EXHIBIT 10.22
LEASE
Between
THE TRUSTEES OF COLUMBIA UNIVERSITY
IN THE CITY OF NEW YORK
as Landlord,
and
MELVILLE BIOLOGICS, INC.,
as Tenant
Dated as of June 21, 1996
Table of Contents
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ARTICLE 1
Demised Premises/Term................................................ 1
ARTICLE 2
Ground Lease......................................................... 2
ARTICLE 3
Rent................................................................. 3
ARTICLE 4
Use of Demised Premises.............................................. 5
ARTICLE 5
Demised Premises "As Is"............................................. 10
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ARTICLE 6
Operating Covenants; Signs........................................... 10
ARTICLE 7
Window Cleaning...................................................... 12
ARTICLE 8
Legal Requirements/Environmental Legal Requirements.................. 12
ARTICLE 9
Access to Demised Premises........................................... 15
ARTICLE 10
Default.............................................................. 16
ARTICLE 11
Remedies/Damages..................................................... 19
ARTICLE 12
Eminent Domain....................................................... 22
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ARTICLE 13
Quiet Enjoyment....................................................... 23
ARTICLE 14
No Waiver............................................................. 23
ARTICLE 15
Waiver of Trial....................................................... 24
ARTICLE 16
Inability to Perform.................................................. 24
ARTICLE 17
Fees and Expenses..................................................... 25
ARTICLE 18
Estoppel.............................................................. 25
ARTICLE 19
Surrender............................................................. 26
ARTICLE 20
Subordination/Attornment.............................................. 27
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ARTICLE 21
Consents............................................................. 28
ARTICLE 22
[Intentionally Deleted].............................................. 29
ARTICLE 23
Assignment and Subletting............................................ 29
ARTICLE 24
Bankruptcy........................................................... 35
ARTICLE 25
Alterations.......................................................... 37
ARTICLE 26
Services............................................................. 41
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ARTICLE 27
Windows; Machinery........................................................ 46
ARTICLE 28
Insurance................................................................. 46
ARTICLE 29
Notices................................................................... 49
ARTICLE 30
Non-Liability/Indemnification............................................. 50
ARTICLE 31
Casualty.................................................................. 51
ARTICLE 32
Maintenance/Repairs....................................................... 53
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ARTICLE 33
Additional Rent...................................................... 53
ARTICLE 34
Parking.............................................................. 58
ARTICLE 35
Broker............................................................... 58
ARTICLE 36
Security Deposit..................................................... 59
ARTICLE 37
Miscellaneous........................................................ 60
ARTICLE 38
Renewal Option....................................................... 62
ARTICLE 39
Expansion Right...................................................... 64
ARTICLE 40
Intentionally Deleted................................................ 65
ARTICLE 41
REA/Security......................................................... 65
ARTICLE 42
Index of Definitions................................................. 66
ARTICLE 43
Termination Right.................................................... 70
ARTICLE 44
Equity Participation................................................. 71
ARTICLE 45
Human and Animal Research............................................ 72
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ARTICLE 46
Payment for Tenant's Work............................................ 72
ARTICLE 47
Additional Provisions................................................ 73
ARTICLE 48
Additional Work...................................................... 74
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EXHIBITS
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A. Floor Plan/Demised Premises
B. Plans and Specifications
C. Cleaning Specifications
D. Fourth Floor Expansion Space
E. Proposed Autoclave and Glassware Specifications
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LEASE
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LEASE ("Lease"), dated as of June 21, 1996, by and between THE
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TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, having an address c/o
Executive Director, Audubon Research Park, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Landlord") and MELVILLE BIOLOGICS, INC., having an address at 155 Xxxxxx
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Road, Melville, New York 11747 ("Tenant").
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WITNESSETH:
WHEREAS, The City of New York, as landlord (the "City") and the New
----
York City Economic Development Corporation ("EDC"), as tenant, entered into that
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certain Agreement of Lease, dated as of November 20, 1992, covering the premises
described therein which was assigned by EDC to Landlord by assignment, dated as
of November 20, 1992 (such Agreement of Lease, as so assigned, being hereinafter
the "Ground Lease");
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WHEREAS, Tenant desires to let the space located in the Audubon
Business and Technology Center in the building known as the Xxxx Xxxxxxx Xxxxxx
Building (the "Building") at 3960 Broadway, in the City, County and State of New
--------
York (the Building and the land on which it is located hereinafter, together,
being the "Premises"), shown by the area cross hatched on the floor plan annexed
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hereto and made a part hereof as Exhibit A (the "Demised Premises") comprising
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approximately 10,958 rentable square feet located on the fifth floor of the
Building, and Landlord desires to let the Demised Premises to Tenant;
NOW, THEREFORE, in consideration of the mutual obligations of the
parties hereto, the adequacy of which is hereby acknowledged, the parties for
themselves and their permitted successors and assigns, hereby covenant and agree
as follows:
ARTICLE 1
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Demised Premises/Term
---------------------
Section 1.01 Subject to the terms and conditions set forth in the
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Ground Lease and that certain Reciprocal Easement Agreement, dated as of
November 20, 1992, among Landlord, the City and EDC (the "REA") and the
---
resolution of the New York City Board of Estimate (Calendar Number 6) adopted on
August 16-17, 1990 (the "Special Permit") (copies of which Ground Lease, Special
--------------
Permit and REA Tenant acknowledges having received and read), Landlord hereby
leases to Tenant and Tenant hereby hires from Landlord, upon and subject to the
terms, covenants, provisions and conditions of this Lease, the Demised Premises.
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Section 1.02 The Demised Premises are leased for a term (the "Term")
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to commence on the date hereof ("Commencement Date) and to expire on the last
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day of the calendar month in which occurs the day immediately preceding the
fifth anniversary of the Rent Commencement Date (as hereinafter defined) (the
"Expiration Date") or on such earlier date upon which the Term may expire or be
----------------
cancelled or terminated pursuant to the provisions of this Lease or pursuant to
law.
Section 1.03 Subject to the provisions of Section 25.07(a)(iii), the
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"Rent Commencement Date" shall be the earlier to occur of (a) November 1, 1996
----------------------
or (b) if Tenant completes construction of the Tenant's Work (as hereinafter
defined) prior to November 1, 1996, the date Tenant or anyone claiming under or
through Tenant shall occupy any part of the Demised Premises for the purposes
set forth in Article 4 hereof. Landlord and Tenant shall execute a written
amendment to this Lease prepared by Landlord and reasonably satisfactory to
Landlord and Tenant setting forth such date (provided, however, that failure by
either party to execute or deliver such amendment shall not impair the
effectiveness of the provisions of this paragraph).
ARTICLE 2
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Ground Lease
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Section 2.01
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A. This Lease is subject and subordinate to the Ground Lease. Except
to the extent inconsistent with or modified by the terms of this Lease or to the
extent applicable only to the relationship between the City and Landlord, all of
the terms and provisions of the Ground Lease applicable to the Demised Premises
and to subtenants, including, without limitation, the provisions of Section
10.03 (Required Sublease Clauses), Section 10.04 (Subtenant Non-Disturbance) and
Section 23.03 (New Building Space Leasing Requirements), shall be binding upon
Tenant.
B. Landlord represents and warrants to Tenant that: (1) the Ground
Lease is in full force and effect and has not been amended; (2) to the best
knowledge of Landlord after due inquiry to the parties required to receive
notices for Landlord pursuant to the Ground Lease, Landlord has not received any
notice of default from the City which has not been cured by Landlord as of the
date hereof; and (3) to the best knowledge of Landlord after due inquiry to the
parties responsible for sending (on behalf of Landlord) notices of default with
respect to the Ground Lease, Landlord has not issued any notices of default to
the City pursuant to the Ground Lease.
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ARTICLE 3
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Rent
----
Section 3.0 Tenant shall pay to Landlord, without notice or demand,
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in lawful money of the United States, by check drawn on a bank which is a member
of the New York Clearinghouse Association, at the address set forth above or at
such other address as Landlord may by notice designate, without any set off or
deduction whatsoever, the following:
(i) annual fixed rent ("Fixed Rent") and annual fixed repayment
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("Fixed Repayment") in the amounts set forth in Section 3.02, Section 3.03
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and Section 3.04 below, in monthly installments in advance on the Rent
Commencement Date and, thereafter, on the first day of each month or
portion thereof during the Term; and
(ii) additional rent ("Additional Rent") consisting of all other sums
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of money that shall become due from and payable by Tenant to Landlord
hereunder when same shall be due and payable hereunder.
Tenant agrees that Landlord shall have the same remedies for any
default in payment of Additional Rent or Fixed Repayment as it has for a
default in payment of Fixed Rent.
Section 3.02 From the Rent Commencement Date through the last day of the
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month in which the third anniversary of the Rent Commencement Date occurs, Fixed
Rent shall be payable at the rate of $197,244.00 per annum in equal monthly
installments of $16,437.00.
Section 3.03 Thereafter Fixed Rent shall be payable as follows:
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(i) For the period commencing on the first day of the month
immediately following the month in which the third anniversary of the Rent
Commencement Date shall occur (the "Rent Adjustment Date") and ending on
--------------------
the day immediately preceding the first anniversary of the Rent Adjustment
Date, at the rate of $207,106.20 per annum in equal monthly installments of
$17,258.85; and
(ii) for the period commencing on the first anniversary of the Rent
Adjustment Date and ending on the Expiration Date, at the rate of
$217,461.48 per annum in equal monthly installments of $18,121.79.
Section 3.04 Fixed Repayment shall be payable in equal monthly
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installments commencing on the first day of the month following the date which
is thirty days from the date on which Landlord's lending institution (the
"Lender") advances the Loan (as hereinafter defined) to Landlord, in an amount
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equal to the sum of (a) one-twelfth of the annual principal and interest payment
of a $1,500,000 self-amortizing loan (the "Loan") amortizing on a straight line
----
basis over ten (10) years at an interest rate (the "Interest Rate") to be
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determined by Lender and charged by the Lender to Landlord and (b) one-one
hundred and twentieth of the amount of all closing costs (the "Closing Costs")
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imposed by the Lender with respect to Landlord
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obtaining the Loan. The portion of such monthly installment amount described in
clause (a) of the preceding sentence may be adjusted as provided in Section
25.07 hereof. By way of illustration, if the amount of the loan is $1,500,000
and the Interest Rate is 6.50% then the annual Fixed Repayment shall be
$204,386.40, payable in equal monthly installments of $17,032.20. At such time
as Landlord's lending institution shall determine the Interest Rate to charge
Landlord, Landlord and Tenant shall enter into a written agreement setting forth
the exact amount of the monthly installment of Fixed Repayment. Fixed Repayment
constitutes agreed upon consideration payable by Tenant for Landlord's paying
for a portion of the cost of improvements made in the Demised Premises to
prepare the Demised Premises for Tenant's occupancy substantially in accordance
with the plans and specifications (the "Plans and Specifications") listed on
------------------------
Exhibit B annexed hereto and made a part hereof ("Tenant's Work") and related
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costs such as architectural and engineering fees. If Tenant does not elect to
exercise its right to renew the term of this Lease as provided in Article 38
hereof, Tenant's obligation to pay monthly installments of Fixed Repayment
shall, subject to Article 43, cease upon the expiration date of the initial
Term. Landlord agrees that the funds which will constitute the Construction
Loan (as defined in Section 25.07(b) hereof) shall be available for disbursement
pursuant to Article 46 hereof no later than July 1, 1996. If it is commercially
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reasonable for Landlord to hold the proceeds of the Construction Loan in an
interest bearing account prior to disbursement to Tenant, which determination
shall be made in Landlord's sole and absolute discretion then the interest
earned thereon shall be applied to reduce the amount of monthly Fixed Repayment,
as set forth in Section 25.07 hereof.
Section 3.05 Notwithstanding anything contained in this Article 3 to the
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contrary, Tenant shall pay to Landlord upon execution of this Lease the first
monthly installment of Fixed Rent payable hereunder.
Section 3.06 If Tenant shall fail to pay any rent when due and such
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failure shall continue for a period of ten (10) days after the same shall have
become due and payable, such unpaid amount shall bear interest at a per annum
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rate equal to two percent plus the per annum rate charged from time to time by
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Citibank, N.A. as its "prime rate" of interest (the "Default Interest Rate"),
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calculated on the basis of actual days elapsed, based on a 360-day year, from
the due date of such rent to the date of payment, and such interest shall be
deemed Additional Rent.
Section 3.07 If by reason of any of the provisions of this Lease, Tenant's
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obligation to pay Fixed Rent and Fixed Repayment shall commence on a day other
than the first day of a month, Fixed Rent and Fixed Repayment for such month
shall be prorated on a per diem basis, and Landlord shall credit the excess
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amount paid on account of Fixed Rent and Fixed Repayment upon the execution of
this Lease on a per diem basis toward the payment of the installment of Fixed
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Rent and Fixed Repayment due and payable hereunder for the next succeeding
calendar month.
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Section 3.08 If any of the rent payable under the terms of this Lease
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shall be or become uncollectible, reduced or required to be refunded because of
any legal rent restriction, Tenant shall enter into such agreement(s) and take
such other steps (without additional expense to Tenant) as Landlord may
reasonably request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of such
legal rent restriction may be legally permissible (and not in excess of the
amounts reserved therefor under this Lease). Upon the termination of such legal
rent restriction, (a) the rents shall become and thereafter be payable in
accordance with the amounts reserved herein for the periods following such
termination, and (b) Tenant shall pay to Landlord, to the maximum extent legally
permissible, an amount equal to (i) the rents which would have been paid
pursuant to this Lease but for such legal rent restrictions, less (ii) the rents
and payments in lieu of rents paid by Tenant during the period such legal
restriction was in effect.
Section 3.09 The term "rent" or "rents" as used herein shall mean all
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amounts described in Sections 3.01, 3.02, 3.03 and 3.04 above.
ARTICLE 4
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Use of Demised Premises
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Section 4.1 Subject to and in accordance with the Ground Lease, the REA,
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the Special Permit, and this Lease, Tenant shall use and occupy the Demised
Premises only as laboratory and office space for (i) biomedical research and
development and (ii) such ancillary use as may be permitted by Section 4.03
hereof, and for no other purpose. Prior to taking occupancy of the Demised
Premises, Tenant shall submit to Landlord for approval, Tenant's Regulatory
Compliance Plan (the "Plan") which Plan shall (i) identify those activities of
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and materials to be used by Tenant which are or may be subject to Environmental
Legal Requirements or Legal Requirements and (ii) detail Tenant's plans and
procedures for compliance with Environmental Legal Requirements and Legal
Requirements as to each specific regulated material and activity. From time to
time, at any time during the Term, Tenant shall revise the Plan to reflect any
changes in its activities, materials, Environmental Legal Requirements or Legal
Requirements. All such revisions shall be subject to Landlord's prior review and
approval, which approval shall not be unreasonably withheld or delayed. Landlord
represents and warrants to Tenant that Tenant's use of the Demised Premises for
laboratory and office space for biomedical research and development is not
prohibited under the terms of the Ground Lease, the Special Permit or the REA.
Section 4.02 A. Tenant shall not use, occupy, suffer or permit the
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Demised Premises, or any part thereof, to be used in any manner, or suffer or
permit anything to be brought into or kept therein, which would (a) violate any
of the provisions of the Ground Lease, the Special Permit, the REA, any other
Superior Lease or any Superior Mortgage of which Tenant has received a
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copy, including, without limitation the provisions of Section 23.02 (Prohibited
Uses) of the Ground Lease, (b) violate any Environmental Legal Requirement,
Legal Requirement or Insurance Requirement, (c) constitute an extra-hazardous
condition so as to increase the risks involved in Tenant's operations beyond the
level of risk normally attendant upon the operation of comparable laboratory
space for the use permitted under Section 4.01 above, (d) make void or voidable
any insurance policy then in force with respect to any portion of the Premises
or the Demised Premises, provided, however that Landlord does not obtain any
such policy which would prohibit Tenant's occupancy of the Demised Premises for
the use set forth in Section 4.01 hereof, (e) make it impossible or difficult to
obtain any of the insurance coverage required to be maintained pursuant to this
Lease or Article 7 of the Ground Lease, (f) cause, or be likely to cause, injury
or damage to the Premises or any part thereof or to any Building Equipment, (g)
constitute a public or private nuisance, (h) violate any certificate of
occupancy which may now exist or hereafter be obtained for the Demised Premises
or the Premises, (i) emit or discharge noxious or objectionable noise, fumes,
vapors or odors into the Building or the Building Equipment, or which can be
detected outside of the Demised Premises, (j) cause any vibration that will
cause, or is likely to cause, damage to the Demised Premises and/or the
Building, or which would unreasonably disturb other tenants or occupants of the
Building or any other persons immediately outside of the Demised Premises; (k)
impair or interfere with the effectiveness or accessibility of the Building
Equipment or any Building service, (l) impair or interfere with the use of any
area of the Building by, or occasion unreasonable discomfort, annoyance or
inconvenience to, Landlord or any other occupant or tenant, (m) interfere with
access to the Demised Premises by fire prevention personnel and/or equipment,
(n) cause Tenant to default in any of its obligations under this Lease or (o)
cause Landlord to be in default of any of its obligations under the Ground Lease
or the REA.
B. In the event that Landlord shall at any time obtain a certificate of
occupancy for the Demised Premises or the Premises which prohibits Tenant's use
of the Demised Premises for the uses set forth in Section 4.01 hereof, the
Tenant shall have the right to terminate this lease upon thirty (30) days prior
written notice to Landlord. Upon the expiration of such thirty (30) day period,
this Lease shall expire as fully and completely as if such date were the date
set forth in this Lease as the date of the expiration of the term of this Lease
and Tenant shall on or before such date, quit, surrender and vacate the Demised
Premises in accordance with Article 19 hereof. In the event that the certificate
of occupancy for the Premises or Demised Premises is modified or invalidated by
any governmental entity or Legal Requirement so that Tenant may not lawfully
occupy the Demised Premises for the uses set forth in Section 4.01 hereof,
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Tenant may contest the modification or invalidation of the certificate of
occupancy by such government entity, provided that: (i) no Event of Default
shall have occurred and be continuing (including, without limitation, the
payment by Tenant of all amounts due Landlord pursuant to the terms of this
Lease during such contest), (ii) Landlord shall not be subject to criminal
penalty or civil or criminal forfeiture as a result thereof, (iii) Tenant shall
promptly commence legal proceedings contesting the same and diligently pursue
such proceedings to their conclusion, (iv) Tenant shall indemnify Landlord
against any and all loss in connection with such contest, (v) if Landlord deems
it to be necessary, in Landlord's sole and absolute discretion, Tenant shall
deposit with Landlord as additional security such amounts determined by
Landlord, in its reasonable
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discretion, to be necessary to secure Landlord against all loss in connection
with such contest, (vi) such contest and Tenant's failure to vacate the Demised
Premises shall not result in a default under any Superior Mortgage or Superior
Lease, and (vii) such contest and Tenant's failure to vacate the Demised
Premises shall not adversely affect the occupancies of other tenants in the
Building. Landlord agrees not to alter the certificate of occupancy for the
Premises or Demised Premises so as to render Tenant's use of the Demised
Premises for the purposes set forth in Section 4.01 unlawful unless required to
do so by any governmental entity or Legal Requirement.
Section 4.03 Tenant shall be permitted to use a portion of the Demised
------------
Premises for the following ancillary use: Development of new products from blood
as set forth in the Plan as approved by Landlord.
Section 4.04
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A. Tenant acknowledges that no temporary or permanent certificate of
occupancy has been issued for the Demised Premises. Tenant shall upon completion
of Tenant's Work obtain a temporary certificate of occupancy for the Demised
Premises. Landlord shall cooperate, at no cost to Landlord, with Tenant in
connection with Tenant's obtaining of a temporary certificate of occupancy for
the Demised Premises (the "TCO") (including, but not limited to, signing any
---
forms and/or assisting in obtaining the City's signature as may be necessary in
order for Tenant to obtain the TCO). Landlord shall be responsible for remedying
any Building conditions and/or curing any violations affecting the Building
which would prevent the issuance of the TCO. Landlord makes no representation
and shall have no liability to Tenant with respect to the permissibility of
Tenant's use and occupancy of the Demised Premises under applicable zoning
ordinances and regulations. If an amendment to a certificate of occupancy, a new
certificate of occupancy or a zoning variance is required as a result of
Tenant's use and/or occupancy of the Demised Premises, then Tenant shall, at
Tenant's sole cost and expense, obtain such amended certificate of occupancy,
new certificate of occupancy or zoning variance for the Building and the Demised
Premises. If Landlord determines, in its sole and exclusive judgment, that the
Demised Premises may not be lawfully occupied by Tenant, then Landlord may, upon
thirty (30) days written notice to Tenant (which notice shall set forth the
reasons that Tenant's occupancy is unlawful), cancel this Lease provided, that
if Tenant shall within ten (10) days from the date Landlord renders its notice
to Tenant, provide Landlord with evidence that Tenant is lawfully occupying the
Demised Premises in Landlord's sole and exclusive judgement, then this Lease
shall continue in full force and effect. In the event that the certificate of
occupancy for the Premises or Demised Premises is modified or invalidated by any
governmental entity or Legal Requirement so that Tenant may not lawfully occupy
the Demised Premises for the uses set forth in Section 4.01 hereof, Tenant may
contest the modification or invalidation of the certificate of occupancy by such
government entity, provided that: (i) no Event of Default shall have occurred
and be continuing (including, without limitation, the payment by Tenant of all
amounts due Landlord pursuant to the terms of this Lease during such contest),
(ii) Landlord shall not be subject to criminal penalty or civil or criminal
forfeiture as a result thereof, (iii) Tenant shall promptly commence legal
proceedings contesting the same and diligently pursue
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such proceedings to their conclusion, (iv) Tenant shall indemnify Landlord
against any and all loss in connection with such contest, (v) if Landlord deems
it to be necessary, in Landlord's sole and absolute discretion, Tenant shall
deposit with Landlord as additional security such amounts determined by
Landlord, in its reasonable discretion, to be necessary to secure Landlord
against any and all loss in connection with such contest, (vi) such contest and
Tenant's failure to vacate the Demised Premises shall not result in a default
under any Superior Mortgage or Superior Lease, and (vii) such contest and
Tenant's failure to vacate the Demised Premises shall not adversely affect the
occupancies of other tenants in the Building.
