurance with a limit of $100,000 per employee.
Section 26.02. Tenant's Insurance. Tenant covenants and agrees to
provide at its expense on or before the Commencement Date and to keep in force,
during the Term naming Landlord and Tenant as insured parties:
(i) comprehensive general liability insurance including, but not
limited to, premises operations, blanket contractual insurance, broad form
property damage, independent contractor's coverage and personal injury coverage,
protecting Landlord and Tenant against any liability whatsoever, occasioned by
any occurrence on or about the Leased Premises or any appurtenances thereto.
Such policy is to be written by insurance companies licensed to do business in
the State of New York and satisfactory to Landlord, and shall be in a form and
in such limits as Landlord may reasonably require with minimum limits of
liability thereunder of not less than $5,000,000 per occurrence for bodily or
personal injury (including death) and in the amount of $1,000,000 per occurrence
in respect of property damage.
(ii) standard all-risk fire and casualty insurance covering
Tenant's contents in the Building.
Such insurance may be carried under blanket policies covering the Leased
Premises and other locations of Tenant, if any, provided that each such policy
shall in all respects comply with this Article and shall specify that the
portion of the total coverage of such policy that is allocated to the Leased
Premises is in the
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amounts required to be carried by Tenant and thereafter, at least is days prior
to the effective date of any such policy, Tenant agrees to deliver to Landlord
either a duplicate original of the aforesaid policies or a certificate
evidencing such insurances. Said certificates shall contain an endorsement that
such insurance may not be canceled except upon 30 days' prior notice to
Landlord. Such certificates shall also have the indemnity clause set forth
herein typed on the certificates evidencing that the "hold harmless" clause has
been insured. Tenant's failure to provide and keep in force the aforementioned
insurances shall be regarded as a material default hereunder entitling Landlord
to exercise any or all of the remedies provided in this Lease in the event of
Tenant's default,
"Tenant shall pay on behalf of and indemnify, defend and save
Landlord harmless from and against any loss, liability, cost and
expense, including reasonable attorneys' fees (except for those
expenses arising out of Landlord's provision of the services
which Landlord is obligated to provide pursuant to Article Five
of the Agreement of Lease between (Landlord] and [Tenant] dated
_____, 1992 (the "Lease") arising from the use or occupation of
the Leased Premises by Tenant or anyone in the Leased Premises
with Tenant's permission and or from any breach of the Lease by
Tenant."
Section 26.03. Waiver of Subrogation. (a) Tenant agrees that it will, at
its sole cost and expense; include in its fire insurance policies appropriate
clauses pursuant to which the insurance companies (i) waive all right of
subrogation against Landlord regarding any tenant space in the Building with
respect to losses payable under such-policies and (ii) agree that such policies
shall not be invalidated should the insured waive in writing prior to a loss any
or all right of recovery against any party for losses covered by such policies.
(b) Landlord hereby waives any and all rights of recovery which it might
otherwise have against Tenant, its servants, agents and employees, for loss or
damage occurring to the Building and the fixtures, appurtenances and equipment
therein, to the extent the same is covered by Landlord's insurance (which, for
purposes of this Section (b), shall be deemed to be the coverages which Landlord
is required to carry hereunder) , notwithstanding that such loss or damage may
result from the negligence or fault of Tenant, its servants, agents or
employees. Tenant hereby waives any and all right of recovery which it might
otherwise have against Landlord, its servants, and employees, and against any
such tenant in the Building who shall have executed a similar waiver as set
forth herein for the loss or damage to, Tenant's furniture, furnishings,
fixtures and other property removable by Tenant under the provisions hereof
notwithstanding that such loss or damage may result from the negligence or fault
of Landlord, its servants, agents or
46
53
employees, or such other tenant and the servants, agents or employees thereof.
Section 26.04. Comp1iance with Terms. Tenant shall not do or permit to
be done any act or thing upon the Leased Premises which will invalidate or be in
conflict with the policies covering the Building, and fixtures and property
therein, or which would increase the rate of fire insurance applicable to the
Building to an amount higher than it otherwise would be (but the foregoing shall
not prevent Tenant from utilizing the Leased Premises as general and executive
offices); and Tenant shall neither do nor permit to be done any act or thing
upon the Leased Premises which shall or might subject Landlord to any liability
or responsibility for injury to any person or persons or to property by reason
of any business or operation being carried on within the Leased Promises; but
nothing in this Section shall prevent Tenant's use of the Leased Premises for
the purposes stated in Article Seven hereof.
Section 26.05. Excess Rates. If, as a result of any act or omission by
Tenant or violation of this Lease, the rate of fire insurance applicable to the
Building shall be increased to an amount higher than it otherwise would be,
Tenant shall reimburse Landlord for all increases of Landlord's fire insurance
premiums so caused; such reimbursement to be additional rent payable within 5
days of demand therefor by Landlord. In any action or proceeding wherein
Landlord and Tenant are parties, a schedule or "make-up" of rates for the
Building or the Leased Premises issued by the body making fire insurance rates
for the Leased Premises, shall be presumptive evidence of the facts stated
therein including the items and charges taken into consideration in fixing the
fire insurance rate then applicable to the Leased Premises.
Section 26.06. Windows. Notwithstanding any other clause of this lease,
Landlord or its agents shall not be liable for any damage which Tenant may
sustain, if at any time any window of the Leased Premises is broken, or
temporarily or permanently closed, darkened or bricked upon for any reason
whatsoever, except only Landlord's arbitrary acts if the result is permanent,
and Tenant shall not be entitled to any compensation therefor or abatement of
rent or to any release from any of Tenant's obligations under this Lease, nor
shall the same constitute an eviction or constructive eviction.
Section 26.07. Fines and Penalties. Notwithstanding any other clause of
this Lease, Tenant shall reimburse Landlord for all expenses, damages or fines
incurred or suffered by Landlord, by xxxx son of any breach, violation or
nonperformance by Tenant, or its agents, servants or employees, of any covenant
or provision of this Lease, or by reason of damage to persons or property caused
by moving property of or for Tenant in or out of the Building, or by the
installation or removal of furniture or other property of or for Tenant, or by
reason of or arising out of carelessness, negligence or improper conduct of
Tenant, or its agents, servants or
47
54
employees, in the use or occupancy of the Leased Premises. Tenant shall have the
right, at Tenant's own cost and expense, to participate in the defense of any
action or proceeding brought against Landlord for expenses, damages or fines
incurred or suffered by Landlord for which Tenant is liable.
Section 26.08. Notice of Casualty. Tenant shall give Landlord notice in
case of fire or accidents in the Leased Premises promptly after Tenant is aware
of such event.
Section 26.09. Landlord's Liability. 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, 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 any of the foregoing
shall be caused by or due to the negligence of Landlord, its agents, servants or
employees.
Section 26.l0. Construction Insurance. Prior to commencement of any
installations or alterations by Tenant, Tenant shall furnish to Landlord
certificates of insurance evidencing the existence of:
(a) Workers compensation covering all persons employed for such
work.
(b) Employer's liability including bodily injury caused by disease
with a limit of $100,000 per employee.
(c) Comprehensive general liability insurance including but not
limited to completed operations, coverage, products liability, contractual
coverage, broad from property damage, independent contractor's coverage and
personal injury coverage naming Landlord its officers, agents, directors,
employees, representatives, consultants, and/or partners and owners, including
but not limited to any managing agent, and Tenant as insured, with coverage of
at least $5,000,000 combined single limit.
Such insurance shall be placed with solvent and responsible
companies satisfactory to Landlord and licensed to do business in the State of
New York, and the policies shall provide that they may not be canceled without
30 days prior notice in writing to Landlord.
(d) Tenant shall require all contractors engaged or employed by
Tenant to indemnify and hold Tenant, Landlord, Landlord's consultants, including
but not limited to any managing agent, harmless in accordance with the following
clause:
"The contractor hereby agrees to the fullest extent
permitted by law to assume the entire responsibility and
liability for
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55
and defense of and to pay and indemnify Landlord, Tenant and
managing agent against any loss, cost, expense, liability or
damage and will hold each of them harmless from and pay any
loss, cost, expense, liability or damage (including, without
limitation, judgments, attorney's fees, court costs, and the
cost of appellate proceedings), which Landlord and/or Tenant
and/or managing agent incurs because of injury to or death
of any person on account of damage to property, including
loss of use thereof, or any other claim arising out of, in
connection with, or as a consequence of the performance of
the work by the contractor and/or any acts or omissions of
the contractor any of its officers, directors, employees,
agents, sub-contractors or anyone directly or indirectly
employed by the contractor or anyone for whose acts the
contractor may be liable as it relates to the scope of this
Contract, whether such injuries to person or damage to
property are due or claimed to be due to any negligence of
Landlord and/or Tenant and/or managing agent its or their
employees or agents or any other person."
ARTICLE TWENTY-SEVEN
--------------------
RULES END REGULATIONS
---------------------
Section 27.01. General; This Lease Controls in Event of Conflict. Tenant
shall comply with Landlord's Rules and Regulations which are annexed hereto as
Exhibit G, and such reasonable changes therein (whether by modification,
elimination, addition or waiver) as Landlord at any time or times hereafter may
make, which (i) shall be necessary or desirable for the reputation, safety, care
or appearance of the Building or the preservation of good order therein or the
operation or maintenance of the Building or the equipment thereof or the comfort
of tenants or others in the Building and (ii) do not reasonably interfere with
or materially adversely affect the conduct of Tenant's business in the Leased
Premises; provided, however, that in the case of any conflict or inconsistency
between the provisions of this Lease and any of such Rules or Regulations, as
changed, the provisions of this Lease shall control. Landlord shall give
reasonable notice to Tenant, communicated in writing, of any changes in the
Rules and Regulations made in accordance with this Section and Tenant shall be
entitled to a reasonable opportunity to respond thereto. The Rules and
Regulations, as changed in accordance with this Section from time to time, are
hereinafter called the "Rules and Regulations".
Section 27.02. Standards Applicable to Landlord. Landlord shall (a) not
discriminate against Tenant in enforcing the Rules and Regulations; (b) not
unreasonably withhold or delay its consent from Tenant for any approval required
under the Rules and Regulations; and (c) exercise its judgment in good faith in
any instance
49
56
providing for the exercise of its judgment in the Rules and Regulations.
Section 27.03. Landlord's Enforcement. Landlord shall use its best
efforts to secure compliance by all tenants and other occupants with the Rules
and Regulations, but Landlord may permit reasonable waivers with respect to
other parties so long as such waivers do not materially adversely affect Tenant
and provided further that Landlord grants Tenant similar waivers.
ARTICLE TWENTY-EIGHT
--------------------
MISCELLANEOUS
-------------
Section 28.01. Certain Miscellaneous Provisions. This Lease (including
the Exhibits referred to herein and all supplementary agreement provided for
herein) contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease. This Lease may not be
changed, modified, terminated or discharged, in whole or in part, except by a
writing, executed by the party against whom enforcement of the change,
modification, termination or discharge is to be sought. The Article and Section
headings or titles in this Lease are inserted for convenience only and are not
to be given any effect in its construction. Wherever appropriate in this Lease,
personal pronouns shall be deemed to include the other genders and the singular
to include the plural. The covenants and agreements contained herein shall inure
to and be binding upon Landlord, its successors and assigns, and Tenant, its
successors and assigns. The term "Landlord" means only the owner for the time
being of the Building, so that in the event of any sale or other transfer of the
Executive Park or any part thereof including the Building, Landlord shall be
released of all covenants and obligations of Landlord hereunder with respect to
the Executive Park or portion thereof sold or transferred accruing after such
sale or transfer. Neither the submission of this Lease form to Tenant nor the
execution of this Lease by Tenant shall constitute an offer by Landlord to
Tenant to lease the space herein described as the Leased Premises or otherwise.
This Lease shall not be or become binding upon Landlord to any extent or for any
purpose unless and until it is executed by Landlord and a fully executed
duplicate original thereof is delivered to Tenant or Tenant's counsel.
Section 28.02. Estoppel Certificate. At any time and from time to time
within five (5) days after written demand therefor, Tenant shall execute,
acknowledge and deliver to Landlord without charge, a statement addressed to
Landlord (and/or such other persons or parties as Landlord shall require),
certifying that to the best knowledge of Tenant, this Lease is in full force and
effect and is unmodified (or, if there have been modifications, specifying same)
50
57
and setting forth the dates to which the rentals and other charges payable
hereunder have been paid and stating that Landlord is not in default in the
performance of any of the covenants or agreements on its part to be performed
hereunder (or, if that is not the case, specifying each particular in which
Tenant alleges that Landlord is in default) and certifying as to such other
items in respect of this Lease as Landlord may reasonably require.
Section 28.03. Governing Law. This Lease shall be governed in all
respects by the laws of the State of New York.
Section 28.04. Building Four Cafeteria. Not later than three (3) months
following the Term Commencement Date, Landlord at its sole cost and expense
shall increase the seating capacity in the cafeteria located in Building Four to
the maximum seating capacity permissible under Applicable Laws.
THIS LEASE is hereby executed and delivered effective as of the date and
year first above written.
LANDLORD:
ROYAL EXECUTIVE PARK II,
a New York limited partnership
By: London & Leeds -
Rye Corporation, General Partner
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx,
President
TENANT:
JWP INC.
By:/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Executive VP & CFO
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58
Addendum No. 1 to Lease, dated
as of May 21, 1992, between
Royal Executive Park II, as
Landlord, and JWP INC.,
as Tenant
The following clause is hereby incorporated in the foregoing Lease, executed
contemporaneously herewith, between Royal Executive Park II. as landlord, and
JWP INC, as tenant covering a portion of Building #6 at Royal Executive Park Rye
Brook, New York. For purposes hereof, initially capitalized terms used herein
shall have the meanings ascribed to such terms in the Lease.
The liability of Landlord to Tenant for any default by Landlord under this Lease
or arising in connection herewith or with Landlords operation, management,
leasing, repair, renovation, alteration, or any other matter relating to the
Building or the Executive Park, shall be limited to the interest of Landlord In
the Executive Park (and the rental proceeds thereof). Tenant agrees to look
solely to Landlord's interest in the Executive Park (and the rental proceeds
thereof) for the recovery of any judgment against Landlord, and Landlord shall
not be personally liable for any such judgment or deficiency after execution
thereon. The limitations of liability contained in this provision shall apply
equally and inure to the benefit of Landlord's present and future partners,
beneficiaries, officers, directors, trustees, shareholders, agents and
employees, and their respective heirs, successors and assigns. Under no
circumstances shall any present or future general or limited partner of Landlord
(if Landlord is a partnership), or trustee or beneficiary (if Landlord or any
partner of Landlord is a trust) have any liability for the performance of
Landlord's obligations under the Lease. Notwithstanding the foregoing to the
contrary, Landlord shall have personal liability for insured claims, beyond
Landlord's interest in the Executive Park (and rental proceeds thereof), to the
extent of Landlord's liability insurance coverage available for such claims.