B. Landlord hereby agrees that it shall renew the existing
temporary certificate of occupancy for the Building on an ongoing basis and/or
obtain a permanent certificate of occupancy for the Building.
Section 4.05 A. Tenant shall have access in common with all other
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tenants, licensees and other occupants of the Building to all areas of the
Building designated as common areas by Landlord. In addition, Tenant shall have
access to and be permitted to use on a "first come-first served" basis, subject
to such reasonable rules and regulations applicable to all tenants, licensees
and other occupants of the Building as Landlord may from time to time reasonably
promulgate, such facilities to be constructed at a later date and located within
the Building as Landlord shall from time to time designate, such as (by way of
example only) conference room(s), copying room(s) and/or a lunch room.
B. Tenant shall have the right to scheduled use of the
shared conference room located in the Building. The parties acknowledge that the
Fixed Rent includes Tenant's use of the conference room and that no additional
fees shall be due and payable by Tenant for its use of such conference room.
Landlord shall have a representative of Landlord in the Building to administer
the scheduling and use of the conference room. Tenant shall be permitted to use
such conference room on a first come first served basis, upon Tenant's delivery
of notice to Landlord's representative. Landlord represents and warrants that
the conference room shall be ready and available for Tenant's use as of the
Commencement Date. To the extent that the conference room is not available to
Tenant on more than five (5) consecutive business days, Landlord shall try to
accommodate Tenant by providing a conference room at an off-site facility which
is in reasonably close proximity to the Building.
Section 4.06 Promptly after the Commencement Date, Landlord shall provide
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Tenant and Tenant's employees with identification cards permitting Tenant and
Tenant's employees to enter on and use certain campus facilities of Landlord on
a regular basis, in accordance with the rules and regulations of Landlord,
including, without limitation, requirements for payment of Landlord's applicable
fees and charges therefor, as Landlord may from time to time promulgate. To the
extent that such rules and regulations are in writing, Landlord hereby agrees to
forward such rules and regulations to Tenant. Failure of Tenant or Tenant's
employees to abide by such rules and regulations may result in the revocation of
any and all privileges accorded by Landlord
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from time to time to the holders of such identification cards.
ARTICLE 5
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Demised Premises "As Is"
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Section 5.01 Tenant has inspected the Demised Premises and, except as
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otherwise provided herein, Tenant accepts same in "as is" condition as of the
date hereof.
Section 5.02 Except as is otherwise provided in this Lease, neither
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Landlord nor Landlord's agents have made, nor do they make, any representations
or promises regarding the physical condition of the Premises or the Demised
Premises, the rents, leases, operating expenses or any other matter or thing
affecting or related to the Demised Premises or the Premises. All understandings
and agreements heretofore made between the parties are merged with this Lease,
which alone fully and completely expresses the agreement and understanding of
the parties hereto.
ARTICLE 6
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Operating Covenants; Signs
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Section 6.01 As an additional inducement to Landlord to enter into this
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Lease, Tenant covenants and agrees that it shall:
(a) conduct its operations in an orderly and proper manner in
accordance with Article 4 hereof;.
(b) take all reasonable measures to minimize the noise level of
Tenant's operations in the Demised Premises;
(c) apply for, secure, maintain and deliver to Landlord, and comply
with all licenses, approvals or permits which may be required for the
conduct by Tenant of its business and operations in the Demised Premises in
accordance with the permitted use hereunder, and pay, if, as and when due,
all license and permit fees and charges of a similar nature in connection
therewith, and deliver copies of all such licenses, approvals and permits,
and all renewals thereof to Landlord. In no event shall Tenant's failure to
procure or maintain any such license, approval or permit relieve Tenant of
any of its obligations hereunder;
(d) maintain the interior of the Demised Premises in a clean, orderly,
safe and sanitary condition and state of repair at all times as required
under the terms of this Lease;
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(e) paint the Demised Premises as and when in the reasonable judgment
of Landlord may be necessary in order to maintain the appearance of the
Demised Premises;
(f) not bring into or have delivered from the street to the Demised
Premises any stock, supplies merchandise or other items or materials in
such a manner as would block the surrounding sidewalks and streets or the
Building hallways, fire exits, lobbies or other areas set aside for the
common use of tenants of and/or visitors to the Building;
(g) comply with all Environmental Legal Requirements and Legal
Requirements applicable to or arising from Tenant's use or occupancy of the
Demised Premises, including but not limited to those pertaining to equal
opportunity and affirmative action, in the use and operation of the Demised
Premises and in connection with any construction, maintenance or alteration
undertaken by Tenant at the Demised Premises;
(h) not use, except to identify Tenant's address (i) as part of its
mailing address on letterhead and other similar materials or (ii) for
purposes of Tenant's publications, the name of Landlord or Columbia
University or any of its officers, trustees, agents, employees, students or
faculty members for any purpose whatsoever without receiving the prior
written approval of Landlord. Without limiting the generality of the
foregoing, Tenant shall not conduct its operations at the Demised Premises
under any name which includes the word "Columbia", or otherwise hold itself
or its business out as having any affiliation with Landlord or Columbia
University or Columbia-Presbyterian Medical Center;
(i) comply strictly with the Plan (as defined in Section 4.01 hereof);
(j) not use biohazardous agents requiring a degree of containment in
excess of that described as National Institutes of Health Biosafety Xxxxx
0, as defined in the U.S. Department of Health and Human Services, Public
Health Service, Centers for Disease Control and National Institutes of
Health, Biosafety in Microbiological and Biomedical Laboratories, dated
--------------------------------------------------------
May, 1988 and any updates or revisions thereto (the "DHH Specifications");
------------------
(k) conduct all scientific research and development activities in
conformity with at least the minimum practices, equipment and facilities
recommended for such activities in the DHH Specifications; and
(l) not use or permit the use of any human subjects or live and/or
whole dead animals (including, without limitation, live and/or whole dead
mice or rats) on or at the Demised Premises for any research purposes.
-10-
Section 6.02 Tenant shall not, without the prior written consent of Owner,
------------
exhibit, inscribe, paint, affix, place or permit any sign, insignia,
advertisement, awning, canopy, banner, flag, pennant, aerial, antenna lettering,
notice or other object on any part of the outside or inside of the Demised
Premises or the Premises or on corridor walls which would be visible from the
public areas or from the surrounding streets and sidewalks. Landlord may
withhold its consent to any sign proposed by Tenant for any reason, or for no
reason. In the event of the violation of any of the provisions of this Section
by Tenant, Landlord, with or without notice to Tenant, may remove such object
without any liability, and may charge the expense incurred in such removal to
Tenant as Additional Rent. Each such object consented to by Landlord shall, to
Landlord's satisfaction, be kept clean and in good order and repair and
appearance by and at the expense of Tenant, including, whenever necessary in
Landlord's judgment, the replacement thereof with materials approved by
Landlord. Notwithstanding anything to the contrary contained herein, Landlord's
consent shall not be required for professional quality interior signs relating
to or describing Tenant's business or operations, provided that such signs are
not visible from the public areas or from surrounding streets or sidewalks.
Section 6.03 Landlord shall cause Tenant's name, and the names of
------------
permitted subtenants or assignees, if any, and office location to be listed in a
lobby sign board in plain view. Tenant's name, and names of permitted subtenants
or assignees, if any, and office location shall also be posted in all locations
designated by the Landlord for such purpose. Tenant shall also have the right to
place an identifying sign on its office door and shall have the right to affix
an identifying sign on the wall of the fifth floor elevator landing, subject to
Landlord's approval of the size, materials and design of same.
ARTICLE 7
---------
Window Cleaning
---------------
Section 7.01 Tenant shall not clean or require, permit, suffer or allow
------------
any window in the Demised Premises to be cleaned from the outside in violation
of Legal Requirements.
ARTICLE 8
---------
Legal Requirements/Environmental Legal Requirements
---------------------------------------------------
Section 8.01 Tenant, at its sole cost and expense, shall comply with all
------------
Legal Requirements applicable to the Demised Premises and the use and occupancy
of the Demised Premises and the Building by Tenant. The term "Legal
-----
Requirements" shall mean any and all laws, statutes, ordinances, orders, rules,
------------
regulations, directives and requirements (including, without limitation,
building codes, zoning regulations and ordinances) of all federal, state,
county, city and borough departments, bureaus, boards, agencies, offices,
commissions and other subdivisions thereof, or of any other governmental, public
or quasi-public authority whether now
-11-
or hereafter in force, and all requirements, obligations and instruments of
record that may be applicable to this Lease, the Premises or the Demised
Premises or any part thereof.
Section 8.02. The term "Hazardous Materials" shall mean any flammable,
------------
explosive, radioactive, chemical or infectious materials, hazardous (or
biohazardous) materials or wastes, hazardous or toxic substances, pollutants,
gas, vapor, radiation, chemical or related materials, asbestos or any material
containing asbestos, or any other substance or materials as defined in or
regulated by any Environmental Legal Requirements. "Environmental Legal
-------------------
Requirements" shall mean (a) any and all policies and procedures of Landlord
------------
(including, without limitation, Landlord's Joint Radiation Safety Committee and
Landlord's Office of Environmental Health and Safety) governing the use,
handling or disposal of Hazardous Materials by its tenants, contractors,
employees or researchers, now or hereafter in effect, provided, however, that
(i) Landlord, to the extent such policies and procedures are in writing, shall
forward them to Tenant (ii) Landlord shall endeavor to apply such policies and
procedures in a non-discriminatory manner and (iii) such policies and procedures
shall not materially increase Tenant's financial obligations or materially
decrease Tenant's rights pursuant to this Lease, and (b) any effective,
applicable federal, state or local statute, code, ordinance, rule or regulation,
any judicial or administrative order (whether or not on consent) or judgment
applicable to Tenant including, without limitation, any judgment or settlement
based on common law theories, and any provisions or condition of any permit,
license, franchise, concession, agreement or other authorization to which Tenant
is a party or of which Tenant has actual knowledge or which affects the Demised
Premises and/or the Building and is binding on Tenant relating to (i) the
protection of the environment, the safety and health of persons (including
employees) or the public welfare from actual or potential exposure (or effects
of exposure) to any actual or potential release, discharge, disposal or emission
(whether past or present) of any Hazardous Materials or (ii) the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of any Hazardous Materials, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. (S)9601 et. seq., the Solid Waste Disposal Act, as amended by
--- ----
the Resource Conservation and Recovery Act of 1976, as amended by the Solid and
Hazardous Waste Amendments of 1984, 42 U.S.C. (S)6901 et seq., the Federal Water
-- ----
Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C.
(S)1251 et seq., the Toxic Substances Control Act of 976, 15 U.S.C. (S)2601 et
-- ---- --
seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
----
(S)1101 et seq., the Clean Air act of 1966, as amended, 42 U.S.C. (S)7401 et
-- ---- --
seq., the National Environmental Policy Act of 975, 42 U.S.C. (S)4321 et seq.,
---- -- ----
the Rivers and Harbours Act of 1899, 33 U.S.C. (S)401 et seq., the Endangered
-- ----
Species Act of 1973, as amended, 16 U.S.C. (S)1531 et seq., the Occupational
-- ----
Safety and Health Act of 1970, as amended, 29 U.S.C. (S)651 et seq., and the
-- ----
Safe Drinking Water Act of 1974, as amended, 42 U.S.C. (S)300 et seq., the
-- ----
Atomic Energy Act of 1954, 42 U.S.C.A. (S)2011 et seq., Article 27, (S)15 of the
-- ----
New York State Environmental Conservation Law, Title IV, Article 175 of the New
York City Health Code and all rules, regulations and guidance documents
promulgated or published thereunder.
-12-
Section 8.03
------------
A. Tenant represents, warrants and covenants that Tenant and the Plan are
in compliance with and will comply at all times during the Term with all
Environmental Legal Requirements and all Legal Requirements and Tenant hereby
indemnifies, defends, and holds Landlord harmless from and against all liability
for any and all damages, claims, costs, expenses and fees (including, without
limitation, attorney's fees and disbursements and court costs) that might arise
from (a) Tenant's (i) breach of the foregoing representation, covenant and
warranty; (ii) failure to operate in accordance with the Plan, all Environmental
Legal Requirements or Legal Requirements or (iii) generating, releasing,
handling removal or disposing of any Hazardous Materials which were generated by
or brought into the Demised Premises by Tenant, Tenant's agent or contractor; or
(by) Landlord's cooperation with Tenant or participation in the removal or
disposal of any Hazardous Materials generated by or brought to the Demised
Premises by Tenant. Any amounts hereunder shall be deemed additional Rent and
become due and payable within twenty (20) days after notice thereof, together
with interest at the Default Interest Rate, by Tenant to Landlord.
B. Landlord represents and warrants to Tenant that (a) to the best of
Landlord's knowledge there are no Hazardous Materials in or about the Demised
Premises or the Building except in compliance with Environmental Legal
Requirements; and (b) to the best of Landlord's knowledge as of the date that
possession of the Demised Premises is delivered to Tenant, the Demised Premises
shall be in compliance with all applicable Legal Requirements and Environmental
Legal Requirements.
Section 8.04 In the event that at any time during the Term (including any
------------
Renewal Term) hereof Tenant shall receive notice of any alleged violation of any
Environmental Legal Requirement or any Legal Requirement, including, without
limitation, any Legal Requirement relating to the care and maintenance of
animals, Tenant shall promptly notify Landlord thereof in writing, which notice
shall be accompanied by a copy of such notice of alleged violation.
ARTICLE 9
---------
Access to Demised Premises
--------------------------
Section 9.01 Tenant shall permit Landlord, Landlord's agents and public
------------
utilities servicing the Building to erect, use and maintain, concealed ducts,
pipes and conduits in and through the Demised Premises, provided that (i)
Landlord shall use reasonable efforts to minimize interference with Tenant's use
of the Demised Premises, (ii) that such ducts, pipes and conduits are placed
within the existing walls or appropriately furred, and (iii) Landlord shall give
Tenant such advance notice as is reasonably practicable under the circumstances.
Landlord or Landlord's agents shall have the right on reasonable notice and at
any reasonable time (and, in the event of an emergency, at anytime) to enter the
Demised Premises to examine the same, to show them to prospective purchasers,
mortgagees or lessees of the Building or space therein,
-13-
and to make such repairs, alterations, improvements or additions as Landlord may
deem reasonably necessary to the Demised Premises or to any other portion of the
Building, or winch Landlord may elect to perform following Tenant's failure to
make repairs or perform any work which Tenant is obligated to make or perform
under this Lease, and Landlord shall be allowed to take all material into and
upon the Demised Premises that may be required therefor without the same
constituting an eviction or constructive eviction of Tenant in whole or in part
and rent shall not xxxxx whatsoever while said repairs, alterations,
improvements or additions are being made, by reason of loss or interruption of
business of Tenant, or otherwise, provided, however, that in the event that as a
result of such repairs, alterations, improvements or additions, Tenant is unable
to utilize the Demised Premises in its entirety, or if Tenant's access thereto
is completely precluded for a period in excess of five (5) consecutive Business
Days, Fixed Rent shall xxxxx from such sixth (6th) consecutive Business Day
until such time as Tenant is no longer prevented from obtaining such access or
until such time as Tenant may again utilize the Demised Premises, as the case
may be.
Section 9.02 Without limiting the generality of the foregoing, Tenant
------------
shall permit Landlord, Landlord's agents and representatives of any entity
responsible for enforcement of Environmental Legal Requirements or Legal
Requirements to enter the Demised premises upon reasonable notice and whenever
reasonably possible, with the accompaniment of a representative of Tenant, for
inspection and monitoring Tenant's activities for compliance with Environmental
Legal Requirements, Legal Requirements and the Plan.
ARTICLE 10
----------
Default
-------
Section 10.01 Each of the following events shall be an "Event of Default"
------------- ----------------
hereunder:
(1) if Tenant shall fail to pay any installment of Fixed Rent or Fixed
Repayment within five (5) days after receipt of written notice from Landlord
that such payment is due (provided, however, if Tenant shall fail to pay any
installment of Fixed Rent or Fixed Repayment within five (5) days of the day
when due in three (3) or more instances during any consecutive twelve (12) month
period, Landlord shall no longer be required to give Tenant any notice provided
herein before such event shall constitute an Event of Default); or
(2) if Tenant shall fail to pay Additional Rent for thirty (30) days
after receipt of written notice from Landlord that such payment is due; or
(3) if Tenant's interest in this Lease shall devolve upon or pass to
any person, whether by operation of law or otherwise, except as expressly
permitted hereby; or
(4) (a) if Tenant shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
-14-
(b) if Tenant shall commence or institute any case, proceeding
or other action (A) seeking relief on its behalf as debtor, or to
adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or
its debts under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, or (B) seeking appointment
of a receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its property; or
(c) if Tenant shall make a general assignment for the benefit of
creditors; or
(d) if any case, proceeding or other action shall be commenced
or instituted against Tenant (A) seeking to have an order for
relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts under any existing
or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors,
or (B) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all of any substantial part
of its property, which either (i) results in any such entry of an
order for relief, adjudication of bankruptcy or insolvency or
such an appointment or the issuance or entry of any other order
having a similar effect or (ii) remains undismissed for a period
of sixty (60) days; or
(e) if any case, proceeding or other action shall be commenced
or instituted against Tenant seeking issuance of a warrant of
attachment, execution, distraint or similar process against all
or any substantial part of its property which results in the
entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within
sixty (60) days from the entry thereof; or
(f) if Tenant shall, in writing, consent to, approve of, or
acquiesce in, any of the acts set forth in clauses (b), (c), (d)
or (e) above; or
(g) if a trustee, receiver or other custodian is appointed for
any substantial part of the assets of Tenant which appointment is
not vacated or effectively stayed with thirty (30) business days;
or
(5) if Tenant shall not be in compliance with the Plan and all
Environmental Legal Requirements and such noncompliance shall continue for ten
(10) days after notice by Landlord to Tenant or if such noncompliance is of a
nature that it cannot be completely remedied
-15-
within said period of ten (10) days and Tenant shall not commence within said
period of ten (10) days, or shall not thereafter diligently prosecute to
completion all steps necessary to remedy such noncompliance; or
(6) if Tenant shall abandon the Demised Premises for a period of one-
hundred twenty (120) days and does not within such one-hundred twenty (120) day
period notify Landlord of its intention to return or, having given such notice,
does not thereafter return within one-hundred twenty (120) days; or
(7) if Tenant shall default in the observance or performance of any
other term, covenant or condition of this Lease on Tenant's part to be observed
or performed and Tenant shall fail to remedy such default within thirty (30)
days after written notice by Landlord to Tenant of such default, or if such
default is of such a nature that it cannot be completely remedied within said
period of thirty (30) days and Tenant shall not commence within said period of
thirty (30) days, or shall not thereafter diligently prosecute to completion,
all steps necessary to remedy such default.
Section 10.02 If an Event of Default (i) described in Section 10.01(4)
-------------
hereof shall occur, or (ii) described in Section 10.01(1), 10.01(2), 10.01(3),
10.01(5), 10.01(6) or 10.01(7) shall occur and Landlord, at any time thereafter,
at its option gives written notice to Tenant stating that this Lease and the
Term shall expire and terminate on the date specified in such notice, which date
shall be at least ten (10) Business Days from the date of such notice, and if,
on the date specified in such notice, Tenant shall have failed to cure the
default which was the basis for the Event of Default, then this Lease and the
Term and all rights of Tenant under this Lease shall expire and terminate as if
the date on which the Event of Default described in clause (i) above occurred or
the date specified in the notice given pursuant to clause (ii) above, as the
case may be, were the Expiration Date and Tenant immediately shall quit and
surrender the Demised Premises. Anything contained herein to the contrary
notwithstanding, if such termination shall be stayed by order of any court
having jurisdiction over any proceeding described in Section 10.01(4) hereof, or
by federal or state statute, then, following the expiration of any such stay, or
if the trustee appointed in any such proceeding, Tenant or Tenant as debtor-in-
possession shall fail to assume Tenant's Obligations under this Lease within the
period prescribed therefor by law of within ninety (90) days after entry of the
order for relief or as may be allowed by the court, or if said Trustee, Tenant
or Tenant as debtor-in-possession shall fail to provide adequate protection of
Landlord's right, title and interest in and to the Demised Premises or adequate
assurance of the complete and continuous future performance of Tenant's
obligations under this Lease as provided in Article 24 (Bankruptcy), Landlord,
to the extent permitted by law or by leave of the court having jurisdiction over
such proceeding, shall have the right, at its election, to terminate this Lease
on five (5) days' notice to Tenant, Tenant as debtor-in-possession or said
trustee, and upon the expiration of said five (5) period, this Lease shall cease
and expire as aforesaid and Tenant, Tenant as debtor-in-possession or said
trustee shall immediately quit and surrender the Demised Premises as aforesaid.
-16-
Section 10.03 If this Lease shall be terminated as provided in Section
-------------
10.02 hereof, Landlord, without notice, may reenter and repossess the Demised
Premises using such force for that purpose as may be reasonably necessary
without being liable to indictment, prosecution or damages therefor and may
dispossess Tenant by summary proceedings or otherwise.
Section 10.04 If, at any time, (i) Tenant shall comprise two (2) or more
-------------
Persons, or (ii) Tenant's obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
Lease shall have been assigned, the word "Tenant", as used in Section 10.01,
shall be deemed to mean any one or more of the persons primarily or secondarily
liable for Tenant's obligations under this Lease. Any monies received by
Landlord from or on behalf of Tenant during the pendency of any proceeding of
the types referred to in Section 10.01 shall be deemed paid as compensation for
the use and occupation of the Demised Premises and the acceptance of any such
compensation by Landlord shall not be deemed an acceptance of rent or a waiver
on the part of Landlord of any rights under Section 10.02.
ARTICLE 11
----------
Remedies/Damages
----------------
Section 11.01 If this Lease shall be terminated as provided in Section
-------------
10.02:
(a) Tenant shall quit and peacefully surrender the Demised Premises to
Landlord, and Landlord and its agents may immediately, after the date upon
which this Lease and the Term shall expire and come to an end, reenter the
Demised Premises or any part thereof, without notice, either by summary
proceedings, or by any other applicable action or proceeding, or by such
force as may be reasonably necessary or otherwise (without being liable to
indictment, prosecution or damages therefor), and may repossess the Demised
Premises and dispossess Tenant and any other persons from the Demised
Premises and remove any and all of their property and effects from the
Demised Premises; and
(b) Landlord, at Landlord's option, may relet the whole or any part of
the Demised Premises from time to time, either in the name of Landlord or
otherwise, to such tenant or tenants, for such term or terms ending before,
on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, may determine; provided, however, that
Landlord shall have no obligation to relet the Demised Premises or any part
thereof and shall in no event be liable for refusal or failure to relet the
Demised Premises or any part thereof, or, in the event of any such
reletting, for refusal or failure to collect any rent due upon any such
reletting, and no such refusal or failure shall operate to relieve Tenant
of any liability under this Lease or otherwise affect any such liability,
and Landlord, at Landlord's option, may make such repairs, replacements,
alterations, additions, improvements, decorations and other physical
changes in and to
-17-
the Demised Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with any such reletting or proposed
reletting, without relieving Tenant of any liability under this Lease or
otherwise affecting any such liability.
Section 11.02 Tenant, on its own behalf and on behalf of all persons
-------------
claiming through or under Tenant, including all creditors, does further hereby
waive any and all rights which Tenant and all such persons might otherwise have
under any present or future law to redeem the Demised Premises, or to reenter or
repossess the Demised Premises, or to restore the operation of this Lease, after
(a) Tenant shall have been dispossessed by a judgment or by warrant of any court
or judge, or (b) any expiration or termination of this Lease and the Term,
whether such dispossess, expiration or termination shall be by operation of law
or pursuant to the provisions of this Lease. The words "re-enter", "re-entry"
and "re-entered" as used in this Lease shall not be deemed to be restricted to
their technical legal meanings. In the event of a breach or threatened breach by
Tenant, or any persons claiming through or under Tenant, of any term, covenant
or condition of this Lease, Landlord shall have the right to enjoin such breach
or threatened breach and the right to invoke any other remedy allowed by law or
in equity as if re-entry, summary proceedings and other special remedies were
not provided in this Lease for such breach. The right to invoke the remedies
hereinbefore set forth are cumulative and shall not preclude Landlord from
invoking any other remedy allowed at law or in equity.
Section 11.03 If this Lease and the Term shall expire and come to an end
-------------
as provided in Article 10 hereof, or by or under any summary proceeding or any
other action or proceeding, or if Landlord shall re-enter the Demised Premises
as provided in Section 11.01, or by or under any summary proceeding or any other
action or proceeding, then, in any of said events:
(a) Tenant shall pay to Landlord all Fixed Rent, Fixed Repayment and
Additional Rent payable under this Lease by Tenant to Landlord to the date
upon which this Lease and the Term shall have expired and came to an end or
to the date of re-entry upon the Demised Premises by Landlord, as the case
may be;
(b) Tenant shall also be liable for and shall pay to Landlord, as
damages, any deficiency (referred to as "Deficiency") between the rent for
----------
the period which otherwise would have constituted the unexpired portion of
the Term and the net amount, if any, of rents collected under any reletting
effected pursuant to the provisions of Section 11.01 for any part of such
period (first deducting from the rents collected under any such reletting
all of Landlord's reasonable expenses in connection with the termination of
this Lease, Landlord's re-entry upon the Demised Premises and such
reletting, including, but not limited to, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees and disbursements, alteration
costs and other expenses of preparing the Demised Premises for such
reletting); any such Deficiency shall be paid in monthly installments by
Tenant on the days specified in this Lease for payment of installments of
Fixed Rent, Landlord shall be entitled to recover from Tenant each monthly
Deficiency as the same shall arise, and no suit to collect the amount of
the Deficiency for any month shall prejudice Landlord's right to collect
the Deficiency for any subsequent month by a
-18-
similar proceeding; and
(c) Whether or not Landlord shall have collected any monthly
Deficiency as aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiency as and for liquidated and agreed final damages, a sum equal to
the amount by which Fixed Rent, Fixed Repayment and Additional Rent for the
period which otherwise would have constituted the unexpired portion of the
Term exceeds the then fair and reasonable rental value of the Demised
Premises for the same period, both discounted to present worth at the then
current "base" rate charged by Citibank N.A., or its successor, as of the
date the Lease is terminated, less the aggregate amount of Deficiencies
theretofore collected by Landlord pursuant to the provisions of Section
11.03 for the same period; if, before presentation of proof of such
liquidated damages to any court, commission or tribunal, the Demised
Premises, or any part thereof, shall have been relet by Landlord for the
period which otherwise would have constituted the unexpired portion of the
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 of the whole of the Demised Premises so relet during the term
of the reletting.
If the Demised Premises, or any part thereof, shall be relet, together with
other space in the Building, the rents collected or reserved under any such
reletting and the expenses of any such reletting shall be equitably apportioned
for the purposes of this Section 11.03. Tenant shall in no event be entitled to
any rents collected or payable under any reletting, whether or not such rents
shall exceed the Fixed Rent reserved in this Lease. Solely for the purposes of
this Article 11, the term "Fixed Rent" and "Fixed Repayment" as used in this
Section 11.03 shall mean the Fixed Rent and Fixed Repayment in effect
immediately prior to the date upon which this Lease and the Term shall have
expired and come to an end, or the date of re-entry upon the Demised Premises by
Landlord, as the case may be. Nothing contained in Article 10 hereof or this
Article 11 shall be deemed to limit or preclude the recovery by Landlord from
Tenant of the maximum amount allowed to be obtained as damages by any statute or
rule of law, or of any sums or damages to which Landlord may be entitled in
addition to the damages set forth in this Section 11.03.
ARTICLE 12
----------
Eminent Domain
--------------
Section 12.01 A. If the whole or a substantial part of the Demised
-------------
Premises shall be acquired or condemned by eminent domain for any public or
quasi-public purpose, then, and in that event, this Lease shall terminate as of
the date of title vesting in such proceeding.
-19-
B. If less than a substantial part of the Demised Premises shall be
acquired or condemned by eminent domain for any public or quasi-public purpose,
then, this Lease shall continue in full force and effect, except that the Fixed
Rent shall be equitably adjusted on the date of title vesting in such proceeding
on the basis of the rentable square feet of that portion of the Demised Premises
not acquired or condemned. For purposes hereof "a substantial part of the
Demised Premises" shall be considered to have been taken if 25% or more of the
Demised Premises are acquired or condemned by eminent domain.
C. In the event of any such acquisition or condemnation of all or any
part of the Demised Premises, Landlord shall be entitled to receive the entire
compensation or award for any such acquisition or condemnation. Tenant shall
have no claim against Landlord or the condemning authority for the value of any
unexpired portion of the Term or for Tenant's leasehold interest and Tenant
hereby expressly assigns to Landlord all of its right, title and interest in and
to any such award, and also agrees to execute any and all further documents that
may be required in order to facilitate the collection thereof by Landlord.
Nothing contained in this Section shall be deemed to prevent Tenant from making
a separate claim in any condemnation proceeding for any relocation expenses, if
any, and its leasehold improvements and fixtures.
ARTICLE 13
----------
Quiet Enjoyment
---------------
Section 13.01 Provided that no Event of Default has occurred, Tenant may
-------------
peaceably and quietly enjoy the Demised Premises for the term hereby granted
without molestation or disturbance by or from Landlord or any person claiming
through Landlord, subject to the terms and conditions of this Lease, the REA,
the Special Permit and the Ground Lease and any other Superior Leases and
Superior Mortgages now or hereafter affecting the Demised Premises.
ARTICLE 14
----------
No Waiver
---------
Section 14.01 The failure of Landlord to seek redress for violation of, or
-------------
to insist upon the strict performance of, any covenant or condition of this
Lease shall not prevent a subsequent act, which would have originally
constituted a violation, from having all of the force and effect of an original
violation. The receipt by Landlord of Fixed Rent, Fixed Repayment or Additional
Rent with knowledge of the breach of any covenant of this Lease shall not be
deemed a waver of such breach. No provision of this Lease shall be deemed to
have been waived by Landlord, unless such waiver be in writing signed by
Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly Fixed Rent, Fixed Repayment or Additional Rent shall be deemed to be
other than on account of the earliest stipulated Fixed Rent, Fixed Repayment or
Additional Rent, or as Landlord may elect to apply same, nor shall any
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endorsement or statement on any check or any letter accompanying any check or
payment as Fixed Rent, Fixed Repayment or Additional Rent be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Fixed Rent, Fixed
Repayment or Additional Rent or pursue any other remedy in this Lease provided.
Any executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Lease in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
ARTICLE 15
----------
Waiver of Trial
---------------
Section 15.01 The respective parties hereto shall and they hereby do waive
-------------
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Demised Premises, or for the enforcement of any remedy under any statute,
emergency of otherwise. If Landlord commences any summary proceeding against
Tenant, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding (unless failure to interpose such
counterclaim would preclude Tenant from asserting in a separate action the claim
which is the subject of such counterclaim), and will not seek to consolidate
such proceeding with any other action which may have been or will be brought in
any other court by Tenant.
ARTICLE 16
----------
Inability to Perform
--------------------
Section 16.01 This Lease and the obligation of Tenant to pay rent
-------------
hereunder and perform all of the other covenants and agreements hereunder on the
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this Lease
expressly or impliedly to be performed by Landlord or because Landlord is unable
to make, or is delayed in making any repairs, additions, alterations,
improvements or decorations or is unable to supply or is delayed in supplying
any equipment or fixtures, if Landlord is prevented or delayed from so doing by
reason of Force Majeure (as defined in Section 31.02 hereof) or by reason of any
Environmental Legal Requirements or Legal Requirements, provided, however, that
in the event that as a result of such inability of Landlord, Tenant is unable to
utilize the Demised Premises in its entirety, or if Tenant's access thereto is
completely precluded for a period in excess of five (5) consecutive Business
Days, Fixed Rent shall xxxxx from such sixth (6th) consecutive Business Day
until such time as Tenant is no longer prevented from obtaining such access or
until such time as Tenant may again utilize
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the Demised Premises, as the case may be.
ARTICLE 17
----------
Fees and Expenses
-----------------
Section 17.01 If Tenant shall default in the observance or performance of
-------------
any term, covenant or provision of this Lease, Landlord may (but shall not be
obligated to) immediately (or at any time thereafter) after fifteen (15) days'
written notice to Tenant, perform the obligation of Tenant hereunder, provided,
however, that Tenant shall have the right to cure such default within such
fifteen (15) day period. If Landlord shall pay or incur any cost or expense in
connection with such performance (including attorney's fees, disbursements and
court costs), such sums so paid or incurred, together with interest at the
Default Interest Rate, shall be deemed Additional Rent hereunder and shall be
paid by Tenant to Landlord with five (5) days after receipt of written demand
therefor accompanied with a xxxx setting forth the amount thereof.
ARTICLE 18
----------
Estoppel
--------
Section 18.01 Tenant, within ten (10) days of Landlord's notice requesting
-------------
same, shall, from time to time and at any time upon at least ten (10) days'
notice from Landlord, execute and deliver to Landlord or any person designated
by Landlord, a statement certifying that (i) this Lease is in full force and
effect and is unmodified (or if modified, stating the modifications), (ii) the
dates through which Fixed Rent, Fixed Repayment and Additional Rent have been
paid, (iii) whether it has received notice of any Event of Default hereunder,
(iv) whether Landlord is in default hereunder and (v) such further facts and
information with respect to this Lease as Landlord may reasonably request.
Section 18.02 Landlord, within ten (10) days of Tenant's notice requesting
-------------
same, shall, from time to time and at any time upon at least ten (10) days'
notice from Tenant, execute and deliver to Tenant or any person designated by
Tenant, a statement certifying that (i) this Lease is in full force and effect
and is unmodified (or if modified, stating the modifications), (ii) the dates
through which Fixed Rent, Fixed Repayment and Additional Rent have been paid,
and (iii) such further facts and information with respect to the Lease as Tenant
may reasonably request.
ARTICLE 19
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Surrender
---------
Section 19.01 Upon the expiration or earlier termination of the Term,
-------------
Tenant shall quit
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and surrender to Landlord, the Demised Premises broom clean, in good order and
condition and Tenant shall remove all of Tenant's Property and any Alterations
(as defined in Section 25.01 hereof) that Landlord has not previously given
Tenant permission to leave in the Demised Premises and Tenant shall repair and
restore the Demised Premises to the condition existing prior to the making of
such Alteration or the installation of such Tenant's Property and repair any
damage to the Demised Premises caused by such removal and restoration. Tenant
shall remove all Hazardous Materials for which Tenant is responsible pursuant to
this Lease in accordance with all applicable Environmental Legal Requirements.
Notwithstanding anything to the contrary contained herein, Tenant shall not be
required to (a) remove any Alteration made to the Demised Premises as part of
Tenant's Work and (b) restore the Demised Premises to the condition existing
prior to the construction of Tenant's Work.
Section 19.02 If the Demised Premises are not surrendered upon the
-------------
termination of this Lease, Tenant hereby indemnifies Landlord against any and
all loss, cost, expense or liability resulting from the delay by Tenant in so
surrendering the Demised Premises, including any claims made by any succeeding
tenant or prospective tenant founded upon such delay.
Section 19.03 In the event Tenant remains in possession of the Demised
-------------
Premises after the termination of this Lease without the execution of a new
lease, Tenant, at the option of Landlord, shall be deemed to be occupying the
Demised Premises as a tenant from month-to-month, at a monthly rental equal to
the sum of (i) two times the sum of (a) the monthly installment of Fixed Rent
payable during the last month of the Term, and (b) one-twelfth (1/12th) of the
Additional Rent payable during the last year of the Term; and (ii) the monthly
installment (at such time) of Fixed Repayment (provided, however, that no
monthly installment of Fixed Repayment shall be due and payable by Tenant for
any period after the 10-year amortization period described in Section 3.04
hereof), subject to all of the other terms of this Lease insofar as the same are
applicable to a month-to-month tenancy. Notwithstanding the foregoing, in the
event that Tenant remains in possession of the Demised Premises after the
termination of this Lease without the execution of a new lease, for a period in
excess of three (3) months, then for such period commencing with the fourth
month, the calculation of the monthly rental payable by Tenant under clause (i)
of the preceding sentence shall be made by multiplying three times the sum of
the amounts described in subclauses (a) and (b) of such clause.
ARTICLE 20
----------
Subordination/Attornment
------------------------
Section 20.01 Subject to the provisions of Section 10.04 of the Ground
-------------
Lease, this Lease shall be subject and subordinate to the Ground Lease, any
other Superior Lease and to any Superior Mortgage. This section shall be self-
operative and no further instrument of subordination shall be required;
provided, however, that if confirmation of such subordination is requested,
Tenant shall promptly execute and deliver a certificate to this effect to
Landlord.
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Section 20.02 If, at any time prior to the termination of this Lease, any
-------------
Superior Lessor or Superior Mortgagee or any person, or any Superior Lessor's or
Superior Mortgagee's or such person's successors or assigns (Superior Lessor,
Superior Mortgagee and any such person or successor or assign being herein
collectively referred to as "Successor Owner") shall succeed to the rights of
---------------
Landlord under this Lease through possession or foreclosure or delivery of a new
lease or deed or otherwise, Tenant agrees, at the election and upon request of
any such Successor Owner, from time to time, to fully and completely attorn to
and recognize any such Successor Owner, as Tenant's landlord under this Lease
upon the then executory terms of this Lease; provided such Successor Owner shall
agree in writing to accept Tenant's attornment. The foregoing provisions of
this Section shall inure to the benefit of any such Successor Owner, shall apply
notwithstanding that, as a matter of law, this Lease may terminate upon the
termination of a Superior Lease, shall be self-operative upon any such demand,
and no further instrument shall be required to give effect to said provisions.
Tenant, however, upon demand of any such Successor Owner, shall execute, from
time to time, instruments to evidence and confirm the foregoing provisions of
this section, satisfactory to any such Successor Owner, acknowledging such
attornment and setting forth the terms and conditions of its tenancy and Tenant
hereby constitutes and appoints Landlord attorney-in-fact for Tenant to execute
any such instrument for and on behalf of Tenant, such appointment being coupled
with an interest. Upon such attornment, this Lease shall continue in full force
and effect as a direct lease between such Successor Owner and Tenant upon all of
the then executory terms of this Lease, except that such Successor Owner shall
not be (a) liable for any previous act or omission or negligence of Landlord
under this Lease; (b) subject to any counterclaim, defense or offset, which
heretofore shall have accrued to Tenant against this Lease or by any previous
prepayment of more than one month's rent, unless such modification or prepayment
shall have been approved in writing by the Superior Lessor or Superior Mortgagee
through or by reason of which the Successor Owner shall have succeeded to the
rights of Landlord under this Lease; (d) liable for any security deposited
pursuant to this Lease unless such security has actually been delivered to
Successor Owner; (e) obligated to repair the Demised Premises or the Building or
any part thereof, in. the event of total or substantial damage, beyond such
repair as can reasonably be accomplished from the net proceeds of insurance
actually made available to Successor Owner; or (f) obligated to repair the
Demised Premises or the Building or any part thereof, in the event of partial
condemnation, beyond such repair as can reasonably be accomplished from the net
proceeds of any award actually made available to Successor Owner, as
consequential damages allocable to the part of the Demised Premises or the
Building not taken. Nothing contained in this Section 20.02 shall be construed
to impair any right otherwise exercisable by any such Successor Owner.
Section 20.03 As applied to the City, any conflict between the provisions
-------------
of Section 20.01 above and Section 10.04 of the Ground Lease shall be resolved
in favor of Section 10.04 of the Ground Lease.
Section 20.04 Landlord shall use reasonable efforts to obtain a non-
-------------
disturbance agreement on terms and conditions reasonably acceptable to the
parties thereto from the holder of any future Superior Mortgage or Superior
Lease. Landlord shall, upon request from Tenant, take appropriate action to
obtain such a non-disturbance agreement from the City pursuant to Section
-------
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10.04 of the Ground Lease.
-----
ARTICLE 21
----------
Consents
--------
Section 21.01 Tenant hereby waives any claim against Landlord which it may
-------------
have based upon any assertion that Landlord has unreasonably withheld or
unreasonably delayed any requested consent, and Tenant agrees that its sole
remedy shall be an action or proceeding to enforce any such provision or for
specific performance, injunction or declaratory judgment. In the event of such a
determination, the requested consent shall be deemed to have been granted;
however, Landlord shall have no liability to Tenant for its refusal or failure
to give such consent. The sole remedy for Landlord's unreasonably withholding or
delaying of consent shall be as provided in this section. The foregoing
limitations shall not, however, be applicable if it is determined in any action
or proceeding that Landlord has willfully and arbitrarily withheld its consent
in bad faith and without any business justification, provided, however, that in
no event shall Tenant be entitled to receive any damages other than actual
damages incurred by Tenant due to Landlord's withholding consent.