ROYAL EXECUTIVE PARK II, as Landlord
By: London & Leeds - Rye Corporation,
general partner
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
President
JWP INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
59
Exhibit B
---------
Description of the Land Comprising the Executive Park
-----------------------------------------------------
ALL that certain plot, piece or parcel of land, situate, lying and being
in the Tovs of Rye and Xxxxxxxx County of Westchester and State of New York and
partly in the Town of Greenwich, County of Fairfield, State of Connecticut,
bounded and described as follows:
BEGINNING at a point an the westerly site of King Street ad-joining the
southeast corner of land formerly of Xxxxxxxx and now or formely belonging to
Xxxxxx:
thence running along said westerly side of King Street and the following
courses and distances:
South 19deg 22' East 173.57 feet;
South 22deg 38' East 114.4 feet;
South 26deg 23' East 70 feet;
South 27deg 29' East 60 feet;
South 28deg 31' East 126 feet;
South 30deg 56' East 100.1 feet;
South 33deg 52' Mast 29.1 feet;
South 39deg 49' East 29.2 fact;
Xxxxx 00xxx 00' Xxxx 0 xxxx;
Xxxxx 00xxx 6' East 29.4 feet;
South 35deg 37' East 16.1 feet;
South 41deg 31' East 267 fact;
South 43deg 30' East 320.07 feet;
South 44deg 44' East 287.5 feet; and
South 46deg 14' East 178.6 feet to the northeast corner of land formerly
of XxXxxxxxxx, now or formerly belonging to Kings Ridge Golf Club;
thence running along the northerly line of said last mentioned line the
following courses and distances:
South 68deg 50' West 931.1 feet;
South 78deg 40' West 435.2 feet;
South 78deg 15' West 98 feet;
South 82deg 07' West 515.3 feet;
South 75deg 13; West 335.1 feet;
Xxxxx 00xxx 00' Xxxx 00.0 xxxx xxx
Xxxxx 00xxx 20' West 147.1 feet to the easterly line of land now or
formerly belonging to Xxxx X. Xxxxxxxx, Xx.;
60
EXHIBIT B
Page 2
thence running along said easterly line of said last mentioned land the
following courses and distances:
North 45deg 52' West 22.1 feet;
North 62deg 25' West 236.7 feet;
South 34deg 25; 40deg West crossing Blind Brook 40.46 feet;
North 52deg 24; West 35.44 feet;
North 43deg 38' West 66.7 feet;
North 21deg 08' 30deg West 79.16 feet;
North 15deg 05' 30deg West 373.31 feet; and
North 10deg 45' 30deg West 481.15 feet to the southerly line of said
land formerly of Xxxxxxxx, now or formerly of Xxxxxxx;
thence running along the southerly line of said last mentioned land the
following courses and distances:
North 53deg 01' East 595.5 feet;
North 52deg 20' East 50 feet;
North 53deg 24' East 501.8 feet;
North 62deg 28' East ? feet;
North 62deg 20' East 26 feet; and
North 67deg 34' East 801.6 feet to the westerly side of King Street at
the point of beginning.
EXHIBIT B
---------
61
EXHIBIT NOT SHOWN
EXHIBIT 'C
THIRD FLOOR
62
EXHIBIT D
---------
OPERATING EXPENSES
------------------
"Operating Expenses" as used in Section 4.02 shall mean the direct
operating costs specified below in Category A actually incurred by Landlord for
a given Operating Year, (a) to the extent properly allocable (in accordance with
generally accepted accounting principles consistently applied) to the operation,
repair and maintenance of the Building and (b) properly allocable (in accordance
with generally accepted accounting principles consistently applied) to the
operation, repair and maintenance of the Common Building Facilities, the
drainage retention basin (the "Drainage Basin") hatched in the green on the Site
Plan and the Access Drive. It is agreed that any cost allocable to the items
specified below in Category B shall be excluded from Operating Expenses.
Tenant's pro-rata share of the aforesaid direct operating costs
allocable to the operation, repair and maintenance of (x) the Common Building
Facilities shall be determined by multiplying said allocable costs by a
fraction, the numerator of which shall be the aggregate gross rentable area of
the Buildings and the denominator of which shall be the aggregate gross rentable
area of all buildings now on hereafter erected on the Land, and (y) the Drainage
Basin and the Access Drive shall be determined by multiplying said allocable
costs by (i) a fraction, the numerator of which shall be the number of acres of
land within Phase II and the denominator of which shall be the number of acres
of land within the Executive Park, excluding the Drainage Basin or the Access
Drive as the case may be, and by multiplying the product thereof by (ii) a
further fraction, the numerator of which shall be the aggregate gross rentable
area of the Buildings and the denominator of which shall be the aggregate gross
rentable area of all buildings now or hereafter erected within Phase II.
A. Items Included in Operating Expenses:
(1) salaries, wages and all other expenses incurred for the employment
of a building staff, excluding those staff members above the grade of office
park manager and/or equally held positions;
(2) the cost of materials and supplies used in the operation, repair and
maintenance of the Building, the Common Building Facilities, the Drainage Basin
and the Access Drive;
(3) the cost of replacements for tools and equipment used in the
operation, repair and maintenance of the Building, the Common Building
Facilities, the Drainage Basin and the Access Drive, it being agreed that such
equipment shall not include eleva.
D-1
63
tors or any items of a capital nature, except as provided in subparagraph A(15);
(4) amounts charged to Landlord by independent contractors for services
(including full or part-time labor), materials and supplies furnished in
connection with the operation, repair and maintenance of any part of the
Building, the Common Building Facilities, the Drainage Basin and the Access
Drive and the heating, air conditioning, ventilating, plumbing, electrical and
elevator systems of the Building;
(5) amounts paid by Landlord, or charged to Landlord by independent
contractors, for window cleaning and janitorial rubbish removal and xxxxxx
services;
(6) water charges and sewer rents;
(7) the cost of repainting or otherwise redecorating any part of Common
Building Facilities;
(8) seasonal decorations for the lobby and other public portions of the
Common Building Facilities;
(9) the cost of telephone service, postage, office supplies, maintenance
and repair of office equipment and similar charges related to operation of the
building manager's office;
(10) the cost of licenses, permits and similar fees and charges related
to the operation, repair and maintenance of the Building, Common Building
Facilities and the Drainage Basin;
(11) premiums for insurance obtained by Landlord;
(12) fees for the management of the Building, not exceeding 4% of the
total rental income of the Building (net of any rent credits or similar
concessions provided to the tenants of the Building) assuming 90% occupancy
thereof and excluding any leasing commissions or compensations;
(13) charges (including applicable taxes) for electricity steam and
other utilities required in the operation of the Building and other Common
Building Facilities.
(14) lease payments for rented equipment used by Landlord to provide
services which would otherwise be provided by an independent contractor and the
cost of which services would be an item included as an Operating Expense;
provided that in no event shall the annual cost of such lease payments and
direct services included in Operating Expenses exceed, in the aggregate, the
cost that would have been charged by an independent contractor for such
services; and
D-2
64
(15) the amount of annual depreciation taken by Landlord (calculated by
the straight-line method and based on the estimated number of years of the
actual useful life of the equipment or of the useful life thereof established in
accordance with Internal Revenue Code guidelines) for any replacement or energy
or labor saving equipment purchased by Landlord to provide services and the cost
of which services would be an item included as an Operating Expense.
If, in the event of Landlord's default in performing any of the services
required hereunder, a tenant performs on Landlord's behalf and is reimbursed for
the cost of such performance by Landlord, Landlord may include as an operating
Expense (i) amount of such reimbursement less (A) that interest and attorneys
fees, if any, paid to that tenant, and (B) that portion, if any, of such cost
which would not have been incurred had Landlord performed the service, without
default, in the first place, (ii) plus the amount of offset from rent, if any,
for such service.
B. Items Excluded from Operating Expenses:
(1) the cost of any work or service performed for any tenant (including
Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining any specialty
service, such as an observatory, broadcasting facilities, athletic or
recreational club, unless such facility is an amenity for Tenant;
(3) salaries of officers and executives of Landlord;
(4) the cost of any items for which Landlord is reimbursed by insurance
of otherwise;
(5) the cost of any repairs, alterations, additions, changes,
replacements (except costs referred to in subparagraph A(15)) and other items
which are made in order to prepare for a new tenant's occupancy or which under
generally accepted accounting principles are properly classified as capital
expenditures (which shall be deemed to include (a) any costs of correcting
defects in the Building equipment if such defects are noted within one (1) year
after the Term Commencement Date, (b) the costs of correcting any deficiencies
in Landlord's Work within six (6) months after the Term Commencement Date or (c)
the cost of correcting structural defects in the construction of the Building,
Common Building Facilities and Drainage Basin);
(6) the cost of any work or service performed for any tenant of the
Buildings (other than Tenant) to a materially greater extent or in a materially
more favorable manner than that furnished generally to the tenants and other
occupants (including Tenant);
D-3
65
(7) the cost of any work or service performed for any facility other
than the Leased Premises, Common Building Facilities, and Drainage Basin;
(8) the cost of (including increased expenses) related to any additions
to the Buildings;
(9) the cost of any repair in accordance with Articles Nine and Twelve
of the Lease;
(10) interest on debt or amortization payments on any mortgage and
rental under any ground lease or other underlying lease;
(11) any real estate brokerage commissions or other cost incurred in
procuring tenants;
(12) any advertising expenses;
(13) any cost included in Operating Expenses representing an amount paid
to a corporation related to Landlord which is in excess of the amount which
would have been paid in the absence of such relationship;
(14) charges (including applicable taxes) for electricity, steam and
other utilities for which Landlord receives reimbursement from any tenant; and
(15) any costs of painting or decorating of any demised part of the
Building.
D-4
66
EXHIBIT E
----------
CLEANING SPECIFICATIONS
------------------------
TENANT SPECIFICATIONS
---------------------
A. NIGHTLY SERVICES: FIVE (5) PER WEEK, MONDAY THROUGH FRIDAY EXCLUDING ALL
LEGAL HOLIDAYS.
1. Empty and clean all wastebaskets and remove to pre-designated area on
premises. This includes trash relocation to (NOT LEGIBLE)
2. Empty and wipe clean all ashtrays.
3. Dust furniture, pictures, telephones, window xxxxx and other surfaces
(NOT LEGIBLE)
4. (NOT LEGIBLE)
5. Remove fingerprints and smudges from all doors. Clean frames and light
switch areas.
6. Secure all windows and doors upon completion of (NOT LEGIBLE)
7. Extinguish all but the designated night lights to remain on in the
building.
8. Report any faulty equipment to supervisors, who will in turn report such
items to tenant's representative.
FLOOR CARE
-----------
1. Sweep and/or dust mop non-carpeted areas five (5) times per week.
2. (ILLEGIBLE) mop non-carpeted areas five (5) times per week.
3. Vacuum all carpeting five (5) times per week. Spot clean as necessary.
B. PERIODIC SERVICES
1. Offices areas- high dusting every four (4) months.
2. Dust and wipe clean all closet shelving when empty ( NOT LEGIBLE)
3. Dust at picture frames, charts, graphs, etc. monthly.
4. Dust and damp wipe as necessary ventilating, air conditioning outlets
and return air (NOT LEGIBLE)
5. Dust venetian blinds (NOT LEGIBLE)
1
67
PUBLIC AREAS
C. ENTRANCE LOBBY AND PUBLIC FLOOR AREAS
1. Sweep and wash lobby and entrance vestibule floors nightly. Wax. Buff
and apply (NOT LEGIBLE)
2. Strip and machine scrub lobby and entrance vestibule floors two (2)
times per year. Then wax and buff.
3. Vacuum carpets floors nightly, spot clean as necessary.
4. Shampoo carpeted floors two (2) times per year.
5. Wipe down all metal surfaces in the lobby up to 50" high.
6. (NOT LEGIBLE)
7. (NOT LEGIBLE)
8. High dust all air conditioning diffusers, vents, exterior surfaces of
lighting fixtures every four (4) months in lobby and corners.
9. Clean lobby stainless steel ceiling once per year.
C. (NOT LEGIBLE)
1. Sweep and wash tile floors. Apply finish as necessary.
2. (NOT LEGIBLE)
3. (NOT LEGIBLE)
4. Fill all toilet tissues, soap and towel dispensers furnished by
contractor.
5. Empty and wash sanitary disposal (NOT LEGIBLE).
6. Fill vending machines in ladies room. All supplies furnished by
contractor. Contractor will maintain vending machines in working order
and collect the proceeds cash.
7. Furnish, install and supply refills for toilet seat dispensers. All
supplies furnished by contractor.
8. (NOT LEGIBLE)
9. Machine scrub floors as necessary.
10. (NOT LEGIBLE)
2
68
D ELEVATORS
1. Clean (NOT LEGIBLE), doors and frames as needed.
2. Vacuum dirt from door tracks.
3. Clean inside surfaces of elevator case nightly.
4. Clean elevator (NOT LEGIBLE) ceiling two (2) times per year or as
necessary.
5. Vacuum floor, spot clan nightly. Shampoo elevator carpets as necessary.
E. STAIRWELLS
1. Check all public stairwells throughout the buildings and keep in clean
condition, sweep (NOT LEGIBLE)
2. (NOT LEGIBLE)
3. (NOT LEGIBLE)
F. WINDOW CLEANING
1. Clean all windows on the outside and inside form the main floor to the
roof at least four times a year as directed by building Manager. Wipe
clean window frames and (NOT LEGIBLE)
2. Clean entrance doors as necessary or at least dusty.
3. Clean directory glass (NOT LEGIBLE)
G. PEST CONTROL - PUBLIC AREAS ONLY
1. The public spaces throughout the buildings shall be kept under pest
control treatment (NOT LEGIBLE) one (1) time per month unless additional
treatment required.
2. All service shall be rendered by a licensed Board of Health operator,
with special emergency call on request at no extra charge.
3
69
EXHIBIT F
PERMITTED ENCUMBRANCES
Agreement recorded Liber 7739 Page 388 (sanitary sewer).
Taxes currently a lien but not due.
Exceptions which would appear by current survey, including but not limited to,
conduits, utility poles and lines, drainage flow, stream beds, access drivers
and other improvements.
Easements for the benefits of Phase IA as set forth in the (NOT LEGIBLE)
Easements to be granted to New York Telephone for approximately 300 along the
edge of King Street, for the maintenance and installation of (NOT LEGIBLE).
70
EXHIBIT G
---------
RULES AND REGULATIONS
---------------------
1. The sidewalks, driveways entrances, passages, courts, esplanade areas
and plazas, shall not be obstructed or encumbered by Tenant or used for any
purpose other than ingress and egress to and from the Leased premises and Tenant
shall not permit any of its employees, agents or invitees to park automotive or
other vehicles in any areas other than the designated parking spaces leased to
the Tenant and referred to in this Lease as Tenant's Parking Spaces.
2. All deliveries to and pick-ups from the Buildings shall be made at
the entrances designated by the Landlord therefor.
3. All sweepings, rubbish and other refuse shall be deposited by Tenant
in the appropriate (NOT LEGIBLE)
4. Tenant shall use its best efforts to assist the Landlord in keeping
the Common Building Facilities in a clean and orderly condition so as to
maintain a proper appearance to the Buildings and the surroundings areas. (This
shall not be deemed to impose on Tenant the obligation to clean or maintain the
Common Building Facilities.)
5. In case of any renewal under this Lease by Tenant of part but not all
of one or both of the Buildings, Tenant shall comply with such additional rules
and regulations as Landlord may* impose for the orderly administration of such
Buildings.
*reasonably
71
[EXHIBIT "H" OMITTED]
72
EXHIBIT I
Based on review by the engineers of record, XX Xxxxxx Associates of Darien,
Connecticut, be aware of the following electrical design new in place at the
building new known as Building VI, located in Phase B of the office complex
known as Royal Xxxxxxxxx Xxxx, Xxx Xxxxx, Xxx Xxxx 00000 and within the
boundaries of the county of Wastchester.
And, to the effects that within the confines of said building, there are a total
of three electrical closets. Each closet contains for the tenant a 225 ampere
450/277 volt lighting panel, a 45 KVA transformer and 225 amperes (NOT LEGIBLE)
volt power panel. The engineers further state that the total capacity of these
panels and transformers is 5 xxxxx per square feet.
However, the main switch boards distribution to each of the three electrical
closets can provide for (NOT LEGIBLE) a square feet for a total of 7.5 xxxxx per
square foot available to the tenant. It should now be further known that the
above referenced building is capable of delivering 5 xxxxx per square feet on
demand.