ARTICLE 22
----------
[Intentionally Deleted]
ARTICLE 23
----------
Assignment and Subletting
-------------------------
Section 23.01 Neither this Lease nor the term and estate hereby granted
-------------
shall be assigned, mortgaged, pledged, encumbered or otherwise transferred by
Tenant, by operation of law or otherwise, and neither the Demised Premises, nor
any part thereof, nor any of the Tenant's Property shall be encumbered or sublet
or used or occupied or permitted to be used or occupied, or utilized for desk
space or for mailing privileges by anyone other than Tenant and its employees,
except as set forth in Section 23.02 hereof. For purposes of this Section 23.01,
------------- -------------
(a) the issuance of interests in any entity, or the transfer of interests in any
entity (whether stock, partnership interest or otherwise) to any person or group
of related persons, whether in a single transaction or a series of related or
unrelated transactions, in such quantities that after such issuance or transfer,
as the case may be, such transferee shall have control (as hereinafter defined)
of such entity, shall be deemed an assignment, except that the transfer of the
outstanding capital stock of any corporate Tenant by persons or parties (other
than persons or parties owning 5% of more of the voting stock of such
corporation) through the "over-the-counter" market or any recognized national
securities exchange, shall not be included
-25-
in the calculation of such transfer of control, (b) a "take-over agreement"
pursuant to which one or more persons shall agree to assume the Obligations of
Tenant hereunder in consideration of Tenant leasing space in another building
shall be deemed an assignment of this Lease, and (c) a modification or amendment
of a sublease which decreases the rent, extends the term or increases or
decreases the subleased space shall be deemed a sublease. For the purposes of
the preceding sentence, stock ownership shall be determined in accordance with
the principles set forth in Section 544 of the Internal Revenue Code of 1986, as
the same existed on January 1, 1987. For the purposes hereof, "control" shall
mean with respect to any corporation, partnership or other business entity, the
possession of the power directly or indirectly to direct or cause the direction
of management and policy of such corporation, partnership or other business
entity, whether through the ownership of voting securities, by contract, common
directors or officers, the contractual right to manage the business affairs of
any such corporation, partnership or business entity, or otherwise. Any person
or legal representative of Tenant, to whom Tenant's interest under this Lease
passes by operation of law or otherwise, shall be bound by the provisions of
this Article 23.
----------
Section 23.02 A. Tenant may, upon ten (10) days prior written notice to
-------------
Landlord, assign this Lease to a Related Entity (as hereinafter defined) or
permit any corporation(s) or other business entity or entities that directly or
indirectly control, are controlled by, or under common control with, Tenant (any
such corporation or entity being hereinafter referred to as "Related Entity") to
sublet, occupy or use (any such subletting, occupancy or use being hereinafter
called a "letting") all or part of the Demised Premises for any of the purposes
permitted to Tenant hereunder provided that (a) Tenant shall not be in default
beyond any applicable grace period in the performance of any of its obligations
under this Lease, and (b) prior to the effective date of such letting or
assignment Landlord shall have been provided with proof reasonably satisfactory
to it that such sublessee or assignee is a Related Entity. In the event of an
assignment of this Lease to a Related Entity, Tenant shall remain fully liable
for the performance of all of Tenant's obligations hereunder and Tenant and
assignee shall enter into an instrument of assignment and assumption in form and
substance reasonably satisfactory to Landlord. Within ten (10) days after the
commencement of the term of any such letting or the date of such assignment, as
the case may be, notice of such commencement or assignment and a duplicate
original of such sublease or assignment shall be delivered by Tenant to
Landlord. If at any time such sublessee, occupant, user or assignee shall cease
to be a Related Entity of Tenant, said letting or assignment shall be null and
void as of the date of cessation of such relationship and such sublessee,
occupant, user or assignee shall vacate the Demised Premises within sixty (60)
days of such date. Each such sublease or assignment shall be and shall provide
that it is subject and subordinate to all of the terms, provisions and
agreements of this Lease and the Ground Lease;
B. Tenant may, upon ten (10) days prior written notice,
assign this Lease to or effect a letting to a Successor Corporation (as
hereinafter defined) of Tenant, any such letting to be for all or part of the
Demised Premises for any of the purposes permitted to Tenant hereunder, provided
that (a) Tenant shall not be in default beyond any applicable grace period in
the
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performance of any of its obligations under this Lease, (b) prior to the
effective date of such letting or assignment, Landlord shall have been provided
with proof reasonably satisfactory to it that such lessee or assignee is a
Successor Corporation, and (c) after any merger or consolidation described in
the next succeeding sentence of this paragraph, the assets, capitalization and
net worth of such Successor Corporation shall be greater than or equal to the
assets, capitalization and net worth of Tenant at the commencement of the Term
or immediately prior to such merger or consolidation, whichever is greater. A
"Successor Corporation", as such term is used in this Section 23.02B, shall mean
--------------
a corporation into which or with which Tenant is merged or consolidated in
accordance with applicable statutory provisions for the merger or consolidation
of corporations, provided that by operation of law or by effective provisions
contained in the instrument of merger or consolidation, the liabilities of
Tenant under this Lease are assumed by the corporation surviving such merger or
consolidation. Within ten (10) days after the commencement of the term of any
such letting or the date of such assignment, as the case may be, notice of such
commencement or assignment and duplicate originals of any instruments with
respect to such transaction shall be delivered to Landlord by Tenant or the
Successor Corporation, as appropriate. Any such letting or assignment shall be
subordinate to all of the terms, provisions and agreements of this Lease and the
Ground Lease.
C. Except as expressly permitted pursuant to any other provision of this
Article 23, (i) if at any time, Tenant desires to sublet all or substantially
----------
all of the Demised Premises for a term ending within sixty (60) days of the
Expiration Date, or to assign its interest in this Lease, Tenant shall send a
notice (the "Subleasing Notice") to Landlord and shall be deemed to have granted
-----------------
to Landlord the option, with respect to any such portion of the Demised Premises
which Tenant proposes to sublet or assign pursuant to this Article 23 (or any
----------
proposed or actual sublet, assignment or occupancy which Tenant undertakes in
violation of the provisions of this Article 23 regardless of when and how
----------
Landlord receives notice of such proposed or actual sublet, assignment or
occupancy), an option (the "Recapture Right") to be exercised by notice given to
---------------
Tenant within thirty (30) business days after receipt of the Subleasing Notice
or thirty (30) business days after Landlord has been made aware of any proposed
or actual sublet, assignment or occupancy undertaken by Tenant in violation of
the provisions of this Article 23, to terminate this Lease on the terms and
conditions hereinafter set forth with respect only to the portion of the Demised
Premises which is subject to any such proposed or actual subletting, assignment
or occupancy (the "Recaptured Area"). In the event that Landlord exercises the
---------------
Recapture Right then, as to the Recaptured Area:
(a) Tenant shall vacate and surrender the Recaptured Area on or before
the day immediately preceding the proposed commencement date of the
proposed assignment, sublease or occupancy and the Lease shall terminate
with respect to such Recaptured Area on such proposed commencement date as
if such date were the Expiration Date;
(b) from and after such date of termination, this Lease shall be
deemed amended to (1) eliminate the Recaptured Area from the Demised
Premises, (2) reduce the Fixed Rent payable hereunder by an amount equal
to the Fixed Rent payable with respect to the Recaptured Area immediately
prior to such termination, (3) reduce any
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Additional Rent to reflect the elimination of the Recaptured Area from the
Premises and (4) make such other changes as are appropriate to reflect the
elimination of the Recaptured Area from the Demised Premises. Landlord and
Tenant shall execute a written amendment to this Lease prepared by Landlord
and reasonably satisfactory to Landlord and Tenant setting forth the
foregoing modifications (provided, however, that failure by either party to
execute or deliver such amendment shall not impair the effectiveness of the
provisions of this paragraph);
(c) Landlord may, and shall have no liability to Tenant if Landlord
shall, sublease the Recaptured Area (or any part thereof) to Tenant's
prospective subtenant, assignee or occupant or to any other Person for all
or any portion of the term of the proposed subletting, assignment or
occupancy; and
(d) Landlord, at its expense, shall make such alterations as may be
required to separate physically the Recaptured Area from the remainder of
the Demised Premises and to comply with all Legal Requirements and
Insurance Requirements (unless the same would have been the responsibility
of the sublessee pursuant to the proposed assignment, sublease or
occupancy), and, at Landlord's expense (unless the same would have been the
responsibility of Tenant pursuant to the proposed assignment, sublease or
occupancy agreement), shall repair or restore to tenantable condition any
part of the remainder of the Demised Premises which is damaged by such
separation. If required by Legal Requirements and Insurance Requirements,
Landlord shall afford Tenant and its agents, tenants, undertenants, or
licensees reasonably appropriate means of ingress to and egress from the
Recaptured Area, and, if required by Legal Requirements, and Insurance
Requirements, Tenant shall afford Landlord and its agents, undertenants and
licensees reasonably appropriate means of ingress to and egress from the
remainder of the Demised Premises; and
(e) on or prior to the Expiration Date, Tenant shall restore, or
reimburse Landlord for its restoration cost with respect to, the Recaptured
Area to the condition required by this Lease and/or the Ground Lease,
except as otherwise set forth herein, including removal of any alterations
made in the Recaptured Area by any party to the extent required by this
Lease and/or the Ground Lease.
D. If at any time Tenant desires to sublet all or any portion of the
Demised Premises or to assign its interest in this Lease (other than a sublet or
assignment to a Related Entity as set forth in Section 23.02A or a Successor
--------------
Corporation as set forth in Section 23.02B hereof) and Landlord has elected not
to exercise its Recapture Right as set forth in Paragraph B above, Tenant shall
submit to Landlord the name and address of the proposed sublessee or assignee,
its proposed use of the Demised Premises or portion thereof proposed to be
subleased, a reasonably detailed description of such proposed sublessee's or
assignee's business and any other information about such proposed sublessee or
assignee reasonably requested by Landlord. Landlord agrees not to unreasonably
withhold or delay its consent to any such subletting or assignment by Tenant,
provided that the following conditions shall have been satisfied:
-28-
(a) The use which the proposed assignee or subtenant intends for the
Demised Premises shall be that permitted by Article 4 hereof;
---------
(b) In the reasonable judgment of Landlord, the proposed assignee or
subtenant (i) is of good character; and (ii) is of substantial means and
finances and in a position to finance satisfactorily its business;
(c) The proposed assignment or sublease shall require the assignee or
subtenant to undertake to operate its business in the Demised Premises with
policies substantially similar to Tenant;
(d) In the reasonable judgment of Landlord, the proposed assignment or
subletting shall not adversely affect the Building or the interest of
Landlord therein;
(e) Tenant shall not have advertised or publicized in any way the
availability of the demised premises without Landlord's consent, and no
advertisement or other publicity shall state the proposed rental;
(f) The proposed assignment contains an acceptance of such assignment
by the assignee pursuant to which such assignee assumes and agrees to
perform, directly for the benefit of Landlord, all of the terms, covenants
and conditions of this lease on Tenant's part to be performed;
(g) Tenant shall pay to Landlord Landlord's reasonable administrative
costs, attorneys' fees, disbursements and any reasonable costs that may be
incurred by Landlord in connection with such assignment or subletting,
including, without limitation, the costs of making investigations as to the
acceptability of the proposed assignee or subtenant;
(h) The proposed assignment or sublease shall prohibit any further
assignment or subletting by the assignee or subtenant, as the case may be;
(i) Tenant shall not be in default beyond the expiration of any
applicable notice and cure periods in the performance of any of its
obligations under this Lease either at the time Landlord's consent to such
assignment or subletting is requested or upon the proposed effective date
of any such assignment or subletting;
(j) The proposed assignee or subtenant shall not then be a tenant of
any space in any building owned by Landlord, any related corporation of
Landlord or The Presbyterian Hospital in the City of New York
("Presbyterian") or a related corporation of any such tenant, nor a party
------------
who dealt with landlord or Landlord's agent, a related corporation of
Landlord or its agent, or Presbyterian or any agent of Presbyterian (either
directly or through a broker) for the rental of any space in any building
owned by Landlord, a related corporation of Landlord or Presbyterian within
the six (6) months immediately preceding Tenant's request for Landlord's
consent;
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(k) The proposed assignee or subtenant shall not be a person then
negotiating with Landlord or Landlord's agent, a related corporation of
Landlord or its agent or Presbyterian or any agent of Presbyterian (either
directly or through a broker) for the rental of any space in any building
owned by Landlord, a related corporation of Landlord or Presbyterian; and
(l) The proposed assignee or subtenant shall not be an employee of (1)
Landlord (2) a related corporation of Landlord, or (3) Presbyterian.
Within ten (10) business days after the commencement of the term of any such
subletting, or within ten (10) business days after the effective date of any
such assignment, notice of such commencement on effective date and a duplicate
original of such sublease or assignment shall be delivered by Tenant to
Landlord.
Notwithstanding anything to the contrary contained herein, if (1) Tenant
shall sublet the Demised Premises or any portion thereof for rents, additional
charges or other consideration which, after deducting from the amount of such
rents, charges or other consideration, any brokerage commissions, actual and
reasonable costs for labor and materials in preparing the space for subletting,
and attorneys' fees and disbursements reasonably incurred by Tenant for such
subletting (the "Deductions"), shall, for any period, exceed the rents
----------
(excluding the Fixed Repayment) payable for the subleased space under this Lease
for the same period (computed on a per square foot basis in the event of a
subletting of less than the whole of the Demised Premises), or (2) Tenant shall
assign its interest in this Lease for consideration (other than assumption by
the assignee of Tenant's obligations hereunder) which exceeds any Deductions
applicable thereto, then Tenant shall pay to Landlord, as Additional Rent,
within ten (10) days after the date or dates on which such rents, charges and
other consideration shall be payable to Tenant, one-half of any such excess.
Tenant hereby indemnifies Landlord against liability from any claims that
may be made against Landlord by any proposed assignee or sublessee by reason of
Landlord's failure to consent in accordance with this Lease to any assignment or
subletting or by any broker, finder or similar person claiming a commission or
similar compensation in connection with any assignment or subletting or any
proposed assignment or subletting.
Section 23.03 In the event that Landlord grants its consent to any
-------------
assignment or subletting, Tenant shall not be released from and shall remain
fully liable for the performance of all of Tenant's obligations hereunder,
including without limitation, the payment of rent hereunder. Landlord's consent
to any assignment, mortgaging or subletting in any specific instance shall not
constitute a waiver of the provisions of this Article as to any future or
further assignment, mortgaging or subletting.
Section 23.04 If Tenant's interest in this Lease is assigned or the
-------------
Demised Premises or any portion thereof are sublet in violation of the
provisions of this Article 23, such assignment or sublease shall be void and of
no force and effect against Landlord, provided however, that
-30-
Landlord may collect an amount equal to the then Fixed Rent and all other
Additional Rent from the assignee sublessee as a fee for its use and occupancy.
ARTICLE 24
----------
Bankruptcy
----------
Section 24.01 In the event this Lease becomes subject to the provisions of
-------------
the Bankruptcy Code, the rights and obligations of the parties hereunder shall
be governed by the Bankruptcy Code as in effect on the date it becomes so
subject.
Section 24.02 If this Lease is assigned to any person pursuant to the
-------------
provisions of the Bankruptcy Code, all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any and all monies or other consideration
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and
shall be promptly paid to or turned over to Landlord.
Section 24.03 If Tenant assumes this Lease and proposes to assign the same
-------------
pursuant to the provisions of the Bankruptcy Code to any person or entity who
shall have made a bona fide offer to accept an assignment of the Lease on terms
---- ----
acceptable to the Tenant, then notice of such proposed assignment shall be given
to Landlord by Tenant no later than twenty (20) days after receipt by Tenant,
but in any event no later than ten (10) days prior to the date that Tenant shall
make application to a court of competent jurisdiction for authority and approval
to enter into such assignment and assumption. Such notice shall set forth (a)
the name and address of such person, (b) all of the terms and conditions of such
offer, and (c) adequate assurance of future performance by such person under the
Lease, including, without limitation, the assurance referred to in Section
365(b)(3) of the Bankruptcy Code. Subject to any requirements of the Bankruptcy
Code, Landlord shall have the prior right and option, to be exercised by notice
to Tenant given at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms and
conditions and for the same consideration if any, as the bona fide offer made by
---- ----
such person, less any brokerage commissions which would otherwise be payable by
Tenant out of the consideration to be paid by such person in connection with the
assignment of this Lease. The term "adequate assurance of future performance" as
used in this Lease shall mean that any assignee proposed pursuant to this
Section shall, among other things, (a) deposit with Landlord on the assumption
of this Lease an amount equal to the then annual Fixed Rent and Fixed Repayment
payable hereunder (the "Assignee Security") as security for the faithful
-----------------
performance and observance by such assignee of the terms and obligations of this
Lease, which sum shall be held and applied as set forth in Section 24.04, (b)
furnish Landlord with financial statements of such assignee for the prior three
(3) fiscal years, as finally determined after an audit and certified as correct
by a certified public accountant, which
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financial statements shall show a net worth equal to at least one-half (1/2) the
Fixed Rent and Fixed Repayment then payable by Tenant at the time of the
proposed assignment for each of such three (3) years, (c) grant to Landlord a
security interest in such property of the proposed assignee as Landlord shall
deem necessary to secure such assignee's future performance under this Lease,
and (d) provide such other information or take such action as Landlord, in its
reasonable judgment shall determine is necessary to provide adequate assurance
of the performance by such assignee of its obligations under the Lease.
Section 24.04 If an assignee under Section 24.03 defaults in respect of
-------------
any of the terms, provisions and conditions of this Lease, including, but not
limited to, the payment of rent, Landlord may apply or retain the whole or any
part of the Assignee Security so deposited to the extent required for the
payment of any rent as to which assignee is in default or offer any sum which
Landlord may expend or may be required to expend by reason of assignee's default
in respect of any of the terms, covenants and conditions of this Lease,
including, but not limited to, any damages or deficiency in the reletting of the
Demised Premises, whether such damage or deficiency accrued or accrues before or
after summary proceedings or other re-entry by Landlord. If Landlord applies or
retains any part of the Assignee Security so deposited, assignee, upon demand,
shall deposit with Landlord the amount so applied or retained so that Landlord
shall have the full deposit on hand at all times during the Term. If assignee
shall fully and faithfully comply with all of the terms, provisions, covenants
and conditions of this Lease, the Assignee Security shall be returned to
assignee after the Expiration Date and after delivery of possession of the
entire Demised Premises to Landlord. In the event of a sale or leasing of the
Premises or the Building, Landlord shall have the right to transfer the Assignee
Security to the vendee or lessee and Landlord shall thereupon be released by
assignee from all liability for the return of such security; and assignee shall
look solely to the new landlord for the return of said Assignee Security. The
provisions hereof shall apply to every transfer or assignment made of the
Assignee Security to a new landlord. Assignee will not assign or encumber or
attempt to assign or encumber the monies deposited herein as Assignee Security
and neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
ARTICLE 25
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Alterations
-----------
Section 25.01 (a) Tenant shall make no changes, additions or alterations
-------------
("Alterations") in on or to the Demised Premises without the prior written
-----------
consent of Landlord, which consent shall not be unreasonably withheld or delayed
provided such alterations are non-structural and do not affect any of the
Building systems. Notwithstanding anything to the contrary contained herein,
Landlord's consent shall not be required with respect to any Alterations which
(i) are
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non-structural and do not affect any of the Building systems and (ii) cost less
than $25,000.00 to perform provided, however, that Tenant shall notify Landlord
of such Alterations prior to Tenant's undertaking to perform such Alterations.
(b) Tenant hereby covenants and agrees that Tenant shall, at Tenant's sole
cost and expense, perform Tenant's Work in accordance with the Plans and
Specifications, which Plans and Specifications have been approved by Landlord,
as the same may be amended by Change Order(s) pursuant to Section 25.07(a)
hereof. Tenant's Work shall be performed in accordance with all of the terms and
conditions of this Lease. Prior to commencing Tenant's Work Tenant shall obtain
all licenses, permits and approvals required by all applicable Legal
Requirements.
Section 25.02 (a) If Landlord shall consent to any Alterations proposed by
-------------
Tenant, then such Alterations, shall be completed strictly in accordance with
plans and specifications approved by Landlord and Landlord's Construction
Requirements, a copy of which Construction Requirements will be delivered to
Tenant upon request therefor, at Tenant's sole cost and expense, in a good and
first-class workmanlike manner, using good quality materials and equipment which
shall be at least equal in quality to the standards for the Building then
established by Landlord, and in accordance with all Legal Requirements and the
terms of this Lease and the Ground Lease, and shall be commenced promptly after
approval is received and thereafter prosecuted diligently to completion. Any
Alterations for which consent has been received shall be performed strictly in
accordance with the approved plans and specifications therefor, and no
amendments or additions thereto shall be made without the prior consent of
Landlord. Tenant shall pay to Landlord as Additional Rent Landlord's out-of-
pocket expenses (including the fees of Landlord's architect and engineer) for
reviewing said plans and specifications (other than the Plans and Specifications
for Tenant's Work, for which no fee shall apply) and inspecting the Alterations,
in an amount not to exceed $500.00 for each such review.