/s/ Xxxxxxx Fabrish (ILLEGIBLE) /s/ Xxxxxx X. Xxxxxx
XX Xxxxxx Associates, Inc. Director
Property Operations
London & Leeds
Development Corporation
Date: May 12, 1992 Date: May 12,1992.
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Vice President
XX Xxxxxx Associates, Inc.
Date: May 12, 1992
73
ROYAL EXECUTIVE PARK II
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
May 21, 1992
JWP INC.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Agreement to Permit Rent Offsets
or to Make Monthly Payments
--------------------------------
Gentlemen:
In consideration of your execution of a Lease (the "Lease") dated of
even date herewith, covering certain premises in Building B-1 at Royal Executive
Park Phase II, Royal Executive Park II (For purposes hereof, "Landlord" shall
mean only Royal Executive Park II.) agrees with you as follows. For purposes
hereof, capitalized terms used herein shall have the meanings ascribed to such
terms in the Lease.
1. With respect to the payment of your first installment of Annual
Rental under the Lease, you shall deduct therefrom the amount of $54,660.20,
prorated for the actual number of days remaining in the month and remit the
prorated balance of the first installment, as provided in the Lease, to the
Landlord.
2. Thereafter with regard to each subsequent monthly installment of
Annual Rental under the Lease, you shall deduct an amount equal to the RSF of
the Leased Premises (as such RSF may be increased or decreased pursuant to the
terms of the Lease) multiplied by (a) $.70 for the period commencing on the
first day of the month following the month in which the Rent Commencement Date
shall occur through and including the month immediately preceding the month in
which the fifth (5th) anniversary of the Term Commencement Date shall occur and,
(b) $.866667 for the period commencing on the first day of the month in which
the fifth (5th) anniversary of the Term Commencement Date shall occur through
and including the first day of the month in which the Expiration Date of the
original Term shall occur, provided that the last month's payment shall be
appropriately prorated.
3. Notwithstanding the provisions of paragraph 2 of this agreement, if
at any time Landlord intends to refinance or to convey the Executive Park to new
owners, Landlord may elect to give you written notice of its intention to do so
and referring to the provisions of this letter. When you receive such a
74
notice, you shall begin to pay each month the full monthly installments of
Annual Rental as provided in the Lease without the deduction described in
paragraph 2. At the same time, Landlord shall commence to pay you on or before
the fourteenth day of the month preceding each month of your own rental
liability under the Lease the amounts set forth in paragraph 2 of this agreement
in lieu of such rental credit or if Annual Rental is payable for a part of a
month only, a prorated portion of the applicable amount.
In the event Landlord elects to give you notice as described in the
preceding paragraph, Landlord shall, simultaneously therewith, either (i)
deliver to you an irrevocable declining letter of credit in substantially the
form attached to this agreement, drawn on a bank reasonably acceptable to you
and otherwise in form reasonably satisfactory to your counsel and in an amount
sufficient to defray Landlord's outstanding obligations hereunder at all times,
or (ii) deposit funds in escrow in such amount with a law firm or trust or
escrow company reasonably acceptable to you (paying all administrative costs
arising), which escrow deposit shall be established and fully funded before the
date of the first monthly payment referred to in paragraph 3 above, upon terms
which shall entitle you to draw for the remaining monthly installments due to
you on materially the same terms as specified in the letter of credit and
otherwise upon terms reasonably satisfactory to your counsel. This will be done
to protect your right to receive the payments from Landlord. The terms on which
you may draw shall be spelled out in the letter of credit or terms of the
escrow. If Landlord fails to pay a monthly installment when due and after the
specified grace period, you may draw upon the letter of credit or escrowed funds
for the amount of that missed installment.
If (i) Landlord shall fail to timely deliver the aforesaid letter of
credit or escrowed funds prior to conveying or refinancing the Executive Park,
or (ii) any payment to you hereunder or thereunder, or any part thereof, is not
made when due or is rescinded or must otherwise be restored or returned by you
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Landlord or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for Landlord or any substantial
part of any of its property or otherwise, then same shall constitute a default
by Landlord under the Lease entitling you to continue to offset the amounts
specified in paragraph 2 above notwithstanding such conveyance or refinancing,
provided that if Landlord shall cure such default, then such right to offset
shall thereafter cease. Landlord agrees that any new owner or financing source
shall acknowledge your right pursuant to this paragraph 3 to offset the amounts
set forth in paragraph 2 from the monthly installments of Annual Rental under
the Lease in the event of a Landlord default hereunder.
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75
4. Landlord will cease to make payments to you under paragraph 3 only in
the event and for only so long as you cease to be obligated to pay the Annual
Rental, subject to paragraph 7 hereof In the event of a casualty or condemnation
loss or other cause which results in an abatement or reduction of Annual Rental
under the Lease, Landlord's payments to you would be suspended or would be
reduced, pro rata, for a corresponding period so that you would receive a net
benefit equal to that contemplated by this agreement.
5. Notwithstanding anything to the contrary in this agreement, your
right to offset the amount specified in paragraph 2 will be suspended or
Landlord's obligation to make payment to you under paragraph 3 will be
suspended, as the case may be, in the event that the then-current successor of
Landlord under the Lease advises Landlord that a monthly installment of Annual
Rental has not been paid when due. If you decide to withhold all or part of a
monthly installment, you must tell Landlord promptly that you will not pay that
full or partial installment, and your right to offset the amount specified in
paragraph 2 will be suspended or Landlord's obligation to make corresponding
payments under paragraph 3 will be suspended, as the case may be, until you
resume making all monthly payments. If you decide to and do withhold any part of
a monthly installment without advising Landlord in advance, your right to offset
the amount specified in paragraph 2 and Landlord's obligation to make payments
under paragraph 3 of this agreement, as the case may be, will be suspended until
you resume payment of monthly rent, and you will promptly return to Landlord any
amounts paid to you under paragraph 3 that apply to monthly installments
withheld by you.
6. Notwithstanding anything to the contrary contained herein, if you
shall be liable for monetary damages to the Landlord by reason a default by you
under the Lease for any reason, then if Landlord has not theretofore refinanced
or conveyed the Executive Park, you shall be entitled to a credit against such
damages in an amount sufficient to reduce the damages that are payable by you to
the damages which would be payable by you had the Annual rental payable under
the Lease during the original Term been $14.10 per RSF. If the Executive Park
shall have been conveyed or refinanced, then we shall pay to you (or you shall
be entitled to drawn upon the letter of credit or escrowed sums, as the case
may be) a like amount.
7. This agreement is for your benefit. If you assign or sublet the space
you occupy under the Lease, you may choose to transfer your rights hereunder
including the right to offsets or payments under this agreement or you may
retain them, as you and your successor in the space agree. You will be entitled
to transfer your rights under this agreement, provided Landlord or the
then-current successor of Landlord approves in writing the sublet or assignment
(a copy of which must be supplied to us) in
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76
accordance with the terms of the Lease, if Landlord approval is required and you
give Landlord notice that you have done so and allow Landlord to, and Landlord
agrees promptly after receiving such notice to, replace your name with your
transferee's name on the letter of credit or the escrow agreement described
herein. Offsets or payments under this agreement will be subject to suspension
and cessation as set out in this agreement, regardless of who is the beneficiary
of the letter of credit or receives the payments or is entitled to the offsets.
8. Not less than thirty (30) days prior to the expiration date stated in
a letter of credit. Landlord will deliver to you a replacement or renewal of the
letter of credit. Landlord will continue to renew it on the same basis for each
subsequent expiration date so that you will have a current letter of credit in
the full amount of Landlord's remaining obligations to you hereunder for so long
as we are obligated to make payments. If Landlord fails to provide any renewal
of the Letter of Credit by the date which is thirty (30) days prior to the
expiration stated in the then-current Letter of Credit and after the specified
grace period, you will be entitled to draw upon the letter of credit for the
purpose of establishing an escrow for the remaining payments due to you.
Please countersign this letter below to indicate that you agree to the
terms of this letter.
Very truly yours,
ROYAL EXECUTIVE XXXX II
By: London & Leeds - Rye
Corporation, General Partner
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, President
Accepted and agreed:
JWP INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive vice President
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77
ROYAL EXECUTIVE PARK II
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
June 22, 1992
JWP INC.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Agreement to Permit Rent Offsets or to make Monthly Payments,
dated May 21, 1992, between Royal Executive Park II and
JWP INC. (the "Agreement")
Gentlemen:
Reference is made to that certain First Amendment of Lease, of even date
herewith, between Royal Executive Park II and JWP INC. regarding premises in
Building B-1 of Phase II In the Royal Executive Park, Rye Brook, New York. In
consideration of our entering into the aforesaid amendment of lease, and for
other good and valuable consideration the mutual receipt and legal sufficiency
of which is hereby acknowledged, we hereby agree that (i) the amount specified
in paragraph 1 of the Agreement shall be increased from $50,509.20 to
$54,660.20, and (ii) the percentage specified in section (b) of paragraph 2 of
the Agreement shall be .866667 Instead of .8667.
Please countersign below to signify your agreement with the foregoing.
Very truly yours,
Royal Executive PARK II
a New York limited,
partnership
AGREED TO AND By: London & Leeds
ACCEPTED: Rye Corporation,
general partner
JWP INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxx Xxxxxx X. Xxxxxxx
Title: President and Chief Operating Vice President & General Counsel
Officer
78
FIRST AMENDMENT OF LEASE
THIS AGREEMENT (the "Amendment" ) made as of the 22nd day of June, 1992,
between ROYAL EXECUTIVE PARK II a New York limited partnership, having an office
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord") and JWP INC., a
Delaware corporation, having an office at 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000 ("Tenant").
WITNESSETH:
-----------
WHEREAS, by Agreement of Lease, dated as of May 21, 1992 (the "Lease"),
landlord did demise and let to Tenant, and Tenant did hire and take from
Landlord, certain premises consisting of a portion of the ground floor and the
entire second (2nd) and third (3rd) floors located in Building B-1 of Phase II
in the Royal Executive Park, Xxx Xxxxx, New York (the "Building");
WHEREAS, Section 1.04 of the Lease grants to Tenant the exclusive option
to lease the Option Space (as such term is defined in the Lease) on the terms
and conditions therein provided;
WHEREAS, on June 8, 1992, Tenant duly delivered the Option Notice (as
such term is defined in the Lease) to Landlord, wherein Tenant designated the
Option Space to be added to the Leased Premises; and
WHEREAS, Landlord and Tenant desire to modify, amend and supplement the
Lease to provide for the incorporation of the Option
79
space in accordance with section 1.04 of the Lease and as hereinafter provided.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) paid
by Tenant to Landlord and for other good and valuable consideration, the mutual
receipt and legal sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
l. Unless otherwise provided to the contrary, capitalized terms used
herein shall have the meanings ascribed to such terms in the Lease. For purposes
hereof, the "Option Space" shall mean that portion of the ground floor of the
Building which is designated as "Option Space" on Exhibit "A" annexed hereto and
made a part hereof. Landlord and Tenant hereby agree that the Option Space
comprises 5,930 RSF and that the Leased Premises, inclusive of the Option Space,
comprises 78,086 RSF.
2. Effective as of June 8,1992 (the "Effective Date"), the Option Space
shall be added to and deemed a part of the Leased Premises.
3. Effective as of the Effective Date, (i) the Annual Rental specified
in Section 4.01 (b) (i) of the Lease shall be increased to One Million Seven
Hundred Fifty-Six Thousand Nine Hundred Thirty Five dollars ($1,756,935.00) and
the monthly payment therein specified shall be increased to One Hundred
Forty-Six Thousand Four Hundred Eleven and 25/100 dollars ($146,411.25) and (ii)
the Annual Rental specified in Section 4.01(b)(ii) of the Lease shall be
increased to One Million Nine Hundred Thirteen Thousand One Hundred Seven
dollars ($1,913,107.00) and the monthly rental therein speci-
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80
fied shall be increased to One Hundred Fifty-Nine Thousand Four Hundred
Twenty-Five and 83/100 dollars ($159,425.58)
4. Effective as of the Effective Date, the term "Tenant's Share", as
defined in Section 4.02 (a) (ix) of the Lease, shall mean 83.056% instead of
76.749%.
5. Except as expressly modified, amended and supplemented by this
Amendment, all of the terms, covenants and conditions of the Lease shall remain
in full force and effect
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
Landlord:
ROYAL EXECUTIVE PARK II
a New York limited partnership
By: London & Leeds -
Rye Corporation, General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Vice President & General Counsel
TENANT:
JWP INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and Chief Operating
Officer
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81
SECOND AMENDMENT OF LEASE
THIS AGREEMENT (the "Amendment") made as of the 28th day of May, 1993,
between ROYAL EXECUTIVE PARK II, a New York limited partnership, having an
office c/o London & Leeds Development Corporaiton, Xxx Xxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Landlord") and JWP Inc., a Delaware corporation, having
an office at 0 Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx 00000 ("Tenant")
W I T N E S E T H
-----------------
WHEREAS, by Agreement of Lease, dated as of May 21, 1992 as amended by
First Amendment of Lease, dated June 22, 1992 (the lease, as so amended, is
hereinafter referred to as the "Lease"), Landlord did demise and let to Tenant,
and Tenant did hire and take from Landlord, certain premises consisting of a
portion of the ground floor comprised of 21,860 RSF which includes the Option
Space exercised in the First Amendment to Lease and the entire second (2nd) and
third (3rd) floors located in Building B-1 of Phase II in the Royal Executive
Park, Rye Brook, New York (the "Building");
WHEREAS, Tenant has agreed to sublease the entire third (3rd) floor of
the Premises to Market Data Corporation; and,
WHEREAS, Landlord agrees to consent to said subleasing by Consent; and
Non-disturbance and Attornment Agreement; and,
WHEREAS, Landlord and Tenant desire to modify, amend and supplement the
Lease as hereinafter provided.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) paid
by Tenant to Landlord and for other good and valuable consideration, the mutual
receipt and legal sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
82
1. Unless otherwise provided to the contrary, capitalized terms used
herein shall have the meanings ascribed to such terms in the Lease.
2. Effective as of the Term Commencement Date, the last four (4)
sentences of Section 5.02 of the Lease, commencing with the words "The electric
power for Tenant's use", shall be deleted in their entirety and the following
shall be added in substitution therefor:
The parties acknowledge that the Annual Rent reserved hereunder does not
include any charge for Tenant's electrical consumption. The cost of
providing electric power for Tenant's use, for which Tenant is
responsible hereunder, shall be determined by survey in the manner
hereinafter provided. Tenant may, at any time or from time to time,
retain, or Landlord may request Tenant to retain, a reputable
independent electrical engineer or consultant, selected by Tenant, to
make a survey (a "Survey") of the electrical equipment, usage and power
load to ascertain the actual cost to Landlord of current electrical
consumption and demand in the Leased Premises. The findings of
consultant or engineer in all such instances shall, subject to the
provision of Section 5.02(c) below, be conclusive and binding upon the
parties. When the cost of electric power is so determined, the parties
shall execute and exchange an agreement supplementary hereto to reflect
any appropriate increase or decrease in the amount of Electricity
Additional Rent (hereinafter defined) payable hereunder, effective from
the date of such Survey, but such increase or decrease shall be
effective from such date even if such supplementary agreement is not
executed. The parties agree that a Survey shall be undertaken in
accordance herewith not less than once per annum throughout the Term
hereof. The cost of each annual Survey shall be paid for by Tenant,
provided, however, that the cost of the second annual Survey shall be
2
83
paid for by Landlord and the cost of the third annual Survey shall be
shared equally by Landlord and Tenant. Thereafter the cost of each
Annual Survey shall be paid by Tenant.
(a) Tenant shall pay to Landlord, as additional rent hereunder on
the first day of each month during the Term, a monthly electrical charge
("Electricity Additional Rent"), which monthly charge shall be reasonably
determined by Tenant's consultant or engineer (subject, however, to the
provisions of Section 5.02(c) below) based upon the most recent Survey. The
current determination as of the date hereof agreed upon by Landlord and Tenant
is that Tenant's monthly charge shall be $22,571.16.
(b) If any tax is imposed upon Landlord in connection with the
furnishing of electric power to Tenant by any federal, state or local
governmental subdivision or authority, then Tenant shall pay to Landlord an
amount equal to such tax.
(c) Anything in this Section 5.02 to the contrary
notwithstanding, the findings of the consultant or engineer retained by Tenant
shall be conclusive unless within thirty (30) days after delivery of such
engineer's or consultant's determination to Landlord, Landlord disputes such
determination. If Landlord so disputes the determination, it shall obtain from a
reputable independent electrical engineer or consultant its own determination in
accordance with the provisions of this Section 5.02 ("Landlord's
Determination"). The cost of obtaining Landlord's Determination shall be
paid for by Landlord, provided, however, that if the second annual Survey shall
be disputed by Landlord, then Tenant shall pay the cost of obtaining Landlord's
Determination thereof, and provided further, that if the Third Annual Survey
shall be disputed by Landlord, then the cost of offering Landlord's
determination thereof shall be shared equally by Landlord and Tenant. If
Landlord's Determination differs from the determination of Tenant's engineer or
consultant, then the two
3
84
engineers or consultants shall choose a third reputable electrical engineer of
consultant (whose cost shall be borne equally by Landlord and Tenant) to make a
similar determination, which determination shall be controlling. If they are
unable to agree upon the identity of the third engineer or consultant, then such
appointment shall be made by the American Arbitration Association. However,
pending such controlling determination, Tenant shall pay to Landlord the amount
in accordance with the determination of Tenant's engineer or consultant. If the
final determination differs from that of Tenant's engineer or consultant, then
the parties shall promptly make adjustment for any deficiency owed by Tenant or
overage paid by Tenant.
4. Tenant hereby waives any and all rights including the exclusive
option to lease the balance of space available under the Additional Space Option
pursuant to Section 1.04 of the Lease.
5. Tenant hereby waives its right of First Offer under Section 1.03 of
the Lease.
6. Tenant agrees not to exercise its surrender Option under Section 1.05
of the Lease solely with respect to the entire third (3rd) floor of the
Premises.
7. Except as expressly modified, amended and supplemented by this
Amendment, all of the terms, covenants and conditions of the Lease shall remain
in full force and effect.
4
85
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
Landlord:
ROYAL EXECUTIVE PARK II
By: London & Leeds Rye Corporation
A GENERAL PARTNER
By: /s/ DESMOND TALGAARD
--------------------------------------
Desmond Talgaard
Its: President
Tenant:
JWP INC.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxx
Corporate Secretary and
Vice President Real Estate
5
86
SUBLEASE
--------
This Sublease Agreement ("Sublease"), made as of this 6th day of
August,, 1993, between JWP, INC., a Delaware corporation with offices at 0
Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx 00000 ("Sublessor"), and ENTEX
INFORMATION SERVICES, INC. a Delaware corporation with offices at 0
Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx 00000 ("Sublessee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Sublessor is the tenant under a Lease dated as of May 21, 1992
between Royal Executive Park II, a New York limited partnership, as landlord
(the "Prime Landlord"), and Sublessor, as tenant, as amended by an Addendum No.
1 to Lease dated of even date therewith between Prime Landlord and Sublessor,
letter of Sublessor dated June 8, 1992 (exercising option to take additional
space), First Amendment of Lease dated as of June 22, 1992 ("First Amendment"),
a letter agreement between Prime Landlord and Sublessor dated June 22, 1992 and
Second Amendment of Lease dated as of May 28, 1993 ("Second Amendment")
(collectively, the "Prime Lease");
WHEREAS, Sublessor and Sublessee desire to enter into a sublease for a
portion of the premises demised under the Prime Lease.
NOW, THEREFORE, in consideration of the covenants and conditions set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by both parties, it is hereby agreed
as follows:
1. Premises: (a) Sublessor hereby leases to Sublessee and Sublessee
hereby leases from Sublessor, upon and subject to the terms and conditions of
this Sublease, a portion of the premises demised under the Prime Lease, such
portion consisting of the entire second floor of the building having an address
at 0 Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx (the "Building"), as such premises
are shown on Exhibit A attached hereto and made a part hereof ("Demised
Premises").
This Sublease is subject and subordinate to all of the terms, covenants
and conditions of the Prime Lease and to all matters to which the Prime Lease is
subject and subordinate. Sublessee, acknowledges having received and reviewed a
copy of the Prime Lease. To the extent not otherwise provided in Article 24
hereof or elsewhere in this. Sublease, nor otherwise inconsistent with the
provisions of this Sublease, all of the terms, covenants and conditions of the
Prime Lease shall be deemed incorporated herein by reference as if set forth
herein at length. For purposes of such incorporation, the term "Landlord" as
used in the Prime Lease shall refer to Sublessor (and its successors and
assigns), the term "Tenant" as used in the Prime Lease shall refer to Sublessee
(and its successors and assigns) and the term "Leased Premises" as used in the
Prime Lease shall
87
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refer to the Demised Premises. Nothing in this Sublease shall be construed or
deemed to grant any right to Sublessee in excess of Sublessor's rights under the
Prime Lease or to it a violation of the Prime Lease pursuant to the provisions
of this Sublease.
(b) The Demised Premises have been inspected by Sublessee who
accepts the same in an "as is" condition, without reliance on any
representations or accept warranties of Sublessor concerning the Demised
Premises. Sublessor shall have no obligation whatsoever to Sublessee to alter,
improve, decorate, paint or otherwise prepare the Demised Premises or any
portion thereof for Sublessee's occupancy, nor shall Sublessor have any
obligation to fund any of the foregoing.
(c) Whenever in the Prime Lease a time is specified within which
the Tenant thereunder (i.e., the Sublessor) must give notice or make a demand
following an event, or within which the Tenant must respond to any notice,
request or demand previously given or made by the Landlord thereunder (i.e., the
Prime Landlord), or to comply with any obligation on the Tenant's part
thereunder, such time is hereby changed (but only for purposes of the
incorporation of the Prime Lease in this Sublease pursuant to Section l(a) of
this Sublease) by subtracting four (4) days therefrom. Whenever in the Prime
Lease a time is specified within which the Landlord thereunder must give notice
or make a demand following an event, or within which the Landlord must respond
to any notice, request or demand previously given or made by the Tenant
thereunder, or to comply with any obligation on the Landlord's part thereunder,
such time is hereby changed (but only for purposes of the incorporation of the
Prime Lease in this Sublease pursuant to Section 1(a) of this Sublease) by
adding four (4) days thereto. It is the purpose and intent of the foregoing
provisions of this Section 1(c) to provide the Sublessor with time within which
to transmit to the Prime Landlord any notices or demands received from the
Sublessee and to transmit to the Sublessee any notices or demands received from
the Prime Landlord.
2. Term: (a) Except as otherwise provided in this Sublease, the initial
term ("Initial Term") of this Sublease shall commence on the date that the
Consent (as defined in Section 18 hereof) is obtained ("Commencement Date") and
expire at midnight on December 31, 1993 or on such earlier date upon which the
term of this Sublease shall expire or be canceled or terminated pursuant to the
terms of this Sublease or the Prime Lease or pursuant to law ("Expiration
Date").
(b) Sublessee shall have the option ("Extension Option") to
extend the Initial Term for an additional period of eight (8) years, four (4)
months and thirty (30) days, commencing on January 1, 1994 and terminating on
May 30, 2002 or on such earlier date upon which the term of this Sublease shall
expire or be canceled or terminated pursuant to the terms of this Sublease or
the Prime Lease or pursuant to law ("Option Term"). If Sublessee shall elect to
exercise the Extension Option, it shall do so by giving notice thereof to
Sublessor on or before September 30, 1993, with time being of the essence.
During the Option Term all of the terms and conditions of this Sublease shall
remain in full force and
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effect. except that the fixed annual rent for the Demised Premises shall be the
Fair Market effect in Section 3(b) hereof), Sublessee shall pay additional rent
as described in Section 3(c) and 3(d) hereof and be responsible for the other
charges, costs, expenses, fees of additional rent imposed under the Prime Lease
with respect to the Demised premises or arising out of the use or occupancy
thereof, as incorporated into this Sublease and Sublessee shall have no further
option to extend the term of this Sublease. Sublessee may not exercise the
Extension Option if Sublessee is in default hereunder after the Sublessor and
the expiration of the applicable grace or cure period at the time of Sublessee's
exercise of the Extension Option or of the Option Term.
3. Rent: (a) During the Initial Term (i) the fixed annual rent due under
this Sublease shall equal zero ($0) dollars, (ii) the amount payable by
Sublessee on account of the Electricity Additional Rent shall equal zero ($0)
dollars, and (iii) Sublessee shall have no obligation to make any payment of the
escalations required to be paid by Sublessor as Tenant under the Prime Lease,
provided that Sublessee shall nevertheless be required to pay its Proportionate
Share (as hereinafter defined) of any charges imposed under this Sublease, or
the Prime Lease for the furnishing of utilities during periods other than
Business Hours (as defined in the Prime Lease), if utilities for such periods
are requested by Sublessee.
(b) (i) If Sublessee shall duly exercise the Extension Option,
during the Option Term Sublessee shall pay to Sublessor a fixed annual rent
("Annual Rent") equal to the annual fair market rental value of the Demised
Premises as of the commencement date of the Option Term for a term equal to the
Option Term ("Fair Market Rent"). The Fair Market Rent shall equal the rental
value determined as if the Demised Premises were available in the then current
rental market for comparable first-class, proximately located buildings in
Westchester County and assuming that Sublessor has had a reasonable time to
locate a subtenant who rents with the knowledge of the uses to which the Demised
Premises can be adapted, and that neither Sublessor nor the prospective
subtenant is under any compulsion to rent. Nothing set forth herein shall
require that the Fair Market Rent be constant throughout the Option Term, the
parties hereby acknowledging that the Prime Lease provides for an increase in
annual rental following the fifth anniversary of the Rental Commencement Date
(as defined in the Prime Lease). In determining the Fair Market Rent, tenant
rent abatements, concessions, work letters and work allowances shall be taken
into consideration if merited by prevailing market conditions, as well as
whether and how much work is required to be performed in the Demised Premises in
order to prepare the same for the use permitted under this Sublease.
Additionally, the fact that Tenant shall receive a "Base Year" for purposes of
determining escalations pursuant to Section 3(c) hereof equal to calendar year
1994 shall be taken into consideration. Sublessee shall pay Annual Rent to
Sublessor in equal monthly installments, in advance, one (1) business day prior
to the first (1st) day of each month during the Option Term, without any offset,
setoff or deduction of any kind whatsoever.
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(ii) For purposes of determining the Fair Market Rent for the
Option the following procedures shall apply:
(A) Within fifteen (15) days after the giving by Sublessee
of Sublessee's notice of exercise of option, Sublessor shall give notice to
Sublease in writing ("Sublessor's Notice") of the amount Sublessor believes
should be the Fair Market Rent.
(B) Sublessee shall give notice to Sublessor in writing
("Sublessee's Notice") within fifteen (15) days after the giving by Sublessor of
Sublessor's Notice whether Sublessee agrees or disagrees with Sublessor's
calculation of the Fair Market Rent. If Sublessee agrees with Sublessor's
calculation, then the Fair Market Rent shall be the amount calculated by
Sublessor.
(C) If in Sublessee's Notice Sublessee advises Sublessor
that it disagrees with Sublessor's calculation of the Fair Market Rent, then
Sublessor and Sublessee shall promptly attempt to agree on the Fair Market Rent.
If Sublessor and Sublessee cannot so agree within fifteen (15) days of the
giving of Sublessee's Notice, then Sublessor and Sublessee shall attempt to
mutually select a licensed real estate broker then currently doing business in
Westchester County who is knowledgeable in rental rates for comparable office
premises in Westchester County, to determine the Fair Market Rent
("Arbitrator"). If the parties cannot agree on one Arbitrator within fifteen
(15) days of the giving of Sublessee's Notice, then they shall each, within
thirty (30) days after the giving of Sublessee's Notice, select a licensed real
estate broker currently (i) doing business in Westchester County, (ii) familiar
with rental rates for comparable office premises in the Westchester County area
and (iii) engaged in and having at least five (5) years experience in the
leasing of office premises in Westchester County. Each Arbitrator shall have no
direct or indirect financial or other business interest in Sublessor or
Sublessee and shall not be affiliated with either Sublessor or Sublessee. If
either Sublessor or Sublessee fails to timely appoint an Arbitrator, the
Arbitrator selected by the other party shall act as the sole Arbitrator, The two
(2) Arbitrators shall promptly attempt to reach agreement on the Fair Market
Rent. If they cannot agree on a Fair Market Rent within ten (10) days of their
appointment, they shall together select a third Arbitrator meeting the
requirements set forth hereinabove. If the two Arbitrators fail to so timely
select a third Arbitrator within twenty (20) days of the appointment of the
second Arbitrator, then the third Arbitrator shall be selected by the President
of the Society of Arbitrators of Westchester County, or if there be no such
Society at such time, by the administrative Judge of the Supreme Court of the
State of New York in Westchester County.
(D) The Arbitrators shall render their decision upon the
concurrence of at least two (2) of the Arbitrators within ten (10) days of the
selection or appointment of the third Arbitrator. If there shall be no
concurrence of two
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Arbitrators, the decision of the third Arbitrator selected or appointed shall
prevail. The fixed annual rent for the Option Term shall be equal to the Fair
Market Rent as so determined and Sublessor and Sublessee shall be conclusively
bound thereby.
(E) Each party shall bear the cost of the Arbitrator
selected by such party and the cost of the third Arbitrator shall be shared
equally by Sublessor and Sublessee.
(F) Within seven (7) days after the Fair Market Rent has
been determined, Sublessor and Sublessee shall execute an amendment to this
sublease confirming same.
(c) In addition to the Fair Market Rent, Sublessee shall pay to
Sublessor additional rent during the Option Term in an amount equal to Fifty
(50%) Percent (the "proportionate Share") of the escalations payable by
Sublessor to the Prime Landlord under the Prime Lease for Landlord's Expenses
(as defined in the Prime Lease) on the terms and conditions set forth in Section
4.02 of the Prime Lease, provided, however, that for such purposes the "Base
Year" as defined in Section 4.02(a)(ii) of the Prime Lease shall mean the,
calendar year 1994. Sublessee shall pay 1/12th of the Proportionate Share of the
increase in Landlord's Expenses, in advance, one (1) business day prior to the
first (1st) day of each month during the Option Term, based upon the Prime
Landlord's estimate of Landlord's Expenses pursuant to Section 4.02(b) of the
Prime Lease. Sublessor shall deliver to sublessee a copy of Landlord's Expense
Statement (as defined in the Prime Lease) for the period in question promptly
upon receipt thereof from the Prime Landlord. If Sublessee should question or
contest the validity of Landlord's Expense Statement, Sublessor shall at its
option, either (i) exercise its rights under Section 4.02(b)(iii) of the Prime
Lease with respect to such Expense Statement (and in such event Sublessee shall
be required to pay the Proportionate Share of the reasonable cost of such
exercise if such exercise is successful and which cost shall be borne solely by
Sublessee if such exercise is unsuccessful) or (ii) permit Sublessee to exercise
directly the rights of Sublessor set forth in Section 4.02(b)(iii) of the Prime
Lease, provided, however, that Sublessee shall have the foregoing contest rights
only if Sublessee first pays the disputed amount, and further provided that the
following conditions are met with respect to any such contest (or litigation, as
the case may be): (w) such contest or ligation is prosecuted and maintained by
attorneys reasonably approved by Sublessor; (x) Sublessee shall not be in
default under this Sublease after notice thereof from Sublessor and beyond the
expiration of any applicable notice or cure period; (y) Sublessee shall
indemnify and hold Sublessor harmless from and against any loss, cost,
liability, damage, expense (including, without limitation, reasonable attorneys'
fees and disbursements), penalties and fines incurred by Sublessor arising from
or in connection with such contest or litigation; and (z) Sublessee shall not
institute any such contest or litigation (or if such contest or litigation shall
have been instituted, the same shall be discontinued) if, in the good faith
judgment of Sublessor, reasonably exercised, the institution (or prosecution) of
such action may result in
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a cancellation or termination of the Prime Lease (the conditions described in
clause (w) through (z) being referred to herein as the "Litigation Conditions").