(b) Tenant shall coordinate its construction with Landlord and with other
tenants in the Building so that it will not unreasonably interfere with or delay
the completion of any other construction work in the Building, and, to that end,
Tenant and its contractors and subcontractors shall use only the Demised
Premises for the performance of Tenant's Alterations.
Section 25.03 Tenant shall use only duly licensed, reputable contractors
-------------
reasonably approved in advance by Landlord to perform any Alterations. Each such
contractor shall (i) carry such workers' compensation, general liability,
personal and property insurance as Landlord shall require and (ii) (a) with
respect to any Alterations costing less than $50,000.00, reasonable assurance in
writing, satisfactory to Landlord, that Tenant has the financial ability to
complete such Alterations and (b) with respect to any Alterations costing more
than $50,000.00 prior to the Commencement of any such Alterations, if requested
by Landlord, furnish Landlord with payment and performance bonds at least equal
to 125% of the full amount of the reasonably estimated costs (as determined by
Landlord) of the Alterations to be made.
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Section 25.04 Tenant agrees that it will not at any time prior to or
-------------
during the Term, either directly or indirectly, employ or permit the employment
of any contractor, mechanic or laborer, or permit any materials in the Demised
Premises, if the use of such contractor, mechanic or laborer or such materials
would, in Landlord's reasonable opinion, create any strike or jurisdictional
dispute with other contractors, mechanics or laborers engaged by Tenant,
Landlord, the City or other tenants, or would in any way unreasonably disturb
the construction, maintenance, cleaning, repair, management, security or
operation of the Building or any part thereof. In the event of any interference
or conflict, Tenant, upon demand of Landlord, shall cause all contractors,
mechanics or laborers, or all materials causing such interference, difficulty or
conflict, to leave or be removed from the Building immediately.
Section 25.05 No approval of plans or specifications by Landlord or
-------------
consent by Landlord allowing Tenant to make Alterations in the Demised Premises
shall in any way be deemed to be an agreement by Landlord that the contemplated
Alterations comply with any Legal Requirements or Insurance Requirements or any
certificate of occupancy for the Building nor shall it be deemed to be a waiver
by Landlord of the compliance by Tenant with any of the terms of this Lease.
Nothing in this Lease shall be deemed or construed in any way as constituting
the consent or request of Landlord, express or implied, by inference or
otherwise, to any contractor, subcontractor, laborer or materialman for the
performance of any labor or the furnishing of any materials for any Alteration
to, or repair of, the Demised Premises, the Building or any part thereof, nor as
giving Tenant any right, power or authority to contract for or permit the
rendering of any services or the furnishing of any materials that would give
rise to the filing of any mechanic's liens against Landlord's interest in the
Demised Premises, the Building or the Premises. Notice is hereby given that
neither Landlord nor Landlord's agents, nor any Superior Lessor or Superior
Mortgagee shall be liable for any labor or materials furnished or to be
furnished to Tenant upon credit, and that no mechanic's or other lien for.such
labor or materials shall attach to or affect any estate or interest of Landlord
or any Superior Lessor or Superior Mortgagee in and to the Demised Premises or
the Premises. If any mechanic's lien is filed against the Demised Premises or
the Premises for work claimed to have been done for, or material furnished to,
Tenant, such lien shall be discharged, within thirty (30) days of the date of
filing, at Tenant's expense by payment or by filing the bond required by law.
Section 25.06 Prior to commencing any Alteration, Tenant shall deliver to
-------------
Landlord certificates evidencing additional insurance of such types and in such
amounts as Landlord or the Insurance Requirements shall reasonably require
Tenant or any contractor to maintain. The policies of such additional insurance
shall name Landlord, the City, EDC, UDC and such other Persons as Landlord shall
reasonably require as additional insureds, as their interests may appear.
Section 25.07 (a) For purposes of this Lease, the following terms shall
-------------
have the following meanings:
(i) "substantial completion", "substantially complete" or
similar words
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to that effect shall mean Tenant's completion of Tenant's Work
substantially in accordance with the Plans and Specifications and all
Change Orders (as hereinafter defined) but for minor "punch list"
items which would not interfere with Tenant's ability to occupy the
Demised Premises and conduct its business therein for the purposes set
forth in this Lease.
(ii) "Plans and Specifications" shall mean the Plans and
Specifications for Tenant's Work submitted to and approved by Landlord
a list of which is annexed hereto as Exhibit B and made a part hereof.
(iii) "Change Order" shall mean any change in the Plans and
Specifications requested by Tenant and approved by Landlord and any
increase or reduction in the cost of Tenant's Work approved by
Landlord. The cost of any such Change Order shall be agreed upon by
the parties at the time of its approval. Upon substantial completion
of Tenant's Work, the Construction Loan (as hereinafter defined) shall
be adjusted to reflect the net amount of all such Change Orders and
any earned interest on the Construction Loan pursuant to Section 3.04
------------
hereof and the monthly Fixed Repayment shall be adjusted to an amount
equal to one-twelfth of the annual principal and interest payments of
a self amortizing loan in the amount of $1,500,000.00 as adjusted by
the net amount of all such Change Orders and earned interest
amortizing on a straight line basis over ten (10) years at the
Interest Rate plus one-one hundred and twentieth of the Closing Costs
as described in Section 3.04 hereof. In the event that Landlord shall
approve in writing a Change Order which is estimated (as expressly set
forth in such Change Order) to delay the substantial completion of
Tenant's Work beyond November 1, 1996, then the Rent Commencement Date
shall be deemed to be the earlier to occur of (a) such new estimated
substantial completion date or (b) the date Tenant or anyone claiming
under or through Tenant shall occupy any part of the Demised Premises
for the purposes set forth in Article 4 hereof.
(b) Landlord and Tenant hereby agree that the cost of designing,
constructing and performing Tenant's Work in accordance with the Plans
and Specifications shall be paid as follows: (i) $320,000.00 (the
"Grant") shall be paid outright by Landlord and (ii) $1,500,000 shall
------
be paid in the form of a loan from Landlord to Tenant (the
"Construction Loan") which shall be repaid to Landlord as set forth in
------------------
Section 3.04 hereof. The Grant and the Construction Loan shall be
disbursed as set forth in Article 46.
----------
ARTICLE 26
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Services
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Section 26.01 Landlord shall provide 24-hour, 7-day-a-week access to the
-------------
Building and
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unlimited passenger elevator service to the Demised Premises. Landlord shall
provide freight elevator service on Business Days from 8 a.m. to 4 p.m. If
Tenant shall require freight elevator service during any other time, Landlord
shall furnish same provided that Tenant gives Landlord advance notice and that
Tenant pays, on demand, as Additional Rent, Landlord's then established charges
(applicable to all tenants of the Building) therefor. Landlord shall employ a
security service to guard the main entrances to the Building 24 hours a day, 7
days a week, provided however Landlord shall have no responsibility or liability
with respect to the action or inaction of such security service. Landlord shall
provide an elevator security card system intended to limit access to the Demised
Premises from the elevators to individuals presenting designated security cards
but Landlord shall not be a guarantor of the efficacy of such system and shall
not he liable for mechanical or other failure of such system.
Section 26.02 (a) Landlord shall provide electric energy to the Demised
-------------
Premises. Tenant shall pay Landlord for electricity consumed by Tenant in the
Demised Premises as shown on a submeter installed and maintained by Landlord.
Landlord will permit the electrical risers, feeders and wiring in the Building
serving the Demised Premises to be used by Tenant for such purpose to the extent
that they are available, suitable, safe and within the plan and design
capacities of the Building. Tenant shall not be required to pay Landlord more
than the amount calculated by applying to the measured demand and/or usage of
electrical current in or furnished to the Demised Premises, the average rate per
unit of measurement, inclusive of applicable taxes, surcharges, time of day and
other charges, payable by Landlord for electrical current furnished to the
Building by the utility company serving the Building. Should any tax or charge
in the nature of a tax be imposed upon Landlord's receipts from the sale or
resale of electrical current to the Demised Premises, then the pro rata share
thereof allocable to the electrical current furnished to the Demised Premises
shall be passed on to and paid by Tenant. Bills for Tenant's usage of electrical
current shall be paid within ten (10) business days of receipt thereof by Tenant
as Additional Rent hereunder. If due to any change in Legal Requirements,
Landlord shall not be permitted to provide electric energy to the Demised
Premises, then this Lease shall not be affected and Tenant shall arrange to
obtain electric energy directly from the public utility company furnishing
electrical service to the Building. In such event Tenant shall no longer pay
Landlord for electricity consumed. During the period from the Commencement Date
to the Rent Commencement Date, provided that no Event of Default shall have
occurred and be continuing, Landlord shall provide electrical energy to the
Demised Premises in accordance with the terms hereunder free of charge.
(b) Tenant's use of electrical energy shall never exceed the capacity of
the then existing risers or wiring installation, in each case. Landlord hereby
represents that current capacity of the existing risers is not less than 15
xxxxx per usable square foot. In order to insure that such electrical capacity
is not exceeded and to avert possible adverse effect upon the Building's
electrical system, Tenant shall not, without the prior written consent of
Landlord, make or perform or permit any alteration to wiring installations or
other electrical facilities in or serving the Demised Premises or any additions
to the electrical fixtures, machines or
-36-
equipment or appliances in the Demised Premises. Without limiting the generality
of the foregoing, Landlord shall not consent to any such alteration or
installation if, in Landlord's judgment, the same is unnecessary or will cause
permanent damage or injury to the Building, the Building Equipment or the
Demised Premises or will cause or create a hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or excessively
interfere with or disturb other tenants or occupants. Only rigid conduit or such
other wiring or conduit as shall not violate Legal Requirements will be allowed.
(c) The Building electrical system shall include such emergency generator
back-up power in the event of a loss of power or service as Landlord shall
determine, which shall be provided by and maintained by Landlord at Landlord's
sole cost and expense.
(d) Landlord shall have no liability to Tenant for any loss, damage or
expense which Tenant may sustain or incur by reason of any change, failure,
inadequacy or defect in the supply or character of the electrical energy or
emergency generator back-up power furnished to the Demised Premises or if the
quantity or character of the electrical energy is no longer available or
suitable for Tenant's requirements, except for any actual damage suffered by
Tenant by reason of any such failure, inadequacy or defect caused by Landlord's
negligence, and then only after actual notice thereof.
Section 26.03 (a) Landlord shall make available from the public water
-------------
supply to a point or points at or near the Demised Premises selected by Landlord
such quantities of domestic cold and hot water as Landlord, in its sole and
reasonable judgment, deems adequate for normal laboratory and ordinary lavatory,
cleaning and drinking purposes. In the event that the Tenant requires hot or
cold water for any purposes other than those specified in the preceding
sentence, including, but not limited to high volume laboratory usage, Tenant
shall pay Landlord, as Additional Rent, for water consumed, as shown on separate
submeters for cold and hot water maintained by Tenant, at Tenant's expense (and
installed by Landlord if no such submeters are in place or if there are existing
submeters for the Demised Premises that are broken), together with all sewer
charges and any other rent, tax, levy or charge based thereon which now or
hereafter is assessed, imposed or a lien upon the Demised Premises or the
Premises, within ten (10) business days after bills are rendered. Payment for
cold water shall be at the rate charged by the City for cold water. Payment for
hot water shall be at three (3) times such rate. Landlord shall have no
liability to Tenant for any loss, damage or expense which Tenant may sustain or
incur if the quantity or character of water service changes or is no longer
available or suitable for Tenant's purposes. During the period from the
Commencement Date to the Rent Commencement Date, provided that no Event of
Default shall have occurred and be continuing, Landlord shall provide hot and
cold water to the Demised Premises in accordance with the terms hereunder free
of charge.
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(b) Tenant shall notify Landlord, within ten (10) days after the
Commencement Date, of the water meter number of each water meter serving the
Demised Premises and whether such meter is for hot water or cold water. If any
such meter is installed subsequent to the taking of possession by Tenant, then
Tenant shall notify Landlord of such information within ten (10) days after such
installation.
Section 26.04 Landlord shall make available to a point or points at or
-------------
near the Demised Premises such piping, systems, equipment and facilities as
Landlord, in its reasonable judgment, deems adequate to provide gas service for
normal laboratory consumption. Tenant shall pay Landlord, as Additional Rent,
for gas consumed, as shown on a submeter, installed and maintained (and
replaced, if necessary) by Landlord. The rates charged by Landlord therefor
shall not exceed the rates charged by the utility company providing such
service. Payment for gas consumed by Tenant in the Demised Premises shall be
made by Tenant to Landlord within ten (10) business days of Tenant's receipt of
Landlord's xxxx therefor. Tenant shall make no alteration, addition or repair to
the gas connection, installations, equipment and/or facilities without the prior
written consent of Landlord in each instance. Landlord shall have no liability
to Tenant for any loss, damage or expense which Tenant may sustain or incur if
the quantity or character of the gas service is changed or is no longer
available or suitable for Tenant's requirements.
Section 26.05 Landlord shall supply hot water for heat, chilled water from
-------------
May 1 through October 31 of each calendar year during the Term, condenser water
from November 1 through April 30 of each calendar year during the Term and
ventilation ("HVAC") to the Demised Premises through existing Building risers,
radiators and air handlers and additional HVAC equipment that may be installed
as part of Tenant's Work (subject to the requirements set forth in Article 25
hereof) during appropriate seasons as may reasonably be required by Tenant for
ambient heating and cooling seven days a week, 24 hours a day. If Tenant shall
require additional chilled water, condenser water or hot water in excess of that
which Landlord deems reasonably adequate for the purposes set forth above,
Landlord shall furnish same at Landlord's then established rates and same shall
be payable by Tenant as Additional Rent within ten (10) business days after
receipt by Tenant of a xxxx therefor. Any HVAC equipment supplementing that
described in the first sentence of this Section 26.05 shall be installed and
maintained by Tenant at Tenant's sole cost and expense.
Section 26.06 Tenant shall, at Tenant's sole cost and expense, keep the
-------------
Demised Premises free from vermin, rodents or anything of a similar nature. If
Tenant fails to keep the Demised Premises free from vermin, Landlord shall have
the right, after reasonable notice, if practicable, at Tenant's sole cost and
expense, to take any and all measures deemed necessary or desirable by Landlord
to eradicate all vermin from the Demised Premises. In lieu of the foregoing
provisions with respect to infestation control, Landlord, at its option, may
select an exterminator to perform such services on behalf of Tenant. If Landlord
does so, Tenant agrees to use such exterminator to the exclusion of all other
exterminators, equipment or services. Tenant shall pay the charges therefor for
such exterminator, provided, however, that such exterminators' charges are
commercially competitive.
-38-
Section 26.07 Landlord shall provide cleaning services in accordance with
-------------
the specifications annexed hereto as Exhibit C and made a part hereof. Landlord
shall, as part of said cleaning services, remove Tenant's normal accumulations
of non-Hazardous Materials, rubbish and waste paper. Subject to the provisions
of Section 26.09 hereof, Landlord shall provide reasonable storage in the
basement of the Building for Tenant's Hazardous Materials in reasonable
quantities for reasonable periods of time prior to the removal of such Hazardous
Materials from the Building. Notwithstanding any provision to the contrary
contained herein, in the event that at any time during the term of this Lease
Landlord shall build any storage space in the basement of the Building which is
made available to tenants in the Building, Tenant shall have the right to use
and occupy an area equal to one-fifth of such available space, at no additional
cost to Tenant, provided that Tenant's use of such space is for storage purposes
only. It is hereby understood and agreed that Landlord has no obligation to
build any such storage space.
Section 26.08 Landlord shall supply compressed air and vacuum air to a
-------------
point or points at the Demised Premises in quantities which Landlord deems
reasonably adequate for normal laboratory purposes. If Tenant shall require
additional compressed air and vacuum air in excess of that which Landlord deems
reasonably adequate for the purposes set forth herein, Landlord shall furnish
same at Landlord's then established rates and same shall be payable on demand by
Tenant as Additional Rent hereunder.
Section 26.09 Tenant shall be responsible for the proper storage and
-------------
removal from the Demised Premises and the Building and the dispose of all of
Tenant's Hazardous Materials. Tenant shall contract for the disposal of
Hazardous Materials, at Tenant's cost and expense, with vendors approved by
Landlord, in its sole and absolute discretion. In contracting with any such
vendor, Landlord shall endeavor to ensure that Tenant shall receive the benefit
of any volume discount granted to Landlord by such vendor.
Section 26.10 Tenant shall have the right to use on a non-exclusive, first
-------------
come-first serve basis, together with other tenants and occupants of the
Building, Landlord's autoclave facility and glassware washer located in the
basement of the Building. Landlord shall be responsible for ensuring that such
autoclave facility and glassware washer are operational and functional as of the
date the Tenant occupies the Demised Premises for the conduct of its business
after the completion of Tenant's Work. Tenant hereby agrees to pay Landlord's
standard established fees applicable to all tenants of the Building for such
use, which fees shall be in the form of (i) an hourly access fee and (ii) a fee
on an hourly basis for any personnel of Landlord used by Tenant in the facility.
Landlord shall employ trained personnel who shall be available for Tenant's
nonexclusive first come-first serve use of the autoclave facility and glassware
washer. Attached hereto as Exhibit E are the proposed specifications for the
---------
autoclave facility and the glassware washer (collectively, the "Autoclave and
-------------
Glassware Specifications"). Tenant understands and acknowledges that the
------------------------
Autoclave and Glassware Specifications may be changed at any time by Landlord in
its sole and absolute discretion, provided, however, in the event that Landlord
shall change the Autoclave and Glassware Specifications, Landlord shall endeavor
to provide an autoclave facility and glassware washer similar to the autoclave
facility and glassware washer
-39-
described in the Autoclave and Glassware Specifications.
ARTICLE 27
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Windows; Machinery
------------------
Section 27.01 (a) If at any time any windows of the Demised Premises are
-------------
temporarily closed, darkened or bricked up (or permanently closed, darkened or
bricked up, if required by law) for any reason whatsoever including, but not
limited to, Landlord's own acts, Landlord shall not be liable for any damage
Tenant may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement or diminution of rent nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction.
(b) Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the Building without Landlord's prior written
consent, which consent shall not be unreasonably withheld. If such safe,
machinery, equipment, bulky matter or fixtures require special handling, all
work in connection therewith shall comply with all Legal Requirements applicable
thereto and shall be done during such hours as Landlord may reasonably
designate.
ARTICLE 28
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Insurance
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Section 28.01 Tenant shall, at Tenant's sole cost and expense, obtain and
-------------
maintain the following types of insurance in not less than the indicated amounts
with insurance carriers reasonably acceptable to Landlord:
(a) Workers' Compensation and Employer's Liability insurance with respect
to all persons employed by Tenant at the Demised Premises (including, during the
period during which any Alterations are being constructed, Tenant shall cause
its contractors and its subcontractors to obtain such insurance for its
employees, all contractors and subcontractors) with a limit of liability in
accordance with applicable law in the case of Workers' Compensation and with a
limit of liability of not less than the following in the case of Employer's
Liability:
Bodily Injury by Accident - $100,000 each accident;
Bodily Injury by Disease - $500,000 policy limit;
Bodily Injury by Disease - $100,000 each employee;
(b) Comprehensive or commercial general liability (bodily injury and
property
-40-
damage) with a combined single limit of liability for bodily injury and property
damage of $2,000,000 per occurrence;
(c) "All risk" property insurance (which includes coverage for plate glass
breakage and water damage) which provides coverage for all property of Tenant,
including Tenant's Work and all Alterations, within the Demised Premises in an
amount equal to the replacement cost of such property; and
(d) Such different or the same types of insurance set forth above in such
amounts as may from time to time be reasonably required by Landlord against such
other insurable hazards as at the time are commonly insured against in the case
of premises similarly situated.
Section 28.02 (a) All insurance shall be written in form and substance
-------------
reasonably satisfactory to Landlord, and issued by companies licensed to do
business in New York State and authorized to issue such policies that have a
"Best's" rating of B+11 or better or another rating acceptable to Landlord. All
policies of insurance procured by Tenant shall contain endorsements providing
that (a) such policies may not be reduced or cancelled (including for non-
payment of premium) or allowed to lapse with respect to Landlord, the City, EDC,
UDC or any other Superior Lessor or any Superior Mortgagee, or materially
changed or amended, except after sixty (60) days prior notice from the insurance
company by registered mail to (i) Tenant, (ii) Landlord at the address provided
for in Article 29, (iii) Landlord in care of the Director of Risk Management,
Columbia University 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx, 00000,
and (iv) the City, EDC, UDC, any other Superior Lessor and any Superior
Mortgagee of which Tenant has notice, and (b) Tenant shall be solely responsible
for the payment of premiums therefor notwithstanding that Landlord is named as
an additional insured. On or before the Commencement Date, duly executed
certificates of insurance (specifying each of the coverages enumerated above and
including evidence of the waivers of subrogation required pursuant to
Subparagraph (d), together with reasonably satisfactory evidence of payment of
the premiums therefor, shall be delivered to Landlord in care of the following
addresses: (x) Executive Director, Xxxxxxx Xxxxxxxx Xxxx, XX 0000 East, 000 Xxxx
000xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (y) Director of Risk Management,
Columbia University, 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000.
Certificates evidencing any endorsements to any such policies shall also be so
delivered upon issuance thereof and a certificate evidencing each renewal or
replacement of a policy shall be so delivered at least sixty (60) days prior to
the expiration of such policy. Notwithstanding the foregoing requirements for
delivery of certificates of insurance, certificates evidencing any endorsement
and certificates of renewals and replacements, in any instance where Landlord or
a Superior Lessor or Superior Mortgagee shall so require, an original policy or
endorsement or renewal or replacement policy, as the case may be, shall be
delivered in addition to or in place of such certificate(s). Tenant shall not
carry any separate or additional insurance concurrent in form or contributing in
the event of any loss or damage with any insurance required to be maintained by
Tenant under this Lease. Notwithstanding the previous sentence, Tenant shall be
permitted to carry a blanket or additional insurance policy which provides
coverage in excess
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of the amounts required under this Article 28, so long as such policy complies
with the requirements of Subparagraph (b) below. Further, all policies of
insurance procured by Tenant shall be written as primary policies covering the
Demised Premises occupied by Tenant not contributing with nor in excess of
coverage that Landlord may carry.
(b) All insurance procured by Tenant under this Article 28, except for the
Worker's Compensation and Employer's Liability insurance described in Section
28.01(a) and the "all-risk" property insurance described in Section 28.01(c),
shall name Landlord, Tenant, the City, EDC, UDC and any other Superior Lessor
and any Superior Mortgagee as additional insureds, as their respective interests
may appear, and shall contain an endorsement that each of Landlord, the City,
EDC, UDC and any other Superior Lessor and any Superior Mortgagee, although
named as additional insureds, nevertheless shall be entitled to recover under
said policies any loss or damages occasioned to it, its agents, employees,
contractors, directors, shareholder, partners, trustees and principals
(disclosed or undisclosed) by reason of the negligence or tortious acts of
Tenant, its servants, agents employees and contractors.
(c) Tenant covenants that (a) Tenant shall pay all premiums due on policies
required to be maintained by the terms of this Lease, and (b) Tenant shall not
violate, or permit the violation of, any term or condition of such policies, and
shall maintain the policies in full force and effect throughout the Term.
(d) Each Party agrees to use its best efforts to include in each of its
insurance policies a waiver of the insurer's right of subrogation against the
other party, or if such waiver should be unobtainable or unenforceable (a) an
express agreement that such policy shall not be invalidated if the insured
waives or has waived before the casualty the right of recovery against any party
responsible for a casualty covered by the policy, or (b) any other form of
permission for the release of the other party. If such waiver agreement or
permission shall not be, or shall cease to be obtainable without additional
charge or at all, such party shall so notify the other party promptly after
learning thereof. In such case, if the other party shall agree in writing to
pay the insurer's additional charge therefor, such waiver, agreement or
permission shall (if obtainable) be included in the policy. As long as Tenant's
casualty insurance policies include the waiver of subrogation or agreement or
permission to release liability referred to above, Tenant, to the extent that
such insurance is in force and collectible, hereby waives (a) any obligation on
the part of Landlord to make repairs to the Tenant's Property necessitated or
occasioned by fire or other insured casualty, and (b) any right of recovery
against Landlord, and any of Landlord's employees, agents or contractors, for
any loss occasioned by fire or other insured casualty.
(e) Landlord hereby agrees to maintain throughout the Term "all risk"
property insurance for the Building as required by the Ground Lease.
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ARTICLE 29
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Notices
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Section 29.01 Any xxxx, notice, request or other communication given
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or made hereunder shall be in writing and either (a) sent by registered or
certified mail, return receipt requested, postage prepaid, or (b) delivered in
person or by overnight courier, with receipt acknowledged to, in the case of
Tenant, the address given at the beginning of this Lease, Attention: Xxxxxx X.
Xxxxxxx, Vice President and Chief Financial Officer, and, in the case of
Landlord, to Executive Director, Xxxxxxx Xxxxxxxx Xxxx, XX 0000 East, 000 Xxxx
000xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or to such other address for such party
as said party shall hereafter designate by Notice given to the other party
pursuant to this Section 29.01. Each notice mailed shall be deemed given on the
fifth day following the date of mailing the same and each notice delivered in
person or by overnight courier shall be deemed given when delivered. Copies of
notices given to Landlord pursuant to the provisions of this Lease shall be sent
by registered or certified mail, postage prepaid and return receipt requested to
(i) Office of the General Counsel, Columbia University, 000 Xxxx 000xx Xxxxxx,
000 Xxx Xxxxxxxx Xxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Deputy General
Counsel, and (ii) Rosenman & Colin LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: Xxxxxx X. Xxxxxxx, counsel to Landlord.
ARTICLE 30
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Non-Liability/Indemnification
-----------------------------
Section 30.01 Neither Landlord nor Landlord's agents, officers,
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directors, shareholders, partners, trustees or principals (disclosed or
undisclosed), nor the City, any other Superior Lessor, EDC, UDC or any Superior
Mortgagee shall be liable to Tenant or Tenant's agents, employees, contractors,
invitees, customers, concessionaires or licensees or any other occupant of the
Demised Premises, and Tenant shall indemnify Landlord and hold Landlord harmless
from and against any liabilities in connection with or arising from any injury
to Tenant or to any other Persons or any damage to, or loss (by theft or
otherwise) of, any of Tenant's Property or the property of any other Person,
irrespective of the cause of such injury, damage or loss, except to the extent
due to the gross negligence or wilful misconduct of Landlord or Landlord's
agents without contributory negligence on the part of Tenant, or its employees,
agents, contractors, invitees, customers, concessionaires, licensees or other
occupants of the Building. Tenant waives, to the full extent permitted by law,
any right it might otherwise have to claim consequential damages in connection
with the negligence of Landlord or Landlord's agents. Any Building employee to
whom any property shall be entrusted by or on behalf of Tenant shall be deemed
to be acting as Tenant's agent with respect to such property, and neither
Landlord nor Landlord's agents shall be liable for any loss or damage to any
such property by theft or otherwise.
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Section 30.02 Neither (a) performance by Landlord, Tenant or others
-------------
of any repairs or improvements to the Demised Premises, (b) failure of Landlord
or others to make any such repairs or improvements, (c) damage to equipment, the
Demised Premises or Tenant's Property, (d) any injury to any Persons caused by
other Persons in the Building, or by operations in the construction of any
private, public or quasi-public work, or by any other cause, (e) latent defect
in the Building or Building Equipment, nor (f) injury to or interruption of
Tenant's business or operations by reason of any of the events or occurrences
referred to in the foregoing subdivisions (a) through (f) shall impose any
liability on Landlord to Tenant, unless Landlord or Landlord's agents, employees
or contractors shall have acted in a grossly negligent manner.
Section 30.03 Tenant hereby indemnifies Landlord in connection with
-------------
or arising from (a) any default by Tenant in the performance of any of the terms
of this Lease on Tenant's part to be performed, (b) the use or occupancy or
manner of use or occupancy of the Demised Premises by Tenant or any Person
claiming under Tenant, (c) any Alterations or improvements made to the Demised
Premises by Tenant or any other Person (other than Landlord or Landlord's
agents), (d) any acts, omissions or negligence of Tenant or any Person claiming
under Tenant, or the contractors, agents, employees, invitees or licensees of
Tenant or any such Person, in the Demised Premises, the Building or the Premises
either prior to, during or after the expiration of the Term of this lease, (e)
the use of the Building lobby or corridors for ingress and egress to and from
the Demised Premises by Tenant, or the contractors, agents, employees, invitees
or licensees of Tenant, whether or not in violation of the provisions of this
Lease or (f) any failure by Tenant or its agents, contractors, employees or
licensees to comply with any Environmental Legal Requirement or Legal
Requirement.
Section 30.04 Tenant shall pay to Landlord as Additional Rent, within
-------------
ten (10) days following receipt by Tenant of bills or statements therefor
evidencing the costs, sums equal to all losses, costs, liabilities, claims,
damages, fines, penalties and expenses referred to in this Article 30, together
with interest at the Default Interest Rate. Tenant shall have the right to
contest the payment of such sums provided that Tenant first makes such payment
to Landlord. If it is finally determined by judicial process or arbitration that
all or a portion of such sums were not due to Landlord, Tenant shall promptly
receive a refund for such sums paid.
Section 30.05 To the extent that any liability is imposed upon
-------------
Landlord as a matter of law, Tenant shall look solely to Landlord's estate and
interest in the Building for the satisfaction of any right of Tenant for the
collection of a judgment or other judicial process or arbitration award
requiring the payment of money by Landlord and no other property or assets of
Landlord, Landlord's agents, officers, directors, partners, joint venturers,
trustees or principals (disclosed or undisclosed) or affiliates shall be subject
to xxxx, xxxx execution, attachment or other enforcement procedure for the
satisfaction of Tenant's rights and remedies under or with respect to this
Lease, the relationship of Landlord and Tenant hereunder or under law, or
Tenant's use and occupancy of the Demised Premises or any other liability of
Landlord to Tenant.
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ARTICLE 31
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Casualty
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Section 31.01 Tenant shall notify Landlord immediately if all or any
-------------
portion of the Demised Premises are damaged or destroyed by fire or other
casualty, and this Lease shall remain in full force and effect without abatement
of rent hereunder, except as set forth below.
Section 31.02 (a) If all or any portion of the Demised Premises are
-------------
damaged or rendered unusable by fire or other casualty, the damages thereto
shall be promptly repaired by and at the expense of Tenant and, provided that
Tenant continuously and diligently prosecutes such repairs to completion, Fixed
Rent and Additional Rent shall be abated from the date of the occurrence of such
casualty to the date of substantial completion with respect to the portion of
the Demised Premises so unusable based upon the relationship that the square
footage of the unusable portion of the Demised Premises bears to the total
square footage of the Demised Premises.
(b) (i) If the Building is so damaged that the Demised Premises is
totally or partially unusable or access thereto is not possible, then, Landlord
shall within thirty (30) days after such damage, cause its architect to deliver
to Tenant a certification as to the estimated period within which Landlord shall
be able to restore such portion of the Building so damaged. If (i) the time
period set forth in the architects certificate shall exceed one hundred eighty
(180) days from the date of such damage, (ii) the time period set forth in such
certificate is less than one hundred eighty (180) days, but Landlord fails to
complete such restoration within two hundred and ten (210) days, subject to
delay by reason of Force Majeure (as hereinafter defined), or (iii) if the
Building is so damaged that the Demised Premises is totally unusable or access
thereto is not possible and such damage occurs during the last year of the Term,
Tenant may terminate the Lease by notice to Landlord given within thirty (30)
days after either Tenant's receipt of such certification or the termination of
such two hundred and forty day period as adjusted by reason of Force Majeure, as
the case may be, specifying a date for the expiration of the Lease, which date
has not be more than sixty (60) days after the giving of such notice. Upon the
date specified in such notice the term of this Lease shall expire as fully and
completely as if such date were the date set forth above for the expiration of
this Lease and Tenant shall forthwith quit, surrender and vacate the premises,
without prejudice, however, to Landlord's rights and remedies against Tenant
under the Lease provisions in effect prior to such termination. Any Fixed Rent,
Fixed Repayment and Additional Rent and all other sums and charges payable by
Tenant hereunder owing shall be paid up to the date of such casualty and any
payments of Fixed Rent, Fixed Repayment and Additional Rent and other sums and
charges payable by Tenant hereunder made by Tenant which were on account of any
period subsequent to such date be returned to Tenant. For purposes of this
Lease, "Force Majeure" shall be deemed to mean any and all causes beyond
-------------
Landlord's reasonable control, including delays caused by Tenant, other tenants,
governmental restriction, regulation or control, labor dispute, accident,
mechanical breakdown, shortage or inability to obtain labor, fuel, steam, water,
electricity or materials, acts
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of God, enemy action, civil commotion, fire, other casualty or the conditions of
supply and demand which have been or are affected by war or other emergency.
(ii) In the event that Tenant does not terminate this Lease as set
forth in Section 31.02(b)(i) hereof, Landlord shall promptly restore such
-------------------
portion of the Building so damaged at Landlord's expense and Fixed Rent shall be
abated from the date of occurrence of such casualty to the date of substantial
completion of such restoration with respect to the portion of the Demised
Premises so unusable based upon the relationship that the square footage of the
unusable portion of the Demised Premises bears to the total square footage of
the Demised Premises.
ARTICLE 32
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Maintenance/Repairs
-------------------
Section 32.01 Landlord shall maintain, repair and keep in good order
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and condition at Landlord's expense, the public portions of the Building,
interior and exterior and the Building Equipment and the Building systems.
Tenant shall maintain, repair and keep in good order and condition, at Tenant's
cost and expense, the Demised Premises and all improvements thereto, including
without limitation, lighting, custom plumbing, if any (serving the Demised
Premises only), window glass, electrical installations and supplemental HVAC, if
any, serving the Demised Premises, during the Term.
Section 32.02 Landlord shall have the option at any time to
-------------
reasonably require Tenant to enter into a maintenance contract or contract with
a contractor or contractors reasonably chosen by the Landlord or with Landlord
directly for the provision of maintenance and repair and heavy cleaning services
which are Tenant's obligation under this Article 32. The fee or fees payable by
Tenant under any such contract shall not exceed Landlord's actual cost therefor.
ARTICLE 33
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Additional Rent
---------------
Section 33.01 In addition to any other amounts that may become due
-------------
and payable by Tenant to Landlord under this Lease, Tenant shall pay to Landlord
on demand as Additional Rent hereunder, Tenant's Proportionate Share
(hereinafter defined) of the amount by which any PILOT payment attributable to
the Premises under Section 3.06 of the Ground Lease (or payment for services
rendered in lieu thereof (or any portion thereof) pursuant to the Ground Lease
or any separate agreement between Landlord and the City) and payments of
Impositions and Taxes (as defined in the Ground Lease) under Article 4 of the
Ground Lease due and payable by Landlord in any PILOT year (hereinafter defined)
or Tax Year (as defined in the Ground Lease) exceed the amount of the PILOT
payment and the amount of the payments for
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Impositions and Taxes for the Base Year (hereinafter defined).
Section 33.02 Tenant's Proportionate Share shall be 22 %.
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Section 33.03 The term "Base year" shall mean the first year in which
-------------
Landlord is obligated to make any PILOT payment or payment of Impositions or
Taxes under the Ground Lease. The term "PILOT Year" shall mean each twelve (12)
month period, commencing on the first day of July of each such period occurring
during the Term hereof or such other 12 month period as may hereafter be adopted
as the fiscal year for PILOT payment purposes by the City of New York.
Section 33.04 In the event that Landlord shall become the fee owner
-------------
of the land which is a part of the Premises (the "Real Property") and shall no
longer be obligated to make payments under the Ground Lease as described in
Section 33.01 hereof, then the following provisions of this Section 33.04 and
Sections 33.05 and 33. 06 shall apply:
(a) The term "Landlord's Statement" shall mean an instrument
containing a computation of Additional Rent due pursuant to the provisions of
this Article 33 furnished by Landlord to Tenant.
(b) The term "Base Tax Year" shall mean the first Tax Year (as defined
in subparagraph (d) below) for which Landlord is Obligated to pay Taxes as fee
owner of the Real Property.
(c) The term "Taxes" shall mean (i) all real estate taxes, assessments
(special or otherwise), sewer and water rents, rates and charges and any other
governmental levies, impositions or charges of a similar or dissimilar nature,
whether general, special, ordinary, extraordinary, foreseen or unforeseen, all
computed without taking into account any exemption or abatement due to
Landlord's tax exempt status, which may be assessed, levied or imposed upon all
or any part of the Real Property, whether or not the same constitute one or more
tax lots, and whether levied by the City of New York or any other taxing
authority, and (ii) any expenses (including reasonable attorneys' fees and
disbursements and experts' and other witness' fees) incurred by Landlord in
contesting any of the foregoing or the assessed valuation of all or any part of
the Real Property, provided, however, that such expenses shall not exceed the
amount of any refund or any reduction in assessed valuation; but "Taxes" shall
not include (a) any net income, franchise, "value added', inheritance or estate
tax imposed upon Landlord, the Demised Premises or the Real Property, except to
the extent set forth in the last sentence of this subsection, or (b) any
interest or penalties incurred by Landlord as a result of Landlord's late
payment of Taxes, except for interest payable in connection with the installment
payments of assessments pursuant to the next sentence. If by law, any assessment
may be divided and paid in annual installments, then, provided the same is not
prohibited under the terms of any Superior Lease or Superior Mortgage, for the
purposes of this Article, (x) such assessment shall be deemed to have been so
divided and to be payable in the maximum number of annual installments permitted
by law and (y) there shall be deemed included in Taxes for each Tax Year
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the annual installment of such assessment becoming payable during such Tax Year,
together with interest payable during such Tax Year on such annual installment
and on all installments thereafter becoming due as provided by law, all as if
such assessment had been so divided. If at any time after the date hereof the
methods of taxation prevailing at the date hereof shall be altered so that in
lieu of or as an addition to or as a substitute for the whole or any part of the
taxes, assessments, rents, rates, charges, levies or impositions now assessed,
levied or imposed upon all or any part of the Real Property, there shall be
assessed, levied or imposed (a) a tax, assessment, levy, imposition or charge
based on the income or rents received therefrom whether or not wholly or
partially as a capital levy or otherwise, or (b) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon all or any
part of the Real Property and imposed upon Landlord, or (c) a license fee
measured by the rents, or (d) a net income, franchise, "value added",
inheritance, estate or other tax, assessment, levy, imposition, charge or
license fee however described or imposed, then all such taxes, assessments
levies, impositions, charges or license fees or the part thereof so measured or
based shall be deemed to be Taxes; provided that any tax, assessment, levy,
imposition or charge imposed on income from the Real Property shall be
calculated as if the Real Property were the only asset of Landlord.
(d) The Term "Tax Year" shall mean the twelve (12) month period
commencing July 1 of each year, or such other period of twelve (12) months as
may be duly adopted as the fiscal year for real estate tax purposes in The City
of New York.
(e) The term "Commercial Portion" shall mean the portion of the
Building not used or held for university purposes or as common areas.
(f) The term "Commercial Portion Taxes" payable for a Tax Year shall
mean 100% of the Taxes payable for such Tax Year.
Section 33.05 (a) Tenant shall pay as Additional Rent for each Tax
-------------
Year all or any portion of which shall be within the term of this Lease, a sum
("Tenant's Tax Payment") equal to Tenant's Proportionate Share of the amount by
which the Commercial Portion Taxes payable for such Tax Year exceed the
Commercial Portion Taxes payable for the Base Tax Year, as finally adjusted and
determined. Tenant's Tax Payment for each Tax Year shall be due and payable, in
advance, on the first day of each July during each Tax Year, based upon the
Landlord's Statement furnished prior to or after the commencement of such Tax
Year, until such time as a new Landlord's Statement shall become effective. If a
Landlord's Statement is furnished to Tenant after the commencement of a Tax Year
in respect of which such Landlord's Statement is rendered, Tenant shall, within
fifteen (15) days thereafter, pay to Landlord an amount equal to the amount of
any underpayment of Tenant's Tax Payment with respect to such Tax Year as stated
in the Landlord's Statement. In the event of an overpayment, Landlord shall
either pay to Tenant, or, at Landlord's election, credit against subsequent
payments under this Section 33.05, the amount of Tenant's overpayment as stated
in the Landlord's Statement. If there shall
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be any increase in Taxes for any Tax Year, whether during or after such Tax
Year, or if there shall be any decrease in the Taxes for any Tax Year during or
after such Tax Year, Landlord may furnish a revised Landlord's Statement for
such Tax Year, and Tenant's Tax Payment for such Tax Year shall be adjusted and
paid or credited or refunded, as the case may be, substantially in the same
manner as provided in the preceding sentence. If at any time after the date
hereof, Taxes are required to be paid (either to the appropriate taxing
authorities or as tax escrow payments to a Superior Lessor or Superior
Mortgagee) on any other date or dates than as presently required, the Tenants
Tax Payments shall be correspondingly accelerated or revised so that said
Tenant's Tax Payments are due at least thirty (30) days prior to the date
payments are due to the taxing authorities or a Superior Lessor or Superior
Mortgagee. The benefit of any discount for any early payment or prepayment of
Taxes and of any tax exemption or abatement relating to all or any part of the
Real Property (due to Landlord's tax exempt status) shall accrue to the benefit
of Landlord and Tenant (in the case of any tax exemption or abatement), and
Taxes shall be computed by taking into account any such exemption or abatement.
(b) Only Landlord shall have the right to institute tax reduction or
other proceedings to reduce the assessed valuation of the Real Property. If
Landlord shall receive a refund of Taxes for any Tax Year after the Base Tax
Year, and if such refund shall be attributable to the Commercial Portion,
Landlord shall either pay to Tenant or, at Landlord's election, credit against
subsequent payments under this Section 33.05 Tenant's Proportionate Share of any
part of such refund attributable to the Commercial Portion, not to exceed
Tenant's Tax Payment paid for the Tax Year for which such refund was received;
provided, however, that Tenant shall be entitled to receive any portion of any
refund received by Landlord, or receive the benefit of any abatement or
reduction in Taxes, attributable, in whole or in part, to Landlord's tax exempt
status. Nothing herein shall obligate Landlord to file any application or
institute any proceeding seeking a reduction in Taxes or assessed valuation.