(d) Sublessee shall also pay to Sublessor during the Option Term
the Proportionate Share of the Electricity Additional Rent (as defined in the
Second Amendment). Such amount shall be payable by Sublessee to Sublessor at
least five (5) days before the respective payment of Electricity Additional Rent
is payable by Sublessor to the prime Landlord. If at any time during the Option
Term either Sublessor or Sublessee believes that the cost of Sublessee's usage
of electricity in the Demised Premises is not accurately reflected by the
Proportionate Share of the Electricity Additional Rent payable by Sublessor to
the Prime Landlord, it may retain a reputable independent electrical engineer or
consultant to perform a survey of Sublessee's usage of electricity and
Sublessee's payments under this Subsection 3(d) shall thereafter be adjusted in
accordance with the results of such survey, unless the other party shall dispute
such determination, in which event the issue shall be resolved in substantially
the same manner as a dispute between Sublessor and the Prime Landlord as
described in Section 2(c) of the Second Amendment.
(e) In addition to the foregoing amounts specified in this
Section 3, Sublessee shall pay any other sums, charges, fees, expenses and other
items of additional rent payable under the Prime Lease with respect to the
Demised Premises or arising out of the use or occupancy thereof, as incorporated
herein pursuant to the provisions of Section 1(a) hereof.
4. Use. Sublessee shall use the Demised Premises for general and
executive office purposes and for all activities normally incidental thereto
(but under no circumstances in violation of the provisions of the Prime Lease)
and for no other purpose.
5. Sublessee's Defaults: In the event Sublessee shall default in the
full performance of any of the terms, covenants and conditions on its part, to
be performed under this Sublease, then Sublessor shall have, in addition to any
other rights or remedies specified in this Sublease, the same rights and
remedies with respect to such default as are given to the Prime Landlord under
the Prime Lease, all with the same force and effect as though the provisions of
the Prime Lease with respect to defaults and the rights and remedies of the
Prime Landlord thereunder were set forth at length herein as the rights and
remedies of the Sublessor, as modified pursuant to the provisions of Section
l(c) hereof.
6. Services: (a) Sublessee shall have and enjoy the same rights to have
facilities and services furnished by the Prime Landlord as Sublessor possesses
under the Prime Lease. Sublessee acknowledges and agrees that Sublessor is not
in a position, nor shall Sublessor be required, to furnish to Sublessee any
water, sewer; gas, heat, electricity, air conditioning, light, power, parking or
any other facilities, materials or services of any kind whatsoever, whether or
not specified in the Lease or required by law, including, without limitation,
making any repairs or restorations arising from or in connection with a
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casualty or condemnation, or complying with any laws or requirements of any
governmental authorities, with respect to the Demised Premises. The performance
by the Prime Landlord of its obligations under the Prime Lease shall, for all
purposes of this Sublease, be deemed to be the performance of such obligations
by Sublessor, and Sublessor's obligations under the Prime Lease, as incorporated
in this Sublease pursuant to Section l(a), shall be fully discharged to the
extent to which such obligations are performed by the Prime Landlord under the
Prime Lease. Notwithstanding the foregoing, Sublessor shall use all reasonable
efforts to obtain performance by the Prime Landlord of its obligations under the
Prime Lease, with the reasonable cost of such efforts to be borne solely by
Sublessee to the extent such performance relates solely to the Demised Premises
and to be shared on a Proportionate Share basis by Sublessee and Sublessor if
such performance also relates to portions of the premises demised under the
Prime Lease other than the Demised Premises. If the Prime Landlord shall default
in the performance of any of its obligations with respect to the Demised
Premises, Sublessee may participate with Sublessor in the enforcement of
sublessor's rights in respect thereof (and in any recovery or relief obtained,
to the extent relating to the Demised Premises), it being agreed that Sublessor
shall make all decisions regarding such enforcement, unless such enforcement
relates solely to the Demised Premises (in which event decisions shall be made
jointly by Sublessor and Sublessee). Sublessor will promptly give to Prime
Landlord each and every notice which Sublessee delivers to Sublessor advising of
any default by the Prime Landlord in any of its obligations with respect to the
Demised Premises. Furthermore, if Prime Landlord shall default in the
performance of any of its obligations with respect to the Demised Premises and
Sublessee shall request that Sublessor compel the cure of such default by
commencing a litigation against the Prime Landlord, Sublessor shall, either (i)
institute and prosecute such litigation itself or (ii) permit Sublessee to
institute and prosecute such litigation, provided that in each case the
Litigation Conditions are satisfied; in either of such events the reasonable
expense of such litigation shall be borne solely by Sublessee (if Prime
Landlord's default relates solely to the Demised Premises) or shared on a
Proportionate Share basis (if such default also relates to portions of the
premises demised under the Prime Lease other than the Demised Premises).
Sublessee shall be entitled to the benefit of any recovery or relief obtained
pursuant to such proceeding to the extent that the same shall apply to the
Demised Premises and Sublessor shall be entitled to the benefit of any recovery
or relief to the extent the same does not apply to the Demised Premises.
(b) If Sublessee shall duly exercise the Extension Option,
Sublessee shall not be entitled to any abatement of rent for the failure of the
Prime Landlord to supply the above services or perform such obligations, unless
Sublessor is entitled to receive an abatement of rent under the Prime Lease, in
which case Sublessee shall be entitled to the Proportionate Share of such
abatement of the rent and additional rent payments due hereunder, unless such
failure of the Prime Landlord results from Sublessor's willful misconduct or
Sublessor's being in default under the Sublease or the Prime Lease and
Sublessor's default thereunder is not due to a default of Sublessee hereunder,
in either of
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which latter events Sublessee shall be entitled to such abatement of rent and
additional rent as may be equitable under the circumstances.
7. Direct Dealing with the Prime Landlord: If Sublessee procures any
additional services (such as alternations, cleaning services, overtime air
conditioning, etc.) with respect to the Demised Premises, Sublessee shall pay
all charges for such services, as and when due, directly to the party rendering
such services (or as otherwise directed by the prime Landlord.)
8. Sublessor's Defaults: (a) Sublessor shall not do anything or fail to
take any action which may cause or result in an Event of Default (as defined in
the Prime Lease) under the Prime Lease, or in a situation which, with the
passage of time or the giving of notice, or both, may result in an Event of
Default.
(b) If Sublessor shall default in the observance or performance
of any term or covenant on its part to be observed or performed by it as Tenant
under the Prime Lease, Sublessee, without being under any obligation to do so,
shall have the right to remedy such default for the account and at the expense
of Sublessor following the expiration of five (5) business days after delivery
to Sublessor of a notice with specificity as to Sublessee's intention to
exercise such remedy, but only where Sublessor shall not have effected or
commenced to effect the cure of such default by the expiration of such period,
or, if having so timely commenced cure, shall thereafter fail to diligently
prosecute such cure to completion. Any sums reasonably expended by Sublessee in
so remedying any such default of Sublessor shall be paid to Sublessee by
Sublessor on demand and if not so paid, may be set off by Sublessee against any
rent or additional rent thereafter becoming payable under this Sublease.
9. Prime Lease: Sublessor represents and warrant accepts that the Prime
Lease is in full force and effect, that fixed annual rent due thereunder which
has been billed through June 30, 1993 has been paid, that the Prime Lease has
not been modified or amended in any way other than as set forth in the Prime
Lease, that to the best of Sublessor's knowledge, there are no existing defaults
thereunder on the part of Sublessor as tenant thereunder, nor has any event
occurred which, with the giving of notice or the passage of time, or both, would
constitute a default thereunder.
10. Indemnification: (a) Sublessee, shall not do or permit to be done
any act or thing which will constitute a breach or violation of any of the
terms, covenants, conditions or provisions of this Sublease or an Event of
Default under the Prime Lease (except to the extent caused by an act or omission
of Sublessor or any of its agents, employees, invitees or contractors) and shall
hold harmless, indemnify and defend Sublessor from and against any and all
claims, demands, actions, causes of action, suits, judgments, damages, losses,
liabilities, fines, penalties, costs and expenses (including, without
limitation,
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reasonable attorneys' fees and disbursements) (collectively, "Liabilities")
incurred by Sublessor by reason of any breach by Sublessee of the foregoing
covenant.
(b) Sublessor shall timely perform all of its obligations under
the Prime Lease and shall not do or permit to be done any act or thing which
will constitute a breach or violation of any of the terms, covenants, conditions
or provisions of this Sublease or an Event of Default under the Prime Lease
(except to the extent caused by any act or omission of Subleases or any of its
agents, employees, invitees, or contractors), Sublessor shall hold harmless,
indemnify and defend Sublessee from and against any and all Liabilities incurred
by Sublessee by reason of any breach by Sublessor of the foregoing covenant
including, without limitation, any Liabilities incurred by Sublessee as a result
of a termination of the Prime Lease as a result thereof.
11. Sublessor's Consent: Whenever Sublessor's consent or approval is
required under the provisions of this Sublease, Sublessor's refusal to consent
or approve any matter or thing shall be deemed reasonable if, inter alia, the
Prime Landlord or the mortgagee of the Building has refused to give such consent
or approval if required under the Prime Lease. Whenever the consent of the Prime
Landlord is required, Sublessor shall promptly transmit Sublessee's request for
consent to the Prime Landlord. Further, provided Sublessee is not in default
hereunder after notice from Sublessor and beyond any applicable grace period,
the consent or approval of Sublessor shall not be required with respect to any
matter to which the Prime Landlord shall have consented unless the action for
which such consent is sought may reasonably be expected to increase Sublessor's
obligations or liabilities under the Prime Lease or this Sublease, and in such
latter event, Sublessor's consent will not be withheld if Sublessee delivers to
Sublessor its agreement in form and substance reasonably satisfactory to
Sublessor whereby Sublessee indemnities Sublessor against the consequences of
such increase in Sublessor's obligations or liabilities, including, without
limitation, the reimbursement of any expense incurred by Sublessor by reason of
its performance of such increased obligations or any loss suffered by reason of
such increased liabilities, it being agreed that Sublessor shall have the right
to condition any such consent upon the provision of security reasonably
satisfactory to Sublessor.
12. Amendment of Prime Lease: Sublessor shall neither amend the Prime
Lease nor consent to the amendment thereof if the effect thereof would be an
increase in Sublessee's obligations or liabilities or a decrease in Sublessee's
rights under this Sublease.
13. Covenant of Quite Enjoyment: Upon observing and performing all the
terms, covenants and conditions hereof on Sublessee's part to be observed and
performed, Sublessee may peaceably and quietly enjoy the Demised Premises
without disturbance by Sublessor or anyone claiming by, through or under
Sublessor, upon and subject to the terms and conditions of this Sublease.
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14. Entire Agreement: This Sublease contains the entire agreement the
between parties hereto with respect to the Demised Premises. No agreement
hereafter made between Sublessor and Sublessee shall be effective to change,
modify, waive, release, discharge or terminate this Sublease or any term
thereof, in whole or in part, unless such agreement is in writing and signed by
the party against whom enforcement of the change, modification, waiver, release,
discharge or termination is sought.
15. Notices: Any notice, consent, approval, request, communication,
xxxx, demand or statement provided under this Sublease to be sent or delivered
by either party to the other party shall be in writing and shall be given by
personal delivery (including, without limitation, recognized overnight delivery
service) with signed receipt therefor, or mailed in a postage envelope,
registered or certified, with return receipt, addressed to such other party, at
the address for such party as set forth on the first page of this Sublease and,
with respect to Sublessor, to the attention of "President." Either party,
however, may designate such new or other address to which such notice shall
thereafter be given, by notice given in accordance with this Article 15. Any
notice to be given under this Sublease shall be deemed given upon receipt, or,
if delivery is refused, on the date delivery is first attempted. Each party
shall promptly deliver to the other party a copy of all notices given by the
Prime Landlord to such party relating to or affecting this Sublease or the
Demised Premises.
16. Liability Insurance: (a) Each party shall maintain with responsible
companies commercial general liability insurance with contractual liability
endorsement against all claims, demands or actions for injury to or death of any
one or more persons, or damage to property, in an amount of not less than
$1,000,000 combined single limit, arising from, related to or connected with the
conduct and operation of such party's business in the respective portion of the
premises demised under the Prime Lease occupied by such party, or caused by the
actions or omissions of such party, its agents and employees.
(b) A copy of or certificates evidencing each such policy or
policies of insurance shall be delivered to the other party on request. On
Sublessee's default in obtaining or delivering any such policy or policies or
failure to pay the charges therefor, Sublessor may secure or pay the charges for
any such policy or policies and charge the Sublessee as additional rent
therefor.
17. Fire and Extended Coverage Insurance. (a) Each party shall carry
separate fire and extended coverage insurance policies on the respective
portions of the premises demised under the Prime Lease occupied by such party.
However, provided such separate policies are unavailable (or if Sublessor shall
have been required, pursuant to the Prime Lease, to carry a fire and extended
coverage insurance policy on its entire demised premises), and a single policy
shall cover Sublessor's entire premises, including the Demised Premises,
Sublessee shall pay the Proportionate Share of Sublessor's premium. Bills for
such share of the premium shall be rendered by Sublessor to Sublessee at such
times as Sublessor may elect together with a copy of the xxxx from Sublessor's
insurance carrier and
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shall be due from, and payable by, Sublessee when rendered, and the amount
additional rent under this Sublease.
(b) Sublessee shall obtain such other insurance, and in such
amounts, as may from time to time be reasonably required by the Prime Landlord,
Sublessor, or any fee mortgagee, against other insurable hazards which at the
time are commonly insured against in the case of premises similarly situated,
due regard being or to be given to the height and type of building, its
construction, use and occupancy.
(c) Each fire and extended coverage insurance policy shall, if
obtainable from the insurer without expense, either contain a provision waiving
subrogation against the other party hereto or include the name of such other
party as an additional Insured.
(d) Notwithstanding any provision in this Sublease to the
contrary, neither party shall be liable for damage to the other party's property
in or constituting a part if the premises demised under the Prime Lease,
regardless of whether or not such damage is due to such party's negligence, to
the extent that such damage is covered by collectible insurance carried by the
other party.
18. Prime Landlord's Consent: The validity of this Sublease is
conditioned upon Sublessor obtaining the written consent of the Prime Landlord
to the terms and conditions hereof (the "Consent"). If such Consent is not
obtained on or before December 31, 1993, this Sublease shall be null and void
and of no further force and effect. Sublessee agrees to cooperate in good faith
and comply with reasonable requests of Sublessor and Prime Landlord in obtaining
the consent. Each party shall pay one half of all reasonable out-of-pocket costs
that may be incurred by Prime Landlord in connection with the granting of the
Consent, including, without limitation, reasonable attorneys' fees and
disbursements.
19. Non-Disturbance Agreement: If Sublessee shall duly exercise the
Extension Option, Sublessor shall request of Prime Landlord that Prime Landlord
execute and deliver to Sublessee an agreement on or before the commencement of
the Option Term providing that so long as Sublessee is not in default under this
Sublease after the giving of notice thereof and the expiration of the applicable
grace or cure period provided hereunder, Sublessee shall be permitted to remain
in undisturbed possession, use and enjoyment of the Demised Premises,
notwithstanding any default by Sublessor under the Prime Lease or any
termination of the Prime Lease on account thereof by Prime Landlord, it being
agreed that Sublessor shall have no obligation to expend any monies in order to
obtain any such agreement and that failure to obtain such agreement despite
Sublessor's request therefor shall not diminish any of Sublessee's obligations
under this Agreement.
20. Unavoidable Delays: If either party hereto shall be delayed or
hindered in or prevented from the performance of any act required under this
Sublease by reason of
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strikes, lockouts labor troubles, inability to procure materials, failure of
power, governmental laws or regulations, riots, insurrection, war or other
reason of a like nature not the fault of the party delayed, then performance of
such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay. The provisions of this Article 20 shall not operate to
excuse Sublessee from prompt payment of fixed annual rent (if any) or any other
payments (if any) required under the terms of this Sublease.
21. Captions: The captions and article and section numbers appearing in
this Sublease are inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or intent of such sections or articles or
this Sublease nor in any way affect this Sublease.
22. Brokers: Each party represents to the other that it has dealt with
no broker or finder in connection with this Sublease and shall hold harmless,
indemnify and defend the other party from and against any and all Liabilities
incurred by such party as a result of a breach of the foregoing representation.
23. Surrender Option: Sublessee shall have the same right to surrender
all or any portion of the Demised Premises (and be released from all further
liability in connection therewith) as Sublessor does to surrender all or any
portion of the premises ]eased under the Prime Lease pursuant to Section 1.05 of
the Prime Lease, effective as of the respective Surrender Dates (as defined in
the Prime Lease) as set forth in the Prime Lease and otherwise on the terms and
conditions as set forth in Section 1.05 of the Prime Lease. If either Sublessor
or Sublessee shall exercise its rights of surrender with respect to the Demised
Premises in accordance with Section 1.05 of the Prime Lease, this Sublease shall
terminate on and as of the effective date of such surrender, provided, however,
that only Sublessee, and not Sublessor, may elect (subject to the provisions of
Paragraph 1.05 of the Prime Lease) to surrender a portion of the Demised
Premises. Notwithstanding anything to the contrary set forth in this Sublease,
Sublessor shall incur no liability to Sublessee arising from or in connection
with the exercise by Sublessor of its right under the Prime Lease to surrender
the Demised Premises to the Prime Landlord, provided Sublessor shall have
exercised such right in accordance with the provisions of the preceding
sentence.
24. Prime Lease Modifications: The following provisions of the Prime
Lease shall be deemed deleted and shall not apply to this Sublease: Sections
1.01(a), 1.01(b), 1.03, 1.04, 2.01, 2.02, 3.01, 4.01 4.03(a), the first three
sentences of 11.01(d), the fifth sentence of 15.01, 15.02, 21.01, 23.01, clauses
(iii)-(vi), inclusive, of 24.01, 26.01, 27.02 and 27.03. The last sentence of
the last paragraph of Section 4.02(b) shall be modified for purposes of
incorporation into this Sublease such that Sublessee shall be entitled to
receive interest on any excess payment of its Proportionate Share of any
increase in Expenses only if Sublessor receives such interest from the Prime
Landlord. In addition, that certain letter from Prime Landlord to Sublessor,
dated May 21, 1992, referring to
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"Agreement to Permit Rent Offsets or to make Monthly Payment" shall not be
deemed to have been incorporated into, and shall not apply to, this Sublease and
Sublessee shall not be entitled to any of the benefits accruing under such
letter.
25. Parking. Sublessee shall be entitled to use of the Proportionate
Share of the non-designated and designated parking spaces to which Sublessee is
entitled pursuant to the provisions of Section 6.01 of the Prime Lease.
Sublessee may (subject to the provisions of Section 6.01 of the Prime Lease)
continue to use the specific designated spaces used by employees of JWP
Information Services, Inc. on the date hereof.
26. Assignment and Subletting. Sublessee shall not be permitted to
assign its interests in this Lease or sublet all or any portion of the Demised
Premises except in strict accordance with the terms and conditions of Article
XVI of the Prime Lease (as incorporated in the Sublease pursuant to Section l(a)
hereof). All assignments and sublettings shall require the written consent of
both Sublessor and the Prime Landlord, except that those referred to in Section
16.01(d) of the Prime Lease shall require the consent of Prime Landlord but not
of Sublessor. All assignments and sublettings (including, without limitation,
those referred to in Section 16.01(d) of the Prime Lease) shall be effected in
strict accordance with the terms and conditions of Article XVI of the Prime
Lease.
27. Severability: If any term, covenant or condition of this Sublease or
the application thereof to any person or circurnstance shall, to any extent, be
invalid or unenforceable, the remainder of this Sublease or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable shall not be affected thereby and
each term, covenant or condition of this Sublease shall be valid and be enforced
to the fullest extent permitted by law.
28. No Recording: Sublessee shall not record this Sublease without the
written consent of Sublessor.
29. Successors and Assigns. This Sublease shall bind and accrue to the
benefit of Sublessor and Sublessee and their respective successors and permitted
assigns.
30. Computer and Switching Rooms: During the term of this Sublease,
Sublessee shall be permitted non-exclusive access to the computer and switching
rooms presently located on the first floor of the Building for the purpose of
using the equipment therein with respect to Sublessee's operations. Sublessor
shall properly insure, maintain, repair and replace all equipment (other than
equipment which is "dedicated" to a particular entity in the Building other than
Sublessor, with respect to which equipment Sublessor shall have no
responsibility whatsoever) in such rooms and Sublessee shall pay its
Proportionate Share of the reasonable cost thereof promptly upon receipt of
statements thereof from Sublessor, together with substantiating invoices or
receipts.
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31. Removal of Fixtures: At the expiration or earlier termination of the
term of this Sublease, provided Sublessee shall not then be in default under
this Sublease after notice thereof from Sublessor and the expiration of the
applicable grace or cure period provided under this Sublease, subject to the
provisions of the Prime Lease, Sublessee shall be terminated to remove its
fixtures and equipment which may be removed without causing significant damage
to the Demised Premises (and Sublessee shall repair any damage caused thereby).
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of
the day and year first above written.
Sublessor:
JWP, INC.
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Sr. VP
Sublessee:
ENTEX INFORMATION SERVICES, INC.
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: EVP
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EXHIBIT A
[SECOND FLOOR NOT SHOWN]
101
AMENDED SUBLEASE
----------------
This Amended Sublease Agreement ("Sublease"), made as of the 31st day of
December, 1993, between JWP, INC., a Delaware corporation with offices at 0
Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx 00000 ("Sublessor"), and ENTEX
INFORMATION SERVICES, INC., a Delaware corporation with offices at 0
Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx 00000 ("Sublessee").
W I T N E S S E T H:
--------------------
WHEREAS, Sublessor is the tenant under a Lease dated as of May 21, 1992
between Royal Executive Park II, a New York limited partnership, as landlord
(the "Prime Landlord"), and Sublessor, as tenant, as amended by an Addendum No,
1 to Lease dated of even date therewith between Prime Landlord and Sublessor,
letter of Sublessor dated June 8. 1992 (exercising option to take additional
space), First Amendment of Lease dated as of June 22, 1992 ("First Amendment")
and Second Amendment of Lease dated as of May 28, 1993 ("Second Amendment")
(collectively, the "Prime Lease");
WHEREAS, Sublessor and Sublessee desire to enter into a sublease for a
portion of the premises demised under the Prime Lease.
NOW, THEREFORE, in consideration of the covenants and conditions set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by both parties, it is hereby agreed
as follows:
1. Premises: (a) Sublessor hereby leases to Sublessee and Sublessee
hereby leases from Sublessor, upon and subject to the terms and conditions of
this Sublease, a portion of the premises demised under the Prime Lease, such
portion consisting of the entire second floor of the building having an address
at 0 Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx (the "Building"), as such premises
are shown on Exhibit A attached hereto and made a part hereof ("Demised
Premises").
This Sublease is subject and subordinate to all of the terms, covenants
and conditions of the Prime Lease and to all matters to which the Prime Lease is
subject and subordinate. Sublessee acknowledges having received and reviewed a
copy of the Prime Lease. To the extent not otherwise provided in Article 24
hereof or elsewhere in this Sublease, nor otherwise inconsistent with the
provisions of this Sublease, all of the terms, covenants and conditions of the
Prime Lease shall be deemed incorporated herein by reference as if set forth
herein at length. For purposes of such incorporation, the term "Landlord" as
used in the Prime Lease shall refer to Sublessor (and its successors and
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assigns), the term "Tenant" as used in the Prime Lease shall refer to Sublessee
(and its successors and assigns) and the term "Leased Premises" as used in the
Prime Lease shall refer to the Demised Premises. Nothing in this Sublease shall
be construed or deemed to grant any right to Sublessee in excess of Sublessor's
rights under the Prime Lease or to permit a violation of the Prime Lease
pursuant to the provisions of this Sublease.
(b) The Demised Premises have been inspected by Sublessee who
accepts the same in an "as is" condition, without reliance on any
representations or warranties of Sublessor concerning the Demised Premises.
Sublessor shall have no obligation whatsoever to Sublessee to alter, improve,
decorate, paint or otherwise prepare the Demised Premises or any portion thereof
for Sublessee's occupancy, nor shall Sublessor have any obligation to fund any
of the foregoing.
(c) Whenever in the Prime Lease a time is specified within which
the Tenant thereunder (i.e., the Sublessor) must give notice or make a demand
following an event, or within which the Tenant must respond to any notice,
request or demand previously given or made by the Landlord thereunder (i.e., the
Prime Landlord), or to comply with any obligation on the Tenant's part
thereunder, such time is hereby changed (but only for purposes of the
incorporation of the Prime Lease in this Sublease pursuant to Section 1 (a) of
this Sublease) by subtracting four (4) days therefrom. Whenever in the Prime
Lease a time is specified within which the Landlord thereunder must give notice
or make a demand following an event, or within which the Landlord must respond
to any notice, request or demand previously given or made by the Tenant
thereunder, or to comply with any obligation on the Landlord's part thereunder,
such time is hereby changed (but only for purposes of the incorporation of the
Prime Lease in this Sublease pursuant to Section 1(a) of this Sublease) by
adding four (4) days thereto. It is the purpose and intent of the foregoing
provisions of this Section 1(c) to provide the Sublessor with time within which
to transmit to the Prime Landlord any notices or demand received form the
Sublessee and to transmit to the Sublessee any notices or demands received from
the Prime Landlord.
2. Term: Except as otherwise provided in this Sublease, the term
("Term") of this Sublease shall commence on January 1, 1994 and expire at 11:59
p.m. on May 30, 2002 or on such earlier date upon which the term of this
Sublease shall expire or be canceled or terminated pursuant to the terms of this
Sublease or the Prime Lease or pursuant to law ("Expiration Date").
3. Rent: (a) During the Term (i) the fixed annual rent due under this
Sublease shall be Four Hundred Forty Four Thousand Four Hundred Thirty Two
Dollars ($444,432), payable in equal monthly installments of Thirty Seven
Thousand and Thirty Six
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Dollars ($37,036), (ii) the amount payable by Sublessee on account of the
Electricity Additional Rent shall equal Ninety Thousand One Hundred Forty Seven
and 20/100 Dollars ($90,147.20) per annum, subject to adjustment in accordance
with Section 3(d) below, and (iii) Sublessee shall make payment of the
escalations required to be paid by Sublessor as Tenant under the Prime Lease.
B. "Base Year" for purposes of determining escalations pursuant
to Section 3(c) shall be the twelve (12) month period commencing on May l, 1992.
Sublessee shall pay fixed annual rent to Sublessor in equal monthly
installments, in advance, one (1) business day prior to the first (1st) day of
each month during the Term, without any offset or deduction of any kind
whatsoever.
C. In addition to the fixed annual rent, Sublessee shall pay to
Sublessor additional rent during the Term in an amount equal to Forty and Four
Tenths (40.4%) Percent (the "Proportionate Share") of the escalations payable by
Sublessor to the Prime Landlord under the Prime Lease for Landlord's Expenses
(as defined in the Prime Lease) on the terms and conditions set forth in Section
4.02 of the Prime Lease, provided, however, that for such purposes the "Base
Year" as defined in Section 4.02(a)(ii) of the Prime Lease shall mean the twelve
(12) month period commencing on May 1, 1992. Sublessee shall pay 1/12th of the
Proportionate Share of the increase in Landlord's Expenses, in advance, one (1)
business day prior to the first (1st) day of each month during the Option, based
upon the Prime Landlord's estimate of Landlord's Expenses pursuant to Section
4,02(b) of the Prime Lease. Sublessor shall deliver to Sublessee a copy of
Landlord's Expense Statement (as defined in the Prime Lease) for the period in
question promptly upon receipt thereof from the Prime Landlord. Upon receipt of
notice from Sublessee questioning the accuracy of a particular Landlord's
Expense Statement, Sublessor agrees to review such statement and shall
thereafter contest such statement with the Landlord if such action is determined
to be appropriate by Sublessor in the exercise of its good faith business
judgment,
D. As heretofore provided in Section 3(a) above, Sublessee
shall also pay to Sublessor during the Term, the Proportionate Share of the
"Electricity Additional Rent" (as such term is defined in the Second Amendment).
Such amount shall be payable by Sublessee to Sublessor at least five (5) days
before the respective payment of Electricity Additional Rent is payable by
Sublessor to the Prime Landlord, If at any time during the Term either Sublessor
or Sublessee believes that the cost of Sublessee's usage of electricity in the
Demised Premises is not accurately reflected by the Proportionate Share of the
Electricity Additional Rent payable by Sublessor to the Prime Landlord, such
party may retain a reputable independent electrical engineer or consultant to
perform a survey of Sublessee's usage of electricity and Sublessee's payments
under this Subsection 3(d) shall
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thereafter be adjusted in accordance with the results of such survey, unless the
other party shall dispute such determination, in which event the issue shall be
resolved in substantially the same manner as a dispute between Sublessor and the
Prime Landlord as described in Section 2(c) of the Second Amendment. Sublessee
acknowledges and agrees that in the event Sublessee shall attorn to Prime
Landlord pursuant to that certain agreement contemplated to be executed by
Sublessee, Sublessor and Prime Landlord contemporaneously herewith entitled
"Landlord's Consent; and Non-Disturbance and Attornment Agreement", Sublessee
shall be bound by the Second Amendment, without limiting any of Sublessee's
other obligations thereunder.
(e) In addition to the foregoing amounts specified in this
Section 3, Sublessee shall pay any other sums, charges, fees, expenses and other
items of additional rent payable under the Prime Lease with respect to the
Demised Premises or arising out of the use or occupancy thereof, as incorporated
herein pursuant to the provisions of Section 1(a) hereof.
4. Use: Sublessee shall use the Demised Premises for general and
executive office purposes and for all activities normally incidental thereto
(but under no circumstances in violation of the provisions of the Prime Lease)
and for no other purpose.