(c) Tenant's Tax Payment and any credits with respect thereto as
provided in this Section 33.05 shall be made as provided in this Section 33.05
regardless of the fact that Tenant may be exempt, in whole or in part, from the
payment of any taxes by reason of Tenant's diplomatic or other tax exempt status
or for any other reason whatsoever.
(d) Tenant shall pay to Landlord, within ten (10) business days after
receipt of a xxxx therefor, as Additional Rent, any occupancy tax or rent tax
now in effect or hereafter enacted and payable with respect to the Demised
Premises or this Lease, if payable by Landlord in the first instance or
hereafter required to be paid by Landlord.
(e) If only a portion of a Tax Year shall be included within the Term,
any Additional Rent under this Section 33.05 for such Tax Year shall be
apportioned in the ratio which the number of days in such Tax Year which occur
during the Term bears to the total number of days in such Tax Year. In the event
of a termination of this Lease, any Additional Rent under this Section 33.05
shall be paid or adjusted within 30 days after the submission of Landlord's
Statement. In no event shall Fixed Rent or Fixed Repayment ever be reduced by
operation of this Section 33.05 and the rights and obligations of Landlord and
Tenant under the provisions
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of this Section 33.05 with respect to any Additional Rent shall survive the
termination of this Lease.
Section 33.06 (a) Landlord's failure to render Landlord's Statements
-------------
with respect to any Tax Year shall not prejudice Landlord's right to thereafter
render a Landlord's Statement with respect thereto or with respect to any
subsequent Tax Year nor shall the rendering of a Landlord's Statement prejudice
Landlord's right to thereafter render a corrected Landlord's Statement for that
Tax Year. Nothing herein contained shall restrict Landlord from issuing a
Landlord's Statement at any time there is an increase in Taxes during any Tax
Year or any time thereafter.
(b) Each Landlord's Statement shall be conclusive and
binding upon Tenant unless within sixty (60) days after receipt of such
Landlord's Statement, Tenant shall notify Landlord that it disputes the
correctness of Landlord's Statement, specifying the particular respects in which
such Landlord's Statement is claimed to be incorrect. Pending the resolution of
such dispute, Tenant shall pay Tenant's Tax Payment in accordance with the
applicable Landlord's Statement, without prejudice to Tenant's position. If such
dispute is ultimately determined in Tenant's favor, Landlord shall promptly
after such determination pay to Tenant any amount so overpaid by Tenant.
Section 33.07 In the event that pursuant to the Ground Lease and the
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REA, Landlord becomes the owner of any additional real property treated, for
purpose of Taxes, as part of the Real Property, appropriate adjustments with
respect to Tenant's obligations pursuant to this Article 33 shall be made and
Tenant shall be liable for payments under this Article 33, as so adjusted.
ARTICLE 34
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Parking
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Section 34.01 Tenant and its employees, clients, visitors and agents
-------------
shall have the right seven days a week, twenty-four hours a day to the use of
six (6) valet parking spaces (which parking spaces shall not be specifically
dedicated to Tenant and the locations of which may be changed daily) at no cost
to Tenant and up to fourteen (14) additional valet parking spaces which will be
available on advance request therefor and upon payment by Tenant to Landlord
monthly of Landlord's standard rates (which Landlord estimates will be
approximately $130 per space per month). All such spaces ("Tenant's Parking
Spaces") are located in the lot adjacent to the Building until such time as
Landlord begins construction of a new building to be erected on such lot.
Landlord shall give Tenant sixty (60) days' written notice in advance of
commencing such construction and Tenant shall have removed all vehicles from
such lot on or before the date set forth in such notice. From and after the
date of such notice, Landlord shall use reasonable efforts to provide reasonably
equivalent and suitable substitute temporary parking space for
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Tenant's use and agrees that Tenant's Parking Spaces shall be made available at
a permanent location convenient to the Building, if, as and when same are
constructed, on the same terms and conditions as set forth herein. Each such
lot that Tenant shall use shall have valet parking services, which shall be
provided to Tenant, during hours to be determined by Landlord in its sole and
absolute discretion. The use of all such parking spaces shall at all times be
subject to Landlords reasonable rules, regulations and procedures.
ARTICLE 35
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Broker
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Section 35.01 Each party represents, warrants and covenants to the
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other party that there is no broker, finder, consultant or similar person
entitled to a commission, fee or other compensation in connection with the
consummation of the Lease and no conversations or prior negotiations were had by
such party or anyone acting on behalf of such party with any broker, finder, or
consultant or similar person concerning the renting of the Demised Premises.
Each party shall indemnify the other party against all costs, expenses, losses,
damages and liabilities, including attorneys' fees and costs, arising from any
claims for brokerage commissions, finder's fees or other compensation resulting
from or arising out of any conversations, negotiations or actions had by the
indemnifying party or anyone acting on behalf of the indemnifying party with any
broker, finder, consultant or similar person. The other party shall have no
liability for brokerage commissions arising out of an assignment or sublease by
the indemnifying party and the indemnifying party shall indemnify the other
party against all liability for brokerage commissions arising out of any such
assignment or sublease. The provisions of this Article 35 shall survive the
termination or expiration of this Lease.
ARTICLE 36
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Security Deposit
----------------
Section 36.01 Tenant has deposited with Landlord the sum of
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$65,748.00 as security for the full and faithful performance and observance by
Tenant of the terms, provisions and covenants of this Lease. In the event Tenant
fails to perform any of its obligations hereunder, Landlord may use, apply or
retain the whole or any part of such security to the extent required for the
payment of any amounts as to which Tenant is in default or of any amounts which
Landlord may expend or my be required to expend by reason of Tenant's default,
including, without limitation any damages or deficiency in reletting the Demised
Premises. In the event that Tenant shall have fully and faithfully complied with
all of the terms, covenants and conditions of this Lease, such security shall be
returned to Tenant after the Expiration Date and delivery of the Demised
Premises to Landlord in the condition required hereunder.
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Section 36.02 In the event of a sale or lease of the Premises and the
-------------
Building, Landlord shall have the right to assign or transfer the security to
the purchaser or lessee, as the case may be, whereupon Landlord shall be
released by Tenant from all liability for the return of such security. Tenant
covenants that it will not attempt to assign, assign or otherwise attempt to
encumber or encumber such security and that neither Landlord nor any successor
or assign of Landlord shall be bound by any such assignment or attempted
assignment, encumbrance or attempted encumbrance.
Section 36.03 In the case of every use, application or retention by
-------------
Landlord of all or any part of the security deposited pursuant to Section 36.01,
Tenant shall, on demand, pay to Landlord the sum so used, applied or retained
which shall be added to the security deposited hereunder so that the same shall
be replenished to its former amount, and any failure by Tenant to pay such sum
on demand shall constitute an Event of Default under this Lease.
Section 36.04 Landlord agrees that the security deposited hereunder
-------------
shall earn interest at a passbook savings rate. The interest accrued with
respect thereto shall be added to and constitute a part of the security
deposited hereunder, to be held and disposed of by Landlord in accordance with
the terms of this Article 36. All security deposited and not used, applied, or
retained pursuant to the terms of this Article 36 with respect to a default plus
any interest payable with respect to the sum deposited by Tenant on account of
the security deposited hereunder shall be paid to Tenant promptly after the
Expiration Date, less an amount equal to one percent (1%) per annum for
--- -----
Landlord's administrative costs in connection with the security deposited
hereunder.
Section 36.05 Tenant shall, concurrently with execution and delivery
-------------
of the Lease, and thereafter at any time upon request by Landlord, deliver to
Landlord a fully completed Form W-9 (Request for Taxpayer Identification Number
and Certification).
ARTICLE 37
----------
Miscellaneous
-------------
Section 37.01 Landlord shall have the right to erect a gate, chain or
-------------
other obstruction or to close off any portion of the Premises to the public at
any time to the extent necessary to prevent a dedication thereof for public use,
provided that such gate, chain or obstruction shall not prevent Tenant's ingress
to or egress from the Demised Premises.
Section 37.02 The submission by Landlord to Tenant of this Lease in
-------------
draft form shall be deemed submission solely for Tenant's consideration and not
for acceptance and execution. Such submission shall have no binding force and
effect, shall not constitute an option for the leasing of the Demised Premises,
and shall not confer any rights or impose any obligations upon either party. The
submission by Landlord of this Lease for execution by Tenant and the actual
execution and delivery thereof by Tenant to Landlord shall similarly have no
binding force and
-52-
effect on Landlord unless and until Landlord shall have executed this Lease and
a counterpart thereof shall have been delivered to Tenant.
Section 37.03 This Lease 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 abandoned or discharged, in whole or in
part, nor may any of its provisions be waived except by a written instrument
which (a) expressly refers to this Lease, (b) is executed by both parties hereto
and (c) is permissible under any Superior Mortgage, the Ground Lease and any
other Superior Lease.
Section 37.04 No vault, vault space or area is leased hereunder.
-------------
Section 37.05 If an excavation shall be made upon land adjacent to
-------------
the Building or shall be authorized to be made, Tenant shall afford the person
so authorized or so making to enter upon the Demised Premises for the purpose of
performing such work as such person shall deem necessary to preserve any wall or
the Building of which the Demised Premises are a part from damage and to support
same by proper foundation without claim for damage, indemnity or abatement of
rent, provided, however, that: (i) with respect to any excavation work being
performed solely by Landlord on land adjacent to the Building, Landlord shall be
liable for any damage to the Demised Premises caused by the gross negligence of
Landlord or Landlord's agent in performing such excavation; and (ii) to the
extent that such excavation work results in Tenant being unable to utilize the
Demised Premises in its entirety or if Tenant's access thereto is completely
precluded for a period in excess of five (5) consecutive Business Days, Fixed
Rent shall xxxxx from such sixth (6th) consecutive Business Day until such time
as Tenant is no longer prevented from obtaining such access or until such time
as Tenant may again utilize the Demised Premises, as the case may be.
Section 37.06 If any of the provisions of this Lease, or the
-------------
application thereof to any person or circumstance, shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
Section 37.07 For the purposes of this Lease and all agreements
-------------
supplemental to this Lease, unless the context otherwise requires:
(a) Reference to "termination of the Lease" and words of like import
------------------------
includes expiration or sooner termination of this Lease and the Term and the
estate hereby granted or cancellation of this Lease pursuant to any of the
provisions of this Lease or to law. Upon the termination of this Lease, the term
and estate granted by this Lease shall end at noon of the date of termination as
if such date were the Expiration Date and neither party shall have any further
obligation or liability to the other after such termination except (i) as shall
be expressly provided for in this Lease, and (ii) for such obligations as by
their nature or under the circumstances can
-53-
only be, or by the provisions of this Lease, may be, performed after such
termination and, in any event, unless expressly otherwise provided in this
Lease, any liability for a payment (which shall be apportioned as of such
termination) which shall have accrued to or with respect to any period ending at
the time of termination shall survive the termination of this Lease.
(b) The words "Tenant hereby indemnifies Landlord" and words of
----------------------------------
similar import shall mean that Tenant hereby agrees to and hereby does
indemnify, defend, and hold and save Landlord, Landlord's agents, New York
State, the City, EDC, UDC and any other Superior Lessor or any Superior
Mortgagee and their respective agents, employees, contractors, officers,
directors, shareholders, partners, trustees and principals (disclosed or
undisclosed), successors and assigns harmless from and against any and all cost,
liability, claim, damage, fine, penalty and expense, including, without
limitation, reasonable attorneys' fees and disbursements.
(c) Each term, covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent upon any of the other
terms of the Lease. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. In the event of any action, suit, arbitration, dispute or
proceeding affecting the terms of this Lease, no weight shall be given to any
deletions or striking out of any of the terms of this Lease contained in any
draft of this Lease and no such deletion or strike out shall be entered into
evidence in any such action, suit, arbitration, dispute or proceeding nor used
to interpret the intent of the parties nor given any weight whatsoever.
ARTICLE 38
----------
Renewal Option
--------------
Section 38.01 Provided that both at the time of the exercise of the
-------------
option contained in this Section 38.01 and at the time of the commencement of
the Renewal Term, no Event of Default shall have occurred and be continuing,
Tenant shall have the right to renew the term of this Lease for an additional
term of three (3) years, four (4) years or five (5) years (the "Renewal Term")
------------
commencing on the day immediately following the Expiration Date and ending on
(i) the last day of the month in which occurs the day immediately preceding the
eighth anniversary of the Rent Commencement Date, with respect to a three year
Renewal Term; (ii) the last day of the month in which occurs the day immediately
preceding the ninth anniversary of the Rent Commencement Date, with respect to a
four year Renewal Term; (iii) the last day of the month in which occurs the day
immediately preceding the tenth anniversary of the Rent Commencement Date, with
respect to a five year Renewal Term; ((i), (ii) or (iii) herein after referred
to as the "Renewal Term Expiration Date"), upon the same terms and conditions of
----------------------------
this Lease except as set forth in Section 38.02 hereof. If Tenant so elects to
renew the Term for the Renewal Term, Tenant shall give notice to Landlord of
such election on or before the date which is six (6) months prior to the
commencement of the Renewal Term. Such notice from Tenant shall specify the
length of such Renewal Term, it being hereby agreed that Tenant shall only
-54-
have the right to renew the Term for a full three (3) year, four (4) year or
five (5) year period.
Section 38.02 In the event that Tenant timely exercises such right
-------------
and provided that no Event of Default shall have occurred and then be continuing
hereunder, the Expiration Date of this Lease shall be automatically extended for
the Renewal Term as if the Renewal Term had been originally included in the
Term, provided, however, that (i) the Fixed Repayment shall continue to be due
and payable monthly throughout the Renewal Term at the same rate as provided in
Section 3.04 hereof (as the same may have been adjusted pursuant to Sections
------------
25.07 and 43.01 hereof); (ii) the terms of this Lease relating to Tenant's Work
(other than the Fixed Repayment) shall not be applicable to the Renewal Term;
(iii) Tenant shall have no right to renew the term of this Lease for any period
beyond the Renewal Term; (iv) Article 43 of this Lease shall be null and void
and of no further force or effect upon Tenant's election to renew this Lease for
the Renewal Term; and (v) annual Fixed Rent shall be as follows:
Period Amount
------ ------
Renewal Term Year 1 $252,033.96 per annum, payable in
equal monthly installments of
$21,002.83 each;
Renewal Term Year 2 $259,594.92 per annum, payable in
equal monthly installments of
$21.632.91 each;
Renewal Term Year 3 $267,382.80 per annum, payable in
equal monthly installments of
$22,281.90 each;
Renewal Term Year 4 $275,404.32 per annum, payable in
(if applicable) equal monthly installments of
$22,950.36 each; and
Renewal Term Year 5 $283,666.44 per annum, payable in
(if applicable) (if applicable) equal monthly installments of
$23,638.87 each.
-55-
ARTICLE 39
----------
Expansion Right
---------------
Section 39.01 A. Provided that no Event of Default shall have
-------------
occurred and be continuing, in the event that Landlord shall have a bona fide
third party (the "Third Party") apply to rent some or all of the space on the
-----------
fourth floor of the Building as shown by cross-hatching on Exhibit D annexed
hereto and made a part hereof (the "Expansion Space") at any time during the
---------------
Term, Tenant shall have a right to lease all of the Expansion Space on the terms
provided in this Lease, except that Fixed Rent shall be as set forth in clause B
of this Section 39.01. Landlord shall give Tenant written notice of such Third
-------------
Party's application for some or all of the Expansion Space. Landlord shall have
no obligations to perform work or pay for work or loan money to Tenant to
perform work in such space. Tenant shall have thirty (30) days from the date of
receipt of the notice from Landlord to give Landlord written notice of its
exercise of such right, as to which period time shall be of the essence. If
----------------------------
Tenant shall exercise its right within such thirty (30) day period, by amendment
hereto such space shall be added to the Demised Premises on the terms and
conditions set forth herein except that necessary modifications to this Lease,
including, without limitation, the Fixed Rent and Tenant's Proportionate Share,
shall be included in such amendment. Landlord and Tenant hereby agree to act in
good faith to promptly execute and deliver such amendment. In the event that
Tenant shall not exercise its right within such thirty (30) day period and
Landlord rents the Expansion Space to such Third Party or to any other party
applying to rent the same, then at such time, if any, as the Expansion Space
again becomes available for renting during the Term, Tenant shall have the right
to lease the Expansion Space as the terms and conditions set forth in this
Subparagraph A. In the event that Tenant shall not exercise such right within
thirty (30) days after notice from Landlord, as to which period time shall be of
----------------
the essence, then Tenant shall have no further rights with respect to the
-----------
Expansion Space.
B. Tenant shall pay Fixed Rent for the Expansion Space
as follows:
(a) For the period commencing on the date ("Expansion
---------
Space Commencement Date") which is the earlier to occur of (x) ten (10) days
-----------------------
after Tenant gives notice of exercise of its right to lease such space hereunder
or (y) the date that the amendment is executed by and delivered to both parties
thereto, through the Expiration Date, at the same rate per square foot as Tenant
shall be paying for the original Demised Premises. In the event that during such
period the Fixed Rent for the Demised Premises shall increase pursuant to this
Lease, then Tenant shall pay such increased rate per square foot for the
Expansion Space.
(b) Fixed Rent shall be paid in accordance with the
terms of this lease, including, without limitation, Article 3 hereof.
-56-
Section 39.02 Provided that no Event of Default shall have occurred
-------------
and be continuing, at such time as Landlord shall commence the leasing of the
building known or to be known as the Audubon Business and Technology Center
Phase II ("Audubon II") to bonafide third parties, Tenant shall have the right
----------
to all of the rentable space on the fifth floor of Audubon II (the "Fifth
-----
Floor") on terms and conditions set forth in this Section 39.02. Landlord shall
----- -------------
give Tenant written notice (the "Fifth Floor Notice") that such leasing has
------------------
commenced, setting forth the terms and conditions (including the rental rate per
rentable square foot which shall be at a rate comparable to the rate offered to
other tenants, and the term of the letting) of the leasing of the Fifth Floor
offered to Tenant. Tenant shall have thirty (30) days from the date of receipt
of the notice from Landlord to give Landlord written notice of its exercise of
such right, as to which period time shall be of the essence. If Tenant shall
----------------------------
exercise such right within the requisite time period, Landlord and Tenant shall
enter into a lease of the Fifth Floor substantially similar to the terms and
conditions of this Lease, which lease shall incorporate the terms and conditions
set forth in the Fifth Floor Notice as well as other terms and conditions as
agreed to by Landlord and Tenant. In the event that Tenant shall not exercise
such right within the requisite time period then Tenant shall have no further
rights with respect to the Fifth Floor.
ARTICLE 40
----------
Intentionally Deleted
---------------------
ARTICLE 41
----------
REA/Security
------------
Section 41.01 Tenant acknowledges that pursuant to the REA, the City,
-------------
EDC and Landlord have granted each other certain mutual easements for access,
ingress and egress in and to the Premises in order to conduct and perform
certain maintenance, repair and security obligations which are common to the
parties thereto. In particular, the City, EDC and Landlord have agreed to devise
and implement an integrated security system for certain areas of the Premises
from which tenants of the Building will derive some benefit.
Section 41.02 The parties hereto expressly understand and agree that
-------------
Landlord's obligations under the REA, including, without limitation, those
relating to the provision of security under Section 4.02 of the REA, shall not
(i) create (or create the inference of or be deemed to create) an affirmative
obligation on Landlord's part or on the part of the City or EDC to provide any
security, alarm or other system or protection to Tenant hereunder or thereunder
or (ii) create or imply any right of Tenant under this Lease or the REA to
receive any such security. Tenant shall have no claim against Landlord,
Landlord's agents, the City or EDC nor shall Landlord, Landlord's agents, the
City or EDC be liable to Tenant for any injury to persons or property arising
from Landlord's action or failure to act in connection with its obligations
under the REA.
-57-
ARTICLE 42
----------
Index of Definitions
--------------------
"Additional Rent", "Fixed Rent", and "rent" shall have the
--------------- ---------- ----
meanings set forth in Article 3.
"Additional Work" shall have the meaning set forth in Article 48.
---------------
"Alterations" shall have the meaning set forth in Section 25.01.
-----------
"Assignee Security" shall have the meaning set forth in Section 24.03.
-----------------
"Audubon II" shall have the meaning set forth in Section 39.02.
----------
"Autoclave Specifications" shall have the meaning set forth in
------------------------
Section 26.10.
"Base Year" shall have the meaning set forth in Section 33.03.
---------
"Broker" shall have the meaning set forth in Section 35.01.