5. Sublessee's Defaults: In the event Sublessee shall default in the
full performance of any of the terms, covenants and conditions on its part to be
performed under this Sublease, then Sublessor shall have, in addition to any
other rights or remedies specified in this Sublease, the same rights and
remedies with respect to such default as are given to the Prime Landlord under
the Prime Lease, all with the same force and effect as though the provisions of
the Prime Lease with respect to defaults and the rights and remedies of the
Prime Landlord thereunder were set forth at length herein as the rights and
remedies of the Sublessor, as modified pursuant to the provisions of Section
l(c) hereof.
6. Services: (a) Sublessee shall have facilities and services furnished
by the Prime Landlord as Sublessor possesses under the Prime Lease. Sublessee
acknowledges and agrees that, Sublessor is not in a position, nor shall
Sublessor be required, to furnish to Sublessee, any water, sewer, gas, heat,
electricity, air conditioning, light, power, parking or any other facilities,
materials or services of any kind whatsoever, whether or not specified in the
Lease or required by law including without limitation, making any repairs or
restorations arising from or in connection with a casualty or condemnation, or
complying with any laws or requirements of any governmental authorities, with
respect to the Demised Premises. The performance by the Prime Landlord of its
obligations by Sublessor, and Sublessor's obligations under
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the Prime Lease, as incorporated in this Sublease pursuant to Section l(a),
shall be fully discharged to the extent to which such obligations are performed
by the Prime Landlord under the Prime Lease. Notwithstanding the forgoing,
Sublessor shall use all reasonable efforts to obtain performance by the Prime
Landlord of its obligations under the Prime Lease, with the reasonable cost of
such efforts to be borne solely by Sublessee to the extent such performance
relates solely to the Demised Premises and to be shared on a Proportionate Share
basis by Sublessee and Sublessor if such performance also relates to portions of
the premises demised under the Prime Lease other than the Demised Premises. If
the Prime Landlord shall default in the performance of any of its obligations
with respect to the Demised Premises. Sublessee may participate with Sublessor
in the enforcement of Sublessor's rights in respect thereof (and in any recovery
or relief obtained, to the extent relating to the Demised Premises), it being
agreed that Sublessor shall make all decisions regarding such enforcement,
unless such enforcement relates solely to the Demised Premises (in which event
decisions shall be made jointly by Sublessor and Sublessee). Sublessor will
promptly give to Prime Landlord each and every notice which Sublessee delivers
to Sublessor advising of any default by the Prime Landlord in any of its
obligations with respect to the Demised Premises, Furthermore, if Prime Landlord
shall default in the performance of any of its obligations with respect to the
Demised Premises and Sublessee shall request that Sublessor compel the cure of
such default by commencing a litigation against the Prime Landlord, Sublessor
shall, either (i) institute and prosecute such litigation itself or (ii) permit
Sublessee to institute and prosecute such litigation, provided that in each case
the Litigation Conditions (as hereinafter defined) are satisfied; in either of
such events the reasonable expense of such litigation shall be borne solely by
Sublessee (if Prime Landlord's default relates solely to the Demised Premises)
or shared on a Proportionate Share basis (if such default also relates to
portion of the premises demised under the Prime Lease other than the Demised
Premises). Sublessee shall be entitled to the benefit of any recovery or relief
obtained pursuant to such proceeding to the extent that the same shall apply to
the Demised Premises and Sublessor shall be entitled to the benefit of any
recovery or relief to the extent the same does not apply to the Demised
Premises. "Litigation Conditions" shall mean the following conditions with
respect to any litigation: (w) such litigation is prosecuted and maintained by
attorneys reasonably approved by Sublessor; (x) Sublessee shall not be in
default under this Sublease after notice thereof from Sublessor and beyond the
expiration of any applicable notice or cure period; (y) Sublessee shall
indemnify and hold Sublessor harmless from and against any loss, cost,
liability, damage, expense (including, without limitation, reasonable attorneys'
fees and disbursements), penalties and fines incurred by Sublessor arising from
or in connection with such litigation; and (z) Sublessee shall not
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institute any such litigation (or if such litigation shall have been instituted,
the same shall be discontinued) if, in the good faith judgment of Sublessor,
reasonably exercised, the institution (or prosecution) of such litigation may
result in a cancellation or termination of the Prime Lease.
(b) Sublessee shall not be entitled to any abatement of rent for
the failure of the Prime Landlord to supply the above services or perform such
obligations, unless Sublessor is entitled to receive an abatement of rent under
the Prime Lease, in which case Sublessee shall be entitled to the Proportionate
Share of such abatement of the rent and additional rent payments due hereunder,
unless such failure of the Prime Landlord results from sublessor's willful
misconduct or Sublessor's being in default under the Sublease or the Prime Lease
and Sublessor's default thereunder is not due to a default of Sublessee
hereunder, in either of which latter events Sublessee shall be entitled to such
abatement of rent and additional rent as may be equitable under the
circumstances. It is further agreed that, in the event Sublessee shall attorn to
the Prime Landlord, the Prime Landlord shall not be subject to any offsets,
credits or defenses which the Sublessee may have against Sublessor.
7. Direct Dealing with the Prime Landlord: If Sublessee procures any
additional services (such as alterations, cleaning services, overtime air
conditioning, etc.) with respect to the Demised Premises, Sublessee shall pay
all charges for such services, as and when due, directly to the party rendering
such services (or as otherwise directed by the Prime Landlord.)
8. Sublessor's Defaults: (a) Sublessor shall not do anything or fail to
take any action which may cause or result in an Event of Default (as defined in
the Prime Lease) under the Prime Lease, or in a situation which, with the
passage of time or the giving of notice, or both, may result in an Event of
Default.
(b) If Sublessor shall default in the observance or performance of
any term or covenant on its part to be observed or performed by it as Tenant
under the Prime Lease, Sublessee, without being under any obligation to do so,
shall have the right to remedy such default for the account and at the expense
of Sublessor following the expiration of five (5) business days after delivery
to Sublessor of a notice with specificity as to Sublessee's intention to
exercise such remedy, but only where Sublessor shall not have effected or
commenced to effect the cure of such default by the expiration of such period,
or, if having so timely commenced cure, shall thereafter fail to diligently
prosecute such cure to completion. Any sums reasonably expended by Sublessee in
so remedying any such default of Sublessor shall be paid to Sublessee by
Sublessor on demand and if not so paid, may be set off by Sublessee against any
rent or additional rent thereafter becoming payable under this Sublease.
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9. Prime Lease: Sublessor represents and warrants that the Prime Lease
is in full force and effect, that fixed annual rent due thereunder which has
been billed through December 31, 1993 has been paid, that the Prime Lease has
not been modified or amended in any way other than as set forth in the Prime
Lease, that to the best of Sublessor's knowledge, there are no existing defaults
thereunder on the part of Sublessor as tenant thereunder, nor has any event
occurred which, with the giving of notice or the passage of time, or both, would
constitute a default thereunder.
10. Indemnification: (a) Sublessee shall not do or permit to be done any
act or thing which will constitute a breach or violation of any of the terms,
covenants, conditions or provisions of this Sublease or an Event of Default
under the Prime Lease (except to the extent caused by an act or omission of
Sublessor or any of its agents, employees, invitees or contractors) and shall
hold harmless, indemnify and defend Sublessor from and against any and all
claims, demands, actions, causes of action, suits, judgments, damages, losses,
liabilities, fines, penalties, costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements) (collectively,
"Liabilities") incurred by Sublessor by reason of any breach by Sublessee of the
foregoing covenant.
(b) Sublessor shall timely perform all of its obligations under the
Prime Lease and shall not do or permit to be done any act or thing which will
constitute a breach or violation of any of the terms, covenants, conditions or
provisions of this Sublease or an Event of Default under the Prime Lease (except
to the extent caused by any act or omission of Sublessee or any of its agents,
employees, invitees or contractors). Sublessor shall hold harmless, indemnify
and defend Sublessee from and against any and all Liabilities incurred by
Sublessee by reason of any breach by Sublessor of the foregoing covenant
including, without limitation, any Liabilities incurred by Sublessee as a result
of a termination of the Prime Lease as a result thereof.
11. Sublessor's Consent: Whenever Sublessor's consent or approval is
required under the provisions of this Sublease, Sublessor's refusal to consent
or approve any matter or thing shall be deemed reasonable if, inter alia, the
Prime Landlord has refused to give such consent or approval if required under
the Prime Lease, Whenever the consent of the Prime Landlord is required,
Sublessor shall promptly transmit Sublessee's request for consent to the Prime
Landlord, Further, provided Sublessee is not in default hereunder after notice
from Sublessor and beyond any applicable grace period, the consent or approval
of Sublessor shall not be required with respect to any matter to which the Prime
Landlord shall have consented unless the action for which such consent is sought
may reasonably be expected to increase Sublessor's obligations or liabilities
under the Prime Lease or this Sublease, and in such latter event, Sublessor's
consent will
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not be withheld if Sublessee delivers to Sublessor its agreement in form and
substance reasonably satisfactory to Sublessor whereby Sublessee indemnifies
Sublessor against the consequences of such increase in Sublessor's obligations
or liabilities, including, without limitation, the reimbursement of any expense
incurred by Sublessor by reason of its performance of such increased obligations
or any loss suffered by reason of such increased liabilities, it being agreed
that Sublessor shall have the right to condition any such consent upon the
provision of security reasonably satisfactory to Sublessor.
12. Amendment of Prime Lease: Sublessor shall neither amend the Prime
Lease nor consent to the amendment thereof if the effect thereof would be an
increase in Sublessee's obligations or liabilities or a decrease in Sublessee's
rights under this Sublease.
13. Covenant of Quiet Enjoyment: Upon observing and performing all the
terms, covenants and conditions hereof on Sublessee's part to be observed and
performed, Sublessee may peaceably and quietly enjoy the Demised Premises
without disturbance by Sublessor or anyone claiming by, through or under
Sublessor, upon and subject to the terms and conditions of this Sublease.
14. Entire Agreement: This Sublease contains the entire agreement
between the parties hereto with respect to the Demised Premises. No agreement
hereafter made between Sublessor and Sublessee shall be effective to change,
modify, waive, release, discharge or terminate this Sublease or any term
thereof, in whole or in part, unless such agreement is in writing and signed by
the party against whom enforcement of the change, modification, waiver, release,
discharge or termination is sought.
15. Notices: Any notice, consent, approval, request, communication,
xxxx, demand or statement provided under this Sublease to be sent or delivered
by either party to the other party shall be in writing and shall be given by
personal delivery (including, without limitation, recognized overnight delivery
service) with signed receipt therefor, or mailed in a postage envelope,
registered or certified, with return receipt, addressed to such other party, at
the address for such party as set forth on the first page of this Sublease and,
with respect to Sublessor, to the attention of "President." Either party,
however, may designate such new or other address to which such notice shall
thereafter be given, by notice given in accordance with this Article 15. Any
notice to be given under this Sublease shall be deemed given upon receipt, or,
if delivery is refused, on the date deliver is first attempted. Each party shall
promptly deliver to the other party a copy of all notices given by the Prime
Landlord to such party relating to or affecting this Sublease or the Demised
Premises.
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16. Liability Insurance: (a) Each party shall maintain with responsible
companies commercial general liability insurance, naming Prime Landlord as an
additional insured, with contractual liability endorsement against all claims,
demands or actions for injury to or death of any one or more persons, or damage
to property, in an amount of not less than $5,000,000 combined single limit,
arising from, related to or connected with the conduct and operation of such
party's business in the respective portion of the premises demised under the
Prime Lease occupied by such party, or caused by the actions or omissions of
such party, its agents and employees.
(b) A copy of or certificates evidencing each such policy or
policies of insurance shall be delivered to the other party on request. On
Sublessee's default in obtaining or delivering any such policy or policies or
failure to pay the charges therefor, Sublessor may secure or pay the charges for
any such policy or policies and charge the Sublessee as additional rent
therefor.
17. Fire and Extended Coverage Insurance: (a) Each party shall carry
separate fire and extended coverage insurance policies on the respective
portions of the premises demised under the Prime Lease occupied by such party.
However, provided such separate policies are unavailable (or if sublessor shall
have been required, pursuant to the Prime Lease, to carry a fire and extended
coverage insurance policy on its entire demised premises), and a single policy
shall cover Sublessor's entire premises, including the Demised Premises,
Sublessee shall pay the Proportionate Share of Sublessor's premium. Bills for
such share or the premium shall be rendered by Sublessor to Sublessee at such
times as Sublessor may elect together with a copy of the xxxx from Sublessor's
insurance carrier and shall be due from, and payable by, Sublessee when
rendered, and the amount thereof shall be deemed additional rent under this
Sublease.
(b) Sublessee shall obtain such other insurance, and in such
amounts, as may from time to time be reasonably required by the Prime Landlord,
Sublessor, or any fee mortgagee, against other insurable hazards which at the
time are commonly insured against in the case of premises similarly situated,
due regard being or to be given to the height and type of building, its
construction, use and occupancy.
(C) Each fire and extended coverage insurance policy shall, if
obtainable from the insurer without expense, either contain a provision waiving
subrogation against the other party hereto or include the name of such other
party as an additional insured.
(d) Notwithstanding any provision in this Sublease to the
contrary, neither party shall be liable for damage to the
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other party's property in or constituting a party of the premises demised under
the Prime Lease, regardless of whether or not such damage is due to such party's
negligence, to the extent that such damage is covered by collectible insurance
carried by the other party.
18. Prime Landlord's Consent: The validity of this Sublease is
conditioned upon Sublessor obtaining the written consent of the Prime Landlord
to the terms and conditions hereof (the "Consent"). If such Consent is not
obtained on or before January 31, 1994, this Sublease shall be null and void and
of no further force and effect. Sublessee agrees to cooperate in good faith and
comply with reasonable requests of Sublessor and Prime Landlord in obtaining the
consent. Each party shall pay one-half of all reasonable out-of-pocket costs
that may be incurred by Prime Landlord in connection with the granting of the
Consent, including, without limitation, reasonable attorneys' fees and
disbursements.
19. Non-Disturbance Agreement: Sublessor has requested Prime Landlord to
execute and deliver to Sublessee an agreement on or before the commencement of
the Term providing that so long as Sublessee is not in default under this
Sublease after the giving of notice thereof and the expiration of the applicable
grace or cure period provided hereunder, Sublessee shall be permitted to remain
in undisturbed possession, use and enjoyment of the Demised Premises,
notwithstanding any default by Sublessor under the Prime Lease or any
termination of the Prime Lease on account thereof by Prime Landlord or for any
other reason specified in such agreement, it being agreed that Sublessor shall
have no obligation to expend any monies in order to obtain any such agreement
and that failure to obtain such agreement despite Sublessor's request therefor
shall not diminish any of Sublessee's obligations under this Agreement.
20. Unavoidable Delays: If either party hereto shall be delayed or
hindered in or prevented from the performance of any act required under this
Sublease by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, governmental laws or regulations, riots,
insurrection, war or other reason of a like nature not the fault of the party
delayed, then performance of such act shall be excused for the period of the
delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. The provisions of this Article 20
shall not operate to excuse Sublessee from prompt payment of fixed annual rent
(if any) or any other payments (if any) required under the terms of this
Sublease.
21. Captions: The captions and article and section numbers appearing in
this Sublease are inserted only as a matter of convenience and in no way define,
limit, construe, or describe
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the scope or intent of such sections or articles or this Sublease nor in any way
affect this Sublease.
22. Brokers: Each party represents to the other that it has dealt with
no broker or finder in connection with this Sublease and shall hold harmless,
indemnify and defend the other party from and against any and all Liabilities
incurred by such party as a breach of the foregoing representation.