------
"Building Equipment" shall mean all machinery, apparatus, equipment,
------------------
personal property, fixtures and systems of every kind and nature whatsoever now
or hereafter attached to or used in connection with the operation of maintenance
of the Building, including all electrical, heating, mechanical, sanitary,
sprinkler, utility, sewage, drainage, power, plumbing, cleaning, fire
prevention, refrigeration, ventilating, air cooling, air conditioning, elevator,
communication (including telephone, telegraph, teleregister, and pneumatic tube
dispatch) and escalator systems, apparatus and equipment and any and all
renewals and replacements of any thereof, whether presently installed or
installed after the date of this lease, but excluding, however, (i) Tenant's
Property, (ii) property of any other tenant, (iii) property of contractors
servicing the Building and (iv) improvements for water, gas, steam and
electricity and other similar equipment owned by any public utility company or
any governmental agency or body.
"Building" shall have the meaning set forth in the recitals.
--------
"Business Days" shall mean weekdays, other than those weekdays
-------------
which are legal holidays observed by the City of New York.
"City" shall mean the City of New York.
----
"Commencement Date" shall have the meaning set forth in Section 1.03.
-----------------
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"Construction Loan" shall have the meaning set forth in Section
-----------------
25.07.
"Default-Interest Rate" shall have the meaning set forth in
---------------------
Section 3.05.
"Deficiency" shall have the meaning set forth in Section 11.03.
----------
"Demised Premises" shall have the meaning set forth in the recitals.
----------------
"DHH Specifications" shall have the meaning set forth in Section 6.01.
------------------
"EDC" shall have the meaning set forth in the recitals.
---
"Environmental Legal Requirements" shall have the meaning set forth
--------------------------------
in Section 8.02.
"Event of Default" shall have the meaning set forth in Section 10.01.
----------------
"Expansion Space" shall have the meaning set forth in Article 39.
---------------
"Expansion Space Commencement Date" shall have the meaning set
---------------------------------
forth in Article 39.
"Expiration Date" shall have the meaning set forth in Section 1.02.
---------------
"Fifth Floor" shall have the meaning set forth in Section 39.02.
-----------
"Fifth Floor Notice" shall have the meaning set forth in Section
------------------
39.02.
"Force Majeure" shall have the meaning set forth in Section 31.02(b).
-------------
"Grant" shall have the meaning set forth in Section 25.07.
-----
"Ground Lease" shall have the meaning set forth in the recitals.
------------
"Hazardous Materials" shall have the meaning set forth in
-------------------
Section 8.01.
"Insurance Requirements" shall mean all requirements of the Ground
----------------------
Lease or of any insurance policy covering or applicable to all or any part of
the Premises, the Demised Premises, the Building or the use thereof to the
extent applicable to Tenant's use or occupancy thereof, all requirements of the
issuer of any such policy of which Tenant has been notified in writing and all
orders, rules, regulations, recommendations and other requirements of the New
York Board of Fire Underwriters or the Insurance Service Organization or any
other body exercising the same or similar functions and having jurisdiction or
cognizance of all or any part of the Premises, the Demised Premises or the
Building.
"Interest Rate" shall have the meaning set forth in Section 3.04.
-------------
-59-
"Landlord" shall mean only the owner at the time in question of the
--------
present Landlord's interest in the Lease or the Building and in the event of a
sale or transfer of the Building (by operation of law or otherwise): (a) the
grantor or other transferor, as the case may be, shall be (to the extent of the
interest in or portion of the Building or the Lease sold or transferred)
automatically and entirely released and discharged, from and after the date of
such sale or other transfer of all liability in respect of the performance of
any of the terms of this Lease on the part of Landlord thereafter to be
performed; (b) the purchaser or other transferee (collectively "Transferee")
----------
shall be deemed to have assumed and agreed to perform, during and in respect of
the Transferee's period of ownership of the Landlord's interest under this
Lease, all of the terms of this Lease on the part of the Landlord to be
performed; and (c) the Transferee shall have all rights of the Landlord under
this Lease.
"Legal Requirements" shall have the meaning set forth in Section 8.01.
------------------
"Person" shall mean any individual, corporation, partnership, joint
------
venture, estate, trust, unincorporated association, any federal, state, county
or municipal government, or any bureau, department or agency thereof and any
fiduciary acting in such capacity on behalf of any of the foregoing.
"PILOT Year" shall have the meaning set forth in Section 33.03.
----------
"Plan" shall have the meaning set forth in Section 4.01.
----
"Premises" shall have the meaning set forth in the recitals.
--------
"REA" shall have the meaning set forth in Section 1.01.
---
"Rent Adjustment Date" shall have the meaning set forth in
--------------------
Section 3.03.
"Renewal Term" shall have the meaning set forth in Section 38.01.
------------
"Renewal Term Expiration Date" shall have the meaning set forth
----------------------------
in Section 38.01.
"Special Permit" shall have the meaning set forth in Section 4.01.
--------------
"Successor Owner" shall have the meaning set forth in Section 20.02.
---------------
"Superior Lessor" shall mean the City or any other lessor under
---------------
any other Superior Lease.
"Superior Lease" shall mean all present and future ground leases,
--------------
operating leases, superior leases, overriding leases and underlying leases,
including, without limitation, the Ground Lease, covering all or any part of the
Demised Premises and all renewals, modifications, replacements and extensions of
any of the above, provided that Tenant has received a true and
-60-
correct copy of any such instrument.
"Superior Mortgage" shall mean all mortgages and building loan
-----------------
agreements, including, without limitation, leasehold mortgages and spreader and
consolidation agreements, which may now or hereafter affect the Premises, the
Building, the Demised Premises or any Superior Lease and all renewals,
modifications, replacements and extensions of any of the above, provided that
Tenant has received a true and correct copy of any such instrument.
"Superior Mortgagee" shall mean the holder of any Superior Mortgage.
------------------
"Tax Year" and "Taxes" and "Impositions" shall have the meanings given
-------- ----- -----------
them in the Ground Lease or as set forth in Section 33.04, as applicable.
"Tenant" shall have the meaning set forth in the recitals and,
------
as applicable, the meaning set forth in Section 10.04.
"Tenant's Parking Spaces" shall have the meaning set forth in
-----------------------
Section 34.01.
"Tenant's Property" shall mean all fixtures, trade fixtures, stock-in-
-----------------
trade, furniture, partitions and other property (i) installed, leased or
purchased at the sole expense of Tenant, (ii) with respect to which Tenant has
not been granted any credit or allowance by Landlord, and (iii) which are
removable without material damage to the Demised Premises.
"Tenant's Proportionate Share" shall have the meaning set forth in
----------------------------
Section 33.02.
"Tenant's Work" shall have the meaning set forth in Section 3.04.
-------------
"Term" shall have the meaning set forth in Section 1.02.
----
"Termination Date" shall have the meaning set forth in Section 43.01.
----------------
"Termination Notice" shall have the meaning set forth in
------------------
Section 43.01.
"Termination Payment" shall have the meaning set forth in
-------------------
Section 43.01.
"Third Party" shall have the meaning set forth in Section 39.01.
-----------
"UDC" shall mean the New York State Urban Development Corporation.
---
"Warrant" shall have the meaning set forth in Article 44.
-------
-61-
ARTICLE 43
----------
Termination Right
-----------------
Section 43.01 Notwithstanding any provision in this Lease to the
-------------
contrary, Tenant shall have the right to terminate this Lease as of a date
("Termination Date") on or after the third anniversary of the Commencement Date,
----------------
but prior to the Expiration Date of the initial five year Term, upon not less
than six (6) months' prior written notice (the "Termination Notice") to
------------------
Landlord, which notice may be given at any time on or after the date which is
thirty (30) months following the Commencement Date and which Termination Notice
shall specify the Termination Date. Tenant shall, at the time of the giving of
the Termination Notice, pay to Landlord an amount ("Termination Payment") equal
-------------------
to the product obtained by multiplying (i) the annual Fixed Repayment by (ii) a
fraction the numerator of which is the number of months (including any partial
months) remaining in the initial five year Term and the denominator of which is
12.
Section 43.02 Upon (i) the giving by Tenant to Landlord of the
-------------
Termination Notice and (ii) the payment of the Termination Payment, and provided
that at the time of giving of the Termination Notice and on the Termination Date
there shall be no Event of Default: (a) this Lease shall expire on the date
specified in such notice as fully and Completely as if such date were the date
set forth in this Lease as the date of the expiration of the term of this Lease;
(b) all Fixed Rent, Additional Rent and Fixed Repayment shall be apportioned to
such Termination Date (an no further payments of Fixed Rent, Additional Rent and
Fixed Repayment shall thereafter be due); and (c) Tenant shall; on or before the
Termination Date, quit, surrender and vacate the Demised Premises in accordance
with Article 19 hereof, but such action by Tenant shall be without prejudice to
or effect upon Landlord's rights that shall have then accrued under this Lease.
Section 43.03 Upon Tenant's exercise of its option to renew the Term
-------------
of this Lease as set forth in Article 38 of this Lease, the provisions of this
----------
Article 43 shall be null and void and no further force and effect.
----------
ARTICLE 44
----------
Equity Participation
--------------------
Section 44.01 As further consideration for Landlord entering into
-------------
this Lease, Tenant has delivered to Landlord that certain Warrant for the
Purchase of Shares of Common Stock, dated June 21, 1996 (the "Warrant"), in form
-------
satisfactory to Landlord, including, without limitation, provisions for
piggyback registration rights with respect to the shares of common stock issued
upon the exercise of the Warrant, whereby Landlord shall have the option,
exercisable at any time during the term hereof (including the Renewal Term), to
purchase 10,000 shares of common stock of Tenant for the purchase price of $1.00
per share. Tenant hereby acknowledges that the delivery to Landlord of such
Warrant or the exercise by Landlord of any rights pursuant
-62-
to such Warrant does not and will not create any partnership or joint venture
between the parties and does not and will not diminish any of the rights of
Landlord, as landlord, pursuant to this Lease.
ARTICLE 45
----------
Human and Animal Research
-------------------------
Section 45.01 A. Human subjects and live and whole dead animals
-------------
(including, without limitation, live and whole dead mice and rats) may not be
used in research at the Building by Tenant or any assignee, subtenant, licensee,
agent, employee or contractor of Tenant.
B. In the event that Tenant at any time during the
Term (including any Renewal Term) shall desire to (a) use or permit the use of
human subjects or live or whole dead animals for research at the Building or (b)
use or permit the use of any of the facilities of Landlord to house any live or
whole dead animals, Tenant shall forward a request with appropriate back- up
documentation, including, without limitation, a detailed description of Tenant's
proposed research, to Landlord at the address set forth in Article 29 hereof.
Upon receipt of such notice and back-up documentation, Landlord shall review
such request, provided, however, that Landlord shall, in its sole and absolute
discretion, have no obligation to consent to Tenant's request.
ARTICLE 46
----------
Payment for Tenant's Work
-------------------------
Section 46.01 Provided that Tenant shall not be in default hereunder
-------------
(or if Tenant shall be in default, such default shall have been cured so as not
to become an Event of Default), Landlord shall pay Tenant not more often than
monthly, up to a maximum aggregate amount of the Grant and the Construction
Loan, for amounts actually incurred by Tenant to install or construct Tenant's
Work. As a condition precedent to each such payment, Landlord shall receive (i)
a requisition from either (a) the Tenant's construction manager for work and
materials incorporated into the Demised Premises covering all services, labor
and materials theretofore furnished in connection with Tenant's Work or (b)
Tenant's architect, engineer or Tenant's representative observing the
performance of Tenants Work for services provided in connection with Tenant's
Work, at least equal in amount to the portion of the Grant and/or the
Construction Loan that is being applied for, (ii) if the requisition is for work
set forth in Subparagraph (i)(a) above, (1) a certificate from the Tenant's
architect that the work for which payment is requested has been completed, and
(2) a certificate from the Tenants construction manager that all prior payments
made by Landlord to Tenant have been for payments made by Tenant to contractors
-63-
and/or subcontractors for performance of the Tenant's Work, and provided,
--------
further, that if the requisition is for work set forth in Subparagraph (i)(a)
-------
above, (x) all Tenant's Work theretofore completed shall have been constructed
in accordance with the Plans and Specifications therefor, and Landlord and
Tenant shall have agreed in writing to that effect, and (y) Landlord shall have
received copies of all required approvals, permits and certificates for the
Tenant's Work from all governmental authorities having jurisdiction. It is
expressly understood that the requirements of this Article 46 are solely for the
----------
benefit of Landlord and Tenant and that no contractor, subcontractor,
materialman or other person (including, without limitation, Tenant's architect)
shall have or acquire any claim against Landlord as a result of any failure of
Landlord actually to obtain the evidences, certifications or other documentation
provided for herein. No portion of the Grant or the Construction Loan shall vest
in Tenants and under no circumstances shall Tenant sell, transfer, assign,
pledge, hypothecate, or otherwise encumber all or any portion of the Grant or
the Construction Loan or any purported interest therein. Landlord hereby agrees
that the Grant shall be completely disbursed prior to Landlord's disbursing
proceeds of the Construction Loan to Tenant pursuant to this Article 46.
ARTICLE 47
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Additional Provisions
---------------------
Section 47.01 Landlord represents and warrants to Tenant that on the
-------------
Commencement Date (x) the plumbing, heating, electrical, lighting, fire
protection and all other systems in the Building up to the Demised Premises
shall be in working order and repair, provided, however, that Tenant shall be
solely responsible (with appropriate consent of Landlord if required) for
installing and maintaining all such systems within the Demised Premises in
working order; (y) the Demised Premises will be in vacant and broom-clean
condition; and (z) there will be no leaks in the ceilings of the Demised
Premises. Notwithstanding anything contained in this Lease to the contrary,
Landlord agrees that, promptly after the substantial completion of Tenant's
Work, upon notice by Tenant, Landlord shall provide the cleaning services in
accordance with the specifications annexed hereto as Exhibit C at no charge to
Tenant.
Section 47.02 Landlord represents and warrants to Tenant (i) that
-------------
except as may be provided in the Ground Lease, the REA or the Special Permit,
Landlord has the full right and lawful authority to lease the Demised Premises
to Tenant upon the terms and conditions set forth in this Lease and no joinder,
approval or consent of any other party is required with respect to Landlord's
rights and authority to enter into this Lease and to perform its obligations
hereunder and (ii) that as of the date hereof, the only Superior Leases and
Superior Mortgages encumbering the Building is the Ground Lease and the only
other matters to which this Lease is subject and subordinate are the REA and the
Special Permit, that to the best of Landlord's knowledge, no defaults by any
parties exist under any such documents and that true, correct and complete
copies of such documents have been given to Tenant.
-64-
Section 47.03 Landlord hereby waives any express, implied or
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statutory lien against Tenant's Property.
Section 47.04 Landlord shall endeavor to apply all policies and
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procedures of Landlord (including, without limitation, Landlord's Joint
Radiation Safety Committee and Landlord's Office of Environmental Health and
Safety) in such a manner as not to discriminate against Tenant.
ARTICLE 48
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Additional Work
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Section 48.01 As part of Tenant's Work, Tenant hereby agrees to
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repair the sprinklers and level the floors in the Demised Premises (the
"Additional Work"). Landlord shall reimburse Tenant for such Additional Work up
----------------
to a maximum amount of $20,000.00, in accordance with Article 46 hereof. Tenant
acknowledges that such amount is included in, and is not in addition to, the
Grant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
day and year first above written.
LANDLORD: THE TRUSTEE; OF COLUMBIA UNIVERSITY IN THE
-------- CITY OF NEW YORK
By: [Signature Illegible]
--------------------------------------
Name:
Title:
TENANT: MELVILLE BIOLOGICS, INC.
------
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President, CFO
[Duly authorized officer]
-65-
Exhibit A
[Floor Plan Appears Here]
Exhibit B
List of Drawings:
----------------
Number Revision Date Title
T-0 06/05/96 Title Sheet
T-1 06/05/96 Specifications & Abbreviations
T-2 06/05/96 Specifications
T-3 06/05/96 Specifications
A-1 06/05/96 5th Floor Plan
A-2 06/05/96 5th Floor Reflected Ceiling Plan
A-3 06/05/96 Interior Elevations
A-4 06/05/96 Interior Elevations and Cabinet Details
A-5 06/05/96 Cabinet Details
A-6 06/05/96 Lab Bench Elevations
A-7 06/05/96 Lab Bench Elevations
A-8 06/05/96 Construction Details
A-9 06/05/96 Room Finish Schedule
A-10 06/05/96 Door Schedule and Details
F-1 06/05/96 5th Floor Furniture and Equipment Plan
M-1 06/05/96 HVAC Fifth Floor Plan
M-2 06/05/96 HVAC Schedules, Details and Notes
M-3 06/05/96 HVAC Specifications Sheet #1
M-4 06/05/96 HVAC Specifications Sheet #2
E-1 06/05/96 Symbol List, General Notes, and Riser Diagram
X-0 00/00/00 Xxxxx Xxxxx Lighting Plan
X-0 00/00/00 Xxxxx Xxxxx Power and Signals Plan
E-4 06/05/96 Electrical Schedules
E-5 06/05/96 Electrical Specifications
P-1 06/05/96 Plumbing Symbols, Notes, Details and Part Risers
-B-1-
P-2 06/05/96 Plumbing Specifications
P-2A 06/05/96 Plumbing Specifications
P-3 06/05/96 Fifth Floor Plumbing Plan
SP-1 06/05/96 Sprinkler Notes, Details and Riser Diagram
SP-2 06/05/96 Fifth Floor Sprinkler Plan
SP-3 06/05/96 Sprinkler Specifications
-B-2-
EXHIBIT C
Cleaning Specifications
-----------------------
AUDUBON BUSINESS AND TECHNOLOGY CENTER
--------------------------------------------------------------------------------
GENERAL
a. Bathrooms and restrooms
Daily:
- Wash all mirrors
- Wash all basins and hardware
- Wash urinals
- Wash toilet seats using disinfectant in water
- Wash toilet bowls
- Damp-wipe, clean and disinfect all tile surfaces
b. Dusting
(1) All furniture, business equipment and appliances, windowsills and the
like will be dusted daily with a chemically treated cloth. Desks and
tables not cleared of paper and work materials will only be dusted
where surface is exposed.
(2) Monthly:
Pipes, ledges, ceiling, moldings, picture frames and anything
decorative above hand-high areas will be cleaned.
c. Dust-mopping floors
(1) Daily: All noncarpeted floor areas will be dust-mopped with a treated
yarn dust mop. Floor-dusting will be done after furniture has been
dusted.
d. Waste paper
(1) Waste baskets to be emptied daily.
e. Vacuuming
(1) All rugs and carpets in office areas, as well as public spaces, are to
be vacuumed daily in all traffic areas. Corners, hard-to-reach places,
and areas under desks,
-C-1-
tables and chairs will be vacuumed weekly, using accessory tools as
required.
f. Carpet cleaning
(1) semiannually: All carpeted areas in public corridors will be shampooed
once every six months.
g. Stairways and landings
(1) All stairways and landings will be dust-mopped with a treated yarn
dust mop daily. Railings, ledges, and equipment will be dusted weekly.
Spot cleaning of walls and doors will be done weekly; these areas will
be damp-mopped weekly and scrubbed when necessary.
h. wet mopping
(1) daily, as needed: Floors will be scrubbed or wet-mopped whenever
required to prevent a build-up of wax.
i. Tile floors
(1) Waxing and buffing will only be done on an as-needed basis.
j. Water coolers or fountains
(1) Water coolers or fountains will be cleaned and polished daily.
k. Spot cleaning of vertical surfaces
(1) Walls and woodwork will be spot-cleaned weekly.
l. Entrance lobby
(1) daily: The entrance lobby will be cleaned daily. Lobby glass and metal
will be cleaned and dusted daily. The lobby floor and entranceways
will be cleaned nightly. Directory board glass will be damp-cleaned
and wiped.
m. Polishing
(1) monthly: Door plates, kick plates, and brass and metal fixtures within
the building will be wiped daily and polished monthly.
-C-2-
n. Light fixtures-periodically
(1) annually: the exterior of all light fixtures will be dusted as needed.
The entire light fixture will be washed annually.
o. Venetian blinds
(1) weekly, annually: Venetian blinds will be dusted weekly and washed
annually.
x. Xxxxx, woodwork and partitions
(1) weekly, quarterly, semi-annually: Finger and hand prints, spots and
other grimy areas will be removed weekly using a damp cloth or sponge.
All walls and ceilings will be brushed down with an approved wall
duster or a vacuum cleaner every three months. Partitions of wood or
steel will be washed with a neutral soap every six months.
q. Glass partitions and doors
(1) weekly: All glass partitions and doors will be damp-cleaned weekly or
as needed.
r. HVAC grills
(1) monthly: All areas around HVAC outlet and return air grill will be
cleaned once a month.
Window Washing
Inside and outside window washing will be scheduled four times a year
(quarterly). However, first-floor windows will be washed outside once a
month, unless the space is occupied by retail tenants.
Trash Removal
(1) daily:
a. Trash will be removed from the premises daily between the hours
of 10:00 p.m. and 7:00 a.m., Monday through Friday.
b. Trash pickup will be scheduled through the building engineer or
management.
-C-3-
EXHIBIT D
[FLOOR PLAN APPEARS HERE]
Exhibit E
[Floor Plan Appears Here]