23. Surrender Option: The parties acknowledge that, pursuant to Section
1.05 of the Prime Lease, Sublessor has the right to surrender all or a portion
of the Demised Premises on either (i) the sixth anniversary of the Rent
Commencement Date of the Prime Lease (for purposes hereof the "First Surrender
Option") or (ii) the eighth anniversary of the Rent Commencement Date of the
Prime Lease (for purposes hereof the "Second Surrender Option"). Sublessor and
Sublessee hereby covenant and agree that neither shall exercise the First
Surrender Option in any respect at Any time during the term of this Sublease,
and each hereby waives such right. Except as hereafter provided, Sublessee shall
have the same right to exercise the Second Surrender Option and thereby
surrender all or any portion of the Demised Premises (and be released from all
further liability in connection therewith) as Sublessor does to surrender all or
any portion of the premises leased under the Prime Lease pursuant to Section
1.05 of the Prime Lease, effective as of the Second Surrender Date (as defined
in the Prime Lease) as set forth in the Prime Lease and otherwise on the terms
and conditions as set forth in Section 1.05 of the Prime Lease. If either
Sublessor or Sublessee shall exercise its rights of surrender with respect to
the Second Surrender Option accordance with Section 1.05 of the Prime Lease (in
the case of sublessee as such Section is modified hereby), this Sublease shall
terminate on and as of the effective date of such surrender, provided, however,
that only Sublessee, and not Sublessor, may elect (subject to the provisions of
Paragraph 1.05 of the Prime Lease) to surrender a portion of the Demised
Premises. Notwithstanding anything to the contrary set forth in this Sublease,
Sublessor shall incur no liability to Sublessee arising from or in connection
with the exercise by Sublessor of its right under the Prime Lease to surrender
the Demised Premises to the Prime Landlord, provided Sublessor shall have
exercised such right in accordance with the applicable provisions of the
preceding sentence. In addition, and notwithstanding anything to the contrary
contained in Section l(c) of this Sublease, Sublessee must deliver notice of its
election to exercise the Second Surrender Option, no less than sixty (60) days
before the date by which Sublessor is required to deliver the corresponding
notice to Sublessor; it being agreed that, time shall be of the essence with
respect to the delivery by Sublessee of such notice, and Sublessee's failure to
deliver such notice in a timely manner shall vitiate Sublessee's right to
exercise such surrender option.
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24. Prime Lease Modifications: The following provisions of the Prime
Lease (having no relationship to the terms and conditions of this Sublease, or
inconsistent with the agreements and understandings expressed in this Sublease
or applicable only to the original parties to the Prime Lease) shall be deemed
deleted and shall not apply to this Sublease: Sections 1.01(a), 1.01(b), 1.03,
1.04, 2.01, 2.02, 3.01, 4.01, 4.03(a), the first three sentences of 11.01(d),
the fifth sentence of 15.01, 15.O2, 2l.0l, 23.01, clauses (iii)-(vi), inclusive,
of 24.01, 26.01, 27.02 and 27.03. In addition, Sublessee hereby acknowledges and
agrees that (i) those certain letters from Prime Landlord to Sublessor, dated
May 21, 1992 and June 22, 1992, referring to "Agreement to Permit Rent Offsets
or to Make Monthly Payments" (collectively, the "Offset Letters") shall not be
deemed to have been incorporated into this Sublease; (ii) Sublessee shall have
no right to receive any of the offsets or other benefits accruing under the
Offset Letters and (iii) Sublessor shall be solely entitled to all offsets and
other benefits accruing under the Offset Letters. The last sentence of the last
paragraph of Section 4.02(b) shall be modified for purposes of incorporation
into this Sublease such that Sublessee shall be entitled to receive interest on
any excess payment of its Proportionate Share of any increase in Expenses only
if Sublessor receives such interest from the Prime Landlord.
25. Parking. Sublessee shall be entitled to use of the Proportionate
Share of the non-designated and designated parking spaces to which sublessee is
entitled pursuant to the provisions of Section 6.01 of the Prime Lease.
Sublessee may (subject to the provisions of Section 6.01 of the Prime Lease)
continue to use the specific designated spaces uses by employees of JWP
Information Services, Inc. on the date hereof.
26. Assignment or Subletting. Sublessee shall not be permitted to assign
its interests in this Lease or sublet all or any portion of the Demised Premises
except in strict accordance with the terms and conditions of Article XVI of the
Prime Lease(as incorporated in the Sublease pursuant to Section 1 (a) hereof).
All assignments and subletting shall require the written consent of both
Sublessor and the Prime Landlord, except that those referred to in Section
16.01(d) of the Prime Lease shall require the consent of Prime Landlord but not
of Sublessor. Assignments and subletting (including, without limitation, those
referred to in Section 16.01(d) of the Prime Lease) shall be effected in strict
accordance with the terms and conditions of Article XVI of the Prime Lease.
27. Severability: If any term, covenant or condition of this Sublease or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Sublease or the application of
such term, covenant or condition to persons or circumstances other than those
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as to which it is held invalid or unenforceable shall not be affected thereby
and each term, covenant or condition of this Sublease shall be valid and be
enforced to the fullest extent permitted by law.
28. No Recording: Sublessee shall not record this Sublease without the
written consent of Sublessor.
29. Successors and Assigns: This Sublease shall bind and accrue to the
benefit of Sublessor and Sublessee and their respective successors and permitted
assigns.
30. Computer and Switching Rooms: During the term of this Sublease,
Sublessee shall be permitted non-exclusive access to the computer and switching
rooms presently located on the first floor of the Building for the purpose of
using the equipment therein with respect to Sublessee's operations. Sublessor
shall properly insure, maintain, repair and replace all equipment (other than
equipment which is "dedicated" to a particular entity in the Building other than
Sublessor, with respect to which equipment Sublessor shall have no
responsibility whatsoever) in such rooms and Sublessee shall pay its
Proportionate Share of the reasonable cost thereof promptly upon receipt of
statements thereof from Sublessor, together with substantiating invoices or
receipts.
31. Removal of Fixtures: At the expiration or earlier termination of the
term of this Sublease, provided Sublessee shall not then be in default under
this Sublease after notice thereof from Sublessor and the expiration of the
applicable grace or cure period provided under this Sublease, subject to the
provisions of the Prime Lease, Sublessee shall be permitted to remove its
fixtures and equipment which may be removed without causing significant damage
to the Demised Premises (and Sublessee shall repair any damage caused thereby).
32. Security Deposit: (a) Sublessee has deposited with Sublessor the sum
of $37,036 as security for the faithful performance and observance by Sublessee
of the terms, covenants and conditions of the Sublease. It is agreed that in the
event Sublessee defaults in respect of any of the terms, covenants and
conditions of this Sublease after the expiration of any applicable notice, grace
or cure period, including, but not limited to, the payment of rent and
additional rent, Sublessor may, but shall not be obligated to, use, apply, or
retain the whole or any part of the security so deposited to the extent required
for payment of any rent and additional rent or any other sum as to which
Sublessee is in default or for any sum which Sublessor may expend or may be
required to expend by reason of Sublessee's default, including but not limited
to, any damages or deficiency in reletting of the Demised Premises, whether such
damages or deficiency accrued before or after summary proceedings or other
reentry by Sublessor. Sublessee shall, upon demand, deposit with
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Sublessor the full amount so used, in order that Sublessor shall have the full
security deposit on hand at all times during the term of this Sublease.
Sublessor may permit Prime Landlord to hold said security as
custodian and provide for a contingent assignment of same in the event of
Sublessor's default under the Prime Lease and an attornment by Prime Landlord to
Sublessor, or of Sublessor's rights to the security in the event of default by
Sublessee under the Sublease.
In the event that Sublessee shall fully and faithfully comply
with all of the terms, covenants and conditions of this Sublease, the security
shall be returned to Sublessee after the date fixed as the end of the Sublease
and after delivery of entire possession of the Demised Premises to Sublessor.
In the event of a transfer or assignment of this Sublease,
Sublessor shall have the right to transfer the security to the transferee or
assignee and Sublessor shall thereupon be released by Sublessee from all
liability for the return of such security; and Sublessee agrees to look to the
new Sublessor for the return of said security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Sublessor.
Sublessee further covenants that it will not assign or encumber,
or attempt to assign or encumber, moneys deposited herein as security, and that
neither Sublessor nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
(b) Anything hereinabove to the contrary notwithstanding, and
supplementing Subparagraph (a) hereof, Sublessee, instead of depositing cash
with Sublessor as security deposit hereunder, may elect to substitute therefor
and deliver to Sublessor, as and for a security deposit, an unconditional,
irrevocable commercial Letter of Credit, negotiable, (hereinafter called "the
Credit"), to be held and used under the security deposit provisions of this
Sublease, which Credit shall be issued by a bank which is a member of the New
York Clearing House Association, in the amount of $37,036, naming Sublessor (or
its successor as Sublessor) as beneficiary and authorizing the beneficiary to
draw on the bank in said amount or any portion thereof, available by the
beneficiary's sight draft, without presentation of any other documents,
statements or authorizations. The Credit shall have a term of at least twelve
(12) months, and it shall by its terms be renewed, automatically, each year, by
the bank, unless the bank gives written notice to the beneficiary, at least
forty-five (45) days prior to the expiration date of the then existing Credit
that the bank elects that it not be renewed. The Credit shall be transferable
and Sublessee agrees that it
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shall pay to Sublessor any transfer fees imposed by the bank. The bank shall
further agree with drawers, endorsers, and all bona fide holders that drafts
drawn under and in compliance with the terms of the Credit will be duly honored
upon presentation to the bank at its main office located in New York, New York.
The Credit shall be subject to the Uniform Customs and Practice for Documentary
Credits (1983 Revision) International Chamber of Commerce Publication No. 400.
If during the term of this Sublease the Credit and/or the
proceeds of all or part of said Credit become less than the full amount of the
security deposit hereinabove required, then and in such event Sublessee shall,
upon demand, deposit with Sublessee the amount of any security deposit/Credit
theretofore used or applied by Sublessor pursuant to the terms hereof in order
that Sublessor shall have the full security deposit on hand at all times during
the term of this Sublease. If at the expiration of the term of this Sublease,
Sublessor holds all or part of said Credit, and Sublessee is not in default
under any of the terms, covenants and conditions of this Sublease, then
Sublessor will promptly turn over said Credit to Sublessee or assign it to the
designee of Sublessee.
It shall be the obligation of Sublessee during the term of this
Sublease to deliver to Sublessor at least forty (40) days prior to the
expiration date of the then existing Credit, a renewal or extension of said
Credit or a substitute Credit (each fully complying with the foregoing). If for
any reason Sublessor has not received such renewal or extension or substitute
Credit within thirty (30) days prior to the expiration date of the then existing
Credit, then and in such event Sublessor shall be free to draw on the Credit and
hold and use and apply the proceeds thereof in accordance with the security
deposit provisions of this Lease. In the event Sublessor so draws upon the
Credit it shall be entitled to reimbursement for any attorneys' fees incurred in
connection therewith.
33. Telephone, Security, Etc. Sublessor and Sublessee agree that
telephone, security, voice mail and TABS System services shall be provided, paid
and otherwise treated in accordance with the terms described on Exhibit B
hereto.
34. Old Sublease. Sublessor and Sublessee have heretofore entered into
a Sublease, dated as of August 6. 1993, with respect to the Demised Premises
(the "Old Sublease"). Sublessor and Sublessee hereby agree that the old Sublease
shall govern the relationship of the Sublessor and Sublessee to the Demised
Premises only with respect to the period commencing on August 6. 1993 and
expiring on December 31, 1993, and shall not apply to any period occurring
subsequent to December 31, 1993. This Sublease shall govern the relationship of
the Sublessor and Sublessee to
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the Demised Premises with respect to all periods occurring subsequent to
December 31, 1993.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of
the day and year first above written.
Sublessor:
JWP, INC.
By: /s/ [SIGNATURE ILLEGIBLE]
------------------------------
Name:
Title: SR VP
Sublessee:
ENTEX INFORMATION SERVICES, INC.
By: /s/ SIGNATURE ILLEGIBLE
------------------------------
Name:
Title: EVP
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Exhibit A
Demised Premises
----------------
(NOT SHOWN)
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Exhibit B
---------
1. Telephone
---------
Sublessee understands that it is sharing the resources of the existing Lexar PBX
as a "tenant" on that system. Sublessor has allocated a separate partition for
lease by Sublessee. The costs of any additions, moves, or changes by PBX Vendor
requested by Sublessee to be performed by Sublessor's administrator shall be
paid by Sublessee in accordance with Section 5 hereof. Sublessor will use
reasonable commercial efforts to maintain the PBX in good working condition and
agrees to have a maintenance contract in effect with the PBX vendor or other
qualified source during the Term of this Sublease and Sublessee will pay its
Proportionate Share (as defined in the Sublease to which this Schedule is
attached) of said maintenance agreement. Sublessee agrees to use the services of
Sublessor's maintenance vendor and will not otherwise modify or access equipment
under said maintenance agreement.
2. Security
--------
Sublessee understands that it is sharing the resources of the existing Access
Security system. Sublessor will furnish initial and/or replacement access
security cards at cost. In the event of a breach of security, Sublessor will
provide reasonable access to video tapes and audit logs. Sublessor will use
reasonable commercial efforts to maintain the access security system in good
working condition and agrees to have a maintenance contract in effect with the
security system vendor or other qualified source during the term of this
Sublease and Sublessee will pay its Proportionate Share of said maintenance
agreement. Sublessee agrees to use the services of Sublessor's maintenance
vendor and will not otherwise modify or access equipment under said maintenance
agreement. The costs of any additions, moves or changes requested by Sublessee
are to be performed by Sublessor's Administrator and shall be paid by Sublessee
in accordance with Section 5 hereof.
3. Voice Mail
----------
Sublessee understands that it is sharing the resources of the existing VMX Voice
Mail System ("VMX"). Sublessor will use reasonable commercial efforts to
maintain the VMX in good working condition and agrees to have a maintenance
contract in effect with VMX or other qualified source during the Term of this
Sublease and Sublessee will pay its Proportionate Share of said maintenance
agreement. Sublessee agrees to use the services of Sublessor's maintenance
vendor and will not otherwise modify or access equipment under said maintenance
agreement. The costs of any additions, moves or changes requested by Sublessee
are to be performed by Sublessor's Administrator and shall be paid by Sublessee
in accordance with Section 5 hereof.
119
4. TABS System (Telephone, Accounting & Billing System)
----------------------------------------------------
Sublessee understands that it is sharing the resources of the existing TABS
Systems. Sublessor will use reasonable commercial efforts to maintain the TABS
System in good working condition and agrees to have a maintenance contract in
effect with New Castle Communications or other qualified source during the Term
of this Sublease and Sublessee will pay its Proportionate Share of said
maintenance agreement. Sublessee agrees to use the services of Sublessor's
maintenance vendor and will not otherwise modify or access equipment under said
maintenance agreement. The costs of any additions, moves or changes requested by
Sublessee are to be performed by Sublessor's Administrator and shall be paid by
Sublessee in accordance with Section 5 hereof.
5. Price Schedule
--------------
a. Telephone
---------
Lexar 21 Button Phone $ 203.63 *
Lexar 37 Button Phone $ 229.45 *
Speaker Module $ 57.93 *
Current Vendor Hourly Rate $ 68.50
OT Rate $ 102.75
Sublessor Administrator $ 40.00/hour
(or any portion thereof)
b. Access Security System
----------------------
Access Cards $ 15.00/each
Sublessor Administrator $ 40.00/hour
(or any portion thereof)
c. VMX
---
Sublessor Administrator $ 40.00/hour
(or any portion thereof)
* Sublessor's discounted prices from third parties, which are subject
to change from time to time. Sublessee to be billed therefor by
Sublessor at Sublessor's cost.
Sublessor shall provide Sublessee with a copy of all existing maintenance
contracts.
